Michael Mulligan: Handling of Elsner case is simply outrageous

Suspended Victoria Police Chief Frank Elsner is going to court on Sept. 30 to make an application to prohibit the publication of information concerning the various investigations into his conduct that started with an inappropriate Twitter relationship he had with a subordinate’s wife.

The Office of the Police Complaint Commissioner has expanded that investigation to determine if Elsner attempted to improperly influence witnesses or delete computer records with respect to the investigation.

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Elsner is asking to keep secret, among other things, his employment contract, the details on an interim decision by a retired judge to place him on administrative leave and any information concerning an internal, or external, investigation into his conduct.

For its part, the Victoria and Esquimalt Police Board, co-chaired by Victoria Mayor Lisa Helps and Esquimalt Mayor Barbara Desjardins, has issued a statement claiming that: “As these matters are before the court, it would be inappropriate to comment further at this time.”

The Victoria and Esquimalt Police Board decided to continue paying Elsner’s salary of more than $200,000 a year, as well as his legal expenses relating to his efforts to stop and keep secret the investigations into his conduct.

Elsner’s court application to stop the investigations into his conduct is scheduled to be heard over four days at the end of November.

Chief Justice Christopher Hinkson, who will hear the case, will deal with the various legal challenges relating to everything from whether a secret hearing is necessary, to whether the search warrant to examine Elsner’s work computer was properly issued and, indeed, whether the rank of the RCMP officer tasked with conducting the external investigation is high enough. Elsner argues that an RCMP chief superintendent is not a high enough rank to investigate him.

What Hinkson will not be asked to deal with are the public-policy, judgment and political issues raised by this case.

With respect to Elsner, his application to prohibit publication of information concerning the investigations into his conduct is, quite apart from its legal merit, an exercise in unbelievable hypocrisy.

In 2011, when he was the police chief in Sudbury, Elsner started the highly unusual practice of publicizing the names of all motorists charged with impaired driving before any determination was made as to whether they were guilty or innocent. Now Elsner claims that information concerning his case must be kept secret “to prevent a serious risk to the administration of justice.”

The fact that Elsner is availing himself of the Victoria Police Board’s decision to pay his legal expenses and salary does not provide Helps and Desjardins with any legitimate basis to avoid answering the numerous questions that this debacle raises with respect to their handling of the matter:

• Why hasn’t the police board required an indemnity provision with respect to the salary and legal expenses being paid to Elsner in the event he is unsuccessful in his various legal efforts to stop the investigations into his conduct?

• What inquiries were made by the police board into Elsner’s character prior to hiring him?

• What kind of an employment contract was entered into with Elsner that would require taxpayers to incur hundreds of thousands of dollars in salary and legal expenses when he has been suspended pursuant to a police complaint commissioner investigation?

• What steps did the police board take to ensure evidence would be preserved once the investigation commenced?

• Did Helps or Desjardins mislead the public concerning their initial investigation into Elsner’s conduct?

For Helps and Desjardins to justify their refusal to answer questions concerning their handling of this matter on the basis of a hypocritical, taxpayer-funded application by the suspended police chief, whom they hired, to keep his case secret is simply outrageous.

 

Michael T. Mulligan is a Victoria lawyer.

mulligan@mtplaw.com

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