VANCOUVER — A British Columbia Supreme Court judge is being asked to stop an external investigation into inappropriate online messages that Victoria's suspended police chief sent to the wife of one of his officers.
Lawyer Joe Doyle, who represents the heads of the Victoria and Esquimalt Police Board, told a hearing in Vancouver on Tuesday that the province's police complaint commissioner doesn't have the legal authority to launch an investigation into a matter that's already been resolved internally.
The police board chair and vice-chair, Victoria Mayor Lisa Helps and Esquimalt Mayor Barbara Desjardins, issued a letter of reprimand last December against Chief Const. Frank Elsner after a report concluded he had improperly used police equipment in a discreditable manner.
Two weeks later, Commissioner Stan Lowe asked the RCMP to conduct a public-trust investigation, citing new evidence that included a letter from the city's police union accusing Elsner of workplace harassment against four employees.
Elsner said earlier this year that he was sorry and humiliated after news broke about the improper social-media exchange.
Doyle told the court that internal investigations should be final; otherwise, it gives the police watchdog the power to reopen any file, no matter how old.
"That's the problem. There's no conclusion," Doyle said.
"Any time after the fact, whether it's 14 days or five years, the police-complaint commissioner can get further information and decide, 'I'd like to reopen this as a public-trust investigation instead.'"
The direct Twitter messages and both the name of the Victoria officer and his wife, with whom Elsner corresponded online, have been banned from publication. The woman is a police officer in a neighbouring jurisdiction.
Deborah Lovett, lawyer for the Office of the Police Complaint Commissioner, said the commissioner initially agreed to an internal investigation alone because he had limited information.
She also referenced a line in the Police Act that says the commissioner may order an investigation "at any time" information comes to his or her attention.
Elsner stepped aside from his role in mid-December after the suggestions of inappropriate online behaviour ballooned into allegations of breach of trust and misconduct.
He was suspended in April after a third investigation was announced, which accused him of making false statements and deleting or attempting to delete data related to the original investigation.
Lowe alleged when he launched the further probe that Elsner may have given an investigator misleading information and contacted witnesses during an internal investigation, including the officer whose wife the chief had messaged over Twitter
Elsner faces more than 10 misconduct allegations, none of which has been proven.
Investigators have until Nov. 30 to complete their work.
