Commissioner Lowe's report on the Elsner investigation

Were Mayor Helps and Mayor Desjardins defamed by Police Complaint Commissioner Stan Lowe? Or did Lowe pull his punches?

POLICE COMPLAINT COMMISSIONER STAN LOWE’S recent report on the 2015 investigation of Victoria Police Chief Frank Elsner made several damning assertions about the conduct of Victoria Mayor Lisa Helps and Esquimalt Mayor Barb Desjardins. The mayors conducted an internal investigation under their authority as Co-chairs of the Victoria Police Board. Lowe’s report, issued less than a month before the October 20 civic elections in which both mayors are seeking to keep their jobs, did nothing to help their re-election efforts. Helps told a Times Colonist reporter that Lowe’s report “feels like character assassination.” “I’m going to have someone look at the report carefully and see if it’s defamatory. It feels defamatory,” she complained to the TC’s Louise Dickson. 

The Times Colonist’s coverage of Lowe’s report has, to date, not included details of Lowe’s allegations against the mayors, but instead has focussed on his general recommendation that BC’s Police Act should be amended to remove mayors as the designated disciplinary authority in cases where allegations are made against a police chief or a deputy police chief. Both Helps and Desjardins have stated publicly that they agree with Lowe’s recommendation, and that has been well-covered by the Times Colonist. But the paper’s focus on the mayors’ acceptance of that one aspect of Lowe’s report has had the effect of obscuring the stinging rebuke Lowe levelled at the mayors for several actions they took, or failed to take, during the investigation.

BC Police Complaint Commissioner Stan Lowe

Below, I will outline several assertions about the mayors’ handling of the internal investigation that Lowe included in his report. Together, they constitute what Lowe called a “strong arguable case” that the mayors “had predetermined the outcome of the internal discipline process from the outset, and set about navigating a course to allow the former chief to remain in his post.” I will also draw the reader’s attention to what Lowe didn’t include in his report—whether the mayors may have also ignored a potentially criminal obstruction of justice committed by Elsner. 

In late August 2015, Helps and Desjardins were informed that Twitter messages between Victoria Police Chief Frank Elsner and the wife of a subordinate VicPD officer had been found. The mayors informed the Office of the Police Complaint Commissioner. The OPCC agreed to allow an internal investigation of the matter subject to certain preconditions under which the mayors committed to conduct their investigation. Taking the route of an internal investigation meant the mayors would have the authority to decide what disciplinary action, if any, would be taken following an investigation that was conducted by independent lawyer and investigator Patricia Gallivan. The alternative to that course of action would have been a public trust investigation set up and monitored by OPCC. Under that arrangement the mayors would have had no control of the outcome.

So let’s go through Lowe’s specific allegations about the mayors’ conduct in the order that they occurred. This timeline begins in September, 2015 and runs through to the release of Lowe’s first report, issued on December 18, 2015, at which time Lowe stripped the mayors of their discipline authority and ordered an external investigation of Elsner’s conduct. 

The mayor’s internal investigation seemed to go off the tracks at the first curve, in early September. One of Lowe’s preconditions for allowing the mayors to act as the disciplinary authority was that they would personally ensure that the affected VicPD officer (aka “the husband”) knew what had occurred between his wife and Elsner, and that once the officer had been fully informed, he would be asked whether he would prefer an internal or external investigation.

But Lowe’s report notes: “In my review of the internal investigation it was evident to the mayors that the affected spouse, the husband, had been materially misinformed by [Elsner] regarding the matter, and they chose not to correct his misapprehension of the circumstance. They then confirmed the husband’s decision to proceed with an internal process, without disclosing that the husband had been misinformed by [Elsner]. Furthermore, the mayors did not expand the investigation to include this apparent misconduct, nor report it to our office as required. This conduct by [Elsner] falls in the most serious range of misconduct and has resulted in his dismissal from policing by Retired Judge Baird Ellan.”

Here I need to digress briefly from the timeline to draw your attention to an error made by Lowe in that paragraph. Lowe’s report notes elsewhere that Judge Baird Ellan actually imposed “30 days’ suspension, demotion to the rank of constable and training on ethical standards,” on Elsner for misleading the husband, not “dismissal from policing.” Baird Ellan’s two verdicts of “dismissal from policing” came as a result of two other cases of misconduct by Elsner, both of which took place during Gallivan’s internal investigation. Did Helps and Desjardins sweep that misconduct under the rug, too? I’ll come back to this question later. (In response to questions posed by Focus, OPCC quickly acknowledged the above error in Lowe’s commentary and has since amended the report.) 

So let’s go back to the timeline. I will include comments the mayors have made as we go along. Mayor Helps has previously provided Focus with her perspective on Lowe’s allegation about the mayors’ conduct as it related to Elsner’s misleading of the husband. She stated that the “false information” provided by Elsner was “completely beyond our control” and that the mayors had been given no mandate by OPCC to investigate this additional misconduct. We might ask ourselves, though, if the mayors were aware that Elner had lied to his subordinate officer about his relationship with the officer’s wife, why wouldn’t the mayors have taken that information to Lowe’s office? Lowe has been adamant that his office instructed the mayors to bring such developments to his attention. Moreover, Lowe highlighted in his report an example—Desjardins had asked Gallivan to determine whether Elsner had retaliated against any other VicPD employee—that showed, according to Lowe, “the mayors were aware of their discretion to expand the scope of the investigation.” So Helps’ claim of “no mandate” seems doubly implausible.

How, exactly, did Elsner mislead his subordinate officer? Court records show that Elsner told the officer on September 8, 2015 that “no inappropriate communication or contact of any sort” had taken place between Elsner and the officer’s wife. Elsner met with the officer alone, in an unidentified park, according to court records.

As Gallivan’s internal investigation proceeded through that September and October, she became aware of additional allegations against Elsner: bullying and harassment of female VicPD employees. In agreeing to allow the mayors to conduct an investigation into Elsner’s illicit Twitter communications, Lowe says “there was a clear understanding among all concerned that if, during the course of the investigation, any information came to light about conduct by any police officer that may constitute misconduct, our office was to be informed so that I could determine whether the conduct should be addressed as a public trust matter.”

The record shows, however, that the mayors withheld from Lowe any hint about the bullying and harassment allegations until well after they had made their decision about how Elsner should be disciplined—a letter of reprimand on his file. Moreover, they apparently tried to hide these allegations from Lowe even after he had asked for all their records. Let me take you through the details of that.

In his report, Lowe recalls, “Based on my review of internal communications, notes and evidence summaries, it is apparent that by October 20, 2015, the internal investigator [Gallivan] had reported to the mayors that numerous witnesses had made allegations of bullying and harassment against the former chief. These witnesses included members and civilian staff; the nature of the harassment was characterized as ‘inappropriate comments and behaviour towards women,’ which included inappropriate physical contact. Despite receiving this information, the mayors chose not to expand the investigator’s mandate to include these allegations. On the contrary, the correspondence indicates that they instructed the investigator not to pursue those allegations or consider them in any respect in drafting the investigation report because they were ‘outside the scope of the investigator’s mandate.’”

Focus recently asked Mayor Helps’ for comment on a summary of Lowe’s numerous allegations about the mayors’ handling of the investigation. Helps said, “there’s much I’d like to dispute and explain. I’m balancing my desire to fight back with the need for us to move on as a community.” 

Helps addressed only one of Lowe’s allegations, that the mayors instructed Gallivan not to investigate the allegations of bullying and harassment of women. This allegation is one of the most challenging and potentially damaging to the mayors’ political aspirations, for obvious reasons. Helps told us she and Desjardins asked Gallivan “to document the allegations of bullying and harassment in a cover letter accompanying her final investigation report. This is what we did, with the intention that the cover letter and the final report would be handed to the OPCC for his consideration of the new allegations.” But Gallivan’s cover letter wasn’t sent to Lowe.

Lowe’s report notes: “The first time my office learned of any allegations of bullying and workplace harassment was through the Victoria City Police Union, which provided information and materials to my office after the [December 3, 2015] disciplinary decision made by the mayors.” (Emphasis added by Focus.)

The implication here is that the mayors tried to hide the harassment and bullying allegations from Lowe’s office by not providing him with the only document that showed such allegations had been made—Gallivan’s cover letter. In her response to our questions, Helps blamed a mistake made by an executive assistant for the circumstances that led to Gallivan’s letter not being included in the information the mayors provided to Lowe.

By the way, those allegations against Elsner of bullying and harassment were eventually confirmed by an external investigation and warranted a finding of “Discreditable Conduct” by Judge (retired) Ian Pitfield.

Most of Lowe’s allegations about the mayors’ conduct centre on events that occurred just before and just after Helps and Desjardins made their decision on December 3, 2015 on how Elsner would be disciplined.

Lowe alleges the mayors rushed to make a decision on December 3 once they were told by their own legal counsel, Marcia McNeil, that rumours about an investigation of Elsner were circulating and that media reporters would soon be asking questions. It appears the mayors wanted to be able to deny that an investigation was underway—by concluding it that very day. Indeed, each of them made statements to reporters within days that first denied an investigation had taken place, and then—when they were forced to acknowledge the investigation—mischaracterized it.

On December 4, 2015, Mayor Helps was asked by a Global TV journalist whether Elsner was being investigated. Helps responded: “No. The [Police] Board has full confidence in our chief. He’s the best thing that’s happened to this town and Esquimalt in a long time.” Desjardins made a similarly misleading statement to Vancouver Sun reporter Rob Shaw and, a few days later, while acknowledging that an investigation had taken place, she mischaracterized the investigation to a CFAX reporter by claiming the investigation had found “there was no relationship” between Elsner and the wife of his subordinate officer. The investigation was, instead, Desjardins said, about “an inappropriate use of social media.”

In fact, the mayors’ investigator, Gallivan, had previously provided the mayors with a written report that concluded that Elsner’s actions “Do constitute an inappropriate relationship.”

Mayor Helps’ December 4, 2015 statement to the Global TV journalist is particularly worthy of attention considering what we now know she knew when she made that statement. Besides the fact that she lied to the journalist about the existence of an investigation, she added, without any prompting, “He’s the best thing that’s happened to this town and Esquimalt in a long time.” Helps made this statement with the full knowledge that Elsner had lied to his subordinate officer and had also been accused of multiple cases of bullying and harassment of female employees of VicPD.

The mayors’ missteps weren’t over. Following their denials that an investigation had taken place, Lowe asked them for an explanation of their false claims to media and requested a copy of the investigation report and the letter containing the mayors’ disciplinary decision. In their response to Lowe’s request, the mayors neglected to include Gallivan’s account of the allegations of bullying and harassment against Elsner—as mentioned above—but they also appear to have provided Lowe with “false and misleading” information. According to Lowe, “During the course of litigation in this matter it was revealed that two versions of the internal disciplinary letter existed. One version had been provided to our office by the mayors and the other version provided to the former chief. Both decisions were signed by both mayors, both dated the same date, and both addressed to [Elsner].”

Lowe’s report carefully detailed how the two letters differed. The one Elsner received stated, in part: “You will meet with the affected officer within your chain of command with an appropriate third part[y] to speak to your actions and to take steps to address your working relationship with him.” 

The letter that OPCC received stated, in part: “We understand that you have met several times with the affected officer and have and are taking steps to address your working relationship with him.” 

Lowe noted,“The version provided to my office suggested that a reconciliation between the affected member and [Elsner] was well underway, with active steps being taken towards normalizing relations. Based on our consultations with the affected member following receipt of the letter, and through evidence provided by the external investigation, this information was false and misleading. During an interview of the former chief in the external investigation, he confirmed he was only aware of the existence of one version of the discipline decision, the one in his possession. Furthermore, he confirmed that this requirement, as stipulated in the discipline letter, was never acted upon nor enforced by the mayors or board.” 

Lowe, then, claims the mayors’ attempt to provide Elsner with cover went as far as creating different versions of the same letter. 

Court records show that the mayors have claimed that two versions of the disciplinary letter exist because after presenting Elsner with the first version he assured them that reconciliation with his subordinate officer had already begun and so they reflected that in the second version, the one they sent to Lowe’s office. But Lowe’s report contradicts the mayors’ claim.

Mayor Helps’ and Mayor Desjardins’ separate claims to media on December 4, 2015 of “no investigation” make it clear they were trying to protect Elsner and were willing to deceive the public to accomplish that. Lowe’s account of all the things the two mayors did to cover up Elsner’s misconduct needs to be considered in the light of that public deception. Rather than libelling the mayors, as Helps has claimed, Lowe appears to have been overly polite in describing their multi-layered cover-up as “navigating a course to allow the former chief to remain in his post.” The mayors appear to have attempted to deceive Lowe in several ways. All of these apparent deceptions would, in fact, amount to a public perception of an obstruction of justice—not necessarily according to the Canadian Criminal Code definition of “obstruction of justice,” but certainly in the plain meaning of the words.

Both Helps and Desjardins have complained about Lowe’s report, but neither has provided any evidence to counter Lowe’s very specific claims. Deputy Police Complaint Commissioner Rollie Woods has encouraged Helps and Desjardins to request a public inquiry. “If they think they’ve been hard done by in any way in this report, we have a considerable body of evidence we would be willing to provide at any public inquiry so the truth would certainly come out,” Woods told The Canadian Press. So far, neither mayor has requested a public inquiry.

Considering what was revealed in Lowe’s report, it’s unlikely that either mayor would want, or support, a public inquiry. But what’s missing from Lowe’s report suggests the need for a public inquiry.

Lowe’s report reveals that Judge Baird Ellan determined Elsner should be dismissed from policing for each of two specific actions he took: First, Elsner lied to the mayors’ investigator, Patricia Gallivan, during the mayors’ internal investigation in 2015. Secondly, Elsner attempted to procure a false statement from another VicPD employee. This, too, occurred during Gallivan’s investigation. Lowe’s report sheds no light on whether or not Gallivan informed the mayors of this misconduct.

Yet these were considered more serious than any of the other allegations against Elsner. Indeed, Baird Ellan’s commentary on Elsner’s misleading of Gallivan, which Lowe included in his report, notes: “There is authority for the proposition that providing a false statement in an administrative investigation can be a criminal obstruction of justice...”

Did Gallivan report to the mayors either Elsner’s attempt to mislead her or his attempt to procure a false statement? If she had done either, the mayors would have been in a position to fire Elsner for cause back in the fall of 2015. That would have saved Victoria and Esquimalt taxpayers close to $1M in costs that were incurred after the fall of 2015. As I mentioned above, Lowe’s commentary on the mayors’ conduct didn’t address these two serious allegations against Elsner and whether Gallivan had provided them with substantiating evidence.

Focus asked OPCC if Gallivan had provided the mayors with information about Elsner’s attempt to mislead her and his attempt to procure a false statement.

Deputy Police Complaint Commissioner Rollie Woods acknowledged that the attempt to procure a false statement had occurred during Gallivan’s investigation, but told Focus “there is no evidence to suggest that the investigator was aware of this conduct.” We ought to assume, then, that the mayors could not have known about this misconduct.

What about Elsner’s attempt to mislead Gallivan, which earned him “dismissal from policing” and could be, as pointed out by Judge Baird Ellan, a case of “criminal obstruction of justice”? Did the mayors know about that?

Woods says that conduct was identified after OPCC reviewed “the evidence summaries contained in Ms. Gallivan’s November 16, 2015 report to the mayors.” Woods added, “The investigator did not address this conduct as a specific allegation of misconduct in her report, it would be up to the co-chairs to determine based on all of the evidence, what if any misconduct has been proven. This conduct was not addressed in the letter provided by the co-chairs to Frank Elsner.”

In other words, the evidence that Elsner had attempted to mislead Gallivan was in her report to the mayors; it was up to the mayors to decide whether that evidence warranted an additional charge of misconduct. Obviously, they decided it didn’t. Later, Judge Baird Ellan determined that Elsner’s deception of Gallivan was the most serious case of misconduct, one that warranted dismissal from policing. Another case of the cover-up being worse than the original crime. In any case, it appears that the mayors could have saved City of Victoria and Esquimalt taxpayers close to $1M if they had sought advice from Lowe on the contents of Gallivan’s evidence summaries. If they had done that, Elsner could have been dismissed for cause. Instead, Helps declared Elsner was “the best thing that’s happened to this town and Esquimalt in a long time.”

While Helps has claimed that she has been defamed by Lowe’s report, Commissioner Lowe appears to have, in fact, pulled his most serious punch. A public inquiry would help determine which is the case. Focus has received a copy of a request from a local citizen to BC’s Lieutenant Governor to establish such an inquiry.

David Broadland is the publisher of Focus Magazine

Commissioner Lowe's September 26, 2018 report
2018-09-26-Elsner-Summary-Informational-Report-FINAL.pdf

Related story: Landslide Lisa's record as mayor of Victoria