Commissioner Lowe's open window

By David Broadland, January 2016

The Commissioner’s report, by example, challenges other government officials to meet his high standard for transparency.

At the height of calls for Esquimalt Mayor Barb Desjardins and Victoria Mayor Lisa Helps to resign as co-chairs of the Victoria Police Board last month, the Times Colonist quoted SFU criminologist Robert Gordon: “If I was in their position I would be stepping down. I don’t know how they can carry on, honestly. There is something fundamentally rotten about the way in which the Victoria Police Board has been doing its business. I don’t know what that is but hopefully it will come out as a result of this blue ribbon investigation.”

Wait a minute. In one breath Gordon says “There is something fundamentally rotten” and in the next he says “I don’t know what that is...” Why, then, was he suggesting Helps and Desjardins should step down?

Many Victorians suspect there is “something fundamentally rotten” about the Victoria Police Board. They also suspect there’s something fundamentally rotten about the City of Victoria, the District of Saanich and the CRD. We just need to recall a few details about the Johnson Street Bridge fiasco, the Saanich spyware scandal, and the $70 million in public resources poured down the sewers by the CRD to fuel our worst suspicions.

All those files have been plagued by a lack of transparency. Minimal transparency has stymied critical analysis by disinterested parties and limited the flow of ideas from both experts and the community to decision-makers. Poorly informed decision makers are more likely to make bad, unrepresentative decisions. Bad decisions lead to demands for resignations. The threat of job loss if one’s own bad decision is uncovered drives officials to even deeper levels of secrecy. Bad decisions become more frequent. So do demands for resignations.

Police Complaint Commissioner Stan Lowe’s report on the internal investigation into Victoria Police Department Chief Constable Frank Elsner is an open window by comparison. Lowe’s report stated, “I am of the view that the internal process and procedures in this matter did not meet the level of procedural fairness, accountability and transparency contemplated by the Police Act.” In support of his decision to remove discipline authority in the Elsner investigation from Mayor Desjardins and Mayor Helps, he provided many details about what happened that would, in other circumstances, be hidden from public view by a wall constructed around the claim of solicitor-client privilege.

Here’s just one example of Lowe not building that wall: Lowe had agreed to the Victoria Police Board holding an internal investigation into allegations against Elsner on two conditions. First, that “[t]here had to be a full and continuing disclosure of the allegations and progress of the investigation to the other Victoria Police Board members.” Secondly, that “[t]here had to be disclosure of the allegations to the Member serving under the command of Chief Constable Elsner, and the Co-Chairs should obtain the Member’s informed views as to whether he wished to initiate a complaint or request a public trust investigation under the Police Act.” (The “Member” is the husband of the woman with whom Elsner has admitted exchanging “inappropriate” Tweets.)

Lowe’s report provides an admirable amount of detail about how both those conditions were agreed to by the two mayors, mainly through their legal counsel, lawyer Marcia McNeil. But he also describes in some detail how the mayors, as related to him by McNeil, failed to abide by those conditions. One passage in his report is particularly worth examining, not just for its indictment of what took place, but also because it breaks through the solicitor-client privilege wall that would normally have been built much further out from the circumstances, keeping out of public view many details that the public has the right to know.

Lowe has told us that the mayors—through McNeil—had agreed to the conditions he set and that McNeil, with Lowe and Elsner’s agreement, had hired an independent investigator (lawyer Pat Gallivan). Lowe’s report then states, “There was no further contact from the Co-Chairs until approximately October 28, 2015, when our office received information that members of the Board had not received adequate disclosure with respect to the allegations and investigation related to Chief Constable Elsner. Our office contacted counsel for the Co-Chairs, who advised that it was the Co-Chairs’ position that the Board members were not entitled to disclosure.”

Savour that last sentence because, usually, the public never gets to see the record of what happened on either side of any moment where a client consulted with a lawyer. Solicitor-client privilege is fundamental to our legal system. But if governments are to be transparent and accountable, how far out in time, both before and after the consultation between a client and her solicitor, is it reasonable to assert solicitor-client privilege?

In this case we are getting a high level of transparency. Both Helps and Desjardins have said publicly that they acted in accordance with McNeil’s advice (and that of OPCC) throughout the internal investigation (in Lowe’s report McNeil is only identified as “counsel for the Co-Chairs” or “counsel”). If we take them at their word, Helps and Desjardins asked McNeil whether they were legally required to make full disclosure to other Police Board members. Again, if we take them at their word, McNeil may have advised them that full disclosure wasn’t necessary. Helps and Desjardins, Lowe tells us, did not abide by the agreement they had made, through McNeil, with Lowe.

This gives the public a much greater level of detail and, potentially, a deeper understanding of what happened and why Lowe stripped the mayors of their authority to discipline Elsner (though it also raises other questions). The informed citizen is then better equipped to—for example—vote in the next election. Without that sentence—and other similar sentences throughout Lowe’s report—we all might end up baffled by Lowe’s reasoning and unsure of why he decided to hold an external investigation of Elsner. Not being able to grasp what happened, we’re likely to demand resignations simply out of frustration.

Instead, we know why he demoted Helps and Desjardins, and because he did it in such an open and transparent fashion, we trust that the process will come to a better decision about Elsner. The mistake made by Professor Gordon, I think, is that by adding his voice to the pressure for Helps and Desjardins to resign from the police board, he helps to drive all civic officials within earshot towards less transparency.

Our community badly needs more transparency, not less. I touched on the question of how the application of solicitor-client privilege in the governance process can unfavourably impact the public interest in the last edition of Focus. I wrote about the Johnson Street Bridge Project and how it came to be that City councillors weren’t allowed to see the critical design reviews and bid prices of two of the companies competing for a construction contract for the bridge. I referenced a September 20, 2012 council meeting at which Councillor Ben Isitt had asked City Solicitor Tom Zworski: “I can understand why disclosure to the public would be problematic prior to the conclusion of the agreement, but could you explain why disclosure to council of the nature of the proposals would be harmful?”

I noted that Zworski would not provide Isitt an answer in public. Zworski said, “Your worship, that is something that I would prefer to provide specific legal advice on this matter rather than general commentary and as such it should be done in camera.”

The public never learned “why disclosure to council of the nature of the proposals would be harmful.” We still don’t know what councillors were told, either. That’s because solicitor-client privilege has not been waived. What we do know is that the ominous warnings of two of the companies about the cost and design risks have proven to be prescient. Even though each company was paid $75,000 in public funds for work that included critical design reviews, councillors were prevented from viewing these critiques. Councillors were later asked to approve a contract with a third company. If they had been fully-informed of the risks, would the project now be mired in the dire legal, design and cost problems it has encountered? I don’t think so.

One careful reader of last month’s article noted that Zworski could not have withheld the concerns contained in the bid proposals at that September meeting because the bid proposals weren’t received until November. There was no intention to suggest that Zworski had withheld the information contained in the bid proposals. But there had been strong indications given by all three companies previous to that meeting that the project was in trouble on both cost and design. Senior City managers were well aware of unfavourable design reviews coming out of design workshops held by the City with each of the companies, and all three companies had said they could not build the bridge for the City’s fixed price. This was known well before that September 20 meeting.

There was nothing improper about Zworski providing legal advice to councillors, of course. Legal advice is always provided at in camera meetings. Moreover, solicitor-client privilege can only be waived by the client, which in this case was Isitt and his fellow councillors. So far they have not waived that privilege. Recently, a request by Focus for the record of the answer to the question Isitt posed to Zworski in public was rebuffed by the City, which claimed solicitor-client privilege.

With a sewage treatment project now priced at upwards of $1.1 billion and the region facing the longer term prospect of completely revamping its energy delivery and transportation infrastructure as decarbonization ramps up around the globe, the need to make excellent decisions about the use of public resources will become increasingly critical. Currently, our governments are making bad decisions about limiting the amount of information that is allowed into and out of our decision-making processes. Lowe’s report is much more than an explanation of why he removed Helps and Desjardins from the Elsner investigation. It’s an inspiration and a guide for all of us in the battle to make our governments more open, transparent and accountable.

David Broadland is the publisher of Focus Magazine.

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Commissioner Lowe's order for an external investigation of Chief Frank Elsner.pdf336.88 KB
Refusal of City of Victoria to provide record of September 20, 2012 response to Councillor Isitt by Tom Zworski.pdf23.62 KB