It was a day of nuanced legal arguments Thursday when a three-justice B.C. Court of Appeal panel was in Prince George to hear an appeal from Coun. Brian Skakun of his conviction of violating the Freedom of Information and Protection of Privacy Act.
At specific issue is whether an elected city council member should be considered an "officer" under the FOIPPA. If the panel decides he is not, Skakun's conviction for leaking a report on the work environment at the Prince George RCMP detachment to a local media outlet will be overturned.
Skakun's lawyer, Jon Duncan, has maintained his client should have been afforded protection from conviction as a so-called "whistleblower." But in May 2011, Provincial Court Judge Ken Ball concluded city councillors were officers of a public body for the purposes of the FOIPPA and fined Skakun $750 and in July 2012, B.C. Supreme Court Justice Selwyn Romilly upheld the decision.
However, in March 2013, Court of Appeal Justice Kathryn Neilson found the trial judge may have erred in law in concluding that a municipal councillor is an officer of a public body under the FOIPPA and granted leave to appeal the decision.
"I am persuaded the determination of this issue may have some broader importance as well, as it will be the first time this court will address the role of a municipal councillor in the context of the FOIPPA, and the result of an appeal may assist in defining the scope of that legislation as it pertains to municipal officers," Neilson added.
Over the course of nearly four hours on Thursday, Duncan and Crown prosecutor Lesley Ruzicka guided the panel through their written submissions, with Duncan arguing that the definition of officer under FOIPPA is "not precise and unequivocal."
He furthered argued the legislation was drafted that way because, in the case of municipal council members, the Community Charter already covers the matter. In an interview after the hearing, Duncan argued that had a prosecution against Skakun been brought under the Community Charter, "this would have been a very different case."
During submissions to the panel, Duncan argued a council member is not part of a municipal corporation but rather its political overseer.
"You have to take into his account his role to speak for and speak with the people and if they're going to take away his right to do that, they have to do it clearly," Duncan said.
In contrast, Rizucka argued that by necessity, the definition of officer under FOIPPA "must be broad and flexible enough to apply to all the public bodies that FOIPPA applies, in keeping with the broad purpose of FOIPPA."
Rizucka contended a narrow interpretation of the word "officer" would "lead to a perverse result and absurd consquence because it would mean that a municipal councilor or other elected official...would not be subject to FOIPPA or the offence provision of FOIPPA if they engaged in improper disclosure."
Much of the day was spent going over past cases and rulings related to the issue, almost all of them from out of province.
The panel of Justices Daphne Smith, Anne MacKenzie and David Harris reserved decision to a later date.
