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The Kelowna RCMP has been ordered to disclose the identity of a family law lawyer who came forward during the investigation of the death of a Lake Country woman who drowned in Okanagan Lake under mysterious circumstances.
The BC Supreme Court order was made Thursday as a part of civil proceedings, launched by Jean Hennig, mother of Arlene Westervelt.
Westervelt drowned in Okanagan Lake in 2016. Her husband, Bert Westervelt, was charged with murder three years later. But in July 2020, Crown prosecutors stayed the charge after receiving “new information.”
Bert Westervelt has always maintained his innocence and said the drowning was a tragic accident, while Arlene’s family has claimed he murdered her.
Last spring, Jean Hennig and other family members filed a pair of civil lawsuits. The first, alleging Bert murdered Arlene, is attempting to claw back assets he inherited from Arlene. The second names a high-ranking member of the Kelowna RCMP, Supt. Brian Gateley, over allegations he interfered with the homicide investigation.
The concurrent lawsuits both saw significant developments this week.
ORDER ISSUED TO KELOWNA RCMP
In a court filing last month, Hennig’s lawyers allege Arlene Westervelt was in the process of divorcing Bert prior to her death, and Bert intentionally drowned his wife “so he could inherit or acquire the assets of Arlene before she was able to lawfully separate.”
Arlene’s death was initially thought by police to have been an accident, although some family had immediately contacted RCMP about their suspicions.
At some point in the investigation, an unnamed family law lawyer Arlene had been speaking with contacted the police.
“The plaintiff says that the evidence of the family law lawyers who came forward after Arlene’s death is relevant and crucial to both this civil action and the criminal homicide investigation,” an application filed by Hennig’s lawyers said, noting the RCMP refused to reveal that lawyer’s identity without a court order.
Following a hearing Thursday in Vancouver, a judge granted that order, giving the Kelowna RCMP 35 days to comply. Court documents indicate Hennig’s lawyers are planning on seeking a second court order to allow the unnamed family law lawyer to speak about the evidence they provided to police.
Bert Westervelt fought the application, arguing that the court has a duty to protect solicitor-client privilege and that Hennig is not a beneficiary of Arlene’s estate.
Bert’s response to the civil claim alleged the lawsuit is an attempt to use civil proceedings to “circumnavigate” Bert’s Charter protections. Bert’s lawyers pointed to statements Hennig’s lawyers made to Castanet News and Global Okanagan after the lawsuit was filed that noted civil lawsuits can compel disclosure of evidence whereas criminal cases can’t.
NEW INVESTIGATION DETAILS REVEALED
The Attorney General of Canada, B.C. Ministry of Safety and two police officers involved in the investigation of Arlene Westervelt’s death filed a response Friday to separate civil allegations that a high-ranking member of the RCMP attempted to suppress the murder investigation due to a personal friendship with Bert.
The court filing provides new details into how police handled the death and confirms previous reporting by CTV’s W5 that revealed the officer unlocked Arlene's cellphone as a personal favour for Bert.
The Crown defendants’ response to the civil claim states Debbie Hennig, Arlene’s sister, reached out to police on June 27, 2016, the day after Arlene drowned, to advise them that the death may not have been an accident.
In the three days after the death, RCMP interviewed “several individuals who provided information on the alleged abusive relationship between Bert and Arlene,” who voiced concerns about possible foul play, court documents say.
On June 30, 2016, Sgt. Craig Andrychuk spoke with the coroner and updated him on the concerns raised in the interviews. The coroner, however, did not request an autopsy, “as the circumstances were consistent with a sudden event followed by a medical emergency, and an autopsy would not advance things.”
The coroner never did conclusively determine the cause of Arlene’s death.
Supt. Brian Gateley called Sgt. Andrychuk on June 30, 2016 to explain he was longtime friends of Bert and Arlene, and he'd never seen any evidence of abuse or violence between them.
Bert was in possession of Arlene’s locked phone and he had asked Gateley for help obtaining photos from it for her funeral. Bert was willing to sign a consent for the RCMP to download and review the phone data.
“Sgt. Andrychuk responded that the RCMP had no reason to seize Arlene’s cellphone, review it, or deny access to it, since at this point the RCMP were assisting the coroner in a non-criminal investigation,” the Crown response filed Friday said.
Gateley then directed a subordinate to unlock the phone using a program called Cellebrite, which also created a copy of the phone’s contents. Gateley then directed the subordinate to return the phone to Bert along with its passcode.
Kelowna RCMP did not start treating Arlene's death as a possible criminal matter until July 2016.
Gateley’s actions led to an internal RCMP Code of Conduct investigation against him, and in February 2019, he was found to have been in a potential conflict of interest and that he had misused the RCMP’s IT equipment.
Gateley then resigned from the RCMP, and the file against him was closed. He then took a senior position with B.C.’s Organized Crime Agency.
The Crown’s response filed Friday denies Gateley or Andrychuk are liable for doing anything wrong.
“The RCMP and its members, in the course of conducting criminal investigations, do not owe a duty of care to victims of crime or their family members,” the response states.
Criminal charges against Bert Westervelt were stayed on July 14, 2020. Crown prosecutors had an option to resume criminal proceedings against him for one year after that date, a deadline that has long expired.
A court filing by Bert Westervelt, citing the Criminal Code, says this means “the defendant remains innocent" and ‘the proceedings shall be deemed to never have commenced.’”
