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David Broadland

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  1. Increasingly, Canadians hate each other over politics. Here's one thing we can do to reverse that trend. A SURVEY OF 1300 AMERICANS conducted by Yale University earlier this year showed that the most polarizing issues in that country are global warming and environmental protection. Not abortion, not immigration, not health care. The survey asked people to rank 29 issues in order of importance in deciding whom to vote for in the 2020 presidential election. Conservative Republicans ranked environmental protection at 25th place and global warming dead last. Liberal Democrats ranked environmental protection as the second most important issue and global warming as third. No other issues had such dramatic differences in opinion as to whether they were even a priority to address. Anthony Leiserowitz, director of the Yale program on climate change communication, and one of the principal investigators for the survey, noted, “Climate change is now more politically polarizing than any other issue in America.” Canadians are becoming increasingly politically polarized, too. Earlier this year, MacLeans published a story headlined, “One in four Canadians hate their political opponents.” The story was based on the results of a survey conducted by the polling company Abacus Data. According to MacLeans, Abacus “defined polarized Canadians as those who say they ‘hate’ either Liberals or Conservatives and who dislike compromise or think of people who don’t vote like them as their enemies. Using those criteria, Abacus found that 26 percent of the population are deeply entrenched in their political views, while 74 percent are more open-minded.” Of the Canadians who said they “hate” their political opponents, 47 percent are supporters of the Conservative party, and the other slightly-more-than-half are distributed amongst Liberal, NDP, Green, and Bloc Québécois supporters. Political polarization is damaging to a democracy. It’s widely agreed that deep political division makes it harder to solve real problems. Take global warming, for example. Scientists, almost universally, tell us that global warming is caused by carbon emissions from human activities. Those emissions eventually need to be eliminated altogether if we are to avoid passing tipping points—like the melting of Arctic permafrost, or the Amazon rainforest losing its ability to generate rain—where we would lose any chance of controlling global temperature rise. Scientists have been telling us that for many years. Reducing emissions is long past due, but global emissions were estimated to have risen 2.7 percent above 2017 levels during 2018. In the latest year for which data on Canada’s carbon emissions is available—2017—our national emissions rose by eight megatonnes. Not coincidentally, emissions from oil sands mining and processing also rose by eight megatonnes in 2017. In Canada, as in the US, there’s strong division between voters on the question of whether there’s an urgent need to address our nation’s role in global warming. One side claims our emissions are just a drop in the global bucket. If 1.6 percent is just a drop, they’re right. The other side says, also correctly, that Canadians have the highest per capita emissions (about 22 tonnes per person) of any country on the planet, and so we have the highest per capita responsibility to reduce our emissions. Differences in per capita emissions between Canadian provinces is another point of division. Alberta’s per capita emissions are five times higher than British Columbia’s. Any further development of the oil sands projects will increase that divide. With both the federal Liberal and Conservative parties supporting further expansion of the oil sands, that means deeper division between British Columbians and Albertans is inevitable. According to Abacus Data we already “hate” each other, to some extent. Unless we change how we talk about this issue, national enmity is going to grow, and we won’t be able to work together to address our collective concerns about global warming, climate change, sea level rise and ocean acidification. Moreover, unless we shift from divisive talk to meaningful action, our national emissions will continue to grow. The first part of that shift would be to stop fuelling the division. Let’s consider how you and I might be unintentionally stoking that polarization. A story by Dan Kahan in Scientific American, “Why Smart People are Vulnerable to Putting Tribe Before Truth,” explained the dynamics of this critical problem. His insights apply to all sides of the discussion around the impacts of carbon emissions. Kahan is a Professor of Law and Professor of Psychology at Yale Law School. His piece in SA follows on research summarized in the study “The polarizing impact of science literacy and numeracy on perceived climate change risks,” published in the science journal Nature Climate Change. Kahan affirms that “scientific evidence is indispensible for effective policymaking” and that “for a self-governing society to reap the benefits of policy-relevant science, its citizens must be able to recognize the best available evidence and its implications for collective action.” I agree with that; I expect you might, too. But, Kahan says, this is a dangerously incomplete understanding: “Unless accompanied by another science-reasoning trait, the capacities associated with science literacy can actually impede public recognition of the best available evidence and deepen pernicious forms of cultural polarization.” That oft-missing trait is what Kahan and others call “science curiosity.” Without it, “as ordinary members of the public acquire more scientific knowledge and become more adept at scientific reasoning, they don’t converge on the best evidence relating to controversial policy-relevant facts. Instead they become even more culturally polarized.” This outcome, Kahan says, has been documented experimentally. “Experiments catch these thinking capacities ‘in the act’: proficient reasoners are revealed to be using their analytical skills to ferret out evidence that supports their group’s position, while rationalizing dismissal of such evidence when it undermines their side’s beliefs.” Kahan says “it is perfectly rational to use one’s reason this way in a science communication environment polluted by tribalism.” According to Kahan, any mistake we make personally about the best available scientific evidence will have “zero impact” on ourselves or anyone we care about. Adopting the “wrong” position in interactions with our peers, however, “could rupture bonds on which we depend heavily for emotional and material well-being.” So instead, Kahan says, we “use our reasoning not to discern the truth but to form and persist in beliefs characteristic of our group, a tendency known as ‘identity-protective cognition.’” On the other hand, Kahan says, “Curiosity has properties directly opposed to those of identity-protective cognition. Whereas the latter evinces a hardened resistance to exploring evidence that could challenge one’s existing views, the former consists of a hunger for the unexpected, driven by the anticipated pleasure of surprise. In that state, the defensive sentries of existing opinion have necessarily been made to stand down. One could reasonably expect, then, that those disposed toward science curiosity would be more open-minded and as a result less polarized along cultural lines.” Kahan’s description of science curiosity— “a hunger for the unexpected, driven by the anticipated pleasure of surprise”—may not be adequately explanatory for some of us, so I have found a recent local case where scientific evidence was presented to readers as fact, but it was left to the reader to find out what the evidence was and where it came from. If you read this story in the Times Colonist and talked with someone else about it but didn’t follow up by searching for the source science behind the story, you may be part of the cultural polarization problem. Yes, you. The story was an op-ed by David Suzuki in the August 18, 2019 edition of the Times Colonist titled: “Amid climate crisis, we must change the way we look at land.” Suzuki referenced an article by Guardian columnist George Monbiot, in which Monbiot argued that a recent IPCC report had failed to acknowledge the real emissions contribution of animal agriculture. Suzuki wrote, “Monbiot argues the report authors underestimate agriculture’s contribution to emissions by failing ‘to capture the overall impact of food production,’ noting, for example, that producing one kilogram of beef protein uses an average of 1,250 kilograms of carbon—‘roughly equal to driving a new car for a year, or to one passenger flying from London to New York and back.’” That was Suzuki quoting Monbiot. There was no additional explanation of where that “1,250 kilograms” came from. I was startled by the fact that “one kilogram of beef protein uses an average of 1,250 kilograms of carbon.” In 2017, per capita beef consumption in Canada was 26.4 kilograms. According to Suzuki, then, Monbiot was claiming an average Canadian’s annual beef consumption alone would produce 33,000 kilograms of carbon (26.4 times 1,250 kg). Compare that to the official per capita emission for Canadians: 22,000 kilograms. That’s all emissions, not just our beef consumption. I suspect that a lot of the people who read that op-ed would not have questioned the apparently science-based information that Suzuki—perhaps Canada’s best-known scientist—was providing. They would simply have absorbed another fact that supported what they already believed about climate change. I went looking. It turned out that Monbiot’s argument was based on a study published in the science journal Nature that assessed the carbon costs of different types of food agriculture. The study’s authors included in that accounting the “carbon opportunity cost,” which is the carbon that could be absorbed by land that was currently being used for different types of agriculture if that land was restored to its natural state. This is significantly different than the claim in the Suzuki op-ed in the TC that stated, “producing one kilogram of beef protein uses an average of 1,250 kilograms of carbon.” Don’t get me wrong. I would like that statement to be true. I’ve been a vegetarian/vegan for 48 years and would like to believe that my choice has had some positive impact on the environment, and the more the better. But Suzuki’s statement is misleading. If you absorbed it as scientific fact, you may be part of the polarization that is holding us back from finding a consensus agreement on how to address climate change. “Who, me?” you ask. Yes, you. Science has confirmed that any restoration of land to its natural state would likely result in more carbon being absorbed than if that land remains “developed.” But this idea isn’t confined to animal agriculture or even agriculture in the broadest sense. It also applies to land used to grow trees for harvesting timber and fibre, and the land that has been set aside for such human needs as airports, highways, hospitals, schools, housing—and even bicycle lanes. If bicycle lanes were replanted with trees and cyclists could be turned into pedestrians, much more carbon could be absorbed. But that’s not going to happen either, is it? Suzuki, who is inspirational as a social commentator, was using scientific information to, in Kahan’s words, “not discern the truth but to form and persist in beliefs characteristic of [his] group…” To understand that, I had to exercise what Kahan calls “science curiosity.” We all live in a civilization that, to maintain economic stability, has grown deeply dependent on the energy contained in fossil fuels and the destruction of natural ecosystems. To prevent catastrophic climate change, we need to find a way to reduce emissions and stop ecological destruction. But just as urgently, we need to learn how to stop fuelling division. David Broadland is the publisher of Focus.
  2. The new Johnson Street Bridge broke down after little more than a year of service. What else did the project’s leadership bequeath future taxpayers? ON JUNE 25, just shy of 15 months after it opened, the new $115-million-plus Johnson Street bridge was unofficially broken. The City officially acknowledged the problem on June 27. A mechanical issue—the exact nature of which has yet to be revealed—had caused abnormally high pressure in the bascule bridge’s hydraulic lift system. The bridge could not be opened for waiting marine traffic. Twelve days later, on July 6, the bridge was still not operating properly. On that day the City’s Director of Public Works and Engineering Fraser Work told the Times Colonist, “I’m not staring down the barrel of a huge, big maintenance burden or a huge, big replacement of gear and equipment. No one is talking about anything like that. It’s just about proving the system is working the right way and making sure we get the confidence back in the system.” In July, Focus filed an FOI requesting the record of Work’s communications regarding the breakdown. The partially redacted record provided by the City shows that critical elements of the hydraulic system were failing, including o-rings coming off pressure filters, plastic filter end caps degrading, and indicators designed to show when filters were clogged indicating the filters were clogged even though new filter elements had been installed. The question of whether all these elements were failing simultaneously because their manufacture had been defective, or, alternatively, that they were all failing because they were experiencing higher fluid pressure than they were designed for, is not answered by the released records. The records show that suppliers of the failing equipment flew in from as far away as Florida to consult on what was being referred to as the "hydraulic system failure.". Even after equipment that had failed was replaced, warning indicators kept triggering. The record provided by the City shows that, after new equipment had been installed, the speed of lifts and lowerings had to be reduced to slightly more than half-speed. Presumably that condition is still in effect. If the bridge’s hydraulic system is now operating at higher pressure than it was a year ago, the hydraulic drive motors may be experiencing greater mechanical resistance. One possible explanation for greater mechanical resistance is that the rings on which the bridge rotates have slowly deformed since the counterweights were attached in early 2018. Kiewit Construction, one of the companies that bid for the construction contract in 2012, warned the City of that possibility. They noted that the counterweight “would load the truss ring eccentrically, which could distort the ring—a highly undesirable condition.” Kiewit rejected the City’s novel mechanical lifting system in favour of a system that had proven to be reliable over many years of service. If the rings have deformed, as Kiewit engineers predicted they might, the drive system would encounter greater resistance than expected when the bridge was being lifted or lowered, and thus would operate at higher hydraulic pressure. Notably absent from the City’s public explanation of the bridge’s hydraulic system failure was the formerly high-profile Project Director Jonathan Huggett. Focus has raised questions over the ten years it took to build the bridge about the value of the services provided by consulting engineers like Huggett. The emergence of the hydraulic problem adds yet another layer to those questions. In a written quarterly report to City council in April 2018, soon after the bridge opened, Huggett advised councillors: “Maintenance of the new bridge is expected to be minimal, with the main item being greasing of the joints and moving surfaces from time to time. The hydraulic system is a closed system, meaning there is little opportunity for outside contaminants to enter the hydraulic system, and so maintenance is minimized.” The new bridge had been leaking hydraulic fluid for over half a year before it experienced "hydraulic system failure." This photograph was taken in December 2018. The bridge’s current hydraulic problems show that Huggett’s expensive advice was actually expensive nonsense. There are other, even more striking examples of Huggett’s advice not serving the public interest. I think of them as Jonathan Huggett’s Greatest Hits. In 2015, Focus published a story about a document we had obtained through an FOI request to the City. This document, titled Johnson Street Bridge Seismic Design Criteria, had been quietly created by the City’s project manager, MMM Group, in August 2012 while the City struggled to obtain a financially viable bid to construct the bridge. It was later attached to the construction contract the City signed with PCL. By accepting the provisions of the Seismic Design Criteria as part of the contract, the City accepted a much lower level of seismic performance than had been originally recomended by MMM’s own Joost Meyboom. For example, the Criteria stipulated that following a large Cascadia Subduction Zone earthquake, access to emergency vehicles only needed to be “possible within days of the earthquake.” Yet Meyboom had advised the City to accept only a performance level that would provide uninterrupted, immediate access across the bridge for emergency vehicles after any earthquake. The worst-case earthquake scenario for Victoria is not a Cascadia Subduction Zone event. Provincial emergency planners know that the rupture of a fault much closer to Victoria, like the Devil’s Mountain Fault, could produce a M7+ earthquake centered only a few kilometres from downtown Victoria. Such an event would produce much stronger seismic waves, albeit for a shorter period of time, than a Cascadia Subduction Zone event. Following this type of earthquake, the Seismic Design Criteria allowed a service level of “Possible permanent loss of service.” In other words, the bridge could be so badly damaged that no vehicles, ever again, would be able to cross it. That would mean zero access for emergency vehicles. This low level of seismic performance was completely at odds with MMM’s engineering advice provided before procurement of the bridge had been committed to by the City. When Focus brought this issue to public attention in 2015, City councillors asked Huggett to explain MMM’s Seismic Design Criteria. City staff had never told the councillors about the document’s existence or its purpose. In response to the council’s request for an explanation, Huggett made two presentations, one to councillors and one to media. Neither provided a single word of explanation of why the document was created, what it contained, what its provisions meant, why it superseded all other bridge code requirements or what impact it had on the bridge’s contractually required seismic performance for emergency vehicle access and repairability. The councillors didn’t notice that, amongst all the irrelevant engineerese Huggett provided, there was no explanation of the Seismic Design Criteria document. For a longer description of this fiasco, perhaps Huggett's greatest hit, see "Seismic rip-off on the Johnson Street Bridge." What the document’s inclusion in the City's contract with the builder, PCL, means is that the City will have no legal ground to sue any of the parties involved in building the bridge if, following a major earthquake (greater than M6.5), the bridge can’t provide immediate access to emergency vehicles and/or becomes unrepairable. Here’s another of Huggett’s Greatest Hits: In 2015 he informed City councillors that protective fendering for the north side of the bridge had not been included in the construction contract with PCL. He told councillors it had been “clouded out” in contract drawings. As a result, he told them, this fendering would add extra millions to the project cost. Focus filed an FOI for the “clouded out” contract drawings Huggett had referenced. The City informed us that no such drawings could be found. It was made clear by several documents that did exist—including the actual contract with PCL—that the north side fendering was part of the construction contract. Yet Huggett promoted the idea that the City would have to pay several million dollars more for physical protection on the north side of the bridge. Four years later, after numerous expensive updates on the fendering issue by Huggett, the bridge continues to be unprotected on its north side. An artist's rendering of the protective fendering proposed—years ago— for the north side of the new bridge. The bridge continues to be unprotected from outgoing marine traffic, including tugs pulling loaded barges. Another great hit: in early 2018, Focus published a story that revealed the bascule leaf of the bridge had undergone a major, last-minute repair after four years of fabrication in China. Large holes had to be cut into the structure’s fracture-critical rings. Six-foot-by-six-foot steel plates had been crudely bolted over the holes. We sought an explanation from Huggett, who provided next to no information about who knew what, and when they knew it. Later, he complained to City council that we had claimed the plates were scrap steel. We had not. Bolted-on plates added in Victoria to repair a flaw in the rings that traced back to incomplete shop drawings, which were ultimately the responsibility of the bridge's designer, Hardesty & Hanover Huggett supported the position of the company that had designed the bascule leaf, Hardesty & Hanover, which blamed the Chinese company that had fabricated the bridge for the circumstances that led to the need for the plates. But documents later obtained by Focus through an FOI showed that the problem that led to the bolted-on plates had been known for over a year before any attempt had been made to address it. That long interval of no action—during which the Chinese company waited for a decision from Hardesty & Hanover but also kept building on top of the problem—had necessitated the crude application of the plates. The documents obtained by FOI also showed that the root cause of the problem was incomplete details on shop drawings, which were ultimately the responsibility of the designer, Hardesty & Hanover. The documents showed that Huggett had been kept informed of this serious problem by PCL, but that he had failed to inform any City official about the problem. The best option, from the City’s perspective, would have been to re-weld that section of the rings as per the intended design. But Huggett never even informed the City that the problem existed, let alone that there were options for how to fix the problem. If Focus hadn’t raised the issue, no one at City Hall would have known why those big, bolted-on plates were there. The visual defacement of the intended design that these plates created caught the attention of a British bridge designer, who wrote: “It’s clear from the photographs that nothing this awful should be considered acceptable as part of the finished structure.” As well, a steel fabrication expert told Focus the plates would likely lead to long-term corrosion and maintenance issues. Records obtained from the City by FOI regarding Huggett’s remuneration for professional services and expenses show that during the last half of 2014, for all of 2015, 2016, 2017 and 2018, and for the first four months of 2019, he was billing the City for about $25,000 per month for professional services and expenses. In 2018 the Times Colonist observed that Huggett was the most highly remunerated person drawing from a municipal public purse anywhere in the CRD in 2016 ($303,087.05) and 2017 ($308,299.37). Of Huggett’s monthly billings, $20,000 was for “professional services.” The balance was for expenses. Itemized breakdowns of his expenses, obtained by FOI, show that he had been billing the City about $2500 per month for a monthly pass on Air Canada to fly between Vancouver (he lives in White Rock) and Victoria. Huggett’s May 1, 2019 billing was for $22,571.20, but by June 1 that had suddenly dropped to $6,530.80. The City was finally requiring an itemized accounting of his billable hours. The latest shows that in June, 2019 he billed the City for a total of 22 hours, three of which were spent on “calls” about “hydraulic system failure.” In all, up to the time the bridge broke down, Huggett had been paid $1.407 million for his services and expenses. It’s unclear whether any public accounting of bridge project costs has included that cost. It’s not easy to ascertain exactly what Huggett did for the City. That’s because there’s no complete public record of what he did and why he did it. Working from his home in White Rock, he wasn’t required to use a City of Victoria email account through which his City-related emails would have—or should have—been recorded and archived and accessible by FOI. When we asked the City for Huggett’s communications regarding the bolted-on plates, not a single email was provided that would show how Huggett had responded to communications from PCL or Hardesty & Hanover. Those emails, paid for dearly with taxpayers’ dollars, are in the sole custody of Jonathan Huggett. In the end, besides the largely boilerplate quarterly reports he provided to City councillors, he seems to have been valued at City Hall as someone who would assist them with public relations on a disastrous and embarrassing project. When Focus asked Mayor Helps if she had known about the bolted-on plates, she devised a non-response response and sent it to Huggett for his consideration first. (She accidentally copied us on that response when she sent it to Huggett.) In 2017, when the City staged a public “Lessons Learned” exercise about the project, then-Councillor Pam Madoff told Huggett: “I remember very specifically having this conversation [with the bridge’s designers and engineers] about the mechanics, you know, the—in simplistic terms—the cogs, the wheels, how it was going to lift. I remember at the time saying, ‘Is this basically just a larger version of the Meccano sets that we played with as kids, in terms of its actual mechanical operation?’ And, again, that was the assurance. To me it comes down to: how far does one have to go? We felt like we asked the right questions at the time. It turns out they may not have been the right answers.” Huggett’s response to Madoff was short: “There is no question that you were not given good advice.” On that point I heartily agree. David Broadland is the publisher of Focus Magazine. VIC-2019-072 City of Victoria communications regarding hydraulic system failure.pdf VIC-2019-076 Jonathan Huggett invoices 2018-19.pdf
  3. until
    Art Exhibit Opening: 'Eyes Of Society - A Regionalist Perspective' The Maritime Museum of BC is pleased to announce the opening of a new art show titled 'Eyes Of Society - A Regionalist Perspective' by a series of Canadian artists, on from September 5th to November 30th, 2019. Paintings by the Eyes of Society About the Exhibit This exhibition presents a series of new 'perspectives' in an on-going, cross-cultural collaboration. The 2016 Regional art project 'ReEncounter', a fourteen-day kayak expedition in Gwaii Haanas, spun off a series of related endeavours inspired by the Watchmen of Haida Gwaii. The journey itself was documented in Braid Film's 2017 short film 'Eyes of Society', and its basic tenets, outlined in a series of interviews, now live on in the form of a Social Commentary Award at Canada's largest outdoor art festival, the Toronto Outdoor Art Fair. In 2018, the project evolved into a summer exhibition at the Robert Bateman Centre, exploring the relationship between art and traditional knowledge, and the belief 'that nature and culture are intrinsically connected', to quote the Coastal Guardian Watchmen. These ideas of interconnectedness and co-dependence, on all levels, are reoccurring themes in the works of this collective of realist painters from across Canada. Born of the Age of Reason and Enlightenment, and following the spirit of the Romantic painters of the nineteenth century, Regionalism in art is an age-old tradition that embodies the highest ideals and aspirations of Western society. These ideas, paradoxically, find their origins in direct observation of the natural world, and a parallel in the response by the Romantics to a newly industrialized world. Regional art, therefore, strives to understand the nature of perception and the nature of objective reality ('culture' itself, that is); resisting the postmodern perspective of the day. Perhaps no one (in this world) can claim to have a closer relationship to what is real than those who live closest to the earth and ocean. ‘Tluu Jaad – Canoe Woman’ by April SGaana Jaad White Our goal here is to bring together the views of very different cultures, remember our respective histories, and find the common ground that will enable us to move forward together, successfully, into an uncertain future Participating artists: April SGaana Jaad White, Anja Karisik, Andrew Cheddie Sookrah, Sophie Lavoie, Gary Landon and W. David Ward Information for the Public Exhibit Dates: September 5th to November 30th, 2019 Location: 634 Humboldt Street, Victoria BC Hours of Operation: · Thursdays and Fridays, 10:00 AM to 4:00 PM · Saturdays, 10:00 AM – 5:00 PM Cost: regular Museum admission applies The majority of artwork is for sale.
  4. Records obtained by FOI leave little doubt that Mayor Helps and Mayor Desjardins hid allegations of sexual harassment raised against Chief Elsner. AFTER CLAIMING FOR MONTHS that critical communications between Victoria Mayor Lisa Helps and Esquimalt Mayor Barb Desjardins in late 2015 had been deleted, the Victoria and Esquimalt Police Board released a heavily redacted 442-page response to Focus in late May. We had requested the communications between the two mayors as they navigated their way through their investigation of allegations against then-Police Chief Frank Elsner. Our request covered the three months during which their investigation took place—September, October and November, 2015—and one month after that investigation ended. The records released to Focus show Helps and Desjardins were aware by mid-October 2015 that additional allegations made by female employees of VicPD against Elsner—of sexual harassment and bullying—had been found by the mayors’ hired investigator, Vancouver lawyer Patricia Gallivan. Yet these allegations were so well-hidden by the mayors that even after Police Complaint Commissioner Stan Lowe demanded all records related to the investigation, the women’s complaints at first remained unnoticed by OPCC. The allegations of sexual harassment against Elsner weren’t the most serious misconduct found during the mayors’ investigation. Within 10 days of demanding the records Gallivan created during her investigation, Lowe’s office had used those records to identify two of the three most serious cases of misconduct that would eventually lead Judge Carol Baird Ellan to decide Elsner warranted a lifetime dismissal from policing: misleading a person material to the investigation, and misleading the internal investigator. From the information in Gallivan’s report, Lowe’s office also determined that Elsner had contacted witnesses during the investigation. This later led to a third serious finding of misconduct, that Elsner had attempted to procure a false statement. Baird Ellan likened Elsner’s conduct during the mayors’ internal investigation to “criminal obstruction of justice.” Yet by the time the mayors abruptly ended their investigation with a confidential letter of reprimand quietly placed in Elsner’s file, they had apparently made little effort to understand what Gallivan’s report actually contained. Perhaps recognizing the serious procedural misconduct Gallivan had discovered was beyond the skills normally possessed by municipal politicians. But the allegations of sexual harassment, hidden from Lowe even after his office had demanded the investigation’s records, were a different matter. One might reasonably expect two female mayors to be especially sensitive to sexual harassment allegations. Why didn’t Helps and Desjardins pursue what Gallivan had found? According to Lowe, by October 20, 2015, “numerous witnesses had made allegations of bullying and harassment” against Elsner. The external investigation, which replaced the mayors’ investigation, considered allegations made by seven women. Yet the mayors have denied they interfered in the investigation or covered up the allegations of harassment against Elsner. Release of Lowe’s Summary Informational Report on the external investigation was delayed for over two years by Elsner’s efforts in the courts to quash the second investigation. When the report finally appeared—during the 2018 civic election campaign—Helps claimed, without providing any evidence, that Lowe had defamed her. Her claim was amplified by the Times-Colonist, which did little other reporting on the external investigation’s findings. Focus waited until after the election to file an FOI for the mayors’ communications in the hope that the mayors’ own records could confirm either Helps’ or Lowe’s account. So what did we find? It is unclear from the records provided to Focus when, or from whom, the mayors first heard of the harassment allegations. They show that on October 15, 2015, Desjardins emailed Helps and suggested that new allegations of harassment and bullying would require a second investigation: “I have looked into process for HR complaints and or WCB harassment procedure and process for further understanding of options to bring to the board or for us to decide on. In reality it is again an independent investigator and provision of a report to us. I would like Pat to do this if able and or to engage someone to do this asap if she feels she is ‘tainted’ by her process. I have someone in mind.” Half an hour later, Helps responded, “I am happy to have Pat do this. I regret that we have to do this at all.” The records released to Focus only suggest why the mayors changed their minds. Minutes after Desjardins had emailed Helps, she also wrote to the mayors’ legal counsel, Vancouver lawyer Marcia McNeil. McNeil emailed back a few hours later. The contents of McNeil’s communications with the mayors are protected by solicitor-client privilege, so we don’t know exactly what her advice to them was. But we can deduce part of that advice from the mayors’ subsequent response. Desjardins wrote back to McNeil and Helps: “I have an appt with him tomorrow and was going to check in anyway. Thanks for this.” Helps then replied to Desjardins, “Thanks to you both. Barb, happy to check in with you after you meet with the Chief tomorrow...” The rest of what Helps wrote is redacted, but no matter. McNeil appears to have advised the mayors to seek Elsner’s response to the additional allegations, and Desjardins confirmed she was going to meet with the “Chief” the next day. We can presume that she met with Elsner, but we don’t know what transpired. In the email record released to Focus, there are no later references made by the mayors to the sexual harassment allegations. Did Desjardins’ idea of a second investigation disappear because Elsner persuaded her that the allegations were untrue? Did Desjardins subsequently persuade Helps that Elsner didn’t do what he was accused of doing? The answers to these questions seem self-evident given what followed. This turned out to be a critical decision point in the course of the Elsner investigation. Had the mayors carried through on their initial, short-lived agreement to conduct a second investigation, and presuming that Gallivan had then discovered all the claims of sexual harassment that were later found by the external investigation, public acknowledgment of the women’s claims wouldn’t have taken nearly three years. As well, Elsner could have been fired for legal just cause and $1.1 million in eventual costs to Victoria and Esquimalt taxpayers could have been avoided. This was a serious misjudgment by the two mayors. But the record of what followed shows that once the mayors had dug that hole for themselves, they kept digging. The record of their communications shows that the mayors tried to maintain control of the course of the investigation—and its outcome—by providing little or no information to both Lowe’s office and the Victoria and Esquimalt Police Board. This is made evident by a letter sent by Police Board member Peter Ryan to Desjardins on October 27, over two weeks after Desjardins and Helps were given advice by McNeil on the additional allegations against Elsner. In that letter, Ryan, a former police officer, writing on behalf of the board’s governance committee, expressed concern that the Police Board had been “advised of a disciplinary matter involving the Chief Constable in only the vaguest of terms.” (Desjardins testified in a sworn affidavit that the board was told early on that Elsner “could be having a relationship with a woman.”) Ryan then wrote, “The Committee respectfully requests that you promptly provide the Board with copies of any completed ‘Complaint Forms’ giving rise to any internal discipline matters as defined in the Police Act that pertain to our Chief Constable.” Ryan’s letter, copied to the Office of the Police Complaint Commissioner, led to an intervention by Deputy Commissioner Rollie Woods. In a letter to McNeil, Woods wrote, “One of [Lowe’s] conditions to agree that the matter could be handled [by the mayors] was that the Police Board members be fully informed. If the [mayors] maintain there is no need to inform the full board, [Lowe] is going to revisit his decision.” As far as Woods and OPCC were aware at that moment, “fully informed” meant telling the Board about the initial allegations against Elsner: that he had engaged in an inappropriate relationship with the wife of a VicPD member and that Elsner had improperly used police social media accounts. But Helps, Desjardins and McNeil had also not informed OPCC (or the Police Board) about the new allegations of sexual harassment and bullying. Pushed by Woods, Desjardins responded to Ryan’s dense, two-page letter noting: “We do not have details regarding the facts as the investigation has not yet concluded nor has a report been provided to us.” In fact, the two mayors had more details than they apparently knew what to do with. Ryan’s letter and OPCC’s intervention created another critical decision point at which the mayors could have reported the additional allegations to OPCC and the Police Board—but didn’t. Their secrecy was at odds with conditions Lowe had insisted on before agreeing to let the mayors conduct an internal investigation. Lowe described the basis under which he had allowed an internal investigation in his 2018 Summary Informational Report: “At the outset of my office’s dealings with the mayors and their legal counsel, 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...” The first part of that “clear understanding,” the any information aspect, has been disputed by Helps, who has told Focus, “We were authorized to deal only with the issues of whether Elsner had engaged in an inappropriate relationship with the wife of a VicPD member and whether Elsner had improperly used police social media accounts.” But in Lowe’s Summary Informational Report, he quotes at length a letter from McNeil to Gallivan, written in the early days of the investigation, outlining McNeil’s understanding of the mandate provided by OPCC for the mayors’ internal investigation. The letter was copied to Helps and Desjardins. Lowe used the letter as evidence that the mayors were made aware by McNeil that “your mandate is confined to issues related to any misconduct by Chief Elsner…” (Lowe underlined “any” for emphasis). The second aspect of Lowe’s agreement to allow an internal investigation, that his office was to be informed about any new allegations of misconduct, has never been addressed by the mayors. Ryan’s letter, and Wood’s subsequent intervention, should have been the moment the mayors informed the Police Board and the OPCC about the additional allegations. But that moment passed in stoney silence from Desjardins and Helps. It’s difficult not to come to the conclusion that the mayors were intent on keeping personal control of the investigation and its outcome, and if that meant ignoring Lowe’s stipulations, then they were willing to do that. Just over two weeks later, on November 16, 2015, Gallivan sent her “Preliminary Investigation Report” to the mayors. Gallivan’s full report has never been made public, but the covering letter for that report was released by Lowe’s office in September 2018 and was included in the records released to Focus. In that letter Gallivan told the mayors, in reference to the harassment and bullying allegations, “I understand that you are now considering how to address those allegations. As previously stated, should you wish to expand our mandate to include an investigation of those matters, in light of my schedule and given the need to deal with these matters expeditiously, I would need to engage the assistance of one of my partners to complete the investigation. I have discussed this matter with my partner Deborah Cushing and she advises that she would be able to set aside a week to conduct the witness interviews.” After that, aside from emails exchanged to set up a conference call between Helps, Desjardins, McNeil and Gallivan, there is no record in the documents released to Focus that indicates what the mayors did with Gallivan’s offer to investigate the allegations. But we know what happened from Lowe’s 2018 Summary Informational Report. Before giving you Lowe’s description of what the mayors did with Gallivan’s offer, it’s necessary to understand why and how he obtained records related to the mayors’ investigation. They weren’t proactively turned over to OPCC by the mayors. Following the mayors’ sudden termination of their investigation on December 3, 2015—an action that was hastened by rumours coming back to Desjardins that reporters were on the verge of confirming Elsner was being investigated—Lowe’s office confronted the mayors for having misled media by claiming no investigation was underway. When asked by a Global TV reporter the day after they ended the investigation if Elsner was being investigated, Helps had responded, “No. The Board has full confidence in our chief. He’s the best thing to happen to this town and Esquimalt for a long time.” Within minutes of the mayors’ misleading statements appearing in TV news reports, Deputy Commissioner Woods made a request to McNeil under the Police Act for “all records and any additional information in its entirety including all memos, notes, emails and any other relevant documents” related to the investigation. McNeil had no choice but to comply. So Lowe was able to determine—using documents obtained from the mayors’ records—what the mayors had done with Gallivan’s offer to investigate. In his Summary Informational Report he observed, “Despite receiving [Gallivan’s offer], 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.’” But that instruction conflicted with McNeil’s earlier description of Gallivan’s mandate as given to the mayors by OPCC: “your mandate is confined to issues related to any misconduct by Chief Elsner…” Lowe also noted that the copy of Gallivan’s investigation report sent to his office in response to the Police Act-mandated demand for records didn’t include the covering letter, which contained the only written reference to the allegations of sexual harassment and bullying. The implication was that the mayors were trying to hide from his office any evidence that these allegations had even been made. Helps has told Focus that an executive assistant had failed to include the covering letter following OPCC’s demand for records. One detail that Lowe’s Summary Informational Report did not include was the fact that soon after receiving Gallivan’s report, the mayors shared it with Elsner. They were required by the Police Act to do this. The Police Act also required them to share the report with any “complainant” mentioned in the investigation report. We know that employees of VicPD had made complaints to Gallivan, but the mayors did not provide the report to them. The Police Act also required them to “review the report and the evidence and records referenced in it.” If they had done that carefully, the evidence of the more serious misconduct—outlined above—should have propelled the mayors to OPCC for direction. The mayors were also required by the Police Act to inform OPCC of their “next steps” within 10 days of receiving Gallivan’s report. They also failed to do this. This omission confirms that they were unwilling to involve OPCC, and its expertise at sniffing out police misconduct, before making their disciplinary decision. After reading the report, Elsner appears to have written to McNeil, who, in response, reported to the mayors and provided them with unknown advice. To that advice Desjardins responded, “I agree thanks!” and Helps chimed in: “Thanks. Me too.” That was on November 27. Early on December 3, Desjardins emailed Helps: “I think this is going to pop in the next 2 days, [the Police Board] need to be informed. I will clear my calendar for it as necessary, do you have any flexibilty today. so you soon. [sic] I have written the questions we are to ask.” Prompted by the spectre of reporters asking questions about the investigation, the mayors hastily concluded it, apparently in order to be able to say that Elsner was not being investigated. They met later that day and made their disciplinary decision to put a confidential letter of reprimand on Elsner’s personal file. They informed Elsner in person on the morning of December 4. Later that day, in response to reporters’ questions, they denied Elsner was being investigated. Lowe reported that he first heard of the harassment and bullying allegations when they were brought to OPCC’s attention by the Victoria Police Union on December 8, 2015. Let me summarize the main problems in all of this for the mayors. First, they completely missed, or ignored, the most serious misconduct that was evident in Gallivan’s records—which Judge Baird Ellan later likened to criminal obstruction. Secondly, Desjardins and Helps knew the harassment allegations should be investigated. Instead, they hid them from both the Police Board and OPCC even though informing OPCC of any additional allegations had been a key element of the “clear understanding” for allowing the mayors to do an internal investigation in the first place. Lastly, they misrepresented what had taken place to reporters and the public. The mayors appear to have obstructed the proper course of justice, and their misjudgments cost Victoria taxpayers $1.1 million. Lowe’s summary was more concise. In his Summary Informational Report, he wrote 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.” In the record released to Focus are emails exchanged between the mayors as news of the Elsner investigation, Lowe’s December 18, 2015 report on the investigation, and his order for an external investigation ripped through the community. The day Lowe’s report was released, Times-Colonist reporter Cindy Harnett emailed Helps a question: “What is your reaction to the commissioner’s report which heavily suggests you and Barb botched the investigation and insinuates that there was a coverup?” Helps forwarded Harnett’s email to Desjardins and Kathi Springer, a communications specialist who had been hired to help the two mayors weather the political storm they had brewed. Helps asked, “Are they actually serious there was a cover up? This is ludicrous.” Focus recently posed detailed questions to Mayor Helps. We described to her what the email record for October 15, 2015 showed, namely that she and Mayor Desjardins had initially agreed to a second investigation, and that Desjardins was to meet with Elsner the next day and raise the sexual harassment allegations with him. We asked Helps why she and Desjardins believed Elsner instead of allowing Gallivan to investigate these allegations further and checking the veracity of Elsner’s denial. We also asked her why she had misrepresented, to Focus and to other media, the mandate of the mayors’ investigation. Recall that McNeil had put in writing that the mayors’ mandate included any allegations of misconduct against Elsner. To those questions Mayor Helps replied, “As previously stated, we decided to finish our original investigation and hand all other allegations to the OPCC for them to investigate. We directed our solicitor to send all the information we had received, including Pat Gallivan’s report, to the OPCC.” As noted above, it was only through Woods’ Police Act-mandated demand for records that OPCC obtained “all the information” the mayors had received (except Gallivan’s covering letter), and their email communications. We asked Helps if she was aware that OPCC had demanded her records. She did not respond to the question. Recall that Helps had responded to a reporter’s question about whether an investigation was underway with this statement: “No. The Board has full confidence in our chief. He’s the best thing to happen to this town and Esquimalt for a long time.” If the mayors had an expectation that OPCC would be investigating the sexual harassment and bullying allegations, why did the mayors and the Police Board express “full confidence” in Elsner? Wasn’t that a bit premature? We put that question to the mayor. She did not respond. Had the Police Board even been informed of the allegations of sexual harassment and bullying against Elsner before it had expressed that “full confidence”? Mayor Helps kept digging and did not respond. David Broadland has asked the Office of the Information and Privacy Commissioner to examine the Police Board’s redactions of the released record. The released records can be downloaded here.
  5. until
    ON THIS APRIL DAY, a steady drizzle enhances Chinatown’s eccentric visual splendour. I pass through the narrowest of doors, upon which reads “Mitchell Villa Art Studio,” hand-lettered in a style evoking a 1940s accounting firm. At the top of Chinese-red stairs, I arrive in a compact live-work studio full of outsized canvases. One wall is covered by Villa’s latest work in oil, still wet: an eight-by-fifteen-foot triptych of a larger-than-life dinner party. The energy of the guests’ shifting gestures and expressions frames a decadent, Renaissance-inspired feast. Villa’s trademark realism, with its stuttered, multi-exposure layering, accentuates the lively, debaucherous scene. A pair of alert, stud-collared dobermans (the breed often makes appearances in Villa’s work) add a sense of foreboding. Villa moved to Victoria from Ontario at age three, and grew up mastering various media and rendering techniques (“instead of doing basketball and all that stuff, I was always in art classes”). At the Vancouver Film School, he immersed himself in digital image-making. Both the dinner-party triptych and a couple of six-by-eight-foot “middle-aged” portraits are created from assemblies of photographs Villa has costumed, staged and directed. He shows me the printouts of the collage-like images he’s created in Photoshop as reference for these meticulously styled visions. "Midlife" by Mitchell Villa Villa set up a stationary, time-lapse camera for the first actual dinner party he’d ever hosted (he learned the hard way not to try out new recipes in that context). “I ended up with three or four hundred photos…piecing everyone together with my favourite moments of that person…showing the movement, the passing of time, not just a snapshot, to emulate that environment in a dinner party. It’s somewhat chaotic; food being passed around, drinks are flowing.” The juddering, filmic quality of Villa’s canvases has both a surrealist and cubist flavour at times. “Working with design and film definitely influences my work,” he says. “I incorporate that into my paintings.” Like a film director, “I can play god with what I’m working with— shift colours and add elements into a scene—from there applying it to the canvas.” Mitchell Villa, “Prologue” solo exhibition at Fortune Gallery, 537 Fisgard Street, opens May 2, 7-9pm, and closes May 30. 250-383-1552, www.fortunegallery.ca or www.mitchellvilla.com. —Mollie Kaye
  6. If a BC Supreme Court finding is correct, Victorians need to demand assurances from the City of Victoria about the safety of its water. Do you know if there’s lead in your home’s water supply? A 2017 BC Supreme Court judgment about the quality of water in the Shoal Point condominium complex provides an intriguing window into the difficulty of obtaining a reliable answer to that question. The judgment followed a trial in which a Shoal Point owner, Donald Shields, sued his strata council over the poor quality of water in his home and the council’s failure to rectify the problem over a period of nine years. The Shoal Point condominium complex on Victoria Harbour According to court records, Shields’ water had two things wrong with it. First, the liquid coming out of hot water taps was grossly discoloured. Secondly, both the incoming water to the building and the water supplied to Shields’ unit had repeatedly been tested and were shown to have unacceptably high levels of metals, including lead. Some of the expert testimony relied on by Justice Anthony Saunders in making his determination of responsibility for the discolouration and contamination seems clearly at odds with what CRD and City of Victoria officials say about Victoria’s water supply. If Saunders’ decision was based on misinformation, he probably came to the wrong conclusion about what entity is responsible for Shields’ water problems. But if he’s correct, then all Victorians ought to be concerned about their water and demand an explanation from the City of Victoria and the CRD. Shields, a retired engineer and professor of civil engineering, bought the condo at Shoal Point in 2006, just three years after the first phase of the project was completed. Potable water is distributed to each Phase-One unit through a system that contains ductile iron pipe. To prevent internal corrosion, this type of pipe has a quarter-inch thick “concrete” lining (Justice Saunders’ description). Shields found that when he returned from being away from his luxury home for a period of time, the hot water from his taps was a “disgusting” brown colour. According to Saunders’ 38-page written judgment, Shields “first noticed dirty brown water coming out of the hot water taps in the bathrooms, and sometimes the kitchen hot water as well, around 2007. He complained to the maintenance manager, who said he would flush the water supply lines.” Saunders then provided an extensive account of Shields’ repeated appeals for help, recommendations from experts, and actions taken by the building’s strata council or its appointees. In 2013, six years after his initial complaint about discoloured water, the strata council’s building committee ordered testing for metals in Shields’ water and the water in a suite on the floor above, whose owner was also complaining about discoloured water. The tests showed the level of lead in Shields’ suite was nearly two times higher than the maximum allowed by federal guidelines (the Guidelines). Justice Saunders noted that, in spite of that reading, “the excessive level of lead in Mr Shields’ suite was not disclosed or discussed” outside of the building committee. That is, neither Shields nor the other suite’s owner were informed. In response to further complaints from the suite on the floor above Shields, additional testing for contaminants was undertaken about four months later, in April 2014. That suite’s water tested high for lead again, this time about 1.5 times higher than the maximum allowable under the Guidelines. However, one sample taken in the mechanical room from the water supply line into the building showed highly elevated levels of lead, aluminum, manganese, copper and iron. The lead level in that sample, for example, was 22 times higher than the maximum allowed by the Guidelines. A second sample, taken after flushing about five gallons through the sampling outlet, showed acceptable levels of metals. The expert who took these samples recommended “that independent testing for lead be conducted by the City and the CRD.” The expert concluded that both the discolouration of the water and the elevated metals content was coming from the City of Victoria’s water supply. He recommended that Shoal Point install a large filter on the water supply line. The City of Victoria’s engineering department disagreed. Justice Saunders noted, “the City’s Engineering Department was of the view that the drop-off in concentrations between the two mechanical room samples strongly indicated that the elevated concentrations were due to the building’s piping, not the water supply. (I note that evidence, of course, not for the truth of its content, but as going to the information that the defendant reasonably would have relied upon.)” The City did agree to flush the mains leading to Shoal Point, and a subsequent set of samples showed a reduction in the level of metals. This seems to suggest that the City’s supply was at least part of the source of the elevated metals in Shields’ and others’ suites. Otherwise, flushing the City mains would have made no difference. But Shoal Point did not act on the initial recommendation to install a large filter on the building’s water supply line until a second expert had made a similar recommendation in 2015. A new filtration system was installed and other changes were made in 2015, but did not become fully operational until August 2016. Those changes didn’t appear to have much effect. Returning to his home after being away, Shields found the water was still discoloured. He took his own samples that August and sent them off to a lab for analysis. They showed lead levels as high as 26 times the maximum allowable under the Guidelines. One sample contained 50 times as much iron as the Guidelines specify. This sampling was included in Saunders’ judgment. A set of samples taken a few months later, in November 2016, were even more shocking. Maxxam Analytics found the level of lead in Shields’ hot water lines was up to 41 times higher than the Guidelines allow. Other metals were higher than the Guidelines, too: Iron was 128 times higher, copper 34 times higher, aluminum 23 times higher and manganese 77 times higher. Although this sampling was provided as evidence at the trial, it was not mentioned in Saunders’ written judgment. With Shoal Point’s strata council apparently unwilling to make changes that would provide Shields with water of acceptable quality, he launched legal action. He and his wife Arlette Baker were represented by his son John Shields. In his judgment, Justice Saunders found that a strata council is “responsible for the repair and maintenance of common property,” and that this obligation extends to “making good plumbing that causes discolouration” and “making good plumbing that is causing elevated heavy metal concentrations in water, relative to the Guidelines.” Saunders’ decision seemed to rely heavily on the expert testimony of Martin P. Vogel, a senior chemical engineer practicing in environmental engineering with Golder Associates in Vancouver, who provided expert opinion on behalf of Shoal Point at the trial. In his judgment, Saunders wrote, “With respect to the contamination issue, I accept Mr Vogel’s conclusion that contamination of the hot water through elevated concentrations of aluminum, copper, and lead is most likely due to the corrosive effect on the building’s plumbing system of the naturally acidic water supplied to the building from the municipal water system.” Vogel appears to be the only expert who provided an opinion that the City of Victoria’s water supply is “naturally acidic.” Information from the CRD and the City of Victoria in the CRD’s Greater Victoria Drinking Water Quality Annual Report for each of the last several years puts the pH of City of Victoria water at around 7.0—essentially neutral. It’s not “naturally acidic” as described by Justice Saunders, who apparently got that idea from Vogel. Saunders’ judgment makes no reference to CRD-City of Victoria water quality reports. Neither the CRD nor the City of Victoria were called to testify at the trial. A year before the trial, Ted Robbins, general manager of the CRD’s integrated water service, told the Times Colonist, in an article about the potential for lead to be a problem for Victoria’s drinking water, that “Greater Victoria has neutral water with low alkalinity.” By “neutral water,” Robbins meant the pH was around 7—neither acid nor base. “Alkalinity” is a measure of water’s ability to buffer acidity. If alkalinity is too low, water that starts at a water treatment plant with “neutral” pH can have a somewhat different pH by the time it reaches an end user like Shoal Point or your home. But Justice Saunders’ judgment shows no indication that such a factor was considered. His acceptance of Vogel’s opinion that Victoria’s water is “naturally acidic,” and that high metal concentrations in Shields hot water were a consequence of acid leaching of Shoal Point’s plumbing system, is inconsistent with what the CRD and City of Victoria have reported about the water they provide to Victorians. Either the City of Victoria and the CRD didn’t know the pH of the water they supplied, or Vogel didn’t. What about the discolouration of the water in Shields’ and other suites? Here, again, Saunders’ written decision shows that he relied heavily on Vogel’s expert opinion: “Mr. Vogel has opined that the discolouration of the hot water in the unit is likely predominantly a result of oxidized and precipitated iron and manganese from the water supply due to low flow conditions in the hot water piping serving the plaintiff’s unit. I accept Mr. Vogel’s opinion.” The “low flow conditions” Saunders alludes to were the result of Shields and Baker being absent from their home for months at a time. Again, in Saunders’ judgment, it’s the City’s “water supply” that’s to blame: it has such large quantities of iron and manganese dissolved in it, according to Vogel’s theory, that if the water is left to sit in the supply pipe leading to Shields’ suite for weeks or months, these two metals precipitate out, creating the disgusting brown solution that comes out of his hot water taps. This, too, seems suspect. A previously mentioned sample of City of Victoria water going into Shoal Point was found to have 5.9 micrograms of manganese and 137 micrograms of iron, per litre. Yet one sample from Shields’ hot water supply was analyzed by Maxxam Analytics and found to have 3,860 micrograms of manganese and 38,300 micrograms of iron, per litre. How these metals could become concentrated to that extent, in the small volume of standing water in the short length of pipe exclusive to Shields’ suite, was unexplained by either Vogel or Justice Saunders. Shields and Baker testified that the discolouration diminished if the water was flushed for several minutes, but the discolouration returned after a short period—a week would do it. Having accepted Vogel’s contention that Shields’ water quality problems were the result of the acidity of the City’s water, and metal contaminants in it, Saunders found that Shields and Baker were “entitled to damages for the loss of enjoyment of their unit, and the inconvenience of having to conduct flushes of the hot water lines.” They were awarded $15,000. Saunders’ August 2017 decision noted: “Serious efforts towards mitigating water quality issues through upgrading the building’s plumbing are underway.” But in April 2019, Shields informed Shoal Point that he is still experiencing discoloured water. There’s no reason to believe the suite’s hot water isn’t still contaminated with metals. One plausible alternative explanation for the poor quality of Shields’ hot water is that a section of the ductile iron pipe serving his suite with hot water has a damaged internal concrete liner and is corroding. Indeed, Saunders’ decision shows that he was provided evidence that a section of ductile iron pipe in Shoal Point’s parking area that had been easily accessible had been removed and the liner had been found to have “completely deteriorated.” Two experts had advised Shoal Point that failure of the pipe’s liner was the source of at least some of the water quality problems in Shields’ and others’ suites. Yet Saunders’ written judgment shows that he gave more credence to an expert who appears to have provided the court with information that’s at odds with the CRD’s and City of Victoria’s characterization of regional and municipal water quality. Shields has recently informed Shoal Point that he does “not rule out commencing further litigation…” David Broadland is the publisher of Focus Magazine.
  7. They’ve been found—all 271 of them. THERE HAS BEEN A DEVELOPMENT in Focus’ effort to determine why Victoria Mayor Lisa Helps and Esquimalt Mayor Barb Desjardins decided to support then-Chief Frank Elsner in the face of credible allegations of sexual harassment brought against him by employees of the Victoria Police Department. Let me refresh your memory on what’s at issue: On December 4, 2015, the mayors were asked by reporters if Victoria Police Chief Frank Elsner was under investigation. Victoria Mayor Lisa Helps told the reporters, “No. The Board has full confidence in our chief. He’s the best thing to happen to this town and Esquimalt for a long time.” Victoria Mayor Lisa Helps (l) and Esquimalt Mayor Barb Desjardins Over the next two weeks, however, it emerged that Elsner had been the subject of an internal investigation conducted by the two mayors under their authority as co-chairs of the Victoria and Esquimalt Police Board. The allegations against Elsner were eventually investigated by members of the Vancouver Police Department and adjudicated by two retired judges. The entire process was carried out under the authority of Police Complaint Commissioner Stan Lowe, and led to Elsner receiving a lifetime dismissal from policing. The details of that decision were contained in a report Lowe released just before the 2018 civic election. As well as detailing the particulars of why Elsner was banned from policing, Lowe excoriated the mayors for mishandling their investigation. Lowe reported 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.” In an interview with the Times Colonist’s Louise Dickson following release of Lowe’s report, Helps complained it “feels like character assassination…I’m going to have someone look at the report carefully and see if it’s defamatory. It feels defamatory.” Perhaps the most serious of the allegations made by Lowe about the mayors—aside from the fact that they had lied to reporters and the public about whether an investigation had even taken place—was his assertion that the mayors had tried to hide from him additional allegations against Elsner of sexual harassment of Victoria Police Department employees. Helps and Desjardins denied this. Why, though, would Lowe make such a claim unless he had a step-by-step record of how the mayors had come to their decision that Elsner was “the best thing to happen to this town and Esquimalt for a long time”? Helps had offered that assessment in spite of knowing that sexual harassment allegations against Elsner had not been investigated. Focus decided to be the “someone” in Mayor Helps’ publicly expressed desire to “have someone look at the report carefully and see if it’s defamatory.” Following Helps’ complaint, Focus filed an FOI for all of the two mayors’ communications with each other during the three-month period of their internal investigation. The public has a right to know how elected officials make the decisions they do. This right is enshrined in access to information legislation, and public officials are expected to keep a comprehensive record of how they conduct themselves in the execution of their duties. Of course, that’s in the dream world. In the real world, none of that is true. In response to our FOI, the Victoria and Esquimalt Police Board released a set of records that was suspiciously incomplete. Without any prompting from us for an explanation, the Board’s FOI analyst Collette Thomson informed us, “A limited number of records were accessible due to email retention schedules.” By that, she meant the emails between Helps and Desjardins had been deleted; Thomson later conceded that the Victoria Police Board, in fact, had no written “email retention schedules” at all. What, then, had happened to the record of the two mayors’ communications as they had worked their way through the Elsner investigation? Had they really been deleted? If so, by whom, and why? Naturally, we filed a second FOI. In the City’s response to our second FOI were several emails that had not been provided by the Police Board’s response to our first request. One was from Helps to Desjardins answering an email from Desjardins that had been released to us earlier. In that earlier email from Desjardins, she had said, in effect, the new allegations of sexual harassment against Elsner required a new investigation. She suggested they could use the same investigator, Pat Gallivan. The new email showed Helps had responded to Desjardins: “I am happy to have Pat do this. I regret that we have to do this at all.” But “this”—an investigation—never happened. Helps’ response to Desjardins made two things evident: First, the City did have emails relevant to the Elsner investigation that the Police Board had told us had been deleted. Secondly, it’s evident that what Helps has said publicly about the second set of allegations against Elsner—that the mayors didn’t pursue these because they did not have a mandate to do so—was not the mayors’ first position. How did it happen, then, that the mayors backed away from acceptance that the new allegations had to be investigated, to later trying to hide the allegations of sexual harassment from Lowe? Armed with this email, Focus filed a complaint in early January this year with the Office of the Information and Privacy Commissioner: The Victoria and Esquimalt Police Board and the City of Victoria had either wrongly deleted emails, or had wrongly claimed that emails had been deleted. Our case was assigned to Trevor Presley, a senior investigator with OIPC. Presley took our complaint to the City. About two months later, Presley informed us: “After the City received your complaint, Mr Gordon [the City’s FOI analyst] conducted a second search, including searching for deleted emails. The long and short of it is that he found 271 emails plus 152 pages of attachments which he believes are responsive.” Hopefully, in those 271 emails and 152 pages of attachments is the record of how the two mayors moved from accepting that a second investigation was necessary, to denying that any investigation had taken place at all. As of the time of this writing, Presley could not say when these records would be released. “Due to the sensitive nature of the emails,” Presley informed us, the Victoria Police Board needed time to examine and redact them. “Although the delay is unfortunate, due to these records just being uncovered, we have to give them time to process them,” Presley informed Focus. “I’m sorry I cannot give you any firm timelines here.” Keep in mind that Focus is trying to confirm whether or not Police Commissioner Lowe’s report on how the mayors handled their investigation was accurate or not, a question Helps raised in public. Some might deduce that if there was evidence that Lowe was wrong, it would have been produced by now. That we are now waiting for the Police Board to resurrect emails that had once been deleted might be all that needs to be understood about the truth of the matter. David Broadland is the publisher of Focus.
  8. Information contained in a 2013 AECOM study suggests engineers have inadvertently designed a seismic vulnerability into Victoria's new $110 million bridge ON APRIL 5, a City of Victoria email sent to residents promised: “Tsunami Preparedness 101–What You Need to Know.” What you need to know, according to the City, is based on a study commissioned by the CRD and carried out by the engineering firm AECOM. That study reported that when the “Big One” occurs off the west coast of Vancouver Island, it will create a tsunami. After the earthquake occurs, the wave will take about 76 minutes to reach Victoria Harbour and, depending on narrowings and widenings of the waterways leading to Portage Inlet, will vary from 2.5 to nearly 4 metres in height. The City says you will be safe (from the tsunami) if you are 4 metres (about 12 feet) above sea level. That won’t be much help, though, if you’re buried in a collapsed building on the Songhees shoreline. Because disaster planning requires officials to consider the worst-case scenario, AECOM’s determination of the tsunami inundation zone made the assumption that the earthquake will occur at a high tide. However, they did not factor into their reckoning future sea-level rise attributable to global warming, nor did they factor in storm surge. Victoria residents no doubt appreciate such helpful reminders from the City about the risks associated with living above the Cascadia Subduction Zone. But the City’s email should have been sent much earlier, and to the attention of Dwayne Kalynchuk. The AECOM-CRD tsunami study was completed in June 2013. Back then, in the right hands, it might have saved future Victorians a heap of trouble if the City’s own engineering department had considered what 2.5 to 4 metres of water might mean for a project whose design it was finalizing at the time. At that moment the City’s head of engineering—Kalynchuk—was overseeing the Johnson Street Bridge Replacement Project. The design accepted by the City was being refined at various engineering offices around North America. A new bridge was needed, it was claimed, because the bridge it would replace had been built in an era when seismic considerations had not been part of the design of bridges. Now, though, engineers are aware that powerful earthquakes around magnitude 9.0 have occurred, on average, every 500 years off the west coast of North America. In fact, seismologists have shown that such earthquakes could occur as often as 300 years apart. A potential 300-year return period means another “Big One” could happen at any time. So a bridge that had been designed without any understanding of the seismic forces it could be subjected to needed to be replaced with one designed by modern engineers armed with all the latest insights about seismic vulnerability. One of those insights is that the Big One will cause a tsunami. The last one shook Vancouver Island in 1700, and caused a large tsunami. That wave was even observed and recorded in Tokyo’s harbour. Apparently, Kalynchuk and other engineers never saw AECOM’s tsunami study. We have to assume that, because the design of the bascule pier the engineers were finalizing at that time had a fatal flaw in terms of tsunami vulnerability. The east side of the bascule pier has three large openings in it (see photo below) that are about two metres above current high tides. The CRD study predicted the height of a tsunami in Victoria’s middle and upper harbours would be about three metres (nine feet). Due to “variability” in the model AECOM used to predict that height, it put the potential maximum height of the tsunami at four metres. Even at three metres, all the electrical equipment and the two 200-horsepower electric motors used to lift and lower the bridge would be submerged and ruined. The bridge would be inoperable. The new $110-million Johnson Street Bridge has three large openings about 2 metres (6 feet) above ordinary high tides (red line). The 2013 AECOM study determined that a tsunami would likely have a magnitude of 2.5 to 4 metres, which, if it occurred at high tide, would put the wave well above the bottom of the openings. You might well ask, “Why does this matter? After all, what happens to the new bridge will be the least of Victoria’s problems.” Emergency preparedness, however, is a state that’s achieved one project at a time. The hope of emergency planners is that enough weak points in the city’s infrastructure can be strengthened over time so that when a large earthquake strikes our region, many injuries and deaths will be avoided. But if the community doesn’t have a strong process to ensure those weak points are actually being strengthened, public resources will have been wasted and more lives lost than if the city were more seismically prepared. The strongest argument for scrapping the old bridge was not the avoidance of casualties caused by shaking of the bridge. The engineers’ actuarial study showed that death and injury on the bridge was a relatively small risk. Far more persuasive was the argument that following a big earthquake, an immediately operable bridge would be needed for emergency vehicles and personnel to access Victoria neighbourhoods on the west side of the bridge. An operable bridge would also be essential for what the City called “post-disaster recovery.” An unimpeded flow of tugs and barges under the bridge would be necessary for the removal of the hundreds of thousands of tonnes of debris a large earthquake would inevitably produce in the city. Those tugs and barges would also bring to Victoria materials needed for rebuilding the city and aiding its economic recovery. Anyone who has watched the stunning YouTube videos of the 2011 Tohoku earthquake tsunami hitting Japan’s coast can imagine that as a tsunami enters Victoria Harbour and heads toward the Gorge, it could carry with it large boats, entire buildings, cars—anything that can float—all of which, travelling at three metres per second through the narrows spanned by the bridge (as predicted by the AECOM study), could damage vulnerable machinery and bridge parts inside and outside the bascule pier. The huge cavity inside the pier would likely be filled with debris. As mentioned above, the CRD’s study predicts there will be 76 minutes between the time the earthquake occurs and the arrival of the tsunami at Victoria Harbour. That would give the City enough time to raise the bridge so that the superstructure could avoid direct hits from fast-moving floating objects. But since the electric motors would then be flooded and the pier filled with debris, the operator wouldn’t be able to lower the bridge. There would be no immediate access to Victoria West for emergency vehicles to put out fires, extract people from collapsed buildings and so forth—the very same circumstance that was used to condemn the old bridge. Why did the engineers put giant openings in the bascule pier just above the current water level? In combing through documents obtained from the City through FOIs, including the one document that specified allowable damage to the bridge as a result of seismic shaking, there’s no evidence that the engineers ever considered how a tsunami would impact the bridge. With PCL suing the City for its bad design, no one will say. I’ll speculate, though, that the bridge’s “iconic” walkway through the rings may have been the underlying reason for those openings. They may have been deemed necessary to prevent a build-up of nitrous oxide from motor vehicles using the bridge. Nitrous oxide is heavier than air and would, over time, fill the huge cavity inside the pier up to the bottom of the lowest opening. So it’s possible the engineers made the pier as open as possible so as not to asphyxiate the occasional tourist that ventures onto the walkway through the rings. Ironically, the old bridge didn’t have these vulnerabilities. All electrical equipment was located above the bridge deck, protected from a tsunami. David Broadland is the publisher of Focus.
  9. Focus Magazine is undertaking a multi-year project to determine whether local government initiatives to get passenger cars off the streets, like bicycle lanes, are having any effect. As the politics of “climate crisis” in Victoria becomes increasingly shouty and stressed, it strikes me that my community could benefit from something similar to the Keeling Curve to help guide it through the coming years of fractious debate about initiatives to reduce carbon emissions. What’s the Keeling Curve? According to Wikipedia it’s “a graph of the accumulation of carbon dioxide in the Earth’s atmosphere based on continuous measurements taken at the Mauna Loa Observatory on the island of Hawaii from 1958 to the present day.” Scientist David Keeling’s first year of measurements averaged out to 318 parts per million (PPM). In early February 2019, the observatory was measuring 411 PPM. Because of its elevation and location far out in the Pacific, measurements of carbon dioxide at Mauna Loa are considered representative of global concentration. Thanks to the measurements Keeling started, we now know that the current rate of annual increase in carbon dioxide is about 2.75 PPM. We also know that increase is accelerating at the rate of about 0.5 PPM per decade. The arithmetic suggests that by 2060 it will have reached 550 parts per million, double that of the pre-industrial era. At that point, scientists tell us, the planet will be committed to a temperature rise of between 1.5° and 4.5° Celsius. The time frame over which that full temperature increase would occur could take hundreds of years to play out—perhaps more than a thousand—according to scientists. But they also say that by the time CO2 has doubled, average temperature will have increased between 1° and 2.5° Celsius. This increase will disrupt climate, diminish biodiversity, and raise sea level. That’s the “climate crisis” in a nutshell. Another effect of all that additional carbon is ocean acidification. So my idea is to create something like the Keeling Curve: a series of measurements made four times each year that, over a period of years, graphically indicate how well we are doing as a community at reducing our emissions. Globally, we’re not doing so well. After nearly 30 years of international talks and endless expression of good intentions about reducing emissions, the global account of emissions, itself likely a carefully massaged undercount of actual annual emissions, shows they rose to a record level in 2018. While many elected officials in Western democracies say they want to do something about reducing emissions, they’re all riding on the same global economic machine that runs almost entirely on fossil fuels and requires positive annual growth to remain “healthy.” That means higher emissions. The Keeling Curve tells us, at a glance, where carbon dioxide is at and where it’s going. Like a map, it’s simple and verifiable. Indirectly, it tells us whether humanity is succeeding or failing at reducing emissions. It serves as a measure of the effectiveness of the steps the global family has undertaken in response to the climate crisis. I’m not suggesting we need to measure carbon dioxide concentration in Victoria. What Focus is undertaking to measure is the change, from season to season and from year to year, in the use of automobiles on the streets of downtown Victoria and immediately adjacent neighbourhoods. The project Focus has begun will provide an annual measure of the number of cars, buses, pedestrians, cyclists and other forms of mobility passing through 14 City of Victoria intersections. Over time, these measurements will allow us to guage the effectiveness of the steps the City of Victoria and the CRD have undertaken to avert what they are now both calling a “climate crisis.” Our measurements will produce what we’re calling the City Auto Reduction Effectiveness Index—or the CARE Index. If we find enough funding—can media apply to the Gas Tax Fund?—we will extend this project to the region and call it the RARE Index (no pun intended). During January, Focus video-recorded everything that moved through 14 different Downtown intersections during "rush hour." Later, I’ll describe the project in a little more detail. But first, to illustrate why such an index would be useful, let’s consider a slice of the current state of local politics around the “climate crisis.” In February, City of Victoria council voted to explore taking legal action against fossil fuel companies for costs the City might incur as a result of impacts like sea level rise and climate change caused by increased carbon in the atmosphere. The motion was presented by Councillor Ben Isitt and follows up on a campaign started last year by West Coast Environmental Law. The only councillor to vote against the motion was Geoff Young. Young has called the initiative “ridiculous.” (Judith Lavoie has a story on page 20 that’s focussed on the proposed lawsuit.) If Isitt’s motion was intended to generate hostile media attention, he was successful. Alberta Premier Rachel Notley quickly issued a statement (covered by media across Canada) that noted: “The hypocrisy of this proposed lawsuit is astounding.” While Notley attacked Victoria for its ocean-based sewage treatment system—a system long endorsed by local marine scientists and public health officials—she could have chosen a more obvious target to demonstrate Victoria council’s “hypocrisy”: the City’s reliance on fossil fuels to conduct its own operations. While councillors were condemning fossil fuel companies, fossil fuel was keeping the councillors from freezing to death—City Hall is heated by a gas-fired boiler. Twenty-five major City-owned buildings and operational facilities are heated with natural gas, including: The Arcade Building, VicPD headquaters, Crystal Pool, the Victoria Conference Centre, Crystal Gardens, all three fire stations, four community centres, the City’s asphalt plant, Royal Athletic Park, the public works yard and several other facilities. As well, the City depends on a fleet of 125 fossil-fuelled cars and light trucks to conduct its operations. The apparently low level of emissions awareness demonstrated by the councillors who voted for the motion was highlighted by Victoria Mayor Lisa Helps’ subsequent announcement that she would be flying off to Calgary and then on to the oil sands projects in northern Alberta. Why? She told the Times Colonist: “I am really curious to know what are the innovative approaches that they are taking. What are the sustainability measures that they are putting in place? I think it’s important I know these things.” Helps might want to weigh the value of enlightenment at the hands of Alberta fossil-fuel-PR specialists against the emissions associated with her own air travel. Her round trip by fossil-fuelled airplanes will be at least 3,000 kilometres long. The emissions per passenger per kilometre for a commercial aircraft are similar to the emissions of the average passenger car. A Honda Fit with just a driver emits 168 grams per kilometre. A domestic long-distance flight (Calgary qualifies) averages 177 grams per kilometre per passenger. But because passenger flights emit climate-warming gases at high altitude, the impact associated with aviation emissions is, scientists say, about 2.7 times higher per kilometre per passenger than for those emitted at ground level by cars. So Helps’ flight to the oil sands will produce the equivalent emissions of a Honda Fit and its driver travelling 8,100 kilometres. The mayor’s desire to broaden her mind, as she put it, will result in more transportation-related emissions over a couple of days than many of us more careful, narrow-minded car drivers will produce in a couple of years. Meanwhile, back on the ground in Victoria, numerous council-approved developments over the past few years, including highrise housing, street-widening, sewage treatment and bicycle lanes, are all significant sources of new emissions and, controversially, the cause of a loss of hundreds of trees that store carbon and remove pollutants from the air. There is apprehension amongst the citizenry that the slow-progress, sylvan character of the City is under assault by green-washed construction projects even while politically-ambitious councillors spend their efforts attacking imaginary enemies and fast-tracking theoretical solutions to rising emissions. To many of us, councillors’ solutions feel more like another problem than a solution. That’s why we need the CARE Index for Victoria. On January 1, we began video recording traffic through the 14 selected intersections mentioned above. We made 22 recordings, all shot in 4K high-resolution format on a waterproof GoPro camera, covering the period between 3:45 and 5:30 pm—the so-called “rush hour” in Victoria. Our analysts then played the videos at normal speed on a large screen and counted every pedestrian, cyclist and automobile that transited the intersections. We are still processing the data obtained during our first round of counting. For the sake of transparency we have uploaded full length versions of each video to YouTube. YouTube’s 15-minute limit on video length meant we had to create, in effect, time lapse videos. Run at eight times normal speed, the videos visually demonstrate the enormous amount of energy being expended to transport people and goods through the city. You can view these videos here. In April, we will repeat this process at the same intersections and same time of day. We’ll do it all again in July and October. In 2020, we’ll do it all over again. And in 2021 and 2022. How will this help us measure the effectiveness of local government initiatives to reduce emissions? We will be able to report, with a high degree of certainty, whether, from year to year, there are more cars or less cars on the road in the Downtown core and surrounding neighbourhoods; more pedestrians or less pedestrians; more cyclists or less cyclists. Unless there’s a significant reduction in the number of cars on the road—and quickly, since there’s a “crisis”—the City’s and CRD’s efforts to accomplish that won’t have been effective. We’ll also be able to assess local governments’ claims about mode share. The CRD’s 2017 Origin-Destination Household Travel Survey, conducted once every five years, does not use direct observation to establish mode share. It uses voluntary surveys conducted in the fall of the survey year to project mode share, rather than measure it with on-the-ground observations. So it’s a guesstimate, and misses a large chunk of commercial traffic. As well, there’s virtually no public transparency with regards to who actually completes the surveys. The last study failed to acknowledge that a director of the Greater Victoria Cycling Coalition, a special interest group that lobbies local governments for increased spending of public money for cycling infrastructure, had direct access to the survey’s data and provided analysis. Does anyone think a director of the New Car Dealers Association of British Columbia would be given access to the inner workings of the CRD’s survey? Thus we will be able to report whether any initiative that the City of Victoria or CRD dream up that’s intended to reduce transportation emissions is actually having the intended effect. Unfortunately, governments occasionally make blunders and produce unintended consequences. For example, the City of Victoria’s well-intentioned ban on plastic bags appears to have created an unintended consequence. A survey of garbage bins in my neighbourhood shows that many households are simply replacing the no-longer-available thin plastic bags their groceries were packed in with heavier, brand-new plastic garbage bags. In trying to eliminate single-use bags, the City appears to have eliminated two-use bags and replaced them with heavier, single-use bags. So far, in its efforts to reduce carbon emissions, the only significant target of CRD and City of Victoria initiatives has been the private passenger car. The governors want car drivers to move to either walking, biking or busing. While this policy is considered to be one of the low-hanging fruits in any jurisdiction’s broader plan to reduce carbon emissions, it seems doomed to be inconsequential in Canada. Passenger cars, according to Environment Canada, are responsible for only five percent of Canada’s total emissions. So local governments’ long-term plans for encouraging car drivers to move to walking, biking and busing will only address a tiny fraction of Canada’s total emissions. Yet these initiatives involve spending hundreds of millions of dollars on new infrastructure, all of which will itself have a significant carbon emissions burden associated with it. If the City and CRD build the infrastructure but few people use it, they will have made matters worse, not better. Why wouldn’t Victoria’s passenger car drivers get out of their vehicles and find a less carbon-intensive way to get from point A to point B? Besides all of the reasons that made private passenger cars such a successful form of transport in the first place, there’s the fact that the federal government has made it abundantly clear it has no credible plan for reducing national emissions. When Prime Minister Trudeau gave a green light to the Trans Mountain Pipeline Expansion Project in 2016, he agreed to allow Alberta’s annual emissions to rise from 68 to 100 megatonnes. That 32-megatonne increase is roughly equivalent to the 36 megatonnes emitted annually by all passenger cars in our country, according to Environment Canada. So even if you and all other Canadians give up your fossil-fuelled passenger cars, the resulting emissions reduction will be cancelled out by Alberta bitumen producers exporting dilbit to the US and Asia so that drivers in those countries can put cheaper gas in their cars. Are Canadian car drivers really going to be that, uh…generous? By the way, the latest numbers from Alberta bitumen producers show their output will increase by 50 percent above 2016’s production level by 2027. The mining, transporting and refining of oil and gas already accounted for 26 percent of Canada’s emissions in 2015, but that share is rising rapidly. Source: https://www.aer.ca/providing-information/data-and-reports/statistical-reports/crude-bitumen-production So while Focus is going to great lengths to use a transparent and verifiable process for determining whether Victorians are actually reducing their use of passenger cars, we’re not kidding ourselves about what we’re likely to find. But we’re open to surprise. For those people who object to our recording their passage through a public intersection, objection noted. However, the act of an individual making a video recording in a public place is protected by the Canadian Charter of Rights and Freedoms. It applies equally to recording police officers at work and recording vehicles and people moving through an intersection. We exercise this right respectfully, believing it to be in the public interest to do so. What we have found so far is not surprising, but it is only the first reading of a moving number. We will provide a full analysis of our first year of counting cars, bicycles, buses and pedestrians in our January 2020 edition. At that point we will have established one point on the CARE Index. Unless our photographer gets run over by a car. David Broadland is the publisher of Focus.
  10. An email unearthed by an FOI request raises questions about the Elsner investigation and the Lowe Report. So do all the deleted emails. POLICE COMPLAINT COMMISSIONER Stan Lowe’s September 2018 report on the investigations into former Victoria Police Department Chief Frank Elsner excoriated Victoria Mayor Lisa Helps and Esquimalt Mayor Barbara Desjardins for the way they conducted an initial investigation of Elsner in 2015. Lowe asserted 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.” He provided much evidence to support his contention, but the mayors disputed his conclusion. Both claimed they had been libelled and made veiled threats of legal action against Lowe. Lowe’s office invited the mayors to call for a public inquiry. Deputy Police Complaint Commissioner Rollie Woods stated, “we have a considerable body of evidence we would be willing to provide at any public inquiry so the truth would certainly come out.” Did the mayors have any evidence that would support their claims? They weren’t offering any, so Focus filed an FOI for the communications between the two mayors during the three months of their investigation of Elsner. The Victoria Police Board released those records to us in mid-December (See link at the end of this story). That release contained only one email written by Mayor Helps to Mayor Desjardins during September, October and November 2015 when they conducted their investigation. Helps’ one email consisted of three words. On September 4, 2015, shortly after the mayors had been informed about salacious Twitter messages from Elsner to the wife of a subordinate VicPD officer, Desjardins copied Helps on an email to Elsner wherein she asked him for a meeting about “a personal matter requiring your assistance...” About five hours later, Helps emailed Desjardins and asked, “Did he respond?” Within an hour Desjardins wrote back to Helps: “Got auto response he is away unt [sic] the 8th have got a phone number and will call tomorrow.” And then, for the next three months, Helps was apparently silent, never communicating with Desjardins by email on this subject. By way of an explanation for the scarcity of records of the two mayors’ communications, VicPD’s Collette Thomson noted, “A limited number of records were accessible due to email retention schedules.” By that she seems to mean the emails the mayors exchanged were deleted. The scant record that remains appears to have survived only because paper copies of a few emails gathered for a previous FOI request—made by an unknown entity—were kept by the Township of Esquimalt. All of Helps’ emails related to the first three months of the internal investigation have been deleted, even though it took place just over three years ago. All of her emails go through mailboxes hosted on City of Victoria servers and retention of the mayor’s email records is the responsibility of the City of Victoria. If the mayor’s emails have been deleted, that means that in less time than the 4-year term of an elected City of Victoria mayor or counsellor, critical records of what they did while in office are being destroyed by the City. That’s what Thomson’s explanation implies. If you are thinking, “Well, that doesn’t seem right,” you’re correct. The City of Victoria’s “Records Retention and Disposition Authority” for the Mayor’s Office requires that both electronic and paper records that are created to “document the operations of the mayor” must be “retained for 10 years overall, and then transferred to Archives for selective retention.” The Police Board has no written policy regarding “email retention schedules,” and, in any case, the emails were never in its physical control or custody. They were in the physical control and custody of the City of Victoria. Regardless, according to Thomson, those records are gone. It’s difficult to imagine why any City employee other than the mayor herself would delete the mayor’s Elsner investigation emails from the City’s electronic document storage system. We are left with the presumption that the mayor may have deleted these emails before they could be put into long-term storage. To understand in a fundamental keep-democracy-healthy kind of way why the communications between Helps and Desjardins matter—and why they should have been preserved—consider what former BC Information and Privacy Commissioner Elizabeth Denham wrote in her investigative report Access Denied: Record Retention and Disposal Practices of the Government of BC. Denham conducted her investigation in response to a case in which a person in the BC Premier’s Office “triple-deleted” emails in order to hide his conduct from public scrutiny. Her report described in detail how emails could be triple-deleted. The commissioner noted that “In conducting this investigation, it has become clear that many employees falsely assume that emails are impermanent and transitory, and therefore of little value. What this investigation makes clear is that it is a record’s content and context that determines whether a record is transitory, rather than its form.” Ironically, Denham released this report on October 22, 2015, right at the time Helps and Desjardins were conducting their own investigation into Elsner. At that time, Denham wrote, “Democracy depends on accountable government. Citizens have the right to know how their government works and how decisions are made.” Our “right to know” translates into a right to access government records, such as Helps’ and Desjardins’ emails. But, Denham wrote, “Access to information rights can only exist when public bodies create the conditions for those rights to be exercised. Government must promote a culture of access, from executive leadership to front-line employees. If they fail to meet this obligation, the access to information process is rendered ineffective.” If Helps deleted 100 percent of her emails, which appears to be the case, then she rendered access to information 100 percent ineffective. According to Denham, that means there’s zero accountability. With no accountability, the City of Victoria resembles more an authoritarian regime than a democratic institution. Evidently, City Hall has some vital work to do to meet its legal obligations around information access. The Township of Esquimalt did preserve some records of the email conversations between Desjardins and Helps. One of those emails seems to challenge a claim Lowe made about the mayors and it topples a claim Helps made about the mayors’ investigation. In the analysis that follows, I’m going to focus on just one aspect of Lowe’s case against the mayors, the question of whether or not they buried allegations of harassment made against Elsner by two female VicPD members. The harassment allegations were made, we later learned, soon after the existence of Elsner’s sexually-charged tweets with the wife of a subordinate officer was made known to the mayors. Lowe’s description of what the mayors did with these allegations amounts to a claim that they hid them from his office in order to protect Elsner from any repercussions. But Helps told Focus last August that investigation of such allegations was outside the mandate of their investigation: “We were authorized to deal only with the issues of whether Elsner had engaged in an inappropriate relationship with the wife of a VicPD member and whether Elsner had improperly used police social media accounts,” Helps wrote in an email. Lowe, though, has written, “It was my expectation that if the investigation revealed evidence of conduct that could constitute a disciplinary breach of public trust, the [mayors] would raise the matter with our office.” Lowe says they never did. His report shows that the mayors rushed to make a decision about how to discipline Elsner after they were informed the story would soon appear in the media. Lowe was given no information about the mayors’ decision, but requested details after both mayors made statements that attempted to mislead reporters on whether an investigation had taken place. The records the mayors turned over to Lowe contained no mention of the harassment allegations. Lowe learned about these additional allegations only after the Victoria City Police Union brought them to his attention. There is no doubt the two mayors emailed back and forth about these allegations. Lowe’s office secured some of those communications through its legislated power to obtain records. The full record of their back and forth communications would help us understand exactly what the mayors were thinking and whether or not Lowe’s assessment of their actions is correct. Indeed, what the Township of Esquimalt released shows the mayors did communicate by email, and I’ll get to that in a moment. But first, let’s consider whether the additional allegations were serious enough that it is reasonable to expect the mayors would have taken action, including informing Lowe, as soon as they had been made aware of the allegations. Three additional allegations were brought forward by two female VicPD employees. The descriptions below were included in the judgment made by retired Judge Ian H. Pitfield as part of the external investigation of Elsner’s conduct ordered by Lowe in December 2015. Release of Pitfield’s judgments had been delayed by Elsner’s legal maneuverings until September 2018, when Lowe released his report. Had the mayors followed up on these allegations themselves, presumably they would have come to a similar understanding as Pitfield did. Here are Pitfield’s descriptions: First allegation: “[Elsner] pressed his groin against her buttocks, and his chest against her back in what [Officer A] described as a ‘nuts to butts’ maneuver… She told investigators she was shocked that ‘my new Chief would stand behind me and from a female’s perspective it’s almost like an oppressive position in a, in a way, like just was very inappropriate, awkward.’” Second allegation: “Officer B said that the day of a police Mess Dinner in 2015, the former chief approached her in a hallway at the VicPD headquarters and held her by both arms with her back against or close to the wall for about a minute. She told investigators that she felt uncomfortable that the former chief was ‘in her space’ and holding her by the arms.” Judge Pitfield described the third allegation: “The third allegation also involved Officer B. It arose at a use-of-force training session in 2014 at which the former chief was paired up with Officer B to practice lateral neck restraints; that involved close body contact. Officer B said: ‘…when she applied the restraint to Mr Elsner, or him to her, he said things like you are so warm, don’t stop, or, I could do this all day, you’re so warm.’ She said the comments were made multiple times. She stated that while the comments were not overtly sexual, she felt they had a sexual tone as they were made at the time when their bodies are touching during the use of force scenarios.” In hearings before Pitfield, Elsner denied all of these allegations. But Pitfield made it clear that he believed the women, and found that “because Mr Elsner was the Chief Constable, the members were his subordinates, he stood in a position of power and responsibility vis-a-vis both members, and the three instances constituted breaches of VicPD workplace policy and the terms of his employment contract, I consider the misconduct to be well advanced on the seriousness scale.” So let’s circle back to the question of whether there’s evidence beyond that provided by Lowe’s report that the two mayors tried to bury these allegations. As mentioned earlier, the surviving record of email communications between the two mayors during September, October and November 2015 is sparse. The only surviving records were obtained from Esquimalt. From its records, one email stands out. For one thing, someone has run a black felt pen through two sections of text, hiding part of Desjardins’ message to Helps. This wasn’t an ordinary redaction permitted or required by BC’s privacy and information law. Rather, this was done by somebody trying to hide something. Even though the content of the email has obviously been tampered with and so is likely to be regarded with suspicion, it has still been brought forward. To me this suggests that someone wanted us to see the other part of the message—the part that isn’t blacked out. Mayor Desjardins appears to have wanted a second investigation into harassment allegations against Elsner. The part that’s still readable suggests that by October 15, 2015, just over a month into the investigation of Elsner’s salacious tweets, the mayors knew about the additional harassment and bullying allegations against Elsner. It suggests that Desjardins believed those allegations needed to be investigated. She wanted to ask “Pat” to take that on, but had someone else in mind if necessary. “Pat” is Patricia Gallivan, QC, the Vancouver lawyer who conducted the mayors’ investigation. Note how this seems to conflict with Lowe’s claim that the two 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.” The readable part of the email seems to suggest that Desjardins was pushing to have the harassment allegations investigated. Of course, we don’t know if that’s an accurate interpretation of Desjardins’ intended meaning since part of her message has been blacked out. Len Statz, manager of investigative analysts for the Office of the Police Complaint Commissioner, told Focus in an email that Lowe’s office had not seen Desjardins’ email previously. Statz wrote: “In the Commissioner’s view, the email provided to Focus Magazine provides further support for his position that the Mayors were aware of the allegations of harassment, did not fulfill their duty to inform the Commissioner and, arguably, continued on a path that would see the former chief remain in his post. We note that the covering letter to Pat Gallivan’s preliminary report, dated November 16, 2015, summarized the allegations of harassment (including one of the allegations that was later substantiated by Discipline Authority Pitfield) and offered to investigate those allegations, indicating that investigation would take about a week. There is no documented action to take her up on that offer and there was no notification to our office.” (For the record, the email shown here was provided to the Police Board’s Collette Thomson by the Township of Esquimalt, according to Thomson. It had apparently been found as part of an earlier FOI search of Helps’ records, which were printed out in paper form and preserved by Esquimalt. Those records were originally gathered by City of Victoria employee Colleen Mycroft, which is why her name appears at the top of the email. Both Helps and Desjardins were asked to comment for this story. As of our deadline, neither had responded.) Six days after suggesting they should do a second investigation, Desjardins sent to Helps, without comment, VicPD’s policy papers on “Workplace Harassments & Improper Activity,” “Workplace Violence,” and “Code of Ethics.” Again, if there was a response from Helps, it has been deleted from the City’s records. The records provided to Focus don’t include any other communications between Desjardins and Helps for the rest of October or November 2015. But the records released by Lowe’s office show that on November 16, 2015, a full month after Desjardins suggested an investigation of the harassment allegations, Gallivan wrote in a letter to the mayors: “I understand that you are considering how to address those allegations. As previously stated, should you wish to expand our mandate to include an investigation of those matters, in light of my schedule and given the need to deal with these matters expeditiously, I would need to engage the assistance of one of my partners to complete the investigation. I have discussed this matter with my partner…and she advises she would be able to set aside a week to conduct the witness interviews.” To summarize, then, Desjardins apparently believed an independent investigation of the allegations should be done, she thought Gallivan should do it, Gallivan had been approached, and Gallivan had offered her company’s services to do it “expeditiously.” Yet the investigation never took place. Why? Again, Helps says now: “We were authorized to deal only with the issues of whether Elsner had engaged in an inappropriate relationship with the wife of a VicPD member and whether Elsner had improperly used police social media accounts.” But it’s now evident that neither Desjardins nor Gallivan believed that to be the case. They were both ready to proceed with an investigation into the harassment allegations. Why did Helps resist this direction? We don’t know for certain because her emails have been deleted. But it’s evident that Helps weighed the allegations made by the two women against something she believed to be true about Elsner. Her position on Elsner is a matter of public record. On December 4, 2015, when Helps was asked on Global TV if there was “any truth to it that there’s an investigation going on with the chief,” Helps replied, “No. The board has full confidence in our chief. He’s the best thing that’s happened to this town and Esquimalt in a long time.” So Helps weighed the allegations of the two women, plus the evidence of Elsner conducting “an inappropriate relationship” with the wife of a subordinate officer, against something else and decided in favour of Elsner. What outweighed the allegations of the women? Soon after the investigation of Elsner broke into public view in December 2015, there was talk on social media about the Twitter allegation against Elsner being a retaliation by VicPD personnel who opposed the new “community policing” direction in which he was taking the department. There was said to be opposition to Elsner’s shift away from some of the policies of former Police Chief Jamie Graham. That shift included, for example, a freeze on promotion of officers based on arrests and ticketing, and a move toward promotion based on community engagement and contact. Did this idea—that Elsner was being punished for being progressive—tip Helps’ judgment in favour of Elsner and against the women who accused him? Indeed, the two mayors had directed Gallivan to determine whether there was “misconduct by any other employee of [VicPD] or if there were any security issues with respect to [VicPD’s] information system.” The mayors apparently wanted to know if any improper action had led to Elsner’s tweets being brought to their attention. After investigating the matter, Gallivan reported, “I have no reason to believe that there was any misconduct” on the part of VicPD members. But even if it had been true—that Elsner was punished by VicPD members because he was progressive—it’s difficult to see how that would cancel out Elsner’s documented misconduct involving women. After Lowe’s report was released last September and many more details about what had happened during the mayors’ investigation circulated in the community during the civic election campaign, Helps and Desjardins both claimed they had been libelled by Lowe. To understand why Helps might not want to openly acknowledge that she had sided with an accused abuser and stood in the way of an expeditious investigation of the allegations of harassment, consider a statement made by Sonia Theroux, Helps’ campaign manager. Theroux made this comment on social media shortly before the election: “I’m a multi-time survivor; I’d never support a mayor who tried to protect an abuser. Full stop.” Theroux had apparently been told by Helps that a “second letter [was] on its way to the OPCC re new allegations when media intercepted,” back in December 2015. “There was no intention to ‘cover up’ the allegations,” Theroux wrote. Helps has never made any public statement about such a “second letter.” If such a letter had being contemplated, wouldn’t the mayors have secured a record of it in case it was ever necessary to prove they intended to pursue the harassment allegations? But Helps’ own words back in December 2015 make it clear how unlikely the existence of a “second letter” was. Again, recall her statement: “The Board has full confidence in our chief. He’s the best thing to happen to this town and Esquimalt for a long time.” How could Helps make that “best thing” claim while, at the same time, she was writing a “second letter” to Lowe to inform him that the mayors were going to begin an investigation of Elsner’s “nuts to butts” maneuver with his female staff. While Gallivan was investigating the salacious tweet allegation against Elsner, Elsner committed three additional acts of serious misconduct. He lied to Gallivan about what he had done, he attempted to obtain false testimony from a subordinate police officer, and he misled a fellow police officer. The first two of those actions were each judged to merit dismissal from policing; one of those was considered tantamount to an obstruction of justice by retired Judge Carol Baird Ellan. In other words, Elsner’s attempt to cover up the tweeting and “nuts to butts” maneuver were what made him forever unemployable as a police officer. One has to wonder whether Mayor Helps’ attempt to delete her way out of her own predicament will, in a similar fashion, eventually catch up with her employability as a politician. Focus has requested that the Office of the Information and Privacy Commissioner review the matter of the mayor’s missing emails. We will continue to report what we learn. David Broadland is the publisher of Focus. The Victoria Police Board's full response to Focus' request for communications between Mayor Helps and Mayor Desjardins: Victoria Police Board 181212 FOIPPA response package.pdf
  11. The City has always denied the new bridge has any problems, thus limiting its ability to assert itself in legal fights over the project. JUDGING BY THE LEGAL SUITS claiming damages that have been filed (but not yet served) by PCL Constructors against the City of Victoria and the engineering companies involved in designing the new Johnson Street Bridge, history is about to repeat itself. PCL launched a similar legal maneuver against its partners on the project back in 2015, and that led to the City agreeing to “release and forever discharge” PCL, MMM Group, and Hardesty & Hanover “from all debts, claims, demands, damages, expenses and costs (including without limitation, legal costs) of any nature or kind that are in any way related to the Project and either known or which ought to be known by the [City] as of [April 23, 2016].” PCL now claims “The design provided by the City to PCL was not prepared in accordance with the standard of professional care normally exercised by recognized professional engineers experienced in the performance of design work such as required for the design of the New Bridge, and was not accurate and complete but rather the design information contained errors, omissions and misrepresentations.” PCL’s filing makes similar design-focussed claims against Hardesty & Hanover and MMM Group/WSP, the two companies that did the actual design and engineering on the bridge. PCL’s contract with the City stated that the City was legally responsible to provide the design. PCL’s latest claims have forced the City back into mediation. The head of the one-person company the City contracted to provide public relations for the project, Jonathan Huggett, has characterized PCL’s filings as simply placeholders to meet BC’s Limitation Act requirement of filing civil claims within two years of a construction project’s completion date. But at the same time, Huggett admits the City is in a new round of legal mediation with PCL. My guess is that PCL is looking to obtain a similar agreement to the one it negotiated with the City in 2016. This time it will want to rid itself of any future liability for what occurred after April 2016. One of those liabilities arises from the execution of what the original construction contract between the City and PCL called “a complicated joint.” This is the six-surface connection between each ring and each truss. If you watched the bridge parts being erected, you will recall that each ring was lowered into place separately and later the two side trusses with the highway deck attached to them were added as a single piece. To join the trusses to the rings, twelve different surfaces needed to meet in almost perfect juxtaposition. The mating surfaces were then fastened with internal bolts. The long-term structural integrity of these joints is dependent on all of the parts never corroding, especially the bolts and the holes through which they pass. Yet it’s obvious that oxidation at these joints is already occurring. Worse, caulking intended to keep the joints dry is already cracking away from the joints. Nine months into service, the critical joint on the south-side truss has lost caulking intended to keep water out and corrosion at bay. The bridge opened only nine months ago, but by December a section of the seal over the upper joint on the south side of the bridge had fallen out and the joint appeared to be corroding freely (photo above). Hardesty & Hanover’s design depends heavily on the durability of epoxy grout in a number of critical areas on the structure, yet the trustworthiness of that design choice is already in question. Kiewit Construction’s exquisite competing bid design called for this to be a field-welded joint, not a bolted joint, so there are legitimate questions about Hardesty & Hanover’s choice of how to execute this “complicated joint.” The City’s apologists for the project will likely deny there’s any problem and will argue that critical joints freely corroding is standard fare on such engineering projects—thus undermining the City’s legal position vis-a-vis PCL. Recall the six-foot by six-foot bolted-on plates that were needed as a result of incomplete design information being included in shop drawings. Those weren’t a problem, either, according to Huggett, just a “fabrication challenge.” Huggett’s public claim that the plates were standard fare for such an infrastructure project single-handedly defeated any future case the City could make in a court of law. Such “fabrication challenges” are now evident all over the bridge. My personal Top Ten would include the top chord of the trusses. In the original conceptual design by Wilkinson Eyre’s Sebastien Ricard—the dreamy image used to get a “Yes” in the 2010 referendum—the graceful sweep of the top edge of the trusses, from the top of the rings to the far western toe of the trusses, contained exactly zero abrupt changes in direction. These lines were meant to be sweeping and graceful. Wilkinson Eyre-Sebastien Ricard conceptual design, conceived for the 2010 referendum on whether to replace the old bridge. In the bridge PCL built, this sweeping line has about seven changes in direction. These range from inexplicably abrupt to “fabrication challenge” wobbles. The wobbles in the line of that top edge result in a series of bulges and dents in the sides of the trusses where there should have been a predictably straight and flat surface. Anyone with an eye for good form will perceive these deformations as serious flaws. To my eye, this aspect of the new bridge is the best example of poor design and workmanship at play anywhere in Downtown Victoria. Wobbles and abrupt changes in direction in the trusses of the design created by Hardesty & Hanover and MMM Group. This was supposed to be an “architecturally significant” structure, a “signature” bridge. What else could justify its eventual $120-million cost? Yet not a single mention of the project can be found on any of the websites of the companies involved in designing, engineering, and constructing it. None of them wants to put their corporate signature on the hodgepodge of metal confusion. But Victoria is stuck with it, the engineers claim, for the next 100 years. There’s a lot more that’s already gone wrong with the structure, and I don’t mean intoxicated men falling overboard. Enter the cavernous machinery room, for example, which, it was hoped, visitors would find “iconic.” Check out the cracked and spalling concrete overhangs that are supposed to keep rain off the hydraulic motors. Below them, look closely and you’ll see duct tape crudely applied to makeshift sheet-metal covers intended to keep rainwater away from the pinion shafts. After only nine months of service, the City has resorted to using duct tape to solve problems. Below the duct tape, note the pool of hydraulic oil that’s leaking from the drive motors. $120 million bought a certain style of iconic, but it’s more like Trailer Park Boys than Wilkinson Eyre. Watch for duct tape to appear over those “complicated joints.” Nine months into service, hydraulic fluid is leaking and duct tape has been employed. These are just some of the reasons why PCL is now likely twisting the City’s arm to “release and forever discharge” it from all responsibility it might have for everything that has already gone wrong, and everything that will go wrong in the future. City councillors will be told by their consultant that this is “normal” for a big infrastructure project and councillors will accept PCL’s terms, just like they always have. David Broadland is the publisher of Focus.
  12. 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.
  13. 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
  14. Stephen, Thank you for your comment. Just to clarify, we learned you were running for a council seat the day this went to press. In any case, I wouldn't have contacted you for comment had I known earlier. Your 2014 interview with Lisa Helps speaks for itself. This story is about Mayor Helps' record, not yours. But I believe your interview of Helps could be useful to voters in terms of comparing what she said in 2014 compared with what she did. I would recommend to voters that they read your interview. That's why you were included. My apologies if there's any implication in my story that you interviewed Helps with the idea in mind that you might run for mayor, too, in 2014. That wasn't my intention. At the time, I knew you as a dedicated journalist and believed that would be your path into the future. When you announced you were running for mayor, I was as surprised as anybody. You fail to mention above that Focus' Judith Lavoie interviewed you and that your story was on an equal footing with our stories about the other mayoralty challengers. I agree with you that you raised questions about Gene Miller's writing following the 2014 election. We listened to you. To the extent that we agreed with you, we have taken a different course this time around. Thanks again for your comments, and I wish you the best at the polls. David Broadland
  15. For this reporter, three key moments defined Mayor Lisa Helps’ controversial first term. BACK IN OUR January 2014 edition, in a story titled “Tough questions for Lisa Helps,” freelance journalist Stephen Andrew played cat-and-mouse with then City of Victoria Councillor Lisa Helps over whether she was running for mayor. We had asked Andrew to interview Helps because we’d heard she was ready to declare. Andrew couldn’t get Helps to admit the obvious—and he gave no hint whatsoever that he was considering running too. Helps told Andrew that, as mayor, she would never go to China (on a trade mission). In the next four years she went twice. She told Andrew “things are very positive” that the new Johnson Street Bridge would “come in on time and on budget.” The bridge, then scheduled to be open to traffic in the fall of 2015, is still unfinished, its final price still unknown but likely to be over $115 million (voters approved a $77-million project). Helps told Andrew that Victoria couldn’t afford a new Crystal Pool; now she favours building a pool at a cost that’s pushing $80 million. In the election later that year, Helps did run for mayor. So did Stephen Andrew. Helps defeated incumbent Mayor Dean Fortin by 89 votes, earning her the moniker “Landslide Lisa.” Andrew came in fourth, trailing Ida Chong. (Andrew has announced he’s seeking a seat on council in the upcoming election.) Helps seems to have a clearer path to victory this time around. None of her announced competitors have the kind of name recognition she does, and that may be all it takes for her to hold on to her $104,000-per-year job for another four years. Below, I will take you through three issues Mayor Helps faced in her first term. The mayor agreed to answer questions submitted to her by email (A link to our questions and the mayor's full responses can be found at the end of this article.). Then-councillor Lisa Helps in 2014, before Sir John A. Macdonald's statue was an issue for her. (Photo by Tony Bounsall) LET'S START WITH THE HURRIED REMOVAL of the statue of Sir John A. Macdonald from the grounds of City Hall in August 2018. Helps’ public description of how this came about links the action back to the City’s commitment in 2015 to undertake the Calls to Action identified by the Truth and Reconciliation Commission (TRC) that were within municipal government authority. Yet, following Victoria’s removal of the statue, former Truth and Reconciliation Commissioner Murray Sinclair told The Canadian Press, “The problem I have with the overall approach to tearing down statues and buildings is that it is counterproductive to…reconciliation because it almost smacks of revenge or smacks of acts of anger, but in reality, what we are trying to do, is we are trying to create more balance in the relationship.” Revenge? Anger? How did Victoria suddenly become Canada’s poster child for how not to conduct reconciliation with First Nations? First, let’s place the issue in its proper context. The stated goals of the TRC were to “raise awareness of the history and impacts of the residential school system,” and to “enable a process of healing and reconciliation between those affected and non-Aboriginal governments, communities and individuals.” In 2012, as many as 3,000 people attended a TRC event in Victoria, many of them non-Aboriginal. The TRC set a high standard for openness and inclusion in order to create what Sinclair describes as “more balance in the relationship.” Sadly, the process that led to the removal of the Macdonald statue appears to have involved just three members of the non-Aboriginal community and had zero transparency. Mayor Helps played the lead role in the process that led to this “counterproductive” action. The extraordinary committee behind the removal of the statue was established at an in camera meeting of City council in June 2017. Creation of that committee was based on a seven-page recommendation authored by Helps and Councillor Marianne Alto. Part of their recommendation was that the activities of the committee, which they called “the City Family,” would only be reported to the public “at the discretion” of Helps. The document is striking for its lack of clearly defined objectives. None of the five recommendations of the TRC that were specific to governments were addressed. Instead, Helps and Alto requested a looser arrangement in which the Family would “take responsibility for doing that work with integrity, an open heart, and a willingness to work in diverse ways and take the time needed.” They declared: “Reconciliation is the way forward; it is the process, not the outcome. Reconciliation is how, not what.” Indeed, the only concrete action Helps and Alto foresaw, aside from paying First Nations members of the City Family for their participation, was their idea to “document the program on film, as a record of the work and for observation and use by other municipalities and/or organizations interested in a Reconciliation program.” Notably absent from the document was the signature of City Manager Jason Johnson, who, along with Helps and Alto, had met with local First Nations leaders as the process was developed. (Johnson was fired by City council soon afterwards. No explanation for his termination has ever been provided.) I asked Mayor Helps which of the five TRC “Calls to Action for Government” justified, in her view, removal of the Macdonald statue. “Not every act of reconciliation is specifically dictated by a single TRC Action,” Helps responded. “The entirety of the TRC Report suggests the complexities that will challenge government at every level as they strive to take actions that are meaningful and make a real difference in relationships between Indigenous and non-Indigenous communities.” Helps also quoted some of the opening lines of the TRC Report, which linked Macdonald to Canada’s residential school system for Aboriginal children. She also listed three of the principles of reconciliation developed by the TRC, but made no attempt to show how those principles were interpreted by the City Family to support removal of the statue—a conclusion Sinclair does not support. There is no record of the monthly City Family meetings, held in the mayor’s office, that’s available to the public, so we are unable to examine its decision-making process using the methods by which the actions of municipal governments are normally monitored. But one would think that if the City Family was intent on building on the foundation created by the TRC, there would be a record of the City moving to implement the specific recommendations of the TRC—the ones that don’t need any interpretation. The most specific of these was this: “We call upon federal, provincial, territorial, and municipal governments to provide education to public servants on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations.” I asked Helps if the City of Victoria had acted on that specific call to action. “Staff are considering how best to provide this education in a formal programmatic way,” Helps said. So, three years after the City committed to adopt the TRC recommendations, it has done little more than “consider” the most specific of the TRC’s recommendations to government. In the City’s defence, Helps pointed to two events it held related to reconciliation: “Five employees from the Mayor/City Manager’s office attended a seven-hour learning event ‘Reconciliation—Journey of our Generation’ in April 2018 presented by Dialogue and Resolution Services. Many staff also attended a City Hall Lunch Time Lecture Series on December 4, 2017: Speaking our Truth: A Journey of Reconciliation with Monique Gray Smith.” Helps also listed a number events involving local First Nations and the City of Victoria, but it’s clear from what’s missing in her response that the City has made little effort to create even the educational program for City employees called for by the TRC. Why, then, was a largely unaccountable committee that included three City councillors allowed to free-range around First Nations’ issues? As I mentioned above, Helps and Alto recommended to City council that any public reporting of the City Family process should be at Helps’ discretion. Had the mayor ever released any information about what the Family was considering? The only evidence Helps offered was an op-ed penned by her in the Times Colonist in September 2017. While her op-ed mentioned a debate on social media about Macdonald, Helps implied there would be no removal of the statue without first engaging with the larger community. Her op-ed noted: “It’s in this deeper context that we’ll be able to have a conversation about Macdonald’s future at the doors of city hall.” That conversation, of course, never happened. Helps’ Times Colonist op-ed raises questions about her own understanding of the role municipal governments have in First Nations issues. In it she conflated “reconciliation” with non-Aboriginal support for First Nations’ land claims. Helps wrote, “As part of the [reconciliation] process, we need to understand as a council and as a community what role city hall and local settlers played in removing the Songhees and Esquimalt Nations from their lands upon which the city was built… Once we understand the role of the city and local settlers in dispossession and decolonization [sic], we can acknowledge our wrongdoing, provide appropriate restitution and make an apology.” Helps no doubt meant “colonization,” not “decolonization.” But her stated intention of extending “reconciliation” to include consideration by Victoria City council of First Nations’ traditional territories and “restitution” is striking. Helps seems to be venturing well outside her area of responsibility as mayor of Victoria and intruding into the legal domain of the provincial and federal governments, which are responsible for making final treaties with First Nations. Ironically, after committing to the TRC’s principles of reconciliation in 2015, the first gesture the City made to the Esquimalt and Songhees people was the removal of the derelict Checkers Pavillion on top of Beacon Hill. That place has historic, cultural and sacred significance to First Nations. Chief Andy Thomas of Esquimalt Nation had openly requested that the City give back the small area occupied by the pavillion so the Songhees and Esquimalt Nations could build a longhouse on the site. The City agreed to the longhouse; however, it did not agree to transfer title of any land. The process of deciding to remove the pavillion was conducted in full public view as municipal governments are required to do. There was no uproar. When Helps was running for mayor in 2014, she told Focus one of the three main planks in her platform was greater public engagement. “I think there’s a real disconnection to City Hall right now because of the lack of meaningful public participation on a whole raft of issues, big and small,” she said then. The exclusion of the public from her consideration of the statue’s fate—which turned out to be a really “big” issue—brings into question the sincerity of Helps’ commitment to public engagement. What has the experience taught her? “I understand that this process didn’t feel good to the public and I wish we had known or thought to keep the public and council more in the loop about the work of the City Family, in a way that also feels true to the Family’s process,” she said. “That is the big lesson learned from this—the hunger the community has to participate in reconciliation and the feeling that this process somehow took that away from them.” But Helps’ “I wish we had known...” is at odds with a statement made to local media by Janice Simcoe, one of the First Nations members of the City Family. Simcoe told the Times Colonist: “We expected there would be opposition, uproar…I think it was the only process that could have taken place without all this coming to a screeching halt…I don’t have any regrets.” So Helps must have known, too, that she was short-circuiting public process. Yet that didn’t keep her from acting. The mayor’s timing on the removal—a little more than two months before the October 20 civic election—and her inability to explain how the City Family was building on the TRC’s recommendations warrant some skepticism about her leadership and motives. It’s noteworthy that Helps’ re-election campaign played up the predictable backlash on social media and sought donations for her campaign to fight against the “hatred” that was directed at her. According to an email circulated by Helps’ campaign, that backlash helped raise “thousands of dollars.” Let’s move on to another difficult moment in Helps’ first term. Then-Victoria Police Chief Frank Elsner in 2015 ON DECEMBER 4, 2015, Mayor Helps was asked by a Global TV journalist whether Victoria Police Chief Frank 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.” But news reports over the following days quickly proved Helps (and Esquimalt Mayor Barb Desjardins) had misled journalists. An investigation of Elsner had been conducted under their disciplinary authority as co-chairs of the Victoria Police Board. Two weeks later, Police Complaint Commissioner Stan Lowe released a report on the mayors’ investigation of Elsner’s conduct. Lowe’s report confirmed that Elsner had been accused of exchanging “inappropriate” tweets with the wife of another member of the Victoria Police Department (that person is referred to below as “the Member”). But the real substance of his report was its examination of the conduct of Helps and Desjardins. Lowe’s report provided a step-by-step account of how an internal investigation into Elsner’s conduct was initiated, the ways in which the investigation was flawed, his rationale for stripping Helps and Desjardins of their authority to discipline Elsner, and an order for an external, public-trust investigation of Elsner’s conduct. Below, I’m going to focus on just one aspect of Lowe’s report, which was Helps’ and Desjardins’ failure to abide by two important preconditions that Lowe had stipulated before allowing them to do an internal investigation. An internal investigation meant Helps and Desjardins would make the determination as to whether or not Elsner would be disciplined. In order not to completely overtax the reader’s patience, I’ll consider the mayors’ failure to abide by just one of Lowe’s preconditions. Lowe had stipulated: “There had to be disclosure of the allegations to the Member serving under the command of Chief Constable Elsner, and the Co-Chairs should obtain the Member’s informed views as to whether he wished to initiate a complaint or request a public-trust investigation under the Police Act.” By that Lowe meant that the mayors had to accurately explain to the Member exactly what Elsner had done. Once they were sure he understood what had transpired, he was to be asked whether he wanted the mayors to proceed with an internal process or if he wanted the process turned over to Lowe’s office as a public-trust investigation. Lowe’s report states that Helps and Desjardins agreed to his preconditions in late August 2015. Lowe’s report picked up the story a few weeks later: “…our office was advised by counsel for the Co-Chairs… that the affected Member did not wish an investigation. On the understanding that my two conditions had been satisfied, I supported the decision to proceed with this matter as an internal discipline matter. It was my expectation that if the investigation revealed evidence of conduct that could constitute a disciplinary breach of public trust, the Co-Chairs would raise the matter with our office.” Lowe’s oversight of the Elsner investigation might have ended at that point had it not been for the aforementioned media reporting in early December 2015 in which Desjardins and Helps claimed there had been no investigation of Elsner. Prompted by Helps’ and Desjardins’ false claims, Lowe requested the records of the mayors’ investigation. In his report, Lowe made many highly critical observations. Here we will consider just one. About the mayors’ report, Lowe stated: “[T]he Member is described as advising the Co-Chairs of his meeting with Chief Constable Elsner and the information the Chief provided to the Member. It appears that the Co-Chairs did nothing to correct the Member’s misguided appreciation of the circumstances, despite the Co-Chairs knowing the information provided to the Member was false and misleading. In advising our office that the informational pre-condition had been met, no mention had been made that the Member had received false and misleading information from Chief Constable Elsner. Given the circumstances as contained in the report, it is clear that the Member’s decision was influenced by misleading information; therefore, the pre-condition had not been fulfilled.” Note in particular Lowe’s statement “…despite the Co-Chairs knowing the information provided to the Member was false and misleading…” Lowe is saying, in effect, Helps and Desjardins consciously omitted telling the Member the truth. That is, they lied. I asked Helps for her version of what took place. “We were instructed by our lawyer that the Office of the Police Complaint Commissioner [OPCC] required us to do four things: meet with the Member whose wife was involved in the matter and advise him generally of the investigation, meet with the Chief and advise him that there was going to be an investigation, advise the Board of the matter and hire an independent investigator. Although we were most uncomfortable meeting with the Member who was impacted, we reluctantly agreed to meet with him after the OPCC insisted that we do so. After we had done each of the four things we were directed to do, the investigation proceeded without our interference.” Helps agreed that Elsner had added to his problems by not being forthright with the Member: “It has now been determined by another discipline authority in an external discipline process that former Chief Elsner provided false information to the Member whose wife was involved in the matter. That is very serious misconduct and worthy of significant discipline. The apparent providing of false information to the Member by former Chief Elsner was something completely beyond our control,” Helps asserted. “Further, it was not part of what the OPCC had authorized Mayor Desjardins and I to pursue through the internal discipline process. Our mandate, as authorized by the OPCC, was very limited. We were authorized to deal only with the issues of whether Elsner had engaged in an inappropriate relationship with the wife of a VicPD member and whether Elsner had improperly used police social media accounts.” Helps’ version of events differs with Lowe’s in one significant way. Lowe concluded that Helps and Desjardins knew Elsner had provided the Member with false and misleading information and they did nothing about it. Who is a voter to believe? Let me return to where we started, on December 4, 2015, when Helps was asked by a journalist whether an investigation had taken place. Even though one had, Helps said: “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.” In trying to decide whether to believe Lowe or to believe Helps, it’s hard to get past the fact that the mayor lied in public to a journalist about the Elsner situation. It’s evident that Helps’ and Desjardins’ intention was to protect Elsner. If we believe Lowe, then they protected Elsner even though they knew he had provided false and misleading information to the Member. Helps now describes that as “very serious misconduct and worthy of significant discipline.” She was in a position to make that judgment back in 2015. Yet she participated in a cover-up of Elsner’s misconduct anyway (other allegations about Elsner surfaced latter). Helps allowed her enthusiasm for Elsner’s fresh approach to community policing to overwhelm her responsibility as an elected official to side with the truth. The OPCC’s public-trust investigation was completed in 2017. Legal maneuvers by Elsner (at City taxpayers’ expense) have prevented release of the report, but in April 2018 the BC Court of Appeal ruled that Lowe’s action to remove the mayors as the disciplinary authority and conduct a public-trust investigation had been a reasonable interpretation of the Police Act. Now it’s time for voters to make their ruling on the mayors’ conduct. (UPDATE, September 26, 2018: After this story went to print, Commissioner Lowe released a summary informational report: Review of the Investigations and Disciplinary Process Concerning Frank Elsner". Lowe's report recommended changes to the BC Police Act that would permanently remove mayors as the disciplinary authority for matters involving a police chief or a deputy police chief. Lowe's report is a stunning indictment of the judgment and actions of Mayor Helps and Mayor Desjardins. See story here.) 2018-09-26-Elsner-Summary-Informational-Report-FINAL.pdf One of two surprising repairs needed on the new $115M Johnson Street Bridge before it even opened. LASTLY, LET’S REVISIT HELPS’ RECORD on what the City has called “the largest infrastructure project in Victoria’s history.” You knew I would get there, didn’t you? In January I wrote about the surprising appearance of two six-foot by six-foot steel plates that had appeared on the steel work of the new bridge. There was one plate bolted onto the underside of each of the bridge’s signature rings, and they amounted to a physical defacement of what had been promised to be an architecturally significant structure. They seemed to me—and many others—to be an obvious insult to the design integrity of the bridge that the City promised would be “world class” and “iconic.” Naturally, I had questions that only the City could answer. The City’s official spokesperson, on everything, is the mayor. That policy is contained in the City’s written guidelines on how employees, including the mayor, should respond to media. So I emailed Mayor Helps a few questions—the first questions I had posed to her in the first three years of her term. Was she aware of the plates? When did she find out? Was the City given any options to consider? These were not difficult questions to answer, but the mayor didn’t respond to five emails. After my story was published, Helps issued a statement through her Facebook page. In that statement she claimed the article contained “a number of serious factual errors and inaccuracies,” but didn’t specify what those were. I sent the mayor more questions, including a request to make public what those “serious factual errors and inaccuracies were.” Normally, a public official that makes such a claim would have proactively provided that information without being asked. That’s the process: If we make a mistake, the subject tells us about the mistake we made, and if they are correct, we acknowledge our error and publish the correct information. So I requested that the mayor make those mistakes clear. Then something peculiar happened. Mayor Helps’ inadvertently copied me on a “proposed response” to my questions that she had meant to send only to acting City Manager Jocelyn Jenkins and private engineering consultant Jonathan Huggett. “Do you see any downfalls in this approach?” the mayor asked Huggett and Jenkins. Later, realizing what she had done, Helps emailed me: “David there you have my response. Sent before my morning meditation and copied to you inadvertently. But truth may walk through the world unarmed. So please feel free to use what I have said.” She had written: “I trust all of the reporters at the Times Colonist. I trust all of the reporters at Vic News. I trust all of the reporters at CBC and CFAX. I trust all of the reporters at CTV, CHEK, and GLOBAL. This trust has come through hard conversations, good reporting and relationship building. I do not trust you. As such I feel that however I answer your questions you will use the answers to suit your own needs, not to serve the public good.” Mayor Helps made no attempt to identify any errors or inaccuracies in my story. In almost 30 years of community reporting, I had never experienced such an evasive response from an elected official. It was very Trumpian: First, accuse the messenger of spreading fake news. Then lock him up in solitary confinement. Mayor Helps has still not provided those alleged “factual errors and inaccuracies.” And no wonder. Six months after I wrote about the plates, the City, in response to an FOI, handed over to Focus the communications between the various engineers involved in adding those steel slabs to the new bridge. The communications showed they had been judged necessary to beef up a structural weakness that had been built into the bridge. The engineers had decided the juxtaposition of four “weld-access holes” in each of the rings could lead to fatigue cracks forming in the fracture-critical steel of the rings. The shape and nature of the holes should have been controlled during fabrication by properly executed fabrication drawings, but detailing in the drawings was inadequate. Ensuring that those details were adequate was ultimately the responsibility of the Engineer of Record on the project. The problematic holes had been created over a year before any effort was made by the project engineers to find a solution to the potential fatigue problem. The records obtained by Focus showed engineers had misled the City about when the problem was discovered, who was involved in considering options, and who was ultimately responsible for creating the problem in the first place. The engineers’ explanation that “schedule” had figured into their decision to add the plates neglected to include the fact that they had done nothing about the problem for over a year, and during that year, additional work on the rings had made it more difficult and costly to properly address the problem. Those communications also answered all the questions I posed to Helps. Nobody at City Hall had been informed. Helps first learned about the plates when I sent her my first set of questions. Moreover, the records obtained from the City showed Helps had been misled by the very engineers who had told her our story was inaccurate. For this article, the one you are reading now, I pointed out to Helps that the engineers she had trusted had actually misled her on important facts about the story. Would the City lodge a complaint with the engineers’ professional association? Her response was confusing. She misremembered how one of the engineers had come to be employed by the City and concluded that the only thing that mattered was that the Engineer of Record had signed off on the project. The Engineer of Record was one of the engineers that had misled the City. What does this story say about Mayor Helps’ record? It shows that she learns from experience. When confronted by a journalist about whether or not Elsner’s conduct was the subject of an investigation, Helps chose to lie in order to protect Elsner, whom she clearly admired for his enlightened approach to community policing. But when Helps was presented with my questions about the bridge, there was no denying the existence of those six-foot by six-foot, 1500-pound plates. She wisely clammed up and let someone else do the lying for her. And her trusted engineers—whom she no doubt admired for their project management expertise and powers of persuasion— obliged. By publicly accepting their misrepresentations, she protected them, too. We might also conclude from her record on the bridge, on Elsner, and on the Macdonald statue that Mayor Helps doesn’t trust ordinary people in the community, and what they have to say about these issues, unless they share her own point of view or those of her advisers. Genuine dialogue might have brought movement in the direction she wanted to go—in each case—to a screeching halt. THIS IS FAR FROM A COMPREHENSIVE examination of Mayor Helps’ first-term record. She played a prominent role in many other issues for both the City of Victoria and the CRD. But as thin a slice as this is, what should be evident to readers is the immense complexity and pressures facing any would-be mayor of Victoria these days. Helps has taken on that complexity with enthusiasm and energy, and the three examples above barely capture the extent to which she has had to spread her efforts. Had she tried to do less, it’s possible she wouldn’t have made the misjudgements I’ve outlined here. But her enthusiasm for participating in government, and her definite position on contentious issues, has driven her to be fully engaged. That has had both costs and benefits for the City. David Broadland is the publisher of Focus Magazine. Questions Focus asked and Mayor Helps' full responses: Questions Focus asked and Mayor Helps' full responses.pdf
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