The B.C. Supreme Court has thrown out an investigation into Twitter messages Victoria Police Chief Frank Elsner sent to the wife of one of his subordinates, a move B.C.’s police watchdog says could undermine its oversight powers.
In a judgment released Wednesday, Chief Justice Christopher Hinkson also put a stop to an investigation into allegations Elsner used Victoria Police Department equipment to send the messages while on duty.
Elsner now faces disciplinary hearings on six allegations of misconduct instead of eight.
Hinkson said it was an abuse of process for police-complaint commissioner Stan Lowe to order an external investigation into matters that had already been investigated by the Victoria Police Board.
The judge was satisfied Lowe had enough information at the outset when he agreed with Victoria Mayor Lisa Helps and Esquimalt Mayor Barb Desjardins, the co-chairs of the police board, that the case should be dealt with as a matter of internal discipline.
Hinkson said Lowe still has the authority to investigate 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.
A disciplinary hearing on these matters was delayed after Elsner asked for more information. The external investigator is scheduled to report back by May 9.
A separate disciplinary hearing into allegations of workplace harassment, submitted by the police union on behalf of four female employees of the police department, is scheduled to begin April 21.
None of the allegations has been substantiated.
The police chief has been suspended with pay since April 2016.
A year ago, he filed a petition in B.C. Supreme Court seeking an order to stop the investigation. Elsner said the Office of the Police Complaint Commissioner had no authority to order an external investigation into conduct that had been the subject of an internal investigation. He has said he believes he is being targeted by a group that wants him removed as police chief.
Elsner’s lawyer, Janet Winteringham, declined to comment on Wednesday. “I would love to comment on the decision, but I can’t because the matter is still before the discipline authorities and some of these things are still to be decided,” she said.
OPCC deputy commissioner Rollie Woods said the agency will review Hinkson’s decision with its legal counsel to determine what, if any, action it will undertake. He said the decision has the potential to reduce the agency’s ability to provide meaningful oversight of matters that end up in the internal discipline stream inappropriately.
“We can’t provide any oversight to internal discipline matters unless the police tell us about them, which they don’t have to do. Now, with this ruling, police could decide not to tell us because they’re not required to,” Woods said.
“It would be very difficult for this office to try to revisit it by ordering an investigation.”
Helps said the Victoria police board held a special meeting Wednesday afternoon to go over the judgment.
“It’s good to see the chief justice has upheld the investigation that the co-chairs were the discipline authorities for,” Helps said, adding: “We’ve been criticized a lot for a botched investigation … I think people might want to rethink that criticism.”
The saga began in August 2015, when the mayors received information that Elsner had exchanged Twitter messages with a Saanich police officer who was the wife of one of Elsner’s officers. “The mayors consulted with the commissioner and received his advice and direction,” Hinkson said.
They agreed the case could proceed as an internal discipline matter. The independent investigator concluded it was inappropriate for Elsner to have sent the Twitter messages on Victoria police equipment during work hours and that Elsner’s conduct was discreditable.
A written letter of reprimand was placed on his file.
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.
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 matter could be investigated as an internal personnel matter and that police board members had not received adequate disclosure with respect to the allegations.
Lowe asked an RCMP chief superintendent to lead a new investigation into allegations that Elsner exchanged improper social-media messages. In the order for investigation, Lowe removed Helps and Desjardins as the disciplinary authority and replaced them with two retired judges.