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Hello #abvote pals! This afternoon, ex-@Alberta_UCP leadership candidate Jeff Callaway (& others) will ask a judge to halt the election commissioner’s investigation into his campaign. I’ll tweet from court, follow along here. Background: thestar.com/calgary/2019/0… #ableg #abpoli
The hearing is set for 2 p.m. If you’re wondering what the heck I’m talking about, you can get caught up with the latest on this here: thestar.com/edmonton/2019/… #abvote #abpoli #ableg
Of note: this hearing is about the election commissioner’s investigation. We know the RCMP are also looking into aspects of Callaway’s campaign, but as far as I know, we’re not here to talk about that. Just election commissioner.
We're in the courtroom now -- lots of media, two lawyers for the election commissioner, five lawyers for Callaway et al. No judge yet.
Judge has arrived. We're getting started. Some of the five with the Callaway team are students here to observe.
Callaway's lawyer says they're not applying for a publication ban on this.
Callaway et. al's lawyer, Ivan Bernardo, arguing the election commissioner's conduct has created a reasonable appearance of bias. "The commissioner has prejudged the matter." Argues the provincial election underway shouldn't factor in.
"We are, in fact, alleging bad faith," says Bernardo. He has raised several issues in the application that should be argued eventually, but bias is the one at issue today, he says.
"We've asked the commissioner to answer our allegations of bias. We've not received a reply," Bernardo says. Says the commissioner has argued that investigation should be "escalated" because of the election, which he says is improper.
Bernardo says he's seen no explanation for why urgency is required here. If it were voter suppression, he says, "that would have to be investigated right away... but that's not what we have here."
Judge asking if the election commissioner *really* said this particular investigation needs to be escalated. She says it was more of a general statement about their enforcement activities, which Bernardo interpreted to mean *this* investigation.
Bernardo argues that the commissioner's enforcement activities would include this investigation anyways, so his point is the same. "What is your case for urgency?" he asks again.
The commissioner has yet to hear from "key parties, such as our clients," Bernardo says. Alleges commissioner engaged in "harassment and intimidation" of witnesses and has misled the public, committed privacy breaches through tweets, missent letters, its website.
"The entire process is unconstitutional," Bernardo says. "But again, that's for another day."
Bernardo alleges the election commissioner's process has violated Callaway et. al's charter rights to bias-free investigation.
Bernardo says the commissioner made adverse findings against Callaway without notifying him of the substance allegations against him or allowing him a reasonable opportunity to respond. (The only findings I've seen are against Callaway campaign staffers, but not Callaway himself)
In any case, Bernardo says it's inappropriate to have published those findings before the investigation is complete, which he says amounts to prejudgement. (Election commissioner posts fines/letters of reprimand on its website)
Bernardo also referenced a March 11 order (seems to be about returning donation(s) that contravened the law) the commissioner issued to Callaway. Judge notes that the commissioner has argued an order is not a penalty, and that commissioner is required to post fines, etc. by law.
Bernardo now reading from a list of findings in a letter the election commissioner sent to Happy Mann. One of those findings is that Callaway ran as a kamikaze candidate, Bernardo points out. Here's our story on that letter: thestar.com/edmonton/2019/…
Bernardo points to a section that says the commissioner has found Happy Mann “made (illegal) contributions knowing that there were questionable and unethical motives behind the Callaway campaign.” Says commissioner's jurisdiction doesn't include judgments of any campaign's ethics
Bernardo says this is no different than the NDP wanting their own "kamikaze candidate" in the upcoming election debates -- I assume he's referring to Derek Fildebrandt, who the NDP have argued should be allowed to participate thestar.com/edmonton/2019/…
Bernardo says both issues are interesting but not in the election commissioner's purview. Argues that the commissioner's commentary on ethics is proof of bias.
So far, the election commissioner's lawyers have pretty much reacted with this:
Bernardo has pulled out a traffic ticket for comparison and is reading from it. He says people in that scenario have more right to respond to allegations than his clients have received here.
We’re taking a 10-minute break. Bernardo is still going and we haven’t heard the election commissioner’s side yet, so we could be here a while.
aaaaand we're back. Bernardo back up. Forgot to mention earlier -- Callaway himself is not here.
Judge reminding Bernardo of the purpose of this hearing -- Callaway et. al's team has to prove that there will be irreparable harm if the election commissioner's investigation continues. "What I'm anxious to hear about from you, Mr. Bernardo, is: what is the irreparable harm?"
Bernardo says commissioner is airing out internal party "machinations" during an election. "That's not in the public interest," he says.
Missed this -- Bernardo's explanation of the irreparable harm (thanks @CBCMeg !)
Also a good point here:
This is true. Bernardo donated to Kenney's PC leadership campaign efpublic.elections.ab.ca/efFinancialSta…
Judge: you seem to be arguing that irreparable harm will come from your clients' rights being breached. Isn't that speculative?
Bernardo: No, because their rights have already been breached.
Bernardo: No, because their rights have already been breached.
"This particular investigator has stepped way over the line," Bernardo says. Argues the alleged breaches of his clients rights are enough to stop the investigation.
Bernardo argues that, if this injunction is not granted, the judge is essentially allowing the commissioner to keep violating his clients' rights. That's the "irreparable harm," he argues.
Bernardo says he's asking the court to intervene and oversee the commissioner because the legislature has been dissolved and can't perform that role. Judge doesn't seem convinced that this type of court order is the right way to do that.
Judge suggests it's time to hear from the election commissioner's lawyers. We're taking a quick break first.
We're back. Corinne Petersen, one of the lawyers for the election commissioner, is up now.
The election commissioner is non-partisan. He reports to the legislature. He's not affiliated with any political party. Office is independent from government -- "I think that's very important to keep in mind," Petersen says.
Petersen is going through the reasoning behind Alberta's campaign finance regulations. One concern was "dark money," this was aimed at leveling the playing field, she says.
Now going over the election commissioner's role, which is to investigate complaints. In this case, complaint was about "irregular" donations to Callaway's leadership campaign. Several investigations going on here into each irregular donation, Petersen says.
Petersen also notes commissioner is required to publish findings once they're made -- that's why penalties/fines/letters of reprimand are posted online.
Petersen said, from what she's seen, Callaway himself is not being investigated -- donations made to him are being investigated. Important to stick to proper definitions, she says.
If Callaway doesn't like the order he received from the commissioner, he can apply for judicial review, Petersen said. Same deal if someone thinks they're not being investigated fairly. (What we are doing right now is not a judicial review)
Petersen referring to a letter the election commissioner sent to Lenore Eaton, who was Callaway's CFO. Letter seems to be similar in purpose to the one sent to Mann -- says commissioner's made findings and believes has enough to make finding against her, gives chance to respond.
I don't have a copy of that letter to Lenore Eaton, so I can't see what the commissioner's possible findings there are. Petersen notes that Eaton hasn't sworn an affidavit taking issue with what's in there, though.
Nobody said they were going to escalate the investigation, Petersen says. Just keep going as usual.
Attempts to schedule interviews with Callaway et al began in early January for the most part, Petersen notes. Election commissioner tried to schedule interviews for quite a while, before the election. Didn't happen, issued summons to them, therefore requiring them to show up.
Petersen argues that halting the commissioner's investigation creates the appearance of bias in favour of the complainants -- the opposite of what Bernardo argued.
Petersen also says the commissioner hasn't posted letters to the people it's decided to issue penalties to. In some cases, people (namely Happy Mann) choose to share their own letters publicly, but that was not the commissioner's choice.
Petersen argues that allowing this injunction would mean people who are being investigated can delay, delay, delay by claiming they're being treated unfairly. Could chill investigators' attempts to do their job.
Bernardo has argued that having to participate in a biased investigation is irreparable harm. Judge asks, could this not be repaired by a judicial review, if that's the case? Is this premature, as investigation isn't done?
Petersen argues that it is premature. The way this works is, apply for judicial review if you feel investigation was biased, but only once it's over. Courts don't want to hear those arguments if investigation isn't even over.
Petersen is arguing that the election commissioner has immunity here. Lots of legalese.
And I know, you're probably thinking, "What? This is still going? It's almost 6 p.m.! Insane!" To which I say, yes. Yes it is.
Petersen says court should be very hesitant to meddle in ongoing investigations. Citing case law.
Petersen says she's not sure the evidence Bernardo has submitted is proper, but anyways, it doesn't prove the election commissioner is biased.
"It's really serious to consider taking away the power of a legislative officer," Petersen says.
Petersen says Bernardo is asking the court to infer harm when there's no evidence of it, "unless I've missed something."
Case law, case law, case law. Which is important! Just hard to encapsulate in a tweet. And not terribly interesting in tweet form, either.
Two more pieces of case law. And then Bernardo gets to respond. Maybe we'll get a snack break first?
Petersen is arguing, essentially, that undermining the election commissioner's ability to fulfill his role would be undermining our electoral process. Preventing that is clearly in the public interest, she says.
Petersen did her research, folks. We just heard so, so, so much case law. Now she's done. "They can't make their case," she says of Bernardo's side.
Bernardo says he has 14 handwritten pages (double-spaced!) of responses to Petersen's arguments. Judge requests he be focused and concise. We're taking a 10-minute break.
We're back! I had a snack! Bernardo is responding to Petersen's argument now. He promises to make it quick.
And yes folks, his response is... *drumroll* case law
Bernardo is arguing that Peterson is wrong that there are multiple investigations -- he says it's one investigation that goes in many directions, but stemming from one complaint.
Spelled Petersen's name wrong in that last one -- sorry!
Bernardo argues that the commissioner stating Callaway's investigation was unethical (this is from the Happy Mann letter) casts judgement on everyone involved -- staff, volunteers, voters. "How can that finding not impact the whole scope of the investigation?"
Judge questions whether any harm here would truly be irreparable. Bernardo says the commissioner hasn't responded to questions he sent a week ago about the Happy Mann letter. Says he believes the commissioner's interview request is actually meant for an "interrogation."
Bernardo also wants it to be clear that his side hasn't just been sitting around since January -- they're raising these issues as soon as possible after they arose. Clarifies that the interviews with the commissioner haven't happened.
Bernardo says his clients won't be participating in the interviews until his questions are answered. He complained to the commissioner about bias last week, no answer to that. Says it's inappropriate to go ahead until he answers.
Bernardo clarifies that he is not claiming reputational harm for his clients. The harm is the alleged violation of their rights, he says.
Bernardo says the real public interest here is in having fair, unbiased investigation. Processes that might be unfair shouldn't continue, he says.
Bernardo is done. Judge says she will *not* be making a decision tonight. How about Wednesday, she asks. "I appreciate you need a decision quickly, and I'm going to give you a decision quickly." Of note: commissioner has interviews with applicants scheduled for tomorrow.
Bernardo says he's fine with Wednesday, but what do we do about the interviews scheduled for tomorrow? Says it would be inappropriate for them to continue.
Petersen to judge: "The commissioner is not going to agree to any stay of the interviews but will abide by whatever you say." Argues that we'd still have to meet the injunction test to halt the investigation in any way, including a short stay on interviews.
Justice Kirker says she will not order the commissioner to stay the interviews. Thinks commissioner would probably be happy to accommodate the court if judge requests it, but can't show bias.
Bernardo doesn't like that. "I'm flabbergasted," he says. Thinks the court *should* be willing to let his clients delay their interviews. Aaaaand now we're arguing the injunction all over again.
Bernardo says Robyn Lore, one of the applicants, is away right now, but never requested to reschedule his interview (set for tomorrow, April 2) before this.
Judge: well, maybe you need my decision by 9 a.m. tomorrow then.
Problem is, of course, both sides have dumped a ton of case law out here today. Judge doesn't know if she can reasonably get through it all by 9 a.m. tomorrow. Bernardo says fine, but his clients won't be at their interviews with the commissioner tomorrow.
"I'm not going to direct an adjournment in the interviews. I can't do that," judge says firmly. Bernardo says his clients won't go to the interviews and will deal with "any consequences."
'We'll all have to deal with the consequences of that, if there are any," Bernardo says. Petersen responds: That's his decision. And that's the end. Decision coming 4 p.m. Wednesday.
The real hero tonight is @CBCMeg, who ordered a pizza to the courthouse and shared with all of us!!!
