As then Lead Co-Chair of the Victoria and Esquimalt Police Board, in June of 2015, I was made aware of a compromising Twitter exchange between then Chief Elsner and the wife of an officer under his command. Mayor Helps and I immediately retained the services of a lawyer and through our lawyer contacted the Police Complaint Commissioner.
The PCC decided that the Twitter exchange between Elsner and the wife of his subordinate on a VicPD account was a matter that did not raise an issue of public trust and was, therefore, appropriate to be dealt with by way of an internal discipline investigation and process to be conducted by Mayor Helps and I in our capacity as the designated discipline authorities under the Police Act for internal disciplinary matters involving the chief of police.
Mayor Helps and I were walked through the process by the PCC and our lawyer. On October 30, 2015, our lawyer advised us that the Deputy PCC had confirmed that “all steps taken to date [had] been appropriate”. That specifically included the limited disclosure that had been made to the Police Board.
We had the matter investigated by an independent investigator approved by the PCC. As a result of this investigation we ultimately found Mr. Elsner guilty of misconduct and imposed a letter of reprimand.
Internal discipline matters concerning the police, as in any workplace, are to be dealt with confidentially. That is why I stated “there is no investigation at this time”. The internal investigation and imposition of discipline had been completed at that point and was meant, as is the usual course, to remain confidential.
After the discipline issue we had recently concluded was leaked to the press, the PCC changed his mind and ruled that the matters we had investigated and imposed discipline for were indeed matters involving the public trust, after all. He then decided he would re-investigate and re-adjudicate those same matters under the public trust discipline process set out in the Police Act. By then he had also had other allegations of misconduct on the part of Chief Elsner to consider. Some of those other allegations came out of his reading of the evidence reported by our internal investigator, and others were brought straight to the PCC by the Police Union.
It is evident that between our internal discipline of Elsner on December 4, 2015 and the initial PCC press release December 18, 2015 things had significantly and rather quickly changed as a result of the additional allegations of misconduct on the part of Elsner that were then emerging.
The Chief Justice of the Supreme Court of BC later ruled that once the PCC determined that allegations of misconduct were not public trust matters, he could not later change his mind as he did in this case. The Chief Justice ruled that to do so would be an abuse of process. He suggested that there was an obvious need for finality.
The Court of Appeal on April 19th, 2018 overruled Chief Justice Hinkson and held that the PCC actually does have statutory authority to re-do an internal investigation and discipline process. The Court of Appeal did question whether such a re-investigation and re-adjudication was really necessary in this case. The Court of Appeal , well aware of all of the evidence that was before Mayor Helps and me, described the conduct as “an entirely consensual and short lived flirtation via Twitter involving a chief constable who is no longer employed by VicPD”.
Elsner has long since resigned. As early as April 18th, 2018, the PCC was in possession of the ruling from retired Judge Baird Ellan dismissing Elsner for misconduct that had not been brought before Mayor Helps and me. I am left wondering what more needed to be “done” after that point. In spite of Judge Baird Ellan’s formal dismissal of an officer, who had resigned long before her decision, the PCC kept this case going for months longer, at public expense, until now.
In his press release of September 26, 2018, Mr. Lowe offers an excuse for continuing on. He says that the investigation had been completed and “the two outstanding misconduct allegations were already the subject of adjudication.” This is surprising, given that Chief Justice Hinkson had ordered that the matters dealt with by Mayor Helps and I had been heard and decided and was final and that the PCC did not have authority to reinvestigate. Clearly there could be no “adjudication” in progress prior to the decision of the Court of Appeal permitting the PCC to proceed further. While the PCC is correct in stating that “the retired judge did not have the authority to terminate the proceedings”, the PCC surely could have stopped them and I suggest should have. I have trouble with the excuse the PCC offers for continuing on the discipline proceedings at public expense after the Court of Appeal’s ruling on April 19, 2018.
Surprisingly to me, although he eventually (after the Board filed an action seeking to require him to do so) provided the other decisions of his discipline authorities, the PCC has refused to provide Mayor Helps and me (and the Police Board) the actual re-adjudicated discipline decisions of retired Judge Baird Ellan (those matters originally dealt with internally).
The Court of Appeal had before it all of the information and documentation that had been before Chief Justice Hinkson in the lower court. This included all of the evidence from the internal investigation conducted on behalf of Mayor Helps and I. Given Judge Baird Ellan’s observation that the Justices of the Court of Appeal “seem to be unaware of the extent of the interactions between the former chief and the [spouse of the affected officer]”, one can only assume that the PCC’S re-investigation must have uncovered evidence that went significantly beyond the evidence presented to us in the internal process.
Retired Judge Baird Ellan ordered that dismissal was the appropriate punishment for Elsner’s two counts of misconduct upon which she re-adjudicated after Mayor Helps and I had done so in the internal investigation. In doing so she made it clear that this was in part because of the other allegations that were not part of the internal investigation. She stated that she was unable to say whether her decision to dismiss would have been the same if these allegations stood alone (as they did when Mayor Helps and I adjudicated similar conduct). That notwithstanding, the PCC accuses Mayor Helps and I of prejudging the matter in an attempt to protect the former chief.
Even though I have only been provided copies of some of them, I accept the rulings of both retired Judges who served as discipline authorities and also the decision of the PCC that these matters may be considered concluded. I am certainly glad for all parties involved and for the citizens of Esquimalt and Victoria that this process has finally come to an end.
Given that it is now clearly the law that the PCC can initially decide that a matter is not a matter of public trust and then later change his mind on that very point, I would suggest that no mayor should ever again agree to undertake an internal discipline process involving a chief constable. I certainly would not. I would urge it on to the PCC from the outset. Why would any mayor acting as an internal discipline authority under the Police Act ever risk having to conduct and pay for one disciplinary investigation only to be later required to pay for two, the first process being discarded?
Further, the Police Act was amended after the process involving former Chief Battershill to extend the PCC’s power to deal with former police officers. Doing so comes at significant public cost. Perhaps the public will now consider whether this is the kind of thing that it want to pay for.
The Police Complaint Commissioner has taken defamatory liberty in respect to the honesty and integrity of Mayor Helps and I . He has found us guilty of misconduct that, if true, would be very serious indeed. He has done so from his position of high office and without giving us any opportunity to first answer his speculative accusations. The media has elected to repeat Commissioner Lowe’s highly defamatory comments.
I fully respect the public’s entitlement to transparency and its right also to challenge, and vehemently so its elected public officials. However if the public’s right to transparency and inquiry permits any type of comment, no matter how unfair or defamatory, then the level of our public discourse will inevitably continue to fall to new lows.