On August 24, 2015 at 9:30 am, Frank Elsner was scheduled to testify at the BC Human Rights Tribunal in the matter of Bratzer v. Victoria Police Department. I was the complainant. I had alleged eight instances of discrimination by my employer, all based on the protected ground of political belief.
Frank Elsner’s testimony was not voluntary on his part. I had obtained an “Order to Attend” from the BC Human Rights Tribunal. Central to Elsner’s testimony would have been questions from me about the acceptable boundaries of conduct by a police officer, including social media use.
I also wanted to know why he never modified or withdrew a restrictive set of orders issued by the previous police chief. These orders significantly curtailed my ability to use social media including Twitter. They also limited other off-duty activities such as publicly speaking about the need to reform cannabis laws in Canada. Finally, I wanted to ask him what the police board had done, if anything, to investigate my complaints of discrimination at VicPD.
On August 17, 2015, the human rights hearing began.
On August 19, 2015, Mayor Lisa Helps and Mayor Barb Desjardins learned about the Twitter exchanges and concerns that Elsner may have had an inappropriate relationship with the wife of one of his subordinates. (The source for this date is Chief Elsner’s own petition that he filed with the BC Supreme Court.)
On August 21, the two mayors notified the Police Complaints Commissioner via their lawyer and they asked to proceed with an internal discipline investigation. It appears that their intent was to proceed with a confidential investigation conducted by a lawyer (presumably with client-solicitor privilege) rather than an external public trust investigation.
On August 23, a new testimony date of August 27 at the human rights hearing was confirmed for Frank Elsner by the lawyer for VicPD.
August 28, 2015 was the last day in which new evidence was heard at the human rights hearing. In the end I decided not to call Chief Elsner to testify. Not knowing what had happened behind closed doors, instead I made the difficult choice to place a higher priority on other witnesses.
On September 8, 2015, one day before closing arguments in the human rights hearing, the Police Complaints Commissioner agreed to a less formal, internal discipline investigation of Elsner’s conduct. This decision was based, in part, on discussion Chief Elsner had that same day with the husband under his command. We now know that Chief Elsner deliberately misled this officer, as noted by Retired Judge Carol Baird Ellan in her finding of discreditable conduct:
The husband left the meeting under a false impression as to the nature of the conduct that was the subject of the investigation, and then informed the co-chairs, based on that, that he did not want an investigation. The investigation proceeded internally, in part because of the position taken by the husband.
On September 9, 2015, closing arguments were heard by the BC Human Rights Tribunal.
I can say with certainty that had there been no coverup, and had Elsner instead been suspended pending an external public trust investigation, it would have led to a more truthful and just hearing at the BCHRT. It would have changed the questions I asked of witnesses, some of whom were executive-level police officers at VicPD. I certainly would have required Chief Elsner to testify. And it would have strengthened and clarified my closing argument. One can imagine how difficult it would have been for the Department lawyer to justify why my off-duty use of Twitter needed to be restricted or prohibited, had the chief constable himself been suspended at that time regarding allegations about his own use of Twitter.
Ultimately, five of the eight allegations were upheld by the BC Human Rights Tribunal, resulting in the largest “injury to dignity” award for political belief discrimination in Canadian history.
Fast forward several years. I still do not know whether the police board ever assigned someone to investigate my concerns of discrimination when the complaint was first filed back in early 2013. (If an investigator was assigned, they certainly never contacted me for an interview or to ask clarifying questions.) And to this day, neither Mayor Lisa Helps, Mayor Barb Desjardins or any other member of the police board has ever spoken to me about the discrimination that I endured.