Victoria’s chief constable is trying to stop an investigation ordered by the police complaint commissioner into allegations he sent inappropriate Twitter messages to the wife of a subordinate officer.
In a petition filed Tuesday in B.C. Supreme Court in Vancouver, Frank Elsner is seeking an order to stop RCMP Chief Supt. Sean Bourrie from investigating the Twitter allegations. Elsner is also trying to prevent the search of his electronic devices and telephone records.
Elsner is also asking the court to order police complaint commissioner Stan Lowe to remove from his website the 12-page order outlining the allegations against him.
In the petition, Elsner claims Lowe has no authority to order an external investigation into conduct that has been the subject of an internal investigation.
In August, Victoria Mayor Lisa Helps and Esquimalt Mayor Barb Desjardins, co-chairwomen of the police board, received information that Elsner had exchanged Twitter messages with a Saanich police officer who was the wife of one of Elsner’s officers. They brought the information to the attention of the police complaint commissioner. The matter was treated as an internal discipline matter.
On Dec. 4, Helps and Desjardins told the board that Elsner had been disciplined following an internal investigation, and the board expressed confidence in the police chief.
The two mayors decided not to make the matter public on the grounds that it was a confidential personnel matter.
Two days later, the story was leaked to a reporter. Elsner apologized, saying he was “deeply humiliated.”
At that point, Lowe reviewed the internal investigation and determined it failed the test of fairness, accountability and transparency under the Police Act.
The commissioner said he had been given limited information when he agreed that the mayors in their capacity as discipline authority could investigate the social-media exchange as an internal personnel matter. He had also agreed with the condition that police board members receive full and continuing briefings and that the police officer serving under Elsner be asked whether he wanted to initiate a complaint.
Lowe said he previously received information that members of the board had not received adequate disclosure with respect to the allegations.
Lowe asked the RCMP chief superintendent to lead a new investigation into allegations that Elsner exchanged improper social-media messages.
He also ordered an investigation into allegations of workplace harassment submitted by the police union on behalf of four female employees of the police department.
In the order for investigation, Lowe pointed out significant shortcomings in the report by the independent investigator. He criticized the mayors for not fully briefing the board and removed Helps and Desjardins as the disciplinary authority, replacing them with two retired judges.
Elsner has voluntarily gone on paid leave while the investigations are conducted.
In his petition, Elsner said he was advised the matter would be kept confidential.
He claims Lowe relied on irrelevant and extraneous considerations including media reports with respect to his conduct. He also states Bourrie has improperly delegated his authority to investigators with the Vancouver Police Department.
Finally, Elsner claims the Freedom of Information and Protection of Privacy Act applies to records and information concerning internal discipline matters.
Desjardins declined to comment on the petition, which she said was within Elsner’s rights to file.
“We are named respondents and we will be seeking our legal advice on that,” she said.
Rollie Woods, deputy police complaint commissioner, said the commissioner has 21 days to file a reply.
“We haven’t really had much of a chance to review the whole matter in detail, certainly not with our counsel. We’ll reserve our submissions on the matter for the presiding judge,” Woods said.
“But we will post all the relevant documents to make sure, in the interests of transparency, that everyone will be able to see, not only what has been filed by Chief Elsner’s counsel, but also by our counsel in response.”
The order for external investigation will remain on the website. “We’ll wait until there’s some direction from the court,” Woods said.
It’s not unusual for individuals to apply to the court in relation to decisions made by the commissioner, Woods said.
“The rarity of it, of course, is there’s a chief constable involved.”
— With files from Lindsay Kines
