Chief under fire seeks ban on publication
The suspended chief of the Victoria police department, who is under investigation for allegedly exchanging inappropriate messages with the wife of a subordinate, is seeking to block the release of those messages and other key aspects of the case.
Frank Elsner, who has said that publicity surrounding the case has “irreparably tarnished” his reputation, is set to have his application for a broad publication ban heard in B.C. Supreme Court on Aug. 29.
In addition to the contents of the messages, which were sent over Twitter, Elsner is asking a judge to issue an order that would keep the identities of the subordinate and his wife under wraps and block publication of any details surrounding an internal investigation completed last year, as well as details of his employment contract.
He also wants to keep a lid on any progress reports related to ongoing external investigations that were ordered by the province’s Of- fice of the Police Complaint Commissioner.
Elsner’s l awyer, Janet Winteringham, declined Friday to discuss the application, other than to say, “it looks like we are proceeding (with the hearing).”
The messy case began last August when the co-chairs of the Victoria and Esquimalt Police Board — Victoria Mayor Lisa Helps and Esquimalt Mayor Barbara Desjardins — learned of allegations that Elsner might be involved in a relationship with a Victoria officer’s wife, who was working for another police agency.
The board asked an independent i nvestigator, lawyer Patricia Gallivan, to conduct an internal investigation. In December, 2015, after reviewing the investigator’s report, the co- chairs issued a written letter of reprimand against Elsner for “discreditable conduct.”
Later that same month, Stan Lowe, B. C.’ s police complaint commissioner, announced t hat he had asked the RCMP to carry out an external investigation into whether Elsner had breached the public trust. The RCMP appointed Chief Supt. Sean Bourrie to be chief investigator.
The Mounties were tasked with investigating several allegations, including whether Elsner had contacted witnesses during the course of the internal investigation and had used police equipment for purposes unrelated to his duties.
Lowe said the RCMP was also carrying out a second investigation into information brought forward by the Victoria police union that four employees had accused Elsner of workplace harassment.
In April, Lowe announced a third investigation was underway by the RCMP into new allegations that Elsner had attempted to influence potential witnesses during the internal and ongoing public- trust investigation and that he had accessed a Victoria police information system and deleted or attempted to delete emails relevant to the internal investigation.
All three investigations — which deal only with allegations of misconduct, not criminality — are still ongoing.
According to an amended petition filed with the court in May, Elsner is seeking to quash the external investigation into the Twitter messages, arguing that since the matter was already dealt with through an internal discipline process, the complaint commissioner “had no jurisdiction” to commence an external investigation.
The petition also argues sections of the B.C. Police Act that allow investigators to search police equipment and records without a warrant fly in the face of Charter of Rights and Freedoms protections against unreasonable search and seizure.
Elsner’s private Twitter exchanges were obtained through an “unlawful and unauthorized” search and he had a reasonable expectation of privacy, says the petition, which asks for the return of Elsner’s electronic devices and the destruction of any electronic records that were obtained.
No court date has been set to hear the petition.
When the scandal first became public in December, Elsner insisted to reporters that he had conducted himself “professionally and appropriately” throughout his career.
Elsner told the Victoria Times- Colonist that there was no friendship between him and his subordinate’s wife. “It was strictly work and the messages just took on a far more personal tone and that’s when I sent a message saying: Listen, please stop, this cannot continue or go any further.”
In a court affidavit filed in March, Elsner, the former chief of police in Sudbury, Ont., said he felt humiliated by the whole incident.
“I strongly believe my reputation has been irreparably tarnished and my career in policing is over, regardless of the outcome of the investigation.”