EME count COLUMBIA VANCOUVER REGISTRY Fl I6 0. MAR 1 4 2016 IN THE SUPREME COURT OF BRITISH 1595633 mar-r ?.sdi Si?E??l Vancouver Registry BEME CHIEF CONSTABLE FRANK J. ELSNER PETITIONER AND: THE POLICE COMPLAINT COMMISSIONER AND BARBARA DESJARDINS AND LISA HELPS IN THEIR CAPACITY AS INTERNAL DISCIPLINE AUTHORITY RESPONDENTS PETITION TO THE COURT ON NOTICE TO: Office of the Police Complaint Commissioner Floor, 947 Fort Street PO Box 9895 Prov Govt Victoria, British Columbia V8W 9T8 Internal Discipline Authority 850 Caledonia Ave Victoria, British Columbia V8T 5J8 This proceeding is brought for the relief set out in Part 1 below, by the person named as Petitioner in the style of proceedings (above). If you intend to respond to this petition, you or your lawyer must 10256-001100028487DOCX. file a response to petition in Form 67 in the above-named registry of this court within the time for response to petition described below, and serve on the petitioneds) 2 copies of the filed response to petition, and (ii) 2 copies of each filed affidavit on which you intend to rely at the hearing. Orders, including orders granting the relief claimed, may be made against you, without any further notice to you, if you fail to file the response to petition within the time for response. Time for response to petition A response to petition must be filed and served on the petitionerls), if you were served with the petition anywhere in Canada, within 21 days after that service, if you were served with the petition anywhere in the United States of America, within 35 days after that service, if you were served with the petition anywhere else, within 49 days after that service, or if the time for response has been set by order of the court, within that time. The address of the registry is: The Law Courts 800 Smithe Street Vancouver, BC V62 2E1 (2) The ADDRESS FOR of the petitioner(s) is: Winteringham MacKay Law Corporation The Landing 620-375 Water Street Vancouver, BC V68 5C6 Fax number address for service (if any) of the Petitioner: (604) 687-2945 (3) The name and office address of the Petitioner?s lawyer is: Janet Winteringham, O.C. Winteringham MacKay Law Corporation 620-375 Water Street Vancouver, BC V68 5C6 CLAIM OF THE PETITIONER PART 1: ORDERS SOUGHT 1. The Petitioner, Frank J. Eisner, seeks the following relief: An Order quashing the Order for External Investigation issued December 18, 2015 by the Police Complaint Commissioner in OPCC File No. 2015- 11048 and DA File No. 2015 1281 (the "Order for External Investigation?). An Order quashing any judicial authorizations issued in connection with the Order for External Investigation; Final and interim orders prohibiting Chief Superintendent Sean Bourrie from taking any further steps in connection with the investigation; and Final and interim orders requiring the Police Complaint Commissioner to remove from his website the Order for External Investigation and any other materials in connection with the investigation. PART 2: FACTUAL BASIS 1. Chief Elsner is the Chief Constable of the Victoria Police Department 2. He has held that position since December 15, 2013. 3. The Police Complaint Commissioner is an officer of the Legislative Assembly appointed under s. 47 of the Police Act, RSBC 1996, c. 367 (the Police Act?). 4. Mayor Barbara Desjardins and Mayor Lisa Helps are the co-chairs of the Victoria and Esquimalt Police Board (the 5. At all material times, they were the "discipline authority" for internal discipline matters involving the chief constable of the 6. On August 19, 2015, the Co?Chairs received information that Chief Elsner may have been involved in a relationship with Jane Doe. 7. At all material times, Jane Doe was a member of another police department and the spouse of John Doe, a member of the 8. The Co?Chairs also received information that Chief Elsner had exchanged twitter messages with Jane Doe through a social media account. 9. On August 21, 2015, the Co~Chairs brought the information contained in paragraphs 7-8 (above) to the attention of the Police Complaint Commissioner. The Internal Investigation 10about September 8, 2015, the Police Complaint Commissioner directed that the matter be treated as an internal discipline matter. The Co?Chairs subsequently advised Chief Eisner that the matter was being treated as an internal discipline matter and sought his consent to the appointment of an independent investigator to conduct the internal investigation. Chief Eisner was advised that there would be no investigation under Part 11, Division 6 of the Police Act and that the matter would be kept confidential. On the basis of those assurances, he consented to the appointment of Patricia Gallivan, DC as an independent investigator. Chief Elsner was never advised that the Police Complaint Commissioner had imposed any preconditions with respect to the internal investigation. On or about September 14, 2015, with the consent of the Police Complaint Commissioner, the Co?Chairs formally appointed Ms. Gallivan as an independent investigator for the internal investigation. Her mandate was to investigate: (8) Whether Chief Elsner engaged in an inappropriate relationship with Jane Doe; and Whether Chief Elsner improperly used the VicPD's social media account. 16. 17. 18. 19. 20. On November 16, 2015, Ms. Gallivan produced a preliminary report which set out her findings with respect to the investigation (the Preliminary Report"). The Preliminary Report also addresses various other issues, including the allegation that Chief Elsner spoke to two witnesses connected to the investigation. Ms. Gallivan made the following findings in relation to that issue: Chief Elsner contacted those individuals for a purpose unrelated to the investigation (namely, to have his twitter account shut down); Chief Elsner spoke to them about the investigation; He did so because he wanted to apologize for putting them in a difficult position; and His conduct did not affect the integrity of the investigation. On December 4, 2015, the Co?Chairs issued a final decision in which they accepted the findings and conclusions set out in the Preliminary Report and imposed disciplinary action on the basis of those findings (the Decision"). The IDA Decision was a final determination of all issues raised in the internal investigation. Chief Elsner did not appeal or otherwise apply for a review of that decision. The External Investigation 21about December 18, 2015, the Police Complaint Commissioner issued an Order for External Investigation pursuant to Part 11, Division 3 of the Police Act. The Police Complaint Commissioner posted the Order for Internal Investigation on his website and issued various press releases with respect to these matters. The Order for External Investigation relates to the same or substantially the same conduct as the Internal Investigation and involves the same or substantially the same issues that were determined as part of that investigation. Chief Superintendent Bourrie has since taken various steps in connection with that investigation including, without limitation, applying for and obtaining a judicial authorization to search various electronic devices and telephone records. Chief Supt. Bourrie has also delegated some or all of his authority under 83. 93(1)(b(ii) of the Police Act to members of the Vancouver Police Department. Chief Superintendent Bourrie?s rank is not equivalent to or higher than Chief Elsner's. More specifically, but without limiting the generality of the foregoing: Chief Superintendent Bourrie does not have authority or accountability for the RCMP as a whole; and (bl Chief Superintendent Bourrie reports to his superiors within the force as opposed to any civilian authority. PART 3: LEGAL BASIS 27. 28. 29. 30. 31. 32. 33. The Police Complaint Commissioner has no jurisdiction and/or authority to order an external investigation under Part 11, Division 3 of the Police Act in relation to conduct that has been the subject of an internal investigation under Division 6. In addition, or in the alternative, the Police Complaint Commissioner is estopped from ordering an investigation under Part 11, Division 3 with respect to issues that have been determined in the internal discipline process and Chief Elsner pleads and relies on the doctrine of issue estoppel and abuse of process. In addition, or in the alternative, the Police Complaint Commissioner relied on irrelevant and/or extraneous considerations in issuing the Order for External Investigation including media reports with respect to the Chief Elsner's conduct. Chief Superintendent Bourrie?s appointment as chief investigator is contrary to ss. 93(4)(a)(ii) of the Police Act. In the alternative, Chief Superintendent Bourrie has improperly delegated his authority to investigators from the VPD contrary to s. 93(4)(a)(ii) of the Police Act. Any judicial authorizations issued in connection with the external investigation are invalid and of no force or effect. The Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 applies to any records and information concerning internal discipline matters. 102 56001 [00028487 . PART 4: MATERIAL TO BE RELIED UPON 34. Affidavit #1 of Frank J. Elsner sworn March 11, 2016; 35. Affidavit #1 of Karoline Kidd sworn March 14, 2016. The Petitioner estimates that the hearing of the petition will take one day. Date: March 14, 2016 Si nature of Janet Wint ringham, QC. Petitioner IXILawye for Petitioner To be completed by the court only. Order made in the terms requested in paragraphs .. of Part 1 of this petition I with the following variations and additional termsDate: . . Signature of[ ]Judge Master