WATCH: An investigation into former Victoria Police Chief Frank Elsner delivered a scathing verdict on Wednesday. A police complaint commission report found Elsner, who resigned in 2017, committed eight acts of misconduct, some grounds for dismissal. April Lawrence more on the unprecedented penalty given the former top cop.
The Office of the Police Complaint commissioner says former Victoria Police Chief Const. Frank Elsner’s misconduct is “unprecedented in Canadian policing” and has found the actions taken against him were reasonable.
On Wednesday, the Office of the Police Complaint Commissioner (OPCC) released its review of the two investigations and subsequent disciplinary proceedings involving Elsner.
“I have reviewed the investigations and disciplinary processes concerning these matters and I have concluded that the decisions and discipline proposed by the discipline
authorities are reasonable and appropriate based on the evidence. Therefore, I have determined that the decisions and discipline are final and conclusive. This concludes the police discipline process,” Stan T. Lowe, police complaint commissioner for British Columbia, said in a statement.
Former Victoria Police Chief Frank Elsner. File photo.
Elsner was found to have committed a total of eight acts of misconduct under the Police Act. The discipline proceedings took place before retired Chief Judge Carol Baird Ellan and retired Justice Ian Pitfield, acting as discipline authorities. The two found Elsner has initiated “unwanted physical contact” with two female officers and also made inappropriate sexual remarks to one of those officers.
He was also found guilty of breach of trust and conflict of interest for exchanging inappropriate messages on Twitter with a female police officer who was married to one of his own officer. The judges said he also tried to convince a witness to provide false statements, misled his subordinates and inappropriately used police department equipment and facilities.
“Frank Elsner’s official service record of discipline in policing will reflect that he committed eight acts of misconduct. The record will also confirm his demotion to constable and his dismissal from policing. The 30 days suspension and training in ethics, harassment and sensitivity will be recorded. These findings and the accompanying discipline measures are unprecedented in Canadian policing,” Lowe said in a statement.
Under Ellan, the following disciplines were imposed:
- Discreditable Conduct by misleading a subordinate in connection with the disciplinary investigation: Suspension for 30 days (maximum term permitted by the Police Act), Demotion to rank of constable, and training on ethical issues.
- Discreditable Conduct by providing misleading information to the internal investigator: dismissal from policing
- Deceit by attempting to have a witness provide a false statement to the investigator: dismissal from policing
- Discreditable Conduct by engaging in conduct with the spouse of a member under his command, which constituted a breach of trust and conflict of interest: dismissal from policing.
- Inappropriate use of police department equipment and facilities: dismissal from policing.
Ellan looked at a total of five allegations. The first of those was Elsner’s conduct toward the husband of the female police officer he had been messaging.
“In summary, the evidence amply shows the former chief intentionally and dishonestly minimized the nature of his interactions with the wife, in his September 8, 2015, conversation with the husband,” Ellan wrote.
“I have no hesitation in finding that, by misleading a subordinate in connection with the subject matter of an investigation into his own conduct, an investigation in which the subordinate had an obvious role to play, the former chief knew or ought to have known he would bring discredit to his office and hence the department. I find that the evidence establishes the misconduct contained in the first allegation.”
The second allegation involved Elsner giving inaccurate information to the senior lawyer conducting the internal investigation in fall of 2015.
“It becomes clear on reviewing the former chief’s evidence that he is caught in a web of untruths. Where he finds himself facing contradictory evidence, he tailors his statements to reveal only that part of the truth he feels he must, to address the established facts with which he is faced. His statements reflect many obvious efforts at obfuscation, in my respectful view,” Ellan wrote.
The third allegation alleged the former chief asked a VicPD employee (referenced as A) to lie to the internal investigator and corroborate his story that he did know the woman he was exchanging Twitter messages with was still married to his spouse.
I find that the conversation unfolded more closely to the way it was reported by “A,” and that the former chief did ask “A” to lie, or to withhold evidence, should “A” be called to provide a statement to the internal investigator,” Ellan wrote.
“I have no hesitation in finding that the former chief attempted to procure a statement from ”A,” knowing it to be false or misleading. I find that the evidence establishes the misconduct contained in the third allegation.”
The two other allegations were frozen for a year because of court decisions but were then addressed by Ellan. The first of these two were the Twitter direct messages. Ellan noted Elsner did not dispute the content of the several direct messages that were sexually suggestive on both parts and there was a meeting in his office that involved physical content “that went beyond what would be appropriate between business colleagues.” Ellan concluded he engaged in an inappropriate relationship with the woman, which “placed him in a conflict of interest or constitued a breach of trust” in relation to her husband. She wrote that Elsner’s denial that he did not know the woman was married to an officer under his command was not credible.
Ellan also found the allegation that Elsner improperly used department equipment or facilities to be substantiated, concluding his Twitter account, cell phone and email were departmental property and that he used the property to carry out his relationship with the VicPD member’s wife while on duty or acting in capacity a a chief.
Under Pitfield, the following disciplines were imposed:
- Discreditable Conduct: unwanted physical contact with female Officer A: suspension for 30 days and required training for harassment and sensitivity (concurrent for all three matters addressed by DA Pitfield).
- Discreditable Conduct: unwanted physical contact with female Officer B: suspension for 30 days and required training for harassment and
sensitivity. - Discreditable Conduct: inappropriate remarks of a sexual nature toward female Officer B: suspension for 30 days and required training for harassment and sensitivity.
In a two-day hearing, Pitfield considered four allegations of misconduct involving two female officers (referred by Pitfield as A and B), which were denied by Elsner in testimony.
Officer A testified that she was standing near the former chief’s assistant’s desk in 2014 when the former chief approached her from behind.
[He] pressed his groin against her buttocks, and his chest against her back in what [Officer A] described as a “nuts to butts” manoeuver. … 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,” Pitfield described in his decision.
Pitfield said Officer A’s evidence to be “credible and believe” and Elsner had “made unwanted physical contact” as alleged. He wrote the conduct was ” not consistent in any way with the obligation to avoid harassment and to refrain from workplace misconduct. Mr. Elsner’s action in relation to [Officer A] amounts to the application of force, however minimal, without consent. As a police officer and chief constable, Mr. Elsner knew or ought to have known that the application of force, however minimal, to an individual constitutes an assault. It goes without saying that non-consensual physical contact of the kind in question is offensive to the victim and was so regarded by [Officer A]. Mr. Elsner’s actions in relation to the officer violate both the
VicPd Workplace Harassment Policy and Mr. Elsner’s employment contract. I find that this allegation of misconduct has been proved on the balance of probabilities.”
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.
Pitfield preferred the officer’s evidence over Elsner and found the incident did occur and that Officer B felt uncomfortable. another in that manner with impunity. The propriety of the act will depend upon the circumstances and whether consent to contact was granted. In this case, [Officer B] was taken by the arms in a position with her back to the wall, whether against it or not is unimportant. As someone subordinate to the chief constable, she could reasonably have felt threatened or intimidated. It was not open to her to back away and highly unlikely, in the circumstances, that she would tell a chief constable to remove his arms from her. In my opinion, Mr. Elsner knew or ought to have known that his actions would humiliate or offend [Officer B]. I find that this allegation of misconduct has been proved on a balance of probabilities,” Pitfield wrote.
The third allegation involved Officer B during a use-of-force training session in 2014 when Elsner was paired up with Officer B to practice lateral neck restraints. Officer B said when she applied the restraint to Elsner, 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 and while they were not overtly sexual, she felt they had a sexual tone as they were made when their bodies were touching during the use-of-forse scenarios.
Pitfield concluded Elsner’s actions violated VicPD’s workplace harassment police and his own contract.
” There is no justification for the comments made when, as part of a professional training exercise, the chief constable is required to engage in close physical contact with a subordinate and vice versa. The remarks must reasonably be construed to have a connotation that is not an expression of need, but of desire. I find this allegation of misconduct to constitute misconduct proved on a balance of probabilities,” Pitfield wrote.
“His evidence would suggest that it was his practice to place his arms on individuals as a sign of friendship or gratitude. It is an error to believe that anyone can touch or greet another in that manner with impunity. The propriety of the act will depend upon the circumstances and whether consent to contact was granted. In this case, [Officer B] was taken by the arms in a position with her back to the wall, whether against it or not is unimportant. As someone subordinate to the Chief Constable she could reasonably have felt threatened or intimidated. It was not open to her to back away and highly unlikely, in the circumstances, that she would tell a Chief Constable to remove his arms from her. In my opinion, Mr. Elsner knew or ought to have known that his actions would humiliate or offend [Officer B]. I find that this allegation of misconduct has been proved on a balance of probabilities.”
Review of the mayors’ discipline process
The commissioner also reviewed the discipline process by Victoria Mayor Lisa Helps and Esquimalt Mayor Barb Desjardins, who co-chair the Victoria and Esquimalt Police Board. In the report, he recommended amendments to the Police Act by the provincial government. Under the Police Act, allegations of misconduct relating to a chief are to determined the chair of the police board.
Lowe’s recommendation is that when a misconduct matter involving a chief constable or deputy chief constable requires a discipline authority, the discipline authority should be a retired judge, not a mayor due to a potential conflict of interest. Under present legislation, the matter falls to the chair of the municipal police board unless the OPCC appoints a retired judge. The mayor is the chair of the police board.
“As noted, the mayor of a municipality is an elected politician, and almost always lacks a comprehensive understanding of policing, police culture and the administration of police discipline. Generally, the mayors who serve as police-board chairs do not have adjudicative experience or a familiarity with administrative law principles,” Lowe wrote in the report.
“It is a most serious event when a chief constable becomes the subject of a police act investigation because they occupy such a high position of public trust in the community and the justice system. It makes little sense to entrust the responsibilities of Discipline Authority to a person who lacks the requisite training and experience, and who may have little to no understanding of the complexities of the police discipline system.”
Lowe wrote due to his serious concerns, he will be appointing a retired judge for matters involving the conduct of a chief constable or deputy chief constable, in which an investigation is warranted.
Background Of Allegations
Elsner resigned in May 2017 and started a marijuana industry consulting firm.
He became chief on Dec. 15, 2013.
In the summer of 2015, information was brought forward by Helps and Desjardins’ lawyer about Elsner exchanging inappropriate personal messages via Twitter with a female police officer whose husband worked with VicPD, the report states. The initial allegations were addressed through an internal investigation and the co-chairs (Helps and Desjardins) issued a discipline letter places on Elsner’s personnel file on Dec. 4, 2015. Lowe wrote in the report that he allowed the internal disciplinary approach to go forward as long as two-preconditions to be fulfilled.
“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 the former chief. Strangely, both versions had obvious typographical errors and different fonts, which suggested they were rushed, although it is unclear why those mistakes were not fixed when the letter was presumably revised and re-signed,” Lowe wrote.
The conditions were there had to be a full and continuing disclosure of the allegations and progress of the investigation to the other Victoria and Esquimalt Police Board members and there had to be a disclosure of the allegations to the VicPD officer serving under the command of the former chief. The mayors were also supposed to obtain the officer’s informed views as to whether he wished to initiate a complaint or request of a public trust investigation under the Police Act.
Then on Dec. 18, 2015, the commissioner ordered two external investigations: one for the Twitter messages and information suggesting Elsner misled people during the internal investigation and the second for allegations of sexual harassment of female police officers within VicPD. Lowe wrote he had come to learn the pre-conditions were not met.Vancouver police and RCMP conducted an investigation.
“In my review of the internal investigation it was evident to the mayors that the affected spouse, the husband, had been materially misinformed by the former chief 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 the former chief. Furthermore, the mayors did not expand the investigation to include this apparent misconduct, nor report it to our office as required. This conduct by the former chief falls in the most serious range of misconduct and has resulted in his dismissal from policing by Retired Judge Baird Ellan” Lowe wrote.
Lowe also wrote that based on his review of internal communications, notes and evidence summaries, that is was clear by Oct. 20, 2015, the internal investigator had reported numerous witnesses, including VicPD members and civilian staff, made allegations of bullying and harassment against the former chief.
“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,'” Lowe wrote. The OPCC learned any allegations of bullying and workplace harassment through the Victora City Police Union.
When he ordered the external investigations, Lowe appointed Ellan and Pitfield, both retired judges, to be the discipline authorities or decision makers for the misconduct allegations.
During the first investigation, additional allegations of misconduct surfaced. Those were included with the original allegations for a total five misconduct allegations.
Before the retired judges could address the allegations, Elsner filed with the BC Supreme Court to stop the process. The court said two of the five allegations could not go forward. Lowe appealed the court decision and the Court of Appeal overturned the original decision and ruled all allegations could be addressed.
After the disciplines were imposed, Elsner did not request a public hearing or review on the record.
Lowe also wrote in the report that following the review of Ellan’s disciplinary measures, that Elsner’s conduct had a serious negative impact on the VicPD and has come oat a significant cost to the community. He also decided a public hearing or review on the record was not in the public interest as the conduct and impact had been addressed.
While reviewing Pitfield’s decisions, Lowe determined the retired judge demonstrated the deficit in leadership and that Elsner had caused emotional harm.
Lowe also spoke with the six female officers and staff members who had come forward with allegations (a seventh woman declined to participate). The woman said they did not wish the matter to proceed in a public hearing but would appear if one was arranged. One member wanted to tell her story but said she would be content with any determination.
“A number of the women expressed concern about the police board, and whether real change can take place without a change in leadership. Their perception was that the board seemed to support their former chief, yet chose not to communicate or offer support for the women who were the victims of his harassment.”
He also said he was disappointed by the lack of co-operation and avoidance of communication with OPCC by the mayors.
“A strong arguable case can be made 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. One can juxtapose the outcome reached by the mayors in the internal discipline process (a letter of reprimand) and the outcomes reached by the retired judges through the
police discipline process (suspension, demotion, dismissal). The difference is glaring. This gulf exposes the pitfalls associated with the inherent conflict of interest between the mayors and their relationship with the former chief. There are lessons to be learned from the Elsner case, and I am hopeful that eventual legislative change will remove from elected mayors, the problematic arrangement that assigns them to be discipline authorities for their chief or deputy chief constable,” Lowe wrote.
Read the full report below:
Alexa Huffman
