Did Police Complaint Commissioner Stan Lowe defame Mayor Helps and Mayor Desjardins? Or did he 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 issued his report less than a month before the October 20 civic elections in which both mayors were seeking to keep their jobs. 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, in the weeks before the election, did not include any of the details of Lowe’s allegations against the mayors, but instead 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 made a big show of their agreement with that one aspect of Lowe’s report, and that agreement was well-covered by the Times Colonist. But the paper’s focus on the mayors’ “agreement” with Lowe’s report had the effect of obscuring the stinging rebuke Lowe levelled at the mayors for several actions they took, or failed to take, during the 2015 investigation. The TC did include a short editorial before the election that noted the mayors had lied to journalists about whether Elsner had even been under investigation. But that was it. So in the absence of any responsible coverage coming from the Times Colonist, Focus will pursue this story over the coming months, starting with providing readers with the details in Lowe’s report that demand further explanation—especially from Helps and Desjardins.
Victoria Mayor Lisa Helps and Esquimalt Mayor Barb Desjardins in December, 2015.
Below, I will outline several assertions about the mayors’ handling of the internal investigation that Lowe included. 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 an event that occurred during the investigation—a potentially criminal obstruction of justice committed by Elsner. Lowe’s report provided little insight into whether the mayors may have abetted that obstruction. So let’s start at the beginning.
In 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. (Court documents show that the messages have been characterized as being “sexually charged.”) In late August, 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 private lawyer 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.
The mayors’ internal investigation seemed to go off the tracks at the first curve, in early September, 2015. 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 [to OPCC] 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 we 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 Carol 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. Lowe is oddly silent on these more serious cases of misconduct. Did Helps and Desjardins sweep that misconduct under the rug, too? We’ll come back to this question later. (In response to questions posed by Focus, OPCC quickly acknowledged the above error and have amended Lowe’s report.)
So let’s go back to the timeline. We’ll 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 Elsner 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 that demonstrated “the mayors were aware of their discretion to expand the scope of the investigation.” Desjardins had asked Gallivan to investigate whether Elsner had retaliated against any other VicPD employee, which was an expansion of the investigation. So Helps’ excuse 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. The private conversation between Elsner and the officer took place in an unidentified Victoria 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, the mayors 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.’”
Mayor Desjardins published a response to Lowe’s allegations on her personal website. There she noted, “The Police Complaint Commissioner has taken defamatory liberty in respect to the honesty and integrity of Mayor Helps and I. He has found us guilty of misconduct that, if true, would be very serious indeed. He has done so from his position of high office and without giving us any opportunity to first answer his speculative accusations. The media has elected to repeat Commissioner Lowe’s highly defamatory comments.”
Desjardins’ response focussed entirely on what happened after Lowe stripped Desjardins and Helps of their authority to discipline Elsner and launched a public trust investigation. She offered no response to the specific allegations Lowe made about what had occurred during the mayors’ investigation.
Focus recently asked Mayor Helps’ for comment on a summary of Lowe’s numerous allegations about the mayors’ handling of the investigation. Helps wrote: “…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 Elsner’s bullying and harassment of women. This allegation is one of the most challenging and potentially damaging to the mayors’ political reputations. Helps told Focus 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 somehow went missing from the material 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.”
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 written 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 at his request.
But, again, Helps’ explanation seems implausible, perhaps evasive. According to Lowe, Gallivan had reported these allegations to the mayors by October 20, 2015. Gallivan’s subsequent written report is dated November 16. The mayors wrote their discipline decision on December 3. So there was a 45-day period—between first being informed of these allegations and making their discipline decision—during which Helps and Desjardins knew about the allegations but did not notify Lowe’s office, as they had been directed to do if additional allegations arose.
What had Gallivan reported to the mayors? The cover letter for her investigation report included “allegations” of “Yelling at senior colleagues and being insulting and demeaning,” and “Inappropriate comments and behaviour towards women including coming up behind a female colleague who was standing at a desk and with his body pinning her to the desk.” It seems clear enough that some action by the mayors would have been warranted.
Gallivan’s cover letter went on to note, “I understand that you are now considering how to address those allegations.” She also offered her company’s services to investigate the allegations further. But, inexplicably, the mayors appear to have done nothing. What were they considering? Do they have written proof that they were considering anything other than sweeping the allegations under the rug? If they do, why haven’t the mayors provided that proof?
By the way, the 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.
For example, 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 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 same 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 (according to court records) concluded that Elsner “did not have a sexual relationship…but did exchange ‘tweets’ with her that were sexually charged and that the exchange constituted 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.”
Think about that. Helps made this statement with the full knowledge that Elsner had lied to his subordinate officer about his involvement with the officer’s wife and had also been accused of multiple cases of bullying and harassment of female VicPD employees.
When she made that statement, 45 days had passed during which she could have investigated—but didn’t—VicPD female employees’ claims of what some would consider to be sexual assault by Elsner. Gallavin had offered her company’s services to that end, but the mayors had declined. Helps also had 45 days during which she could have informed Lowe’s office and sought his advice, but didn’t. She’d had 45 days in which to think about whether to support the women who made the allegations. In the end, she sided with a powerful, deceitful man accused of physical and sexual harassment and characterized him as “the best thing that’s happened…in a long time.”
Mayor Helps could now easily clear up any impression that she has acted improperly by providing written records showing, for example, that she and Desjardins were planning on doing something about those allegations besides sitting on them. Those records, if they exist, could be submitted to a public inquiry.
Mayor Helps’ and Mayor Desjardins’ separate claims to media on December 4, 2015 of “no investigation” make it evident 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 amount to a 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 one aspect of the mayors’ conduct that’s missing from Lowe’s report reinforces the need for a public inquiry: Were the mayors provided with enough information by Gallivan’s investigation that they should have immediately dismissed Elsner for cause?
Lowe’s report observes 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. 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...” Yet Lowe’s report sheds no light on whether or not Gallivan informed the mayors of this misconduct.
If she had—in either case—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 as a consequence of the mayors’ handling of the matter.
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.”
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?
In a written statement, Woods noted that this deceptive 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.”
In other words, the evidence that Elsner had attempted to mislead Gallivan was in her report to the mayors; it had been up to the mayors to decide whether that evidence warranted an additional charge of misconduct. Again, if the mayors had contacted OPCC and asked whether Elsner’s attempt to mislead Gallivan was misconduct, an early resolution of Elsner’s fate might have been had. But the mayors did not ask questions. Why not? Did the mayors not understand that Elsner was engaged in a cover-up? Later, Judge Baird Ellan determined that Elsner’s deception of Gallivan was the most serious case of misconduct, one that warranted dismissal from policing.
While Mayor Helps and Mayor Desjardins have claimed that they were defamed by Lowe’s report, Commissioner Lowe appears to have pulled his most serious punch. During the civic election, supporters of Helps and Desjardins characterized Lowe’s report as being everything from a fascistic attack against community-based policing to the patriarchy attempting to put strong female leaders in their place. But it appears, based on the evidence available so far, that the mayors simply engaged in an expensive cover-up, and Lowe has called them on it. Is he right? A public inquiry would settle the matter. If the mayors don’t support such an inquiry, it’s reasonable to conclude that Lowe has called it correctly.
David Broadland is the publisher of Focus.