Former Victoria police Chief Frank Elsner will face allegations he sent inappropriate Twitter messages to the wife of one of his subordinate officers at an upcoming disciplinary hearing.
On Thursday, the B.C. Court of Appeal set aside a judge’s order quashing Police Complaint Commissioner Stan Lowe’s decision to order an external investigation into the Twitter messages after the matter had been dealt with internally by the Victoria police board.
The appeal court found Lowe’s decision was based on a reasonable interpretation of the Police Act and did not amount to an abuse of process.
But the appeal court questioned whether the time and expense of another investigation into the Twitter messages was warranted, especially since important personal and privacy interests would suffer.
“The Chief Constable resigned his post in May of 2017,” wrote Justice Mary Newberry. “I suggest with respect that the PCC might reconsider whether it is still necessary or in the public interest to spend public funds at this date on investigating what appears to have been an entirely consensual and short-lived flirtation via Twitter involving a Chief Constable who is no longer employed by the VPD.”
Deputy police complaint commissioner Rollie Woods was quick to point out Thursday that the external investigation was completed in March 2017, a month before the judge tossed out the Twitter investigation.
“Retired Judge Carol Baird Ellan had already received the final report and made a preliminary decision that the evidence was sufficient to proceed to a discipline hearing,” Woods said. “I expect she will pick up where she left off. The process will just continue now that the Court of Appeal has set aside Chief Justice Christopher Hinkson’s decision.”
Hinkson found it was an abuse of process for Lowe to order an investigation into matters that had already been investigated by the Victoria police board.
Hinkson also put a stop to an investigation into allegations Elsner used Victoria Police Department equipment to send the messages while on duty. Elsner will now face that allegation at the upcoming hearing.
Lowe is mindful of the court’s comments about cost, but the money has already been spent on the investigation, said Woods.
“All we’re left with is a minor expenditure to complete the proceeding before the retired judge. She has just to give the participants an opportunity to participate. Former Chief Elsner should have a right to participate. She’s made a finding and he should be able to attend and make submissions,” Woods said.
Elsner has participated in all the discipline proceedings so far, he said.
Retired Judge Ian Pitfield is adjudicating allegations of workplace harassment submitted by the police union on behalf of four female employees of the police department. The union alleged that Elsner engaged in unwanted physical contact with female staff at the Victoria Police Department, made unwelcome remarks of a sexual nature and inappropriate comments that could be seen to objectify female staff members, and leered at and inappropriately stared at female staff members.
Baird Ellan is also adjudicating allegations that Elsner provided misleading information to the subordinate officer and an independent investigator, and that he attempted to procure a false statement from a witness.
The appeal court noted that Elsner’s conduct was not the subject of a complaint under the Police Act and did not involve a police officer carrying out his duties or interacting with the public.
“Instead it involved conduct of the kind that may occur in any workplace — a flirtation between two people, both married. In this instance, the ‘relationship’ was found not to have gone beyond some Twitter messages and one awkward meeting in his office when she turned up unexpectedly,” says the decision.
“One can only imagine the effects on Officer A and B and their family of an external investigation which will take place in the public eye.”
“The Commissioner has always been very careful to respect the privacy interests of the parties involved,” Woods said.
Lowe has said he intends to release a summary report to the public at the end of the process.
