R. v. Skakun Date:, 2011 BCPC 98

Citation: R. v. Skakun Date: 20010524 2011 BCPC 0098 File No: 30095-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRIAN SKAKUN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. BALL Counsel for the Crown: J. Doulis Counsel for the Defendant: J. Duncan Place of Hearing: Prince George , B.C.

Date of Judgment: May 24, 2011 Introduction [ 1 ] THE COURT: Brian Skakun is charged with a breach of s. 30.4 of the Freedom of Information and Protection of Privacy Act , R.S.B.C., ("the Act") which reads: An employee, officer or director of a public body or an employee or associate of a service provider who has access, whether authorized or unauthorized, to personal information in the custody or control of a public body, must not disclose that information except as authorized under this Act. [ 2 ] Mr.

Skakun admitted, while testifying, that he personally delivered to the Canadian Broadcasting Corporation a confidential and privileged workplace harassment report prepared for the administration of the City of Prince George by the late Kitty Heller, hereinafter called "the report". [ 3 ] The report was received by Mr. Skakun in a closed, restricted council meeting of the city council of the City of Prince George. I find as a fact that the report contained "personal information" about a number of persons, as the phrase "personal information" is defined in

Schedule 1, as provided in s. 1 of the Act . [ 4 ] Brian Skakun was elected to hold the office of councillor of the City of Prince George in civic elections held in 2005. He swore

an oath of office, which oath included the following phrases: I am qualified to hold the office of councillor of the City of Prince George to which I have been elected . . . And: I will faithfully perform the duties of my office and will not allow any private interest to influence my conduct in public matters. [ 5 ] That oath of office is defined in the Community Charter , R.S.B.C., as an oath or affirmation of office, s. 120. I find Mr.

Skakun was the holder of an office in the City of Prince George. [ 6 ] As a result of written complaints made by two individuals, both employees of the City of Prince George, the administration of the city, in accordance with labour relations practice, retained a lawyer. The late K.J.

Heller, a respected legal specialist in employment and labour matters, was retained on the 8 th day of January, 2008, to conduct a confidential harassment complaint investigation and to report thereon to assist the administration of the city with and potentially resolve the complaints. [ 7 ] The conclusion of her investigation was the report. Ms. Heller sent the report to the administration staff of the city in a letter marked "personal and confidential", dated February the 12 th , 2008.

The administration staff took steps to maintain the confidentiality of the report, because it contained extensive "personal information" of named individuals. [ 8 ] Pursuant to the Act and sound labour relations practices, the City of Prince George was prohibited from disclosing "personal information" to the public. Administration staff provided persons mentioned in the report with opportunities to read and review the report, but did not permit those persons to copy the report. Among the persons permitted to read the report were Sheri McLean-Smith, Linda Thompson, and Ann Bailey.

None of these persons were given a copy of the report. [ 9 ] The report was not given to nor considered by members of city council, in keeping with historical practice of the administration of labour relations in the City of Prince George. Labour relations matters, except for the formal signing of union labour contract settlements, were historically not the subject of council meetings in the City of Prince George.

City council did not involve itself in the business of hiring, firing or placement of city employees, which in the "City Manager System" used by Prince George was business conducted by the city manager and other senior members of the administration under the city manager. [ 10 ] The practice of city administration dealing with personnel matters without involvement of city council was supported by the evidence of Donald Basserman in his affidavit dated the 1 st day of December, 2010; Shirley Mae Gratton in her affidavit dated the 30 th day of November, 2010; Murry Krause in his affidavit dated the 2 nd day of December, 2010, and in his testimony before this court; Sherry Sethen in her affidavit dated November 29 th , 2010; and Donald Zurowski in his affidavit dated December 1 st , 2010. [ 11 ] Each of the foregoing individuals was an elected member of the city council of Prince George during the material period.

Each of the foregoing also testified they knew of no public interest in disclosing the report to the public. [ 12 ] A regular council meeting of the City of Prince George was held in council chambers at city hall on Monday, April 28 th , 2008. The council moved into a closed session almost immediately, and shortly thereafter Mr.

Skakun moved a motion that the administration be directed to provide a descriptive report to council summarizing the findings of the report at a subsequent meeting on May 12 th , 2008. [ 13 ] The requested descriptive report included a copy of the Heller Report which was given to the mayor and City councillors, including Mr. Skakun, for the purposes of consideration of the report in a closed restricted council meeting held May the 12 th , 2008. [ 14 ] The copy of the report which he received for the purposes of the May 12 th , 2008, meeting was marked by the administration of the city as "Attachment 4".

A copy of that report marked "Attachment 4" appeared in its entirety on the CBC website on the 19 th day of August, 2008. [ 15 ] Mr. Skakun testified that after receiving the report from the city administration for the purposes of the closed restricted council meeting, he personally delivered the report to "someone" at the CBC, and the report was subsequently posted on the website of the CBC for viewing by anyone with access to the Internet. Defences Advanced [ 16 ] Notwithstanding the admission by Mr. Skakun that he delivered the report to the CBC, four defences were advanced as follows:

a) that the Act and in particular the reference to "officer" in s. 30.4 does not include city councillor;

b) that the city failed to bring proceedings within the one-year limitation period provided in s. 74.1(6) of the Act;

c) whether a "whistleblower" defence applies to the facts of this case; and

d) a Charter of Rights and Freedoms notice was given pursuant to s. 2(

b) by counsel for the accused. No submissions for any Charter relief were made in the final submissions filed on behalf of the accused. This latter defence is therefore treated as abandoned. Steps of the accused as a city councillor

[ 17 ] A city councillor in British Columbia must take an oath of office.

Section 110 of the Community Charter specifies that the person will be disqualified from holding elected office if they fail to take the oath or affirmation of office within one year from the date of their election to office. [ 18 ]

Section 117 of the Community Charter confirms the duty of council members to: . . . keep in confidence information considered in any part of a council meeting or council committee meeting that was lawfully closed to the public, until the council or committee discusses the information at a meeting that is open to the public or releases the information to the public. [ 19 ]

Section 119 describes the length of the term of office of councillors and in subsection (2) specifies: A person who has delivered the oath or affirmation of office to the corporate officer in accordance with section 120(5) takes office

a) on the date referred to in subsection (1)(a), if delivery to the corporate officer is done before this time, and

b) otherwise, at the time of delivery. [ 20 ] Because of the submissions made by counsel for the accused in this case to the effect that his client was not an "officer" as that term is used in s. 30.4 of the Act , I am also producing ss. 120 and 121 of the Community Charter in their entirety as follows: Oath or affirmation of office 120

(1) A person elected or appointed to office on a council must make an oath or solemn affirmation of office within the following applicable time limit:

a) in the case of a person elected by acclamation, within 50 days after the date set for general voting day had an election by voting been required;

b) in the case of a person elected by voting, within 45 days after the declaration of the results of the election;

c) in the case of a person appointed to office, within 45 days after the effective date of the appointment.

(2) A council may, by bylaw, establish the oath or solemn affirmation of office for the purposes of this section, which may be different for the office of mayor and the office of councillor.

(3) If no bylaw under subsection (2) applies, the oath or solemn affirmation of office to be made is that prescribed by regulation.

(4) The oath or solemn affirmation of office must be made before a judge of the Court of Appeal, Supreme Court or Provincial Court, a justice of the peace, a commissioner for taking affidavits for British Columbia, the corporate officer or the chief election officer.

(5) Before a person takes office as a [municipal councillor], the person must produce the completed oath or affirmation, or a certificate of it, to the corporate officer. Resignation from office 121

(1) A council member may only resign his or her office by delivering a written resignation to the council at a council meeting or to the corporate officer at any time.

(2) A resignation is effective

a) from the date specified in the resignation, or

b) if no date is specified, from the time the resignation is delivered to the council or corporate officer, as applicable. [21] The Local Government Act of British Columbia specifies the qualifications for persons to be nominated for office and to beelected to hold office in local government, which is defined to mean the council of a municipality, in this case the City of Prince George.

The Local Government Act also defines "municipal public officer" as a member of a council and in so doing provides a limited statutoryimmunity from civil suit for the conduct in relation to action of municipal councillors; see s. 287. [22] The Legislature of British Columbia used the term "officer" in the phrase "municipal public officer" to designate a municipalcouncillor. [23] Counsel for the accused submitted in written argument and made oral argument during the course of the trial that the words"director", "officer" or "employee" used in s. 30.4 of the Act do not apply generally to city councillors in British Columbia and inparticular did not apply to his client, Mr.

Skakun. [24] None of the cases cited by defence counsel were of assistance. None of the cases made reference to provisions of the Act. Noneof the cases considered circumstances similar to the Act. In other words, the purposes of the Act set out in s. 2 were not considered in thecases cited. [25] The purposes of the Act include preventing the unauthorized collection, use or disclosure of personal information by publicbodies. The City of Prince George is a municipality and a "local government body" as defined in the Act. A "local government body" isincluded in the definition of "public body".

Disclosure of personal information by a public body is carefully regulated by the Act and isonly permitted by the head of the public body. [26] No release of the report in a complete or redacted form was ever authorized by the head of the public body for Prince George. Mr. Skakun was at no time the head of the public body which held the report and the personal information which it contained. [27] The Act applies to all records in the possession of the public body, s. 3.

In this case, I find that the report contained personalinformation about a number of individuals and that the report was a record in the possession of the public body which in this case wasthe City of Prince George. A public body may only release personal information about individuals which is in its possession through theprocesses set forth in the Act. Under s. 5 of the Act, an applicant may apply for the release of information in the possession of a publicbody.

The head of the public body must respond to the applicant and create a record of the application and of the response thereto. [28] In the case at bar, none of the processes specified in the Act for the release of personal information were followed.

The head ofthe public body, the city manager of Prince George, had no opportunity to review the report to determine what text, if any, from thereport could be the subject of a lawful release to an applicant. [29] On the facts of this case, the fact that when the report was given to the city councillors in Prince George for the purposes of areview at a closed restricted meeting of the Prince George City council, the report had not left the possession of the public body, as thatterm is defined in the Act. [30] Again, the only mechanism for the release of personal information in the possession of a public body is provided in the Actthrough the exercise of the jurisdiction of the head of the public body.

Nothing authorizes the release of personal information by acouncillor acting alone as an officer of the city. No other release by a public body of personal information is permitted by the Act. [31] Reading the Act as a whole and considering its express purposes, there is no basis in the stated policy of the Act or otherwise torestrict the meaning of the word "officer" so that it excludes city councillors.

City councillors occupying an office are defined as"municipal public officers" and are, as a result, officers of the public body. [32] I find that city councillors are officers of the public body for the purposes of the Act and s. 30.4 thereof. To find otherwisewould be to permit councillors to commit the very mischief that the Act is designed to prevent. [33] In this case, I find as a fact that Mr.

Skakun was an officer of the public body in this case, the City of Prince George, with accessto personal information in the possession of the public body which he disclosed without authorization as provided in the Act. Has the Crown proven the date the disclosure of the report took place? [34] In part, this case turns on credibility and on the application of the presumption of innocence enshrined in s. 11(

d) of the Charterof Rights and Freedoms. This

section requires that no accused may be convicted unless all of the elements of the offence are provenbeyond a reasonable doubt. [35] It places the burden of proof on the Crown. The accused need not prove the existence nor the non-existence of a fact essential toguilt. [36] A criminal trial is not a credibility contest. The test is whether, on the totality of the evidence viewed as a whole, the Crown hasproven the offence charged beyond a reasonable doubt. [37] In accordance with the ruling of the Supreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 atpage 757, and in accordance with the instructions of the Court of Appeal of British Columbia in the case of R. v. H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146, I am required to analyze the evidence as follows: first, if I believe the evidence of theaccused which raises a defence, I must acquit; second, if I do not believe the testimony of the accused which raises a defence, but am leftin a reasonable doubt by it, I must acquit; third, as noted in R. v.

H.(C.W.), where I do not know whether to believe the accused or thecomplainant, I must acquit; and fourth, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the

basis of the evidence I accept, I am convinced beyond a reasonable doubt by the evidence of the accused's guilt. [ 38 ] As the defendant testified, the court is obliged to consider the instructions contained in R. v. W.(D.) and R. v. H.(C.W.) , which I have done in this case. [ 39 ] Mr. Skakun testified that he found certain pages of the report placed in his home mailbox. He testified that he had not seen or read the report at that time. He testified that several typed pages were accompanied by a handwritten note.

He was unable to identify particular pages from the report as pages which were placed in his mailbox. [ 40 ] He testified that he discarded the pages and the handwritten note at some unspecified date while cleaning his office. Mr. Skakun testified that despite finding some pages of the report in his home mailbox and knowing that the report was a confidential, privileged document which belonged to the City of Prince George, he did not tell anyone about receiving these pages of the report. [ 41 ] How was it that Mr. Skakun was able to identify the pages he received as coming from the report was not revealed.

He had not seen the report when he received the loose pages. No explanation of this anomaly was given. [ 42 ] The copies of the pages of the report were not marked in any special way. The only markings on the pages of the report were a simple page number on each page. [ 43 ] Mr. Skakun was not involved in retaining Ms. Heller to provide the report and had no source of knowledge concerning the scope of her investigation. He had no factual basis to enable him to identify the pages as being in the report.

Why he discarded such significant documents without regard for their potential importance was never explained. [ 44 ] There was no evidence which in any way could be considered confirmation or corroboration of the testimony of Mr. Skakun. His explanation that he was doing cleaning and discarded the pages is not credible. I give that explanation no weight. [ 45 ] For the reasons given above, I also reject his testimony that he was given the pages of the report with a handwritten note. [ 46 ] Mr. Skakun testified that he personally gave the report to "someone" at the CBC.

He could not remember the name of that someone, but it was an employee of the CBC. Mr. Skakun testified that he had dealt with reporters at the CBC for a number of years. He said he knew some of those persons well. [ 47 ] The delivery of the report was a significant event in Mr. Skakun's life. I do not accept this evidence that he could not identify or remember the "someone". The number of persons in the Prince George offices of the CBC designated as "reporters" would not be a large group. He testified that he had dealt with these reporters over a number of years in his political career.

He identified one as Betsy Trumpener, but was uncertain if he gave the report to her. [ 48 ] His evidence that he delivered the report to a person he could not identify nor remember lacks any air of reality. I do not believe him when he says he does not remember to whom he gave the report. [ 49 ] Mr. Skakun also testified that following the posting of the report on the Internet by the CBC, he phoned the CBC and spoke to "someone". It is not credible, when such a significant matter of concern happened, that Mr.

Skakun does not know the member of the staff of the CBC he spoke to on the telephone on August the 19 th , 2008, requesting the removal of the report from the website. [ 50 ] Mr. Skakun's statements that he did not know to whom at the CBC he gave the report or that he did not know to whom at the CBC he spoke to on the telephone were not reliable nor credible statements. I reject both statements and give them no weight whatsoever. [ 51 ] There was an apparent conflict between the testimony given by Mr. Skakun and Ms. Debora Munoz, also a city councillor.

She works as a clinical neurophysiologist in the University Hospital of Northern British Columbia studying brain function. Ms. Munoz was first elected to Prince George City Council in November of 2005 and again in 2008. She had been in an intimate relationship with Brian Skakun which ended in 2005. She had continued to have a positive personal and professional relationship with Mr. Skakun thereafter. [ 52 ] She was familiar with the need to protect confidential personal information in the medical field and as a city councillor.

A laptop computer was provided to her and all of the city councillors by the City of Prince George with a computer firewall, security key, and password required to obtain access to encrypted information on confidential agenda items placed before city council. [ 53 ] She viewed the matters raised in the report as internal personnel issues between city employees. These matters were the responsibility of the city manager and administrative staff.

Her evidence was consistent with all other counsellors who testified for the Crown to the effect that city council had a very limited role to play in personnel matters. [ 54 ] She testified that the council meeting on April the 28 th , 2008, began as an open meeting and quickly went into a closed session, at which time the administration was requested to provide a

summary of the findings of the report. [ 55 ] City council unanimously approved the motion brought by Mr. Skakun to obtain the

summary. This was the first knowledge or notice of existence of the report from Ms. Munoz. [ 56 ] She said that on May the 12 th , 2008, there was a closed restricted meeting of city council where a

summary of the report was given, and each councillor was given the report marked "Attachment 4". Ms. Munoz understood that the matters contained in the report were to be dealt with internally by the city manager and administration of the city, and that the confidential nature of the report was to continue to be observed by all councillors. [ 57 ] On Friday, September the 12 th , 2008, Mr. Skakun came to the hospital where Ms. Munoz worked and arranged to meet with her. At that meeting, agitated and distressed, he told Ms. Munoz that he had handed over the report to a person at the CBC. He had not

intended that the report be published, but it was published the next day on the CBC website. [ 58 ] She wrote notes of the conversation immediately after a patient consultation which followed her meeting with Mr. Skakun. She was quite surprised by his admission to her. She said he felt that he felt terrible about what he had done. [ 59 ] Because of the admission she had heard, she lived in a state of anguish for three months following the admission by Mr. Skakun.

In a subsequent meeting of city council held in August of 2008, there were ongoing discussions about an investigation to discover how the report was delivered to the CBC and by whom. Mr. Skakun attended that meeting and voted in favour of a motion to authorize the city manager to conduct an investigation into the unauthorized release of the report. [ 60 ] Mr. Skakun did not tell the city councillors present at that meeting that he was responsible for delivering the report to the CBC: see Exhibit 1, Tab 14. [ 61 ] Following a meeting of the city council on November the 3 rd , 2008, Ms.

Munoz spoke to him in private and encouraged him to confess to members of city council that he had given the report to the CBC. He refused and told her that his lawyer had told him not to admit anything. She told him she would be obliged to tell the truth if she was asked. He said if she said anything to authorities it would be "his word against hers".

The only inference to be drawn from "his word against hers" where he had admitted giving the report to the CBC, was that he would not be truthful in the future if confronted about the disclosure by him of the report. [ 62 ] His response made her so uncomfortable that she approached Murry Krause, another city councillor, and told him of the confession by Mr. Skakun of his disclosure of the report to the CBC. Mr. Krause offered to arrange a meeting with the then mayor and city manager. At the meeting with the mayor and city manager, Ms. Munoz repeated what she had been told by Mr. Skakun. Ms.

Munoz, the then mayor, and Mr. Bates agreed in evidence that the meeting was held. Ms. Munoz was mistaken as to the date of the meeting. [ 63 ] Having had the opportunity to watch Ms. Munoz give evidence, I found her evidence, subject to the incorrect meeting date, to be credible and reliable. She testified in a clear and straightforward manner. The notes she took were appropriate. I find she recorded the notes, the words spoken by Mr. Skakun in a clear and accurate manner. I find the quote that the CBC had published the report provided by Mr.

Skakun on its website the day after he delivered the report to the CBC was an accurate recording of his confession to Ms. Munoz. I find that where there is a conflict between the evidence given by Ms. Munoz and the testimony of Mr. Skakun, I accept the evidence of Ms. Munoz and I reject the testimony given by Mr. Skakun. [ 64 ] When Mr. Skakun gave evidence, he testified in chief that he delivered the report to the CBC in early August. Mr. Skakun did not say with any degree of certainty what date he disclosed the report to the CBC. His counsel led Mr.

Skakun through a series of documents to attempt to create a reliable memory for Mr. Skakun. The effect of leading the witness diminished any weight which this court might attribute to this testimony. The leading of the witness demonstrated that the witness did not know the date he released the report to the CBC. I find that to be the only reasonable inference from that portion of his examination in chief. [ 65 ] During cross-examination, Mr. Skakun did not sustain the position that he delivered the report in early August.

He stated that he could not remember the date when he delivered the report to the CBC. [ 66 ] His testimony does not support a conclusion that he delivered the report to the CBC in early August. [ 67 ] On Wednesday, August 13 th , 2008, Betsy Trumpener of the CBC, by email, Exhibit 1B, Tab 5, to Kathleen Soltis at the City of Prince George, requested information about the report.

She asked whether the city had received a report, whether the report had been reviewed by the city, and what were the conclusions in the report. [ 68 ] Had the CBC received the report before August 13 th , 2008, the request for information by Ms. Trumpener would not have been necessary. [ 69 ] On Thursday, August the 14 th , 2008, at 10:53 a.m., CBC published an article, Exhibit 1B, press clippings, Tab 6, on its website entitled "Top cop ordered to apologize for harassing workers". The

article contained a quote "from Wednesday" attributed to RCMP Staff Sergeant Tim Shields, a media liaison officer. No mention of the report was made in the article. [ 70 ] A further

article was published on the CBC website on August 14 th , 2008, at 4:38 p.m. with the same title as the earlier article. The

article also attributes a quote to Ken Corrigan, a complainant in the RCMP code of conduct investigation. This

article continues: But on Wednesday, CBC . . . obtained a copy of the RCMP's February decision on [several] complaints of harassment . . . by Corrigan. [ 71 ] The

article ends with the statement "With the files of Betsy Trumpener", but makes no mention of the report. [ 72 ] From August 15 th until August 19 th , 2008, there was no further media coverage on the matters related to this proceeding. [ 73 ] On Tuesday, August 19 th , the CBC website published an

article which stated: Now CBC has obtained a confidential report by . . . Kitty Heller . . . " [ 74 ] The

article also stated that:

City staff and the mayor all refused to comment when contacted by [the] CBC . . . on Monday. [75] August 18th, 2008, was a Monday. [76] The copy of the report downloaded from the website, Exhibit 1B, Tab 2, carried a fax header which indicated the report was in the possession of the CBC on Monday, August 18th, 2008. A number of witnesses testified to viewing the report on the CBC website on August 19th, 2008. [77] Based on the foregoing evidence, including the statements of Mr. Skakun recorded by Ms. Munoz, I find as a fact that Mr.

Skakun delivered the report to the CBC on August the 18th, 2008. [78] On August 15th, 2008, Mr. Skakun by email to Derek Bates asked for a closed meeting of city council to consider "the newsabout Dahl Chambers". City councillors Zurowski, Munoz, and Krause sent emails supporting the request by Mr. Skakun that the news about Dahl Chambers be placed on the agenda at the council meeting. Derek Bates on August the 18th, 2008, sent an email toMr.

Skakun and the mayor which stated: A restricted closed meeting of council will be held on Monday, August 25th, at which time an updated report from the administration willbe presented for council's consideration. In the interim, we caution that Sections 21 and 22 of the Freedom of Information andProtection of Privacy Act provide a framework by which public bodies must judge requests for information respecting the protection ofpersonal information of third parties. [79] Mr. Bates included copies of ss. 22(3) and 21(1) of the Act, Exhibit 4, an email marked DB3-37.

The privacy provisionscontained within the Act were brought to the attention of the mayor and councillors of Prince George by this email. [80] Based on my finding that Mr. Skakun delivered the report to the CBC on August 18th, 2008, and the fact that the information in this case was laid on August 14th, 2009, the information was laid within one year after the date on which the act or omission alleged toconstitute the offence occurred, as required by s. 74.1(6) of the Act. The whistleblower exception to the duty of loyalty and freedom of expression [81] Counsel for Mr.

Skakun submitted that his client was a "whistleblower" and therefore cannot be found guilty under the Act. Nocase authority was provided by counsel for Mr. Skakun to support the proposition that the civil whistleblower exception was available toMr.

Skakun in this quasi-criminal proceeding. [82] Whether or not such a defence is available, the whistleblower exception has been defined by the Supreme Court of Canadadealing with cases exclusively in the employer and employee relationship to require the applicant for whistleblower protection to provethe government was acting in an illegal capacity or that health and safety of others was being jeopardized by the conduct of thegovernment.

In order to rely upon the defence, an accused is also required to prove that he brought his concerns to the attention of theappropriate authorities and exhausted all of the internal recourses available to him prior to the disclosure of the confidential information. [83] Mr. Duncan in this case argued that his client was not an employee of the City of Prince George. Crown counsel agreed. IfMr. Skakun was not an employee, then he is not a whistleblower recognized in the existing civil case law. The case law has provided thebenefit of whistleblower status to employees.

That distinction is reflected in s. 30.3 of the Act. [84] The Supreme Court of Canada in Fraser v. Public Service Staff Relations Board, (SCC), [1985] 2 S.C.R. 455,contemplated a duty of loyalty by an employee only as part of the limited exceptions to that duty. This is known as the whistleblowerexception. However, before contemplating whether Mr. Skakun's conduct falls into one of these limited exceptions, it is imperative tonote that Fraser and the other whistleblower decisions consider situations of employer/employee relationships in the civil andadministrative area. [85] As Mr.

Skakun has been charged with a quasi-criminal offence under the Freedom of Information and Protection of PrivacyAct, it is highly unlikely that a civil defence or exception would be available to him. Indeed, as noted above, no authority on point tosupport his submission that this defence is available to Mr. Skakun has been produced. [86] In Fraser, the court found that government employees owed a duty of loyalty to their employers not to speak out publicly againstthe employers in certain situations, and that duty was found a justified limit on their freedom of expression.

Therefore, employees undera duty of loyalty or another oath of secrecy or confidentiality are entitled to break the duty or oath if they seek to expose an illegal act orif policies jeopardize the life, health or safety of others. [87] Mr. Skakun did not testify about any such act or any immediate jeopardy to the life, health or safety of others. The reportreleased to the media by Mr. Skakun was prepared by a well-regarded labour lawyer in Vancouver. There is nothing to suggest that theadministration of the City of Prince George acted in any way illegally in this situation. [88] I find it was not open to Mr.

Skakun to suggest that he had the right to disclose the document due to the "government illegality"exception in the whistleblower cases. Moreover, the life, health, and safety of others exception could not be, as a matter of fact, a basisfor the disclosure of the report. Although Mr. Skakun does not agree on how the city dealt with the situation with Ms. Bailey and theRCMP officer in charge, he would have had to put forth very persuasive evidence that the safety of the citizens of Prince George wasbeing jeopardized.

[89] In Read v. Canada, 2005 FC 798 at paragraph 69, Mr. Justice Harrington held that there must be more than a remote risk underthis exception and the risk of danger must be immediate. In Read, an RCMP officer released classified documents and information to themedia. The court considered whether ad additional exception, "legitimate public interest", was established in the case law. The RCMPofficer, Read, was an employee. The Read case also involved the disclosure of confidential documents to the media. [90] This "legitimate public interest" argument was advanced by counsel for Mr. Skakun.

Although Chief Justice Dickson in Fraserleft it open for the courts to find additional exceptions to the duty of loyalty, Justice Harrington did "not find that legitimate publicinterest at large is an exception to the duty of loyalty owed by an employee to his or her employer"; paragraph 109 in Read.

In coming tothis conclusion, Justice Harrington considered that the public does and should have an interest in the public affairs of this country and theoperation of government departments, and that the interest is accommodated in the Access to Information Act “which is itself balancedby the Privacy Act.” (Paragraph 110) [91] Mr. Skakun specifically violated a similar Act.

The Act is balanced by the Privacy Act, R.S.B.C. c. 373, thus protecting theprivacy of citizens and the intricate workings of government with the need for public accountability and access. [92] Justice Harrington stated: It falls upon a department head, not someone in Cpl. Read's position, to decide what may be publicly disclosed. To the extent there is adispute, that dispute is resolved in this Court in accordance with the provisions of the Act. (Paragraph 111) [93] The same principle applies to Mr. Skakun.

He had an opportunity to place a motion before city council asking that the report bedisclosed in accordance with the Freedom of Information and Protection of Privacy Act. He did not do so. He did not take a singlestep using internal processes to disclose the information he wished disclosed. He took it upon himself to disclose the report to themedia. By doing so, he ignored the safeguards and protection afforded by the Freedom of Information and Protection of Privacy Act. [94] In Merk v.

International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70,Justice Binnie stated whistleblowers must first exhaust internal recourses before making their concerns public. [95] Birnie, J. adopted the passage from Re Ministry of Attorney-General, Corrections Branch and British Columbia GovernmentEmployees' Union (1981), (BC LA), 3 L.A.C. (3d) 140 at page 163: . . . the duty of fidelity does require the employee to exhaust internal "whistle-blowing" mechanisms before "going public". [96] Therefore, Mr.

Skakun would first, before being able to use the whistleblower exception, have to prove that he had taken hisconcerns to the appropriate authority; for instance, the city manager of the City of Prince George. On the facts of this case, Mr. Skakundid nothing of the sort.

This fact defeats any argument in support of the whistleblower exception as advanced. [97] The submission by counsel for the accused that the city manager or any other member of the administration of Prince Georgewas engaged in a "cover up" of any labour relations problem, and in particular any problem raised by either of the complainants to thereport, is a suggestion without any basis in fact.

This submission is unsupported by any of the testimony in this case. [98] It is clear on the evidence, and I find as proven beyond a reasonable doubt, that the city manager and the human resources staffworking in the City of Prince George used existing policy and established sound labour relations practice in dealing with the complaintsbrought in this case, including the requisition and subsequent handling of the report. The testimony of city councillors called aswitnesses, including Mr. Skakun, as well as administration staff was unchallenged.

The evidence was clear that personnel relations wererarely, if ever, raised before city council.

Conclusion [99] Based on the evidence which I have heard in this case and the findings which I have made as noted above and in totality, as wellas a consideration of all of the submissions made by counsel and the case authorities cited by counsel therein, I find that the Crown hasproven beyond a reasonable doubt that Brian Skakun was, at the material time, an officer of a public body, as that term is used in s. 30.4of the Act. [100] I find that he delivered the report to the CBC on August the 18th, 2008. [101] I find that the "whistleblower" defence is not available generally in criminal or quasi-criminal cases, and in particular is notavailable on the facts of this case. [102] Mr.

Skakun, I find you guilty as charged. (REASONS CONCLUDED)