Arlene Westervelt, 56, died three years ago at the Okanagan Lake.

Image Credit: SUBMITTED/Le Necrologue

Family members of a Lake Country woman who died in 2016 under suspicious circumstances filed a civil suit last month alleging that two Mounties involved in the investigation of her death acted in a negligent and unethical manner, damaging evidence needed for a criminal case.

Arlene Westervelt was found dead June 28, 2016, a day after she went missing from a canoe trip with her husband, Bert Westervelt. After the recovery of her body, RCMP issued a press release saying that Arlene had accidentally drowned but her family had already expressed to them their misgivings about that notion.

It took days for a criminal investigation to get underway and in April 2019 Bert was charged with his wife’s death. He was scheduled to stand trial for second degree murder, but the charge was stayed in July 2020.

"After carefully reviewing new information relating to this matter, Crown Counsel determined that the B.C. Prosecution Service's charge assessment standard was no longer met," Alisia Adams of the B.C. Prosecution Service said in an email at the time.

This standard, as set out in the prosecution service's Charge Assessment Guidelines, requires Crown counsel to independently, objectively and fairly measure all available evidence against a two-part test, which includes whether there is a substantial likelihood of conviction, and if so, whether the public interest requires a prosecution.

"This test continues to apply throughout any prosecution. Where this test is no longer met, it is appropriate for Crown counsel to direct a stay of proceedings," she said. A prosecutor has a window of a year to restart court proceedings after a stay is issued. That will be up in just over a month.

The background to all these public shifts in the case is what a civil suit filed by Debbie Hennig and Wendy Leigh Judd, Arlene’s sisters, and Jean Hennig, delves into.

They allege the case was mishandled from the get-go and one officer potentially got in the way with the intention to protect Bert, his friend.

The two RCMP officers who are named in the suit alongside the Solicitor General and Attorney General are RCMP Sgt. Craig Andrychuk and Insp. Brian Gately.

Gately and Andrychuk were working members of the RCMP when news that Arlene went missing came in.

Arlene's family alleges when they were informed of her disappearance, they along with other friends reported their concern that it was “not an accident but rather was likely to be a homicide with Bert as the suspect.”

When Arlene’s body was found the next day, they claim, general investigation RCMP officers involved with the case wanted to take the steps necessary to weigh the possibility of foul play, including having an autopsy performed but were swayed from that perspective by Gately and Andrychuk who were in a position of authority.

“Craig Andrychuk was a sergeant in the RCMP at the time and he had the power over the Kelowna (general investigation) members who had requested permission to investigate the death of Arlene, which included a request for an autopsy,” reads the civil suit.

At the time, Gately was an inspector with the RCMP who “wielded significant power and control over the Kelowna GIS and its members.”

Gately, they allege, knew that Bert would be a notional suspect in Arlene’s death should it be found a homicide and had “a duty at common law and a strict responsibility under the RCMP Act to avoid any actual, apparent or potential conflict of interest that could arise from his involvement in the investigation of Arlene’s death.”

He went in the exact opposite direction and they allege he instead “did intentionally and for a bad faith purpose, interfere personally and directly in the investigation of Arlene’s death.”

In particular, Gately is alleged to have inserted himself into the investigation despite having no sanctioned or formal role. They allege he attempted to shut down consideration of a homicide by, “among other things, actively directing or suggesting to defendant Craig Andrychuk that Arlene’s death be deemed an accidental drowning.”

“This consequently resulted in the Kelowna GIS constables being denied permission they sought to properly investigate Arlene’s death, which included a request for autopsy before the body was embalmed," the court filings say.

Andrychuk, they allege, knew that the order and direction of Gately in relation to Arlene’s death was contrary to law and contrary to the duties and responsibilities he possessed as a senior RCMP manager, and contrary to the RCMP Act and the RCMP Code of Conduct, did intentionally and for a bad faith purpose, interfere in the investigation of Arlene’s death.

In particular, he agreed to shut down consideration of homicide by Kelowna general investigators and directed that Arlene’s death be deemed an accidental drowning, the suit alleges.

That, they said, resulted in investigators being denied permission they sought to properly investigate Arlene’s death, which included a request to autopsy before the body was embalmed.

Because of this, “critical evidence in relation to Arlene’s death was lost including, among other things, pathology evidence relevant to homicide.”

Additionally, Gately gave Arlene’s previously password-protected phone to Bert, after it had been cracked using RCMP tech.

As a consequence, they said, Westervelt destroyed evidence relevant to a homicide investigation that would eventually get going under the direction of major crimes investigators following multiple requests from Arlene’s friends and family.

By the time major crimes stepped in, Arlene’s body had been embalmed at what they said was Bert’s direction, thereby destroying vital pathology evidence that met the evidentiary standard of the prosecution service.

That the embalming process occurred early on and at Bert’s request is part of a Coroner’s Report released Feb. 9. It said an investigation showing no history of domestic violence gave attending police “no concerns about foul play with respect to the capsizing of the canoe.”

“As a result of the information gathered, the coroner relinquished legal possession of the body on June 29, 2016,” reads the report by Coroner Lori Moen.

A local funeral home then went through all that was needed for a funeral, including the embalming process.

Subsequent information from family and friends, however, forced a change in tack and Arlene’s body was returned to the Coroner and an autopsy was performed July 6.

The Coroner said that a toxicology test was done before embalming and there was nothing relevant there. There were also neck haemorrhages examined, and those weren’t impeded by the embalming either.

There was also evidence Arlene had either hypertension or undiagnosed heart disease.

Ultimately, however, Arlene’s cause of death was undetermined.

They said that while she was seen to be alive in apparently uneventful circumstances by impartial witnesses prior to the flipping of the canoe on June 26, 2016, subsequent information and autopsy findings raised the “possibility of inflicted injury but were not determinative.”

“In addition, the presence of a significant undiagnosed cardiac condition rendered (Arlene) vulnerable to a fatal arrhythmia, with or without a notable precipitating event,” Moen wrote.

“After careful consideration of all available evidence, given the competing possibilities with respect to (Arlene’s) death and lack of compelling corroborative evidence to support one possible cause of death over the others, the cause of (Arlene’s) death remains undetermined.”

With that, no recommendations were made.

None of the allegations against Bert or the RCMP in the civil suit have been proven. The RCMP has not yet filed a statement of defence.

The RCMP hasn’t looked into whether Gately had done anything wrong. He was slated for a code of conduct investigation by B.C. RCMP but retired before it was completed, according to the suit.

Through it all, Arlene’s loved ones have said they suffered anxiety, depression and nervous shock for which they will need treatment. As such, they seek undisclosed damages.

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