This is the 1" affidavit of Frank J. Elsner in this cose i was made on 2018 gAtBOe, and was made on March 11,2 \ Court File No war 1 4 2016 ¢ Vancouver Resisty “9 wat . IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ‘CHIEF CONSTABLE FRANK J, FL SNER, PETITIONER AND: ‘THE POLICE COMPLAINT COMMISSIONER AND BARBARA DESJARDINS AND LISA HELPS QUA INTERNAL DISCIPLINE AUTHORITY RESPONDENTS )AVIT #1 OF FRANK J, ELSNEF |, Frank J. Elsner, police officer, of $99 St. Patrick Street, Victoria, British Columbia MAKE OATH AND SWEAR AS FOLLOWS: 1. Lam the Petitioner in the above-captioned matter and as such rave personal knowledge of the matters hereinafter deposed to except where stated to be on information and belief and where so stated | very believe them to be true. ‘o2seo1oomate Doc.Personal Background 2, On December 15, 2073, | was sworn in as the Chief Constable of the Vitoria Police Depsrtment (the “VicPD"). It was my dram job end the culminaton of my career in policing. | knew there would be challenges but | saw it as 2 ‘great way to end my career and make @ positive contribution to the cormmunity, 3. | began my policing career as 2 provincial constable with the Ontario Provincial Police and worked my way up to Chief of Police of the Greater Sudbury Police Service where | managed a police service of 500 employees and 200 volunteers. 4, In that position, | was involved in the development and implementation of a ‘community- mobilization philosophy in Sudbury and throughout Ontario. 5. was very proud of that work and wanted to bring that philosophy to the ViePD. 6 I saw it as part of my mandate to change the culture of the organization from {an enforcement-focussed organization to a community-focussed organization. 7. Unfortunately, my philosophy was not embraced by the Victoria Police Unica and other police unions across the province, including the Vancouver Police Union. 8. | worked closely with Mayor Barbara Desjerdins (the Mayor of Esquimalt) and Mayor Lisa Helps (the Mayor of Victoria) in my role as chief constable. 9. I believe we had an excellent working relationship and | was proud of the work ‘we were doing. I continue to have @ great deal of respect for both of them. vexsecoinoomnce 200%10. " ‘As Chief Constable, | was not a member of the Victoria Police Union and! was not party to any collective agreement Rather, | have an independent contract, ‘with the Victoria Police Board which | signed on ar about October 10, 2013, Attached hereto and marked as Exhibit “A” is a copy of my curriculum vitee. Internal Investigation 12, 13, 18 16. 18, 19 (On or about September 6, 2015, | received an e-mail from Mayor Desjardins ‘advising that she needed to meet with me about @ matter of some importance. | responded later that day and set up a meeting for the beginning of the week. ‘As Ino longer have access to my work e-mail, | am unable to attach @ copy of ‘our e-mail exchange that day. On September 8, 2015, | received a telephone call from Mayor Desjardins at approximately 10:00 a.m. asking me to come to her office right away. immediately dropped what | was doing and drove to her office Mayor Desjardins and Mayor Helps were both present when I entered her office. Mayor Desjardins advised me that they had received information that | was. having an affair with the spouse of a member under my command. In order to protect their privacy, | will refer to the member under my command as John Doe and his spouse as Jane Dos. swaseconnanznoa ooo20. a1 2, 23 24, 25. Mayor Desjardins went on to advise me of the following (2) Mayor Desjardins and/or Mayor Helps had informed the Police Complaint Commissioner about the allegation; (6) The Police Complaint Commissioner was considering whether to ‘commence a public trust investigation; and (c)_The Police Complaint Commissioner had instructed them to speak to John Doe about the allegation | immediately advised them that | had never had an affair with Jane Doe and ‘expressed concern that they had spoken to John Doe. | wes concemed not only because the allegation was untrue, but also because speaking to him about the allegation would compromise the integrity of any subsequent investigation. Mayor Desjardins instructed me not to say anything else and advised me thet she would contact me later thet day. Upon leaving her office, | was contacted by John Doe who asked me to meet him. | agreed to meet him and spoke to him about the allegations. ‘As our conversation is the subject of an ongoing investigation, | am not in @ position to say anything more about the substance of cur conversation. Later that day, | was contacted by Mayor Desjardins. While 1 am not sure: whether we had one or two conversations that day, she advised me that: sas oumoraeas Doc26, 2. 28. 29. (2) Mayor Desjardins and/or Mayor Helps had spoken to John Doe again: (0) John Doe advised them that he did not want to pursue an investigation; (c) The Police Complaint Commissioner had agreed that the allegations could be investigated as an internal discipline matter: and (a) If I consented to the appointment of an independent investigetor, the investigation could be completed faster and more efficiently, | was not given the name of the independent investigator they had in mind but ‘understood that she was 2 lawyer with experience in police discipline matters, Mayor Desjardins also essured me that if | consented to the appointment of an independent investigator, the matter would remain confidential and would not be treated as a public trust matter. | understood that to mean that there would bbe no investigation under the Police Act, and the matter would be kept in house. | was never advised that the Police Complaint Commissioner had imposed any conditions on the internal investigation and did not hear of any such conditions Until reviewed the Order for External Investigation issued December 18, 2015. | wanted the investigation completed as quickly as possible and it was very Important to me that the investigation remain confidential. | did not want: my family members to have to deal with the publicity surrounding these matters. roxrosoicerna 500%20, 31 22, 38. 34, 36, 36, 37. John Doe had also advised me thet he wanted these matters to remain confidentiat and | wanted to respect his wishes. On the basis of those considerations, | consented to the appointment of the independent investigator. On or about November 16, 2016, Patricia Gallvan, O.C., the indeperdent investigstor, released preliminary report which set out her findings and ‘conclusions with respect to the issues raised in the internal investigation. (On or about December 4, 2015, | was asked to attend @ meeting with Mayor Desjardins and Mayor Helps. At that meeting, | was handed a letter outlining their findings and conclusions with respect to the internal investigation, Upon reading the letter, | was concemed that many of the findings and ‘conclusions contained therein were fundamentally flawed. | was also concemed that there were flaws in the process, including the fact that | was not given an opportunity to respond to substance of the preliminary report | expressed some of those concerns to Mayor Desjardins and Mayor Helps. Both Mayor Desjardins and Mayor Helps asked me to accept their decision so we could get back to the great work we were doing in the community Mayor Desjardins also assured me that nothing would be released to the public, ‘and the matter would be over if| accepted their decision, so2seonvooansea poe38. 29. 40. |Ihad some reservations about accepting their decision but | thought it would show leadership to take responsibilty for my conduct, | also wanted to put the matter behind me so | could get on with my work, For all those reasons, | made the decision to accept their decision and instructed ny lawyer not to apply for judicial review or otherwise arpeal their decision Media Inquiries 4 42, 4a, 46, On of about December 6, 2015, | received a telephone call from the Vancouver ‘Sun on my unlisted home number. | was asked to cornment on the (false) ‘report that | was having an affair with a member of anotter police department. | did not want to speak to the media but I felt it was necessary to get the truth out by denying the report. | was also contacted by Mayor Helps who requested that make 2 statement denying the false report that | was having an after. On that basis, | made the decision to speak with the media later that day. In the course of an interview with Global TV, | reviewed an e-mail that had been sent to the network from an anonymous e-mail account. | was never given ‘8 copy of the e-mail sent to Global TV so | am uneble to attach it to my affidavit. | was very upset by the false allegations contained therein and made the decision to release @ written statement. ase coveoztos D0Cx.46, can say without hesitetion that I never would have spoken to the media and released 3 statement had | known thet the Police Complaint Commissiorer had the authority to commence another investigation into the same allegations. External Investigation 47. On or about December 18, 2015, | was provided with an Order for External Investigation issued by the Office of the Police Complaint Commissioner. 48, Attached hereto and marked as Exhibit“ * is a copy of that order. 49. The Police Complaint Commissioner has also issued various press releases with respact to these matters, 50, Attached hereto and marked as Exhibit “C” are copies of those press releases. 51. On or about December 22, 2015, Carol Baird Ellan issued @ decision plecng me on administrative leave pending the outcome of the external investigation. Chief Superintendent Bourie 52. The Order for External Investigation appoints Chief Superintendent Sean Bourie 2 the chief investigator for the external investigation, 53, With respect, his rank is not equivalent to or higher than rine, 54. As chief constable, | have full authority and accountability in @ number of arses including operations, discipline, policy, budgets and governance. so2secn onzesce 000%55 86. 51, 58, 69, | report directly to @ civilian authority (the Victoria and Esquimalt Police Boar) ‘Aithough a chief superintendent may have responsibilities in some of those ‘areas, it is my understanding, based on my 31 years of experience in policng in both B.C. and Ontario, that a chief superintendent does not have full authority or accountability in any of them and reports to his or her superiors within the force. For example, it is my understanding that @ chief superintendent is responsible for the operations and governance of a specific section, but not the operation ‘and governance of the force as @ whole. Likewise, he will be responsitle for the development of a budget that folds into the overall budget for the service | em concerned that Chief Superintendent Bourrie does not have the necessary understanding and experience with respect to the duties of a municipal chi. | would add that there are many other police officers with an equivalent rank thet could have been assigned to the investigation. Any chief constable of ‘municipal police force in the province could have been assigned and there may be other officers within the RCMP who could have conducted the investigation. | am also concerned that Chief Superintendent Bourtie has delegated sone of his functions to investigators from the Vencouver Police Department ("PD") In particular, | am advised by my lawyer, Janet Winteringham, Q.C. that the following individuals are or have been involved in the investigation at some point: (a) A/Statf Sgt. Dave Instant; soasnoovnearssa Dock8 62, 65 66. 10 (0) Sgt. Shelley Home; and (6) Sgt. Christian Lowe, | have also been informed by Ms. Winteringham thet Superintendent Laurence Rankin of the VPD is “overseeing” the investigative team in Victoria, 1 maintain a number of highly sensitive files in my office including, without limitation, files relating to ongoing negotiations with the union, files relating to my involvement in various intelligence committees and sensitive personnelfiles. | also receive sensitive communications with respect to those matters. Ordinary, the individuals referenced in paragraphs 60 and 61 (above) woud not have access to the information in those files. | would add that some of those individuals are members of the Vancouver Police Union and would have an interest in reviewing any communications with respect to ongoing negotiations. ‘Although the Vancouver Police Union and the Victoria Police Union are separate organizations, there is significant over in terms of the issues being negctiated and | routinely discussed and exchenged correspondence with chief constables of other police departments, including the VPD, with respect to those matter. | wish to be clear that 1 am not accusing those individuals of any misconduct. | raise the issue because | am concerned about the implications of delegating any authority with respect to the investigation to the individuals referenced above. ‘nee cnnworannea poe.u Judicial Authorizations @7. 63, 68. 70. n ‘On or about March 2, 2016, my lawyer was provided with an Investigation Progress Report which states that Chief Superintendent Bourrie has obtained judicial authorization to search various electronic devices and telephone records. ‘Although | have not been reviewed the judicial authorizations obtained by Chief Superintendent Bourtie, | would expect thet they authorize him and/or his delegates to review e-mail messages in my personal and work e-mail accounts. |1am deeply troubled by the fact that those authorizations have been granted. In relation to my work e-mail account, there are a number of highly sensitive communications in my inbox relating to ry involvement in various intelligence committees and matters such as ongoing union negotiations. Although it may be appropriate for Chief Superintendent Bourtie to review those e-mails, | strongly am very concerned about his delegates reviewing any of those e-mails. In relation to my personal e-mail account, | am troubled by the fact that Chief Supt. Bourtie and his delegates have access to my personal e-mail messages. Impact of the External Investigation 72, 3 | was shocked when | first heard about the Order for External Investigation. | agreed to the appointment of an independent investigator in part because t wanted to resolve these matters expeditiously, so2zocnyonzsseepoex,74, 76. 76. 7. 78. 78. 80, 81 82, 83, 84, 2 Even so, the investigation seemed to take an etemity and the process was very stressful for me. | was relieved when it appeared to be over. | never imagined thet the Police Complaint Commissioner could commence ‘another investigation when | had already accepted discipline for my conduct. | was also shocked by the amount of information that was released to the public. | strongly believe my reputation has been irreparably tarnished and my career in policing is over, regardless of the outcome of the investigation. | fully expect that the publicity surounding these matters will also have an impact on my ability to find work outside the policing community. | have experienced a significant amount of stress and anxiety as a result of the external investigation |1am under the care of a doctor, who | meet with once every two weeks. | am also seeing a counselor to help me deal with the level of stress and anxiety: |'am currently experiencing, | have started taking an antidepressant and my doctor has significantly increased my blood-pressure medication | have to take a sleeping pill to get any sleep at al Even so, | invariably wake up at 4:00 or 4:30 a.m, and cannot get back to sleep. ‘onseoyooeenne p00,85, 86. 87. 88, 89. ‘SWORN BEFORE ME in the City of Venoouver in the Province of British Columbia this 11" day of March, 2016 Reonmissoet for taking affidavits for British Columbia 13 | have an overwhelming feeling of dread that I carry with me throughout the day. | feel humiliated by the publicity surrounding these matters and often receive telephone calls from ftiends and colleagues throughout Canada and the U.S. ‘who have read about the allegations and call me to find out what is happening, In igh: of the ongoing investigation, | am hesitant to say anything to them about ‘the investigation (or even the false allegations contained in the meds reports). | would add that | am unable to publicly defend myself or deny the allegations because of the ongoing investigation, | find that to be particularly difficult and a source of significant stress and anxiety. 4 Frank J" Elsner sans St ‘Wie eay Cn Coporion ‘Th andr e20375 Wor Steet Vovee, ven ce "00 e50oce nsec veozesee 100%