Discipline ruling upheld in 'unprecedented' probe into former Victoria police chief
Jeff Lawrence, CTV Vancouver Island
Published Wednesday, September 26, 2018 12:36PM PDT
Last Updated Wednesday, September 26, 2018 6:48PM PDT
A review into a disciplinary ruling against Victoria's former police chief has upheld the decisions of two retired judges and revealed previously unknown details of the scandal that cost Frank Elsner his job.
"These findings and the accompanying discipline measures are unprecedented in Canadian policing," Police Complaint Commissioner Stan T. Lowe said in his review.
Retired judges Carol Baird Ellan and Ian Pitfield had previously ruled on separate allegations concerning Elsner's misconduct during his tenure as police chief.
The set of allegations handled by Baird Ellan revolved around Elsner's exchange of sexually charged Twitter messages with the wife of a subordinate police officer.
She said that evidence showed Elsner "intentionally and dishonestly minimized the nature of his interactions with the wife, in his September 8, 2015 conversation with the husband."
In that conversation, Baird Ellan said Elsner misled the subordinate officer about his interaction with his wife. The review later details Elsner's interactions with the wife over several months, including a romantic embrace and kiss in the former chief's office.
The judge also found that Elsner clearly intended to mislead internal and external investigators assigned to gather details on the case.
"It becomes clear on reviewing the former chief’s evidence that he is caught in a web of untruths," she wrote. "Where he finds himself facing contradictory evidence, he tailors his statements to reveal only that part of the truth he feels he must, to address the established facts with which he is faced."
She also ruled that Elsner asked to procure a false statement from a person identified in the review only as "A," and that he inappropriately used his police chief Twitter account, business email and cell phone to communicate with the spouse of the subordinate officer.
"Much of this activity took place while the former chief was on duty," Baird Ellan wrote.
In her ruling, she imposed disciplinary measures against Elsner including demotion to rank of Constable, a 30-day suspension and dismissal from policing – all moot after Elsner resigned from his position in May 2017, during the course of the investigation.
Three more allegations against Elsner regarding sexual harassment were addressed by retired Justice Pitfield.
A female officer said she was standing near Elsner's desk in 2014 when he approached her from behind and pressed his groin into her buttocks, describing it to her as a "nuts to butts" manoeuvre.
The judge found the officer's evidence to be credible, and ruled the Elsner made unwanted physical contact with her.
Pitfield also found that Elsner approached a second female officer in a hallway at VicPD headquarters in 2015 and "held her by both arms with her back against or close to the wall" for about a minute.
Though Elsner said he didn't remember the incident, the judge ruled that it occurred.
A third allegation involved that same female police officer who was paired up with Elsner during a use-of-force training session in 2014.
"When she applied the restraint to Mr. Elsner, or him to her, he said things like 'you are so warm, don’t stop' or 'I could do this all day, you’re so warm,'" Pitfield wrote. "She stated that while the comments were not overtly sexual, she felt they had a sexual tone as they were made at the time when their bodies are touching during the use of force scenarios."
He ruled Elsner's misconduct "to be well advanced on the seriousness scale," but the actions fell short of warranting dismissal. Elsner was to be suspended without pay for 30 days and undergo harassment and sensitivity training before he resigned.
Helps, Desjardins under fire
Lowe's report also recommended changes to the internal process the Victoria and Esquimalt Police Board took to deal with the allegations involving Elsner and the subordinate officer's wife.
"My review has left me with serious concerns regarding the adequacy of having the office of Mayor assigned as Discipline Authority for matters involving the conduct of a Chief Constable," he wrote. "I have recommended that when a misconduct matter involving a Chief Constable or Deputy Chief Constable requires a Discipline Authority, the Discipline Authority should be a retired judge, not a mayor."
He also criticized police board co-chairs Lisa Helps and Barb Desjardins for failing to expand their investigation to include the sexual harassment allegations against Elsner when witnesses came forward.
"On the contrary, the correspondence indicates that they instructed the investigator not to pursue those allegations or consider them in any respect in drafting the investigation report because they were 'outside the scope of the investigator’s mandate,'" Lowe wrote.
Lowe's report said emails between Helps and Desjardins indicated they rushed to conclude the matter as rumours about Elsner began to circulate.
When a reporter contacted Desjardins asking if there was an investigation into Elsner, they were told there wasn't, prompting concern from the Office of the Police Complaint Commissioner.
"When our office learned through the media of the denial of any investigation by the mayors, we sent a request for an explanation as to what had occurred," Lowe said.
In Desjardins' email back to the OPCC, she said "The question that I was asked was 'Is there an investigation at this time regarding the chief?' My response was 'there is not an investigation at this time' (and emphasized the 'at this time') because we had concluded an investigation and our decision given, and board informed of all documentation."
Lowe said Desjardins issued a correction to the reporter a short time later.
Overall, Lowe said he was "disappointed in both the lack of cooperation and the avoidance of communication with our office by the mayors."
He said a case could be made that Helps and Desjardins had predetermined the outcome of the internal investigation from the start, and tried to steer it toward allowing Elsner to keep his job.
In response to the report, both Helps and Desjardins emphatically agreed with the OPCC's recommendation that any future investigations into a police chief not be conducted by mayors.
"I think what the OPCC has come out with today is what we whole-heartedly agree with," said Helps. "Clearly we are not equipped as mayors to oversee these investigations."
She called the allegations of sexual harassment against Elsner "troubling" and said "he was able to pull the wool over people's eyes, including, I guess, over my own eyes."
Desjardins denied accusations that the internal investigation into Elsner's behaviour was derailed by the co-chairs.
"I'm not going to accept that we botched this. We did what we did based on the information that was provided to us that was the advice of our legal counsel as well as the OPCC," said Desjardins.
Both mayors are up for re-election in the Oct. 20 municipal elections.