By Spencer Sterritt

Judge questions AG’s push to seal documents in legal battle over Nanaimo privacy breaches

Oct 1, 2018 | 5:44 PM

NANAIMO — How do you make private what has already been shared online for years?

It’s the question a Supreme Court of B.C. justice must consider in the ongoing court case of the attorney general versus Nanaimo councillor Gord Fuller and two others.

The attorney general’s office asked Honourable Justice Robin Baird on Monday, Oct. 1 to seal all documents involved in the petition against Fuller and two men over their continued refusal to delete confidential documents which were shared in person and online starting in 2015. The documents in question are a letter from Nanaimo mayor Bill McKay to a facilitator containing his opinions of other councillors, as well as legal letters about coun. Diane Brennan.

“If the horse has left comprehensively out of the barn, what do you want me to do about it?,” Baird asked provincial lawyer Michael Rankin. “The status quo seems to be these letters have been out and about and the subject of comment far and wide for some time.”

Rankin said the point of their order is to make sure all the confidential documents which will be exhibited in the hearing don’t get published online by three people who have proven they will share private information.

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“The courts have to do the best to maintain the confidentiality of materials such as it can,” Rankin said. “If our application is based on this being personal information, then we don’t want that to be recirculated.”

Under the order Rankin and the office of the attorney general are seeking, Fuller and the other respondents would be provided the case material after signing an oath they won’t then share what they were given. A publication ban on the exhibits during the hearing was also requested.

Though Monday’s hearing was about sealing the exhibit documents during the length of the court case, Fuller and the two respondents argued about the merits of the documents they shared, repeatedly saying they were in the public interest.

“This is about how government operates and how it’s trying to keep information hidden from the public for individual’s political gain,” Tim McGrath told Baird.

The privacy breaches led to a full investigation by the Office of the Information and Privacy Commissioner, which ruled all the leaks the respondents are associated with did contravene B.C.’s privacy legislation. 

The merits of their actions will be discussed at a scheduled injunction hearing on Nov. 5, where the attorney general’s office is seeking an order compelling the three to delete their Facebook posts and destroy any copies of the original confidential documents they own.

With the injunction hearing only roughly a month away, Baird pointedly asked Rankin what the point of sealing the documents would be.

After a roughly 50 minute hearing, Baird announced he reserved his decision until Tuesday after he’d had a chance to read the many legal documents submitted during the hearing.

Though court had adjourned for the day, the legal wrangling between the respondents and Rankin did not.

Fuller and the two others accosted Rankin outside the court room, asking why the attorney general was taking them to court and accusing them of meddling in Nanaimo politics.

It was a heated exchange for roughly 10 minutes, with Rankin visibly frustrated at the questioning.

It continued to the elevator and throughout the rest of the court house, finally ending when everyone went their separate ways outside.

A fourth respondent to the case didn’t appear in court on Monday after working with the attorney general’s office to resolve the matter personally. 

spencer@nanaimonewsnow.com

On Twitter: @spencer_sterrit