RESPONSE OF JOHN KELLY TO THE WRITTEN DECISION
SIGNED BY CHAIR JOHN PHILLIPS
LAW ENFORCEMENT REVIEW BOARD
AUGUST 13th 2009
IN THE MATTER OF JOHN KELLY
v
DETECTIVE MERCER
CALGARY POLICE SERVICE
FOREWORD: John Phillips the Chair of the Law Enforcement Review Board signed a written
decision on the 13th August 2009, here are all of the complete paragraphs from [1] to [51] of that
written decision signed by the Chair John Phillips.
The responses to his decision is paragraph by paragraph and is in bold. This response by Kelly
clearly shows that the information they present, to be false in many if not all parts. And that they
are entirely biased regarding this written decision in the favor of the Police and to the detriment
of the Appellant John Kelly.
They are clearly being selective in what they disclose of the evidence they present, and the
testimony they do not refer to, which is indicative of the many false statements that are intended
to give the reader a false impression of events biased in the favor of the police.
You can expect one error, maybe two, but not the many, many errors that are contained in such a
short decision. A decision that leaves out crucial witness testimony and evidence.
PARAGRAPS [1] to [51] and RESPONSES
[1] The Appellant claimed that an improper police investigation was conducted by the
Respondents relative to the following allegations made by the Appellant to the CPS in that
(a) the Calgary Soccer Federation committed fraud by fraudulently applying for grant monies to
the City of Calgary, the Province of Alberta and the Federal Government; and
(b) Mr Terry Brooker committed perjury by making inaccurate statements in his Affidavits used
in connection with proceedings brought by the Appellant in the Court of Queen’s Bench.
The Appellant actually claimed that over eight sections of the Police Service regulations
were breached by the Respondent, but the Police would only investigate two of those
breaches.
[2] Det. Robson although named in the Chiefs disposition letter and in the Notice of Appeal to
the Board is no longer in the employment of the CPS. As a result the Board loses jurisdiction to
hear an appeal under section 48 of the Police Act in circumstances where the Respondent officer
has retired or resigned prior to the hearing of the appeal. This issue was addressed in the
preliminary hearing of McCallum Board Judgment No 019-2008. The Board found that it lost
jurisdiction to make findings or grant remedies against a retired or resigned officer with respect
to alleged misconduct that forms the subject matter of an appeal. Therefore Det Robson is not
considered a Respondent in this appeal.
BACKGROUND:
[3] In early 1997 the Appellant initiated numerous fundraising proposals between the Calgary
Soccer Federation and Alberta soccer with the goal of raising funds for Calgary soccer. The
Appellant claimed that in return for his services and initiatives he was to receive 20% of all
funds raised for the Calgary Federation from January 1998 to October 1998. The Appellant
created several fundraising programs which were ready to be communicated to the Calgary
soccer membership. In early 1999, the understanding of fundraising between the Appellant and
the Calgary Soccer Federation did not meet the terms of their agreement in the distribution of a
Special Edition of the Sporting Times a local sports newspaper, owned by a Mr Ernest Granson,
to the soccer players playing for the various soccer associations under the Calgary Soccer
Federation.
The 20% revenue was to be paid for as long as the programs ran. The terms of the
agreement were being met until Mr Brooker intentionally disposed of over 20,000 copies of
the Sporting Times and then intentionally sabotaged the fund raising Programs and
initiatives.
[4] The Appellant also claimed that the Calgary Soccer Federation was responsible for canceling
proposed fund raising initiatives that involved a phone line sponsorship between Alberta Soccer
Association and Fishers Soccer Shack. The Appellant claimed that he and his partner lost
substantial revenue due to the cancellation of the phone line sponsorship program.
Substantial revenues were lost as a result of the premeditated actions of Terry Brooker.
Minutes of Board meetings, documents and information were given to the Detective Mercer
that clearly showed what had been done. Much of that information was destroyed by
Mercer.
[5] The Appellant stated that the Calgary Soccer Federation made fraudulent claims in an
application to the City of Calgary, the Province of Alberta and Federal Government for funding.
The Appellant pursued his claims and allegations with members of Calgary City Council,
Alberta MLA’s and the CPS. The Appellants claims that the Calgary Soccer Federation inflated
soccer membership numbers in their many applications for funding, thus resulting in his
allegations of fraud by the Calgary Soccer Federation The Appellant received no satisfaction
from the Calgary City Council or the Government of Alberta regarding his concerns. The CPS
would not investigate because it was concluded that the alleged victim the City of Calgary
declined to complain or request the laying of charges and no investigation was to take place.
There is no mention of the allegations of theft and mismanagement of memberships monies
relayed to Mercer – The statement that the Appellant received no satisfaction from the City
or the Alberta Government is totally false – Acting on information they received, all
applications for funds made by the Calgary Soccer Federation were denied.
The City initially requested an investigation by contacting S/Sgt Debruyn then head of the
Commercial Crime Unit. The City then stopped that investigation when it was heading
back into the City and some of its employees.
[6] The Appellant then made an application to the Court of Queen’s Bench in October 2001 to
compel the Commercial Crime Unit to investigate his fraud and perjury allegations. On
December 18, 2001 the CPS contacted and met with the Appellant and reached an agreement
with him that they would investigate the perjury allegation against Mr Brooker but not the fraud
allegations.
The Appellant was informed by S/Sgt Debruyn that the City had stopped the investigation,
and he then directed Kelly to go to the Courts to compel the Chief to act. S/Sgt Debruyn
also gave Kelly six charges that he believed the Calgary Soccer Federation were guilty of. It
was only after Kelly initiated his Court action that he was once again contacted by the
Police.
[7] After further requests from the Appellant to investigate the allegations of fraud the CPS
decided in January 2002 to investigate the fraud allegations and named the applicant as the
victim.
[8] In March 2002 the Appellant became dissatisfied with the progress of the CPS in the
investigation and attended Court of Queen’s Bench asking the court to direct the CPS to conduct
an investigation of his complaints. Later in March 2002 Respondent Mercer provided the Court
of Queen’s Bench a sworn affidavit detailing the history, progress. And future time lines
concerning the perjury and fraud investigation. This resulted in the Appellant dropping the Court
of Queen’s Bench action against the CPS.
This is not true, in the March of 2002 the Chief of Police was attempting to have Kellys
Court action dismissed, and what they did was to have Mercer swear to an Affidavit that
they were doing an investigation, so therefore Kellys request to the Courts to have them
compel the Chief to act was mute. Mercer placed numerous false statements within that
Affidavit that he swore to. This did not result in the Appellant dropping the Court action.
[9] On April 23, 2002 Respondent Mercer submitted a pre-charge counsel court brief to the
Special Prosecutions Branch regarding the fraud investigation, and on June 19 2002, submitted a
precharge counsel brief regarding the perjury allegations against Mr Brooker. Those briefs were
submitted for review and opinion by a Special Prosecutor.
Mercer never contacted Kelly to corroborate any of the materials prior to submitting
either brief. In fact after submitting the April brief Mercer was questioned on why he had
not been in contact with witnesses yet, such witnesses that could corroborate Kellys
allegations. Mercer stated that the Crown Prosecutor was doing her own investigation and
talk to her. When Kelly contacted her she had no idea who Kelly was, or what criminal files
I was talking about.
[10] On February 26 2003, Respondent Mercer contacted the Appellant advising him that Ms
Papadatou a Crown prosecutor with the Special Prosecution Branch had reviewed both precharge
court counsel briefs and that it was her opinion that insufficient evidence existed to support the
laying of either charge of fraud or perjury.
This was 10 months after Mercer allegedly dropped off the first brief and 8 months after
Mercer allegedly dropped off the second brief. It was only when Kelly contacted the
Director of Special prosecutions on February 26th to ask him what the hell was going on
with the criminal files, that Mercert and Lang were ordered to attend at the Crown
prosecutors office.
Mercer then called Kelly at 4 in the afternoon, and even then Mercer would not answer to
simple questions, it was 5 years later that Kelly got access to the opinion letter from the
Crown. Such letter that has shown that Mercer intentionally deceived the Crown.
The Chair John Phillips repeatedly refused my requests to have the Crown Prosecutor who
authored that opinion letter testify at the hearing. As the Chair knew that her testimony
would crucify the Respondents.
[11] The Appellant did not accept the conclusion reached by Ms Papadatou and contacted the
Calgary Police Professional Standards Section complaining that the Respondents had conducted
an improper investigation. In May 2003 the CPS requested that he put in writing his concerns.
The Appellant then indicated that he would re-open the Court of Queen’s Bench action.
As stated for 5 years, Kelly was denied access to that opinion letter and the conclusions
reached. Both Mercer and the Calgary Police Service also refused to elaborate on why
charges were not laid.
[12] In April 2004, after numerous contacts between the Appellant and the CPS the Appellant
submitted the following additional allegations that he wished to be investigated against
Respondent Mercer.
Neglect of Duty, Section 5(2)(h)(i) of the Police Service Regulation
Deceit, Section 5(2)(d)(i) of the Police Service Regulation
Both of these allegations were as a result of of the Appellants claim that the Respondent Mercer
had not conducted a proper investigation.
Those allegations were submitted not by Kelly, but by Inspector Whitelaw of the Calgary
Police Service in the April of 2004. Further it was after meeting with Kelly in the April of
2004, and reviewing the documents in his possession that Inspector Whitelaw ordered the
criminal investigations conducted by Mercer be redone, and that an investigation into the
conduct of Mercer and his partner be initiated.
[13] In June 2004, the Appellant had an interview with S/Sgt Marchant and Det Patterson of the
Professional Standards Branch of the CPS during which the Appellant added to his complaint the
following allegations against Respondent Lang.
Neglect of Duty, Section 5(2)(h)(i) of the Police Service Regulations.
At that time S/Sgt Marchant was in District 8 and Detective Paterson was in District 2.
Detective Patterson was not in the Professional Standards Branch.
[14] S/Sgt Marchant of the CPS was assigned to investigate the Appellants complaints against
the Respondent.
Whilst conducting the investigation Marchant became an Inspector and placed in charge of
the Professional Standards section.
[15] S/Sgt Marchant completed an extensive review of the investigation of the Respondents
starting with an interview of the Appellant in June 2004. S/Sgt Marchant concluded that the
allegations against the Respondent were without merit. S/Sgt Marchant submitted a 99 page
report which was entered into evidence in this hearing as Exhibit 1 which provided background
to the Appellants complaint the steps followed during the investigation the individuals he
metwith and individuals from whom he he received information and documents. He also
addressed 75 concerns that the Appellant outlined in an e-mail in September 2004.
S/Sgt Marchant did not conduct an extensive review, he also failed to contact any
individual that could corroborate the allegations made by Kelly. Further the 75 concerns
were not addressed adequately if at all. Further, the Chair refused to have Marchant
brought back to testify, to the inconsistencies in his evidence and his report, that further
evidence before the panel had disclosed.
Further Marchant did not report in his review or under oath, that Mercer had destroyed
all his witness and interview notes, which is a gross violation of Police procedure. This
alone is enough to sustain Kelly’s complaints.
Further there is no mention within Marchants review of the alleged Confidential Informant
that Mercer testified to, whilst Mercer was under oath at the hearing.
Further the Chair refused an application to have Marchant brought back before the Board
to testify regarding what Mercer had testified to.
Because the Chair knew that Mercer would be crucified. That is also why the Chair
repeatedly refused to have the Special Crown prosecutor Ms Papadatou appear and testify
before the Board.
APPELLANTS EVIDENCE:
[16] The Appellant called ten witnesses and he personally testified to support his allegation. His
first witness S/Sgt Ken Marchant testified as to his review of the Respondents investigation.
S/Sgt Marchant described in detail the process he followed to review the investigation, which
included addressing the 75 concerns about the investigation which had been presented to him by
the Appellant. In his review S/Sgt Marchant documented his findings and his conclusion that the
review of the investigation conducted by the Respondents into the allegations of fraud against the
Calgary Soccer Association and perjury against Mr Brooker was done professionally, followed
established investigative procedures, used investigative discretion wisely and collected
objectively the information that was needed by the Crown Prosecutor to reach the decision
whether charges could be laid or not.
How could Mercers investigation have been done professionally, when Mercer did not
corroborate what he was told – When Mercer destroyed his notes from interview and
witness statements a gross violation of Police procedure – When Mercer destroyed
documents – When Mercer lied in his reports – When tapes had been destroyed – When
Mercer intentionally misled the Crown Prosecutor and much more…
Further Marchant testified first, and when Kelly wanted Marchant brought back after
hearing Mercer and Langs testimony the Chair refused. The Chair also refused to have the
Crown Prosecutor testify,
Further there is no mention within this written decision of testimony given by witnesses,
such as Detective Patterson, Inspector Whitelaw, Ssgt Johson, Detective Ken Carriere,
more on these within future responses contained herein.
[17] Mr Paul Tolley, solicitor with the City of Calgary testified that the City of Calgary never
considered itself defrauded with respect to the Calgary Soccer Federation. Mr Tolley stated that
the City of Calgary was not concerned with the registration numbers used by the Calgary Soccer
Federation and understood these were projected estimates rather than exact figures. Mr Tolley
never requested that the CPS investigate the Calgary Soccer Federation for defrauding the City
of Calgary and was not aware of any criminal activities by the Calgary Soccer Federation.
Paul Tolley wrote a letter to Commercial Crime Unit that initiated a criminal investigation,
and that letter was presented at the hearing. Tolley refused to give City assurances on the
applications being made by the Calgary Soccer Federation – When an Alderman voiced his
concerns in a council meeting Tolley took the Council into an incamera session.
[18] Mr Granson a former business associate and partner with the Appellant testified that he was
never contacted by the Respondent Mercer and Lang concerning their investigation of the
Appellants allegations of fraud against the Calgary Soccer Federation and perjury by Mr
Brooker. Mr Granson held Mr Brooker responsible for what he believed was the premature
recycling of the Special edition of the Sporting Times and a lost business opportunity with the
Fisher Soccer Shack business. Mr Granson admitted that information he received about the
perjury alleagtions against Mr Brooker came from the Appellant and was not first hand
information.
Mercer never contacted Granson as he knew Granson was the corroboration needed to lay
a charge of perjury – Granson had first hand information – Granson had spoken to
Brooker directly – Granson had sworn Affidavit evidence – The Crown prosecutor stated
that the reason no perjury charges were laid was no corroboration – The Panel watched a 2
hour interview of Granson by Detective Patterson, after that interview Patterson was
stopped by his superiors from continuing the ivestigations into the criminal complaints –
Why is there no mention of that within this decision.
[19] The Appellant testified that he had numerous meetings with Respondent Mercer informing
him of his allegations, providing documents, and potential witnesses that he considered would
prove his allegations of fraud by the Calgary Soccer Federation and perjury by Mr Brooker.The
initial meeting between the Appellant and the Respondent occurred on December 18 2001.
There were three meetings between Mercer and Kelly, yet Mercer cannot provide notes
from the other 2 meetings – No mention of where the tape recordings of those other 2
meetings – No mention of where the documents are that Mercer was given –
[20] The Appellant testified that the Calgary Soccer Federation used inflated soccer registration
numbers when applying for funds to the City of Calgary, the infra structure Canada Alberta
Program and the Centennial Legacy Program. He also testified that it further inflated costs in
identifying what it would cost to fix and purchase soccer physical facilities. The Appellant
indicated that he contacted numerous Calgary and Provincial elected officials with his
complaints however even after checking into the matter it did not result in any of them taking
any actions that the Appellant considered appropriate to the allegations.
That is an outright lie – No mention that the Centennial legacy Program refused the
Calgary Soccer Federation application – No mention of the letter sent by MLA Harvey
Cenaiko about his concerns – No mention that the Alberta and Canada Governments
stopped the Calgary Soccer Federation application from proceeding because the City
would not give them assurances that there was nothing wrong – No mention of the false
information given to Cenaiko by Terry Brooker – No mention of Mercer destroting his
notes of his conversation with Cenaiko – No mention that the City gave no money – No
mention that Inspector Whitelaw ordered investigations – No mention that Superior
officers then stopped Patterson investigations – all of which is proof that they believed Kelly
and that Mercer was negligent
[21] The Appellant stated that he contacted the City of Calgary Legal Department with his
allegations of fraud by the Calgary Soccer Federation. Their conclusion was that no investigation
should take place and no charges should be laid.
Another false statement by the Chair – it was Mayor Bronconnier that contacted the legal
dept – Paul Tolley who then wrote a letter to Commercial Crime Unit that initiated a
criminal investigation – It was the City who refused to give City assurances on the
applications being made by the Calgary Soccer Federation – When an Alderman voiced his
concerns in a council meeting Tolley took the Council into an in-camera session.
[22] The Appellant further claimed that Mr Brooker made many perjured statements in his
sworn affidavit which allegations included.
(a) Mr Brooker being a director of the Calgary Soccer Federation when the Appellant requested
the distribution of the Sporting Times when he was not.
(b) The date on which the issues of the Sporting Times were to be distributed to the members and
players of the Calgary Soccer Federation being on December 18 1998rather tha on or about
February 1999.
(c) The Appellant had never been advised to contact Mr Brooker as stated by Mr Brooker
(d) Mr Brooker making a false statement about not killing his deal with Fishers Soccer Shack
when he actually had done so.
There are many more statements Brooker gave that have been proven to be false – No
mention by the Chair of false statements in other Affidavits – No mention of the false
statements made by Brooker in an examination under oath – No mention that Mercer
failed to corroborate Kelly’s allegations –
[23] The Appellant claimed that if Respondent Mercer had interviewed more potential witnesses
(as per his request) he would have found evidence to support the Appellants allegations.
The Chair is aware of the contents of the opinion letter from the Crown stating there was
no corroborative evidence included in the materials she was given – The Chair had access
to the Judge Grieve document outlining the test for perjury – He has since been given 2
Buchanan Barry audit reports on the Calgary Soccer Federation – An ATM machine
account spreadsheet completed by a Financial Controller employed by the Calgary Soccer
Federation – Calgary Police Service procedures on notes and Confidential informants – He
knows that Mercer destroyed notes – He knows Mercer gave perjured evidence – He knows
there was no Confidential Informant – it is all documented.
So what is the Chair and the Board going to do now.
[24] In his testimony Mr Brooker stated that in his meeting with Respondent Mercer his aim
was to be factual with the information he provided. He conceded that he was not accurate in his
Affidavit regarding the distribution date of the Sporting Times but that his error was
unintentional and was not meant to mislead.
How factual can Brooker be – In a current affidavit of Brooker filed at the Court of Queens
Bench on the 20th Day of November 2009, Brooker is repeating the same false statements –
Such statements that Kelly has sworn were false and Granson also swore was false – He is
doing so, because he believes that the police can do nothing to him without hurting
themselves –
[25] The Appellant called numerous witnesses who in fact did not support his claim that the
Respondents had failed to conduct a proper investigation into the Appellants allegations of fraud
by the Calgary Soccer Federation and perjury by Mr Brooker. Many of the witnesses called by
the Appellant gave testimony that in the end had little or no relevance to the proceedings.
Whitelaw supported Kellys claims – Detective Patterson supported Kelly’s claims –
Johnson testimony supported Kelly’s claims – where is their restimony… More specifically
Mercers evidence that he destroyed notes of interviews and witness statements – and the
fact that he then gave perjured evidence regarding an alleged confidential informant –
further proves Kelly’s claims.
Why no mention of most of the above by the Chair?
RESPONDENTS EVIDENCE
[26] Respondent Mercer testified that the Respondents first interview of the Appellant took
place on December 18 2001. The interview was taped by Respondent Lang. The Appellant
delivered to the Respondents his allegations of fraud against the the Calgary Soccer Federation
and his allegation of perjury against Mr Brooker. The Appellant provided the Respondents with
information, documents and a list of individuals whom he claimed would support his allegations.
Mercer acknowledges there was more than one interview with Kelly – No mention that the
documents and evidence Kelly gave to Mercer were destroyed – No mention of the other 2
meetings – No mention of Mercers testimony that Mercer destroyed the notes he took
which is against Police Service Regulations – No mention that Mercer never spoke to
anyone that could corroborate the complaints made – This alone is enough to sustain
Kelly’s complaints.
[27] During the course of the investigation Respondent Mercer had numerous contacts by e-mail
and telephone with the Appellant and received additional information from the Applicant
concerning the allegations.
No mention of the other 2 meetings – The missing tapes – Thye missing documents – The
destroyed notes and evidence – need I go on.
[28] Respondent Mercer contacted numerous key individuals who had knowledge of the
allegations in an effort to substantiate this information. A key individual he contacted was Mr
Tolley who had first hand knowledge of the funding applications by the Calgary Soccer
Federation to the City of Calgary and the existing loans with the City of Calgary by the Calgary
Soccer Federation. Mr Tolley a lawyer with the City of Calgary was also knowledgeable of the
data the Calgary Soccer Federation used in their loan application. Respondent Mercer testified
that Mr Tolley was not aware of an had no reason to believe to believe that the City of Calgary
had been defrauded by the Calgary Soccer Federation.
Then why did Paul Tolley write a letter to Commercial Crime Unit that initiated a criminal
investigation – Why did Tolley refuse to give the Cities assurance there was nothing wrong
– and why did Mercer destroy the notes of his conversation with Tolley – Why when an
Alderman voiced his concerns in a council meeting did Tolley take all of Council into an in
camera session.
[29] Respondent Mercer testified that he contacted a Provincial official responsible for
approving the funding application by the Calgary Soccer Federation under the Centennial and the
infrastructure Canada Alberta Program funding programs and was informed that they were aware
of information supporting the applications and had no concerns of fraud.
There is no mention that Mercer destroyed the notes of these alleged statements – No
mention that the Centennial Legacy Program refused the CSF application – No mention of
the letter sent by MLA Harvey Cenaiko about his concerns – No mention that the Alberta
and Canada Governments stopped the application from proceeding because the City would
not give them assurances that there was nothing wrong – No mention of the false
information given to Cenaiko by Terry Brooker – No mention of Mercer destroying his
notes of his conversation with Cenaiko and others –
[30] Respondent Mercer testified that he was satisfied that the City of Calgary and the
Provincial Officials were fully aware of the information used by the Calgary Soccer Federation
for their funding applications and were also fully aware of the purposes of these applications.
Respondent Mercer concluded that he had collected sufficient information to provide the Special
Prosecutions Office to enable them to decide whether or not charges of fraud should be laid
against the Calgary Soccer Federation.
No mention that Mercer fabricated statements within the report – No mention that Mercer
destroyed interview and witness notes – No mention that Mercer destroyed tape recordings
– No mention that Mercer destroyed documents – No mention that no one would give the
CSF any money – No mention of Mercers evidence under oath he destroyed notes – No
mention that he failed to contact witnesses that could corroborate the allegations –
[31] Respondent Mercer testified that Ms Papadatou the Special Prosecutor concluded that
insufficient evidence existed to lay any charges of fraud.
No mention that Mercer refused to state to Kelly in 2003 what constituted insufficient
evidence – No mention that the Calgary Police refused to state to Kelly in 2003 what
constituted insufficient evidence – No mention that when Whitelaw saw what Kelly had he
ordered Mercers investigations redone – No mention of Detective Pattersons testimony that
superior officers stopped his investigations –
No mention that the Chair would not allow Ms Papadatou to testify on the contents of her
opinion letter and role, despite repeated requests – because the Chair knew that Mercer
would be crucified if Papadatou were examined.
[32] In the investigation of the allegation of perjury against Mr Brooker Respondent Mercer
reviewed several Affidavits including Affidavits from the Appellant and Mr Brooker.
Respondent Mercer found some discrepancies between the sworn Affidavits of Mr Brooker and
the actual facts. He forwarded his findings to the Special Prosecution Branch to determine if
charges of perjury should be laid/
No mention that Mercer intentionally and negligently failed to interview anyone that could
corroborate Kellys complaint that Brooker had perjured himself – No mention that
corroborative evidence is required in order to lay charges of perjury – No mention that
Papadatou stated that within her opinion letter – No mention that the said letter was
withheld from Kelly for 5 years –
[33] Ms Papadatou concluded that there was insufficient evidence to support a charge of perjury
since the discrepancies in question were neither material nor appeared intentionally misleading.
The Chair is giving the illusion that Papadatou testified, when that is not true – The Chair
would not allow Papadatou to testify despite repeated requests by Kelly that she do so – Yet
he is allowing statements to be entered made in a letter allegedly authored by her – No
mention that Papdatou within her letter actually stated that a charge of perjury had to be
corroborated and all she had was Kellys word against Brookers – No mention that the
Chair knew that Mercer would be crucified if Papadatou were to testify.
[34] Respondent Lang testified that he had a minor role in the investigation of the charges of
fraud by the Calgary Soccer Association and perjury by Mr Brooker. Respondent Lang was
present during the first interview and his responsibility was to operate the recording equipment.
He was involved in taking notes of a subsequent interview of Mr Brooker by Respondent Mercer
and he also happened to bump into Respondent Mercer and walked with him to the Crown
Prosecutors Office where Respondent Mercer dropped off one of the pre-charge counsel briefs
for Ms Papadatou. Respondent Lang stated that he was not involved in any of the investigation
or any decision making concerning the investigation.
There is no mention of Mercers testimony whereby he admitted destroying interview and
witness notes even though such acts are a gross violation of Police Service Procedures. This
alone is enough to sustain Kelly’s complaints.
There is no mention that when Mercer was being cross examined on his evidence, he
testified that he had a confidential informant and refused to give up any information.
NOTE the Chair now has evidence that there was no confidential informant and that
Mercer perjured himself.
Lang testified that he bumped into Mercer when he was going to the Crowns Office in
February 2003, Mercer stated he dropped off the briefs in the April and June of 2002.
BOARDS FINDINGS
[35] The Board finds the evidence of S/Sgt Marchant very credible and also finds the review of
the Respondent Mercers investigation to have been a structured, organized and a comprehensive
review. The Board also finds that S/Sgt Marchant did a thorough review and investigation of the
numerous concerns and complaints presented to him by the Appellant.
[36] The Board finds that the testimony it heard confirmed that the investigation of Respondent
Mercer was professionally conducted. Investigator discretion was appropriately exercised and he
addressed the Appellants allegations of fraud and the perjury allegation against Mr Brooker to
the satisfaction of the Board. Respondent Mercer used investigative discretion wisely by basing
it on the information he had gathered and his assessment of the witnesses he interviewed.
Other than Kelly, Mercer only conducted one physical interview in the perjury allegations
and that was Mr Brooker. Mercer failed to contact any other individual who Kelly had
advised him could corroborate the perjury allegations against Mr Brooker. That the Board
can state that this is using investigative discretion wisely, when as lawyers they know that
in order for perjury charges to be laid the allegations have to be corroborated, is
astounding.
On the fraud allegations Mercer did not conduct one physical interview, Mercer did not
show one document to anyone, and Mercer did not ask one question regarding the theft
and mismanagement of membership monies. That the Board can state that this is using
investigative discretion wisely, is also astounding.
[37] The documents that the Appellant alleges demonstrated perjury were collected and
reviewed in an organized and structured manner. He documented the minor discrepancies in Mr
Brookers sworn Affidavits.
What minor discrepancies is the Board talking about. Mercer failed to get corroborative
evidence and present that evidence to the Crown prosecutor. That is why it is stated within
the legal opinion that perjury requires corroborative evidence, and all the Crown was
presented with was Kellys allegations.
[38] The documented investigations were presented to the Special Prosecutions Branch which
did not request additional information. They were satisfied with the information gathered by
Respondent Mercer and reached the conclusions that no fraud or perjury charges should be
proceeded with.
The Crown reached that decision on the perjury charge because Mercer failed to submit
corroborative evidence.
The Crown reached that decision on the fraud charges because Mercer failed to submit all
of the documents he had been given, and Mercer had failed to document 2 interviews with
Kelly, and Mercer had destroyed evidence.
We did not have the benefit of asking Ms Papadatou what she would have done had she
known all of this, as the Chair refused to have her testify.
[39] The Board finds that the Appellant did not provide evidence that in any way supports the
allegation that an improper investigation had been completed by the Respondents. The only
evidence supporting his position was the testimony of the Appellant himself and the evidence of
Mr. Granson. The Board finds Mr Gransons evidence to have consisted primarily of hearsay
evidence he derived from the Appellant. The Appellants evidence was based in large part upon
assumptions and unfounded conclusions which did not support his conclusions that Respondent
Mercer had not conducted a proper investigation.
The Board viewed a 2 hour interview where Ernest Granson detailed to Detective Patterson his
direct interaction with Terry Brooker. Where Ernest Granson outlined the false statements made
by Brooker. Ernest Granson swore to Affidavits. Detectives Pattersons statements within that
interview that Brooker was not forthcoming. This was not hearsay evidence. Where was the
Board when this testimony was presented.
How can Mercer have conducted a proper investigation, when he failed to corroborate
witness testimony and he admitted to destroying notes from witness interviews, a gross
violation of police procedures.
And Mercer has now known to have falsely testified that there was a confidential informant
when no such informant existed. There was no mention in Marchants review of any
Confidential Informant.
The Chair refused my application to have Mercer name this person, or what evidence was
presented by the alleged Confidential Informant. The Chair also refused my application to
have Marchant brought back regarding Mercers testimony. Why was that?
There was also no mention in Marchants review of Mercers notes being destroyed, no
mention of documents being destroyed. No mention of 2 further interviews of Kelly by
Mercer, all of which are gross violations of police procedure.
What assumptions and unfounded conclusions are the Board talking about? The fact that
these statements from the Board are vague and not specific, is disturbing.
[40] The witnesses called by the Appellant did not support the allegations lodged by the
Appellant On the contrary they confirmed that respondent Mercer had done an investigation that
was proper professional and sufficient to inform the Crown Prosecutor, who concluded that the
allegations of the Appellant were totally unfounded and without basis.
The Board has not detailed any of the information from key witnesses, just the witnesses
they want to, and just the information that they want to.
The Board stated previously that there was insufficient evidence to proceed. The Crowns
opinion letter stated there was insufficient evidence, Mercer testified that he destroyed
witness notes and interview notes, documents were destroyed, and much more.
So how can the Board state that the investigation “ was proper professional and sufficient to
inform the Crown Prosecutor, “ The Crown concluded what they did, because Mercer gave
them what he wanted and destroyed the rest, and omitted vital information from his
Notebook. Has this Board reviewed any of what was said.
The Board now has documentation clearly proving that Mercer knowingly perjured
himself regarding a Confidential Informant. The Board now has documentation clearly
showing that in the time that Detective Mercer should have conducted a proper
investigation, Hundreds of Thousands of Dollars were being systematically stolen from the
accounts of the Calgary Soccer Federation.
WHAT is the Board going to do?
[41] The Appellant alleged that had Respondent Mercer interviewed additional witnesses, those
witnesses would have shown the Appellants allegations of fraud against the Calgary Soccer
Federation and perjury against Mr Brooker were founded. The Board notes that the Appellant
had the opportunity to call these individuals himself to support his complaints at the hearing of
this appeal but failed to do so.
This statement is equally astounding. The Chair stopped the Crown prosecutor from
testifying. The Chair stopped Marchant from being recalled. The Chair stopped Mercer
from being brought to task on the Confidential Informant, that we now know did not exist.
The Chair does not detail the testimony from Whitelaw and Patterson and others, his
findings are strewn with false facts and many inconsistencies.
The documents now in his possession prove how wrong and how flawed this decision is.
[42] The Board also finds that the role of Respondent Lang in this investigation was very minor
and basically administrative in nature and did not involve planning or decision making in this
investigation.
DECISION:
[43] The Board confirms the disposition of the Chief and dismisses the following allegations
against Respondent Mercer.
a. Neglect of Duty, Section 5(2)(h)(i) of the Police Service Regulation, in that Respondent
Mercer neglected without a lawful excuse to promptly and diligently perform his duties as a
police officer by failing to fully investigate, document and preserve evidence (documents and
tapes) related to both the Appellants perjury and fraud allegations.
How can they confirm this, when Mercer testified that he destroyed witness and interview
notes, which are actions contrary to the Calgary Police Service policies, procedures, rules
and regulations that govern a Calgary Police Officer.
b. Deceit, Section 5(2)(d)(i) of the Police Service Regulation, in that Respondent Mercer on
March 27 2002, willfully or negligently signed a false, misleading or inaccurate statement in an
official document or record relating to an Affidavit sworn to during his investigation into the
Appellants perjury and fraud investigation.
[44] The Board dismisses the following allegation against Respondent Lang.
a. Neglect of Duty, Section 5(2)(h)(i) of the Police Service Regulation, in that Respondent Lang
neglected without a lawful excuse to promptly and diligently perform his duties as a police
officer in that he failed to investigate, document and preserve evidence (documents and tapes)
related to the Appellants perjury and fraud allegations.
[45] The Board notes that it felt so strongly about the lack of evidence to consider any
involvement by Respondent Lang that it dismissed this aspect of the appeal orally at the
conclusion of the hearing.
REASON FOR DECISION:
[46] The Board did not hear any evidence that supported the allegation that the Respondents
failed to conduct a proper investigation. The Board concurs with the findings of S/Sgt Marchant
that respondent Mercer’s investigation was professionally done, well organized and
comprehensive, and provided the necessary information to the Special Prosecutions Branch to
enable them to reach an informed decision concerning the Appellants allegations.
It is obvious the Board has not reviewed the evidence presented, as Mercers own testimony
was evidence enough to condemn him. What is the Board going to do with the evidence it
now has before it, that Mercer knowingly committed perjury before the Board.
[47] The Board heard from those whom the Appellant alleged were defrauded or attempts made
to defraud them and these parties were informed of the circumstances and did not consider any of
the actions to constitute fraud or attempted fraud. The Board was presented with the Affidavits
which the Appellant deemed to contain the perjured statements. The Board recognized some
discrepancies however these discrepancies do not come near to reaching the level of perjured
statements necessary for criminal charges to be laid for perjury. This is the same result reached
by the Special Prosecutor tasked with the decision on whether or not to lay the criminal charge.
If there was no fraud or attempt at fraud, then why did S/Sgt Debruyn direct Kelly to go to
the Courts and give him 6 charges that he believed could be sustained.
If there were no concerns, why did those parties request written assurances from the City
of Calgary. And if there were no concerns, then why did the City of Calgary refuse to give
their assurance. And if there were no concerns why did the parties refuse the Calgary
Soccer Federations applications for monies.
What discrepancies are the Board talking about, why aren’t they being specific? The result
that the Special Prosecutor reached was that there was no corroborative evidence
presented to them.
The Board heard corroborative evidence that the Special Prosecutor did not have the
advantage of. And all of the statements sworn to by Brooker all reached the test for perjury
as outlined by Judge Grieve.
[48] The Board concludes that there was no evidence presented to it by the Appellant that would
in any way support that an improper investigation was conducted by the Respondents.
Mercers own testimony was evidence enough. It is obvious that the Board had made their
decision long before the hearing even started.
COMMENTS AND COSTS
[49] The Board notes its concern that the Appellant, after agreeing to return for the last day of
the hearing to present closing argument, did not do so. The Board could have considered such
action by the Appellant to be an abandonment of the appeal. The Board proceeded in the
Appellants absence and heard closing arguments from the Respondent. The Board then afforded
the Appellant with an opportunity to provide his closing arguments through written submissions.
The Appellant chose not to provide final submissions to the Board.
The last day as described above, was not a set day, the hearing was set for Monday,
Tuesday and Wednesday. Late Wednesday because the hearing had not concluded the
Chair picked that Friday morning to resume.
Early the very next morning (Thursday) numerous messages were left for Diana Filice
Secretary (including e-mail), and with other members of the L.E.R.B. staff that Kelly had
other commitments that could not be broken, and Friday was not a good day;
E-MAIL “ Dear Diana, The Chair made a decisin on very late Wednesday that he was going
have a continuation of the hearing on Friday. That is not satisfactory to me, so therefore a further
date in time will have to be set. “.
That the Board proceeded at all was unconscionable! They knew I was representing myself
and I had a family to look after. And that the date of Friday was plucked out of the air at
the whim of the Chair. By that time it was clear that the Chair and the Board were never
going to find a Police Officer responsible, and the findings signed by the Chair clearly show
that.
[50] The Board has further concerns with the lack of supporting evidence in this appeal. The
Board is mystified with the allegations made by the Appellant as they lacked both substance and
basis. The Board found the Appellant fixated in righting ills percieved only by him and which
the Board found had no basis in evidence. The Board finds that the Appellants pursuit of these
allegation as done so herein is an abuse of its process.
The Respondent Mercer testified that he destroyed the notes he had made of witness
interviews, that is a gross violation, and Mercers own word states that he did not diligently
perform his duties, he did not properly preserve evidence and more. Mercer should have
been guilty of Section “ 5(2)(h)(i) of the Police Service Regulation “ this clearly falls under. “
a. Neglect of Duty, Section 5(2)(h)(i) of the Police Service Regulation, in that Respondent
Mercer neglected without a lawful excuse to promptly and diligently perform his duties as a
police officer by failing to fully investigate, document and preserve evidence (documents and
tapes) related to both the Appellants perjury and fraud allegations. “ The Chair and the Board
have been very selective in their interpretation of what was represented to them.
FURTHER: The Chair and the Board now have evidence that Respondent Mercer also
knowingly lied about the existence of a Confidential Informant, and that he was helped in
this regard by his counsel April Grosse, why is there no action on that from Chair Phillips
or the Board, why are they not outraged. Thats because they never intended to find a Police
Officer guilty and that is why they have been very selective in their interpretation of what
was represented to them.
[51] The Board holds open the issue of costs in this matter should the Respondents make a
submission on recommending an amount of costs be assessed. The Respondents request for an
application for costs must be filed within 30 days of being advised of the Boards decision. If
such an application is made to the Board, further direction will be provided to the parties in
relation to how the cost application will be dealt with.The Respondents and the Appellant should
be aware that the final amount of costs to be awarded (if any) after the hearing of an application
for costs rests solely with the Board.
At the costs hearing, the Chair continually refused to take possession of documents proving
that Respondent Mercer had knowingly lied about the existence of a Confidential
Informant. He refused Kelly,s request to address each of the paragraphs in this decision
signed by him. He refused documents proving that their had been extensive theft, fraud,
and more, within the Calgary Soccer Federation.
That proof is now with Chair Phillips and the Board, courtesy of registered mail.
Respondent Mercer is now under investigation by the Calgary Police Service for Perjury
and Obstruction of Justice, and at least 7 sections of the Police Service Regulations.
Chair Phillips has refused to be examined under oath regarding the statements in this
decision, and now has legal counsel, paid for by the taxpayers.
END OF DECISION AND RESPONSES: