They Fire Whistleblowers, Don’t They? (Part I)

Note: This is the first of two articles about the recent firing of three Cape Breton Regional Police Service officers and I’m going to begin by saying there is much I do not know about this case — and I’m using the term “this case” to encompass both former Constable Wade Lavin’s trial and the more recent tribulations of Constable Greg Livingstone, Sgt. Jerome Kelly and Constable Roberta Kelly. My knowledge is pretty much limited to what I’ve read in the press. But what I’ve read in the press has been bothering me from the beginning. So today, I’m going to go through what I know and discuss why it bothers me. And if you read this and think, “She clearly doesn’t know [enter fact related to the case here],” then please feel free to contact me.

 

Termination

Friday’s news that three Cape Breton Regional Police Service (CBRPS) officers had been terminated by the force caught me completely by surprise — and judging by what one of them, Constable Greg Livingstone, told the Cape Breton Post, it caught them by surprise too:

“I never dreamed after being cleared of two RCMP investigations that I’d be found guilty of anything.”

“I want the public to grasp that all I’m accused of is encouraging someone to leak emails to the media,” he said.

On the grounds that matters of internal discipline are none of the public’s business, CBRPS spokesperson Desiree Vassallo announced the firing of three officers without actually naming them. Instead, she offered clues:

These officers were suspended in July 2016 after a complaint was filed regarding their alleged misconduct as the result of testimony presented in a separate criminal court proceeding for forgery and impersonating a police officer.

The puzzle wasn’t hard to solve: the officers were Livingstone, Sgt. Jerome Kelly and his wife Constable Roberta Kelly and the “criminal court proceeding” was that of former CBRPS Constable Wade Lavin on charges of identity fraud, forgery, uttering a forged document, causing others to act on such a document and conveying a false message.

Or, if you prefer (and I do) the officers were the vice president of the police union (Livingstone), the president of the police union (Jerome Kelly), a member of the police union (Roberta Kelly) and the local shop steward for the police union (Lavin).

The Chief of Police, who has been vocal in his antipathy toward the union executive (about which, more later), has fired half of it. Whatever else is happening in this case, that has to raise eyebrows.

But before we go any further, a brief account of how we got here.

 

Recap

It started in the summer of 2015, when the police union (the Nova Scotia Government Employees Union or NSGEU) was battling CBRPS Chief Peter McIsaac over the use of unmarked police vehicles.

The union said the 13 (!) managers assigned such vehicles were employing them for personal use and argued the cars should instead be made available to on-duty police officers.

Lavin, Jerome Kelly and Roberta Kelly felt they weren’t making any headway on the issue, and so decided to leak the information about the vehicles –and subsequently about the alleged misuse of credit cards by management — to the media.

Lavin set up a fake Microsoft Outlook account under the name of Staff Sergeant Ken O’Neill — staffkenney@outlook.com — and sent emails to a number of individuals and media outlets, including the Cape Breton Post, Frank Magazine and the Chronicle Herald.

The message included a series of emails exchanged between McIsaac and Livingstone and a list of the makes and models of the assigned vehicles along with the names of the officers to whom they’d been assigned.

He followed up with one recipient, who had a question about the initial email, then later sent another email from the same account about the alleged misuse of credit cards in which he named four individuals, including Chief McIsaac.

All the media outlets wrote about the claims — there were stories in the Post, the Chronicle Herald and Frank.

Chief McIsaac, who felt the allegations were “slanderous” to the officers named in the emails (including, maybe even especially, himself) contacted the Serious Incident Response Team (SIRT) and asked it to look into the matter. But SIRT, whose mandate is to investigate serious incidents arising from the actions of the police in Nova Scotia, said the matter was outside its mandate. (This incident certainly involved police and definitely happened in Nova Scotia — could it be the only criterion missing was “serious?”)

So McIsaac turned to the RCMP. And the RCMP launched an investigation that included a search of Lavin’s house so over-the-top that his union complained about it. Then-NSGEU President Joan Jessome told the Post that as many as eight RCMP officers (the RCMP would later admit in court the number was more like 13), some armed with Colt carbine assault rifles, arrived at Lavin’s home at 6:30 AM, while he and his wife and children were sleeping. Jessome said the RCMP wouldn’t let Lavin’s wife wake her children and instead entered the room and roused the boys themselves. Jessome said in a press release:

While the union cannot speak to the investigation of Mr. Lavin, I feel I must speak out and question whether it truly warranted terrorizing a family in their own home.

The RCMP seized a cell phone from Lavin’s home. They also seized the desktop computer he used at east division police headquarters and a third computer that was in a police vehicle.

Lavin was charged with the five counts noted above. He pled not guilty in February 2016 and his trial was set for 19-23 September.

Then in July 2016, Livingstone and the two Kellys were suspended with pay under the NS Police Act after a complaint was filed “regarding their alleged misconduct as the result of testimony presented in a separate criminal court proceeding for forgery and impersonating a police officer.”

At the request of the CBRPS, the RCMP undertook a criminal investigation into this alleged misconduct and the Police Act investigation was put on hold until the criminal investigation was completed.

Lavin was tried in September and found guilty. He was sentenced to a year’s probation and 100 hours of community service in June 2017 and lost his job with the police force.

In December 2017, the RCMP completed its criminal investigation into Livingstone and Jerome and Robert Kelly. No charges were filed.

At that point, McIsaac decided to reactivate the internal investigation, which concluded in March 2019. The officers were found guilty of something – we don’t know what, we know only that Livingstone was found guilty on six counts under the Police Act – and subsequently terminated.

 

Bleak Outlook

When Livingstone said, “I want the public to grasp that all I’m accused of is encouraging someone to leak emails to the media,” it reminded me of a remark made by Lavin following his sentencing. Asked by a CBC reporter for comment he said:

The reason I am here is because of the media, so that would be a no.

I didn’t understand what he meant by that at the time, but it turns out the answer is related to how the police were able to trace the staffkenney emails to him. As the Post explained in a story headlined, “Police officer’s trial into impersonating colleague hears evidence of sourcing emails”:

The court has heard that the emails were sent to a number of individuals and news outlets including the Cape Breton Post newsroom in July 2015 purportedly from Ken O’Neill but not from a regional police email address. Instead, they were sent from an outlook.com account, a Microsoft free web-based email service.

Sgt. Michael Murphy of the Cape Breton Regional Police Service said in August 2015 he was assigned by Supt. Walter Rutherford to investigate the email and determine if there was any way to track down who sent it.

I remember thinking at the time, “How did the police know the emails came from the staffkenney@outlook.com account?” But I never found an answer in any of the coverage I read.

So I ordered a recording of the first day’s proceedings at the Lavin trial and I found my answer almost immediately: the police knew about the email because a reporter sent it to them.

The reporter in question was Andrew Rankin of the Chronicle Herald. At the time, he was in the paper’s Cape Breton bureau.

I didn’t know he had testified at the trial because none of the coverage I read included his name. But he took the stand and was questioned by Crown attorney Peter Craig on 19 September 2016. Craig showed him “Exhibit 6”  — an email sent from “Ken O’Neill” from “staffkenney at outlook dot com” on 29 July 2015 to the Chronicle Herald newsroom at 6:46 AM.

Rankin told Craig he was “vaguely familiar” with the email, which he agreed was forwarded to him from the Halifax newsroom at 9:12 AM that day. We’ll pick the exchange up from there (The ellipses represent “ums” and “uhs” that I’ve removed for purposes of clarity):

CRAIG: And what did you do when you got it?

RANKIN: I tried to make some phone calls to find out a little bit more about who may have written it. …If any other Cape Breton Regional Police officers had known about it… had heard about… the issues…discussed in the in the letter and then I…, I eventually…when it became clear to me I couldn’t get… anybody to respond, I sent it to the Chief of Police’s office for comment.

CRAIG: …You sent an email on Wednesday July 29th at 2:15 to Elaine Clarke, now that’s the chief’s secretary, is that right?

RANKIN: Yes.

CRAIG: Alright, so you flipped this email that originally came into the Herald newsroom and was forwarded to you, you then flipped it along to Ms. Clarke, is that right?

RANKIN: I did, yeah.

After listening to this, I thought long and hard about what I would have done, had I received that staffkenney email and there are two possibilities:

I would have decided it was not credible and done nothing with it or I would have decided it was credible enough to warrant asking the Police Chief to comment on it (as Rankin did) and I would have sent questions based on the email — I might even have sent the full text of the email — but I would not have sent him the email itself.

Why? Well, if I felt the information was credible enough to ask the chief about it, then that would make the sender a source for certain (and possibly a whistleblower) and reporters do not reveal their sources or out whistleblowers.

And it struck me (and I have no idea if this is true or not) that one reason reporters might not have identified one of their number as the source of the email was that it would have sent an awful message to potential whistleblowers.

I emailed Rankin on Monday to tell him I’d be writing about this and to ask him to help me understand his reasoning. He emailed me on Tuesday and said:

I do not know who wrote the email. Whoever did was not a source. It raised questions about police conduct that I thought should be answered.

Which doesn’t help me understand anything.

 

Forensics

So what happened next?

Well, according to a second Post story (“Computer activity links Cape Breton police officer to email account“), armed with the staffkenney email address:

[CBRPS Sgt Michael] Murphy served a production order on Microsoft for customer records related to the account that created the email address as well as the IP and transaction history related to login attempts. There were four IP addresses — one was associated with the Cape Breton Regional Police Service, one was associated with Bell, while two were with Bell Mobility.

From Microsoft, the RCMP obtained emails sent and received using the outlook.com email address and two attachments that were attached to some of the messages, [RCMP computer forensic analyst Greg] Bembridge said. The investigation also involved CBRM computer records and user activity on the records management system used by regional police.

Using the various records and timestamps and by tracking IP addresses, Bembridge said he could find when the outlook.com email address was created.

“The (east division office sergeant’s computer) is the only Cape Breton Regional Police Service computer at that time that was accessing login.live.com,” he said.

Bembridge also determined when Lavin’s password-protected Cape Breton Regional Police Service user account was logged in to the east division office sergeant’s computer while there was activity on the email account.

He also determined when two document attachments that were sent to media outlets through the outlook.com account were created using a network scanner and that they were saved to a folder bearing Lavin’s user ID on the office sergeant’s computer.

Bembridge outlined times when there was also activity on the email account from the IP address associated with Lavin’s home.

I’m not saying that if Rankin had not sent McIsaac the email the cops would never have traced it to Lavin, who was clearly no master of subterfuge. But it seems pretty clear to me they would have had a much harder time had they not known the Outlook address and the time the email was sent and the nature and content of the attachments.

Moreover, whether they would have found Lavin anyway is beside the point: journalists don’t reveal their sources. And they certainly don’t reveal them without even being asked to do so.

So, that’s uncomfortable.

But Rankin wasn’t the only one who didn’t view the author of the email as a whistleblower, which raises a question worth considering: were the officers in this case whistleblowers?

We’ll consider that in Part II.

 

 

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