This is the 1! atfidevit of Frank J. Elsner in this case { Court File No, ’ (me 1600} VencowerReisty 4 yp \teciss IN THE SUPREME COURT OF BRITISH COLUMBIA, BETWEEN: CHIEF CONSTABLE FRANK J. ELSNER PETITIONER. AND: THE POLICE COMPLAINT COMMISSIONER AND BARBARA DESJARDINS AND LISA, HELPS QUA INTERNAL DISCIPLINE AUTHORITY RESPONDENTS AFEIDAVIT #1 OF FRANK J. ELSNER | Fenk J. ne, police tc, NNN MAKE OATH AND SWEAR AS FOLLOWS: 1. Lam the Petitioner in the above-captioned matter and as such have personal knowledge of the matters hereinafter deposed to except where stated to be on | information and beliet and where so stated | verly believe them to be true. | sw2ggoounooneD0c%.Personal Background 2. On December 15. 2013, | was swom in as the Chief Constable of the Victoria Police Department (the "VicPD"). It was my dream job end the culmination of my career in policing. | knew there would be challenges but | saw it es @ ‘great way to end my career and make a positive contribution to the community 3. I begen my policing career as @ 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-mobilzation 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 8 community-focussed organization, 7. Unfortunately, my philosophy was not embraced by the Victoria Police Union end ‘other police unions across the province, including the Vencouver Police Union. 8, | worked closely with Mayor Barbara Desjardins (the Mayor of Esquimalt) and Mayor Lisa Helps (Ue Mayor of Victoria) in iy vole 8s chief constable, 9. I believe we had an excellent working relationship and | was proud of the work. ‘we were doing. | continue to have a great deal of respect for bath of them, to2escovnon2eve.00cx10. " ‘As Chief Constable, | was not a member of the Victoria Police Union and | was not party to any colsctive agreement Rather, | have an independent contract ‘with the Victoria Polize Board which | signed on or about October 10, 2013, Attached hereto and marked as Exhibit “A” is a copy of my curriculum vitae. Intemal Investigation 12, 13, 14 16. 16, "7. 18. 19. (On or about September 6, 2015, | received an e-mail from Mayor Desjardins ‘advising that she needed to meet with me about a matter of some importance, | responded later thet 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 8 coxy of our e-mail exchange that day. (On September 8, 2018, | 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 | 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 corrmand 2s John Doe end his spouse as Jane Doe.20. 2 22. 23, 24, 2. ‘Mayor Desjardins went on to advise me of the following: (a) Mayor Desjardins andlor Mayor Helps had informed the Police Complaint Commissioner about the ellegation fo) The Police Complaint Commissioner was considering whether to ‘commence @ public trust investigation; and (The Police Compleint 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 hed spoken to John Doe. | was concerned 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 that she would contact me later that 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 a position to say anything more about the substance of our conversation. Later that day, | was contacted by Mayor Desjardins. While | am not sure whether we had one or two conversations that day, she advised me that: ‘o2seao neoasnre Doc26. 27. 28. 28. (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 (@ If Fconsented to the appointment of an independent investigator, 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 a lawyer with experience in police discipline matters. Mayor Desjardins also assured 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 be 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 ntl 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. toase anyones Boex30, an 32 33. 34, 36, 36. 37 John Doe had also advised me that he wanted these matters to remain confidential 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, 2015, Patricia Gallivan, O.C., the independent investigator, released a preliminary report which set out her findings and conclusions with respect to the issues raised in the internal investigation. ‘On oF about December 4, 2015, | was asked to attend a meeting with Mayor Desjardins and Mayor Helps. At that meeting, | was handed 2 letter ‘outlining their firdings and conclusions with respect to the internal investigation. Upon reading the letter, | was concerned that many of the findings and conclusions contained therein were fundamentally flawed. | was also concerned that there were flaws in the process, including the fact that | was not given an oppertunity to respond to substance of the praliminary 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. tse covennzasainoce28. had some reservations about accepting their decision but | thought it would ‘show leadership to take responsibility for my conduct. 29. [also wanted to put the matter behind me so | could get on with my work. 40. For all those reasons, | made the decision to accept their decision and instructed ry lawyer not to apply for judicial review or otherwise appeal their decision. Media Inquiries 41. On or about December 6, 2018, I received a telephone call from the Vancouver ‘Sun on my unlisted home number. | was asked to comment on the (false) report that | was having an affair with a member of another police department. 42. | did not want to speak to the media but | felt it was necessary to get the truth out by denying the report. | was also contacted by Mayor Helps who requested that | meke @ statement denying the false report that | was having an affair. 43. On that basis, | made the decision to speak with the media later that day. 44, In the course of an interview with Global TV, | reviewed an e-mail that hed been sent to the network from an snonymous e-mail account. | was never given 2 copy of the e-mail sent to Global TV so! am unable to attach it to my affidavit, 48, | was very upset by the felse allegations contained therein and made the decision to release a written statement, ozgeoneoase4. 000%.46. | can say without hesitation that | never would have spoken to the media and released @ statement had | known that the Police Complaint Commissioner had the authority to commence another investigation into the same allegations. Extemal Investigation 47. On or about December 18, 2015, | was provided with an Order for External Investigetion issued by the Office of the Police Complaint Commissioner. 48, Attached hereto and marked as Exhibit “B” is 2 copy of that order. 49, The Police Complaint Commissioner has also issued various press releases with respect 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 Ellen issued @ decision placing ‘me on administrative leave pending the outcome of the external investigation, Chief Superintendent Bourrie 52, The Order for External Investigation appoints Chief Superintendent Sean Bourrie as the chief investigator for the external investigation. 53. With respect, his rank is not equivalent to or higher than mine. 54, As chief constable, | have full authority and accountability in @ number of areas including operations, discipline, policy, budgets and governance. ‘omspcnoarzest DOC.8, 6, 87. 58. 59, | report directly to a civiian authority (the Vietoria and Esquimalt Police Board). Although a chief superintendent may have responsibilities in some of those ‘areas, it is my understanding, based on my 31 years of experience in policing in both 8.C. and Ontario, that a chief superintendent does not have full authority oF ‘accountability in any of them and reports to his or her superiors within the force, For example, it is my understanding that a 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 responsible for the development of a budget that folds into the overall budget for the service. |1am concemed that Chief Superintendent Bourrie does not have the necessary Understanding and experience with respect to the duties of @ municipal chet. | would add thet there are many other police officers with an equivalent rank that could have teen assigned to the investigation. Any chief constable of a ‘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, |lam also corcerned that Chief Superintendent Bourrie has delegated some of his functions to investigators from the Vancouver Police Department (“VPD") In particular, | am advised by my lawyer, Janet Winteringhem, Q.C. that the following individuals are or have been involved in the investigation at some point (a) AlStaff Sot. Dave Instant; ease-co oceans Do,6 62, 64. 65, 66. 10 (b) Sgt. Shelley Home; and fc) Sgt. Christian Lowe. | have also been informed by Ms. Winteringham that Superintendent Laurence Rankin of the VPD is “overseeing” the investigative team in Victoria, | maintain a number of highly sensitive fies in my office including, without limitation, files relating to ongoing negotiations with the union, files relating to my involvement in various inteligence committees and sensitive personne! fies, | also receive sensitive communications with respect to those matters. Ordinary, the individuals referenced in paragraphs 60 and 61 (above) would 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 en interestin reviewing any communications with respect to ongoing negotiations, Although the Vancouver Police Union and the Victoria Police Union are separate ‘organizations, there is significant overiap in terms of the issues being negotiated and | routinely discussed and exchanged correspondence with chief constables of other police departments, including the VPD, with respect to those matters. | wish to be clear that | 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. ‘ese annexasusoocx." Judicial Authorizations 67. 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 that they authorize him andlor his delegates to review e-mail messages in my personal and work e-mail accounts, |lam deeply troubled by the fact that those authorizations have been granted. In felation to my work exmsil account, there are @ number of highly sensitive communications in my inbox relating to my involvement in verious inteligence committees and matters such @s ongoing union negotiations. Although it may bbe appropriate for Chief Superintendent Bourie to review those enails, | 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 7. 73. | was shocked when I irst heard about the Order for External Investigation. | agreed to the appointment of an independent investigator in part because | wanted to resolve these matters expeditiously. to2escovenoneae00cx74, 75, 76. 7 78, 78. 80. 81 82 83, 84, 2 Even 50, the investigation seemed to take an eternity and the process was very stressful for me, | was relieved when it appeared to be over. | never imagined that 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 irteparably tarnished and my career in policing is over, regardless of the outcome of the investigation | fully expect that the publicity surrounding these matters will also have an impact on my ability to find work outside the policing communty. | have experienced a significant amount of stress and anxiety as a result of the extemal investigation, |1am under the care of a doctor, who I meet with once every two weeks. |.am also seeing a counselor to help me deal with the level of stress and anxiety een currently experiencing, | have started taking an antidepressant and my docto has significantly increased my blood-pressure medication. have to take sleeping pill to get any sleep at all Even £0, | invariably wake up at 4:00 or 4:20 a.m, and cannot get back to sleep. vansecovooo2ene4 DOCK66. 86, 87 88, 89, | have an overwhelming feeling of dread that | carry with me throughout the day. | feel humiliated by the publicity surrounding these matters and often receive telephone calls from friends and colleagues throughout Canada and the US. who have read about the allegations and call me to find out what is happening, In light of the ongoing investigation, | am hesitant to say anything to them about the investigation (or even the false allegations contained in the media reports). | would add that | am unable te publiely defend myself or deny the allegations because of the ongoing investigation. | find that 10 be particularly difficult and a source of significant stress and anxiety SWORN BEFORE ME in the City of Vancouver in the Province of British