A discipline hearing for suspended Victoria police chief Frank Elsner will proceed as scheduled at the end of the month, but the number of matters to be addressed has now dropped from five to three.
B.C. Supreme Court Chief Justice Christopher Hinkson has granted Elsner’s request to toss out the Office of the Police Complaint Commissioner’s (OPCC) external investigation into the “sexually charged” Twitter messages he exchanged with the wife (a police officer in Saanich) of an officer under his command.
Elsner, who apologized for his behaviour and remains suspended with pay, filed a petition with the request in March 2015, claiming the commissioner had no jurisdiction to commence a public trust investigation since the matters had already been dealt with through an internal investigation. The petition was heard by Hinkson in November, but a decision wasn’t made until this week.
In his decision, Hinkson found the commissioner does have the authority to initiate the external investigation but “only to the extent that the internal investigation and decision by the mayors did not address the issues the commissioner has set out for the external investigation.”
The abuse of process doctrine prevents the commissioner from ordering an external investigation on whether Elsner had committed discreditable conduct by exchanging messages with the spouse of a member under his command, wrote Hinkson, and whether Elsner used police department property or devices to exchange the messages.
OPCC deputy commissioner Rollie Woods was aware Hinkson might agree with Elsner’s counsel, but noted internal discipline matters are reviewed by the OPCC to determine whether the outcome was appropriate. If the commissioner disagrees, he can order his own investigation, but Woods said it is rare.
Throughout the review, however, more information surfaced from the city police union that led to a second investigation involving workplace harassment. Allegations that Elsner engaged in unwanted physical contact with female staff at the police department, made unwelcome remarks of a sexual nature and inappropriate comments that could be seen to objectify female staff members, and leered and inappropriately stared at female staff members, will proceed to a discipline hearing starting April 21.
Other allegations that Elsner attempted to procure a false statement from a potential witness and provide misleading information to a member under his command and an investigator, were also headed to the hearing, but have now been delayed after a request from Elsner was granted for a further investigation.
The Victoria and Esquimalt Police Board said Hinkson’s decision confirms board co-chairs Mayor Barb Desjardins and Mayor Lisa Helps, in their capacity as internal discipline authorities, did consult with the police complaint commissioner and received his advice and direction as appropriate.
“We have been accused since December of 2015 of botching our investigation into chief Elsner’s conduct. Our investigation and the process we followed has now been held by the chief justice of the Supreme Court of British Columbia to be final,” said Helps. “We are anxious for a final resolution and join our citizens in their concern over this lengthy and costly process that has gone on now for over 16 months.”
The drama dates back to August 2015 when the Victoria and Esquimalt Police Board launched an internal investigation after a concern was brought to their attention regarding the Twitter messages.
Two months later, an independent investigator found Elsner did not have a sexual relationship with the officer, but did exchange “sexually charged” tweets, which constituted an inappropriate relationship. She also concluded it was inappropriate for Elsner to engage in the Twitter activity during working hours using a departmental device.
In his decision released Wednesday, Hinkson denied an order for a publication ban on the Twitter messages. Woods said once all of the proceedings have wrapped up, the commissioner will likely summarize the content of those messages so the public understands what the issues were, but he doesn’t think it’s necessary the actual messages should be released to the public.
The OPCC will also review Hinkson’s decision to determine whether it will make an appeal.