'Kamikaze' UCP leadership probe witnesses to skip interviews until judge rules on injunction
No decision until Wednesday on request for immediate shutdown of elections investigation
After hearing six hours of arguments, a Calgary judge has said she will rule in two days' time on a request to grant an emergency injunction to halt the investigation into a former UCP leadership candidate's so-called "kamikaze" campaign.
Ivan Bernardo, the lawyer for the former candidate, Jeff Callaway, requested court halt the investigation by the Office of the Election Commissioner — at least until after the Alberta election.
He argued the elections commissioner was biased, and that there was no urgency in having the probe continue through the election period, which ends April 16.
At about 7:30 p.m. MT Monday, Court of Queen's Bench Justice Anne Kirker told court she would issue her decision on Wednesday.
That's despite the fact that Callaway's wife and Robyn Lore are scheduled to be interviewed by the Office of the Election Commissioner (OEC) on Tuesday morning. Bernardo had pushed for a decision before their interviews.
Bernardo said neither of his clients intended to show up, and should the OEC make findings of obstruction or failing to attend, "we will deal with that then."
The lawyer for the OEC said the office would not consent to postponing the witness meetings.
The emergency injunction application was filed at the Calgary courthouse late Friday afternoon. Arguments were heard by Kirker starting Monday afternoon and continuing into the evening.
Callaway, his wife and three other family members were named on the application, along with Lore.
The six applicants — who were ordered to give statements to the OEC — seek to have the investigation immediately suspended, at least until after Alberta's provincial election.
"We still have not received any information to suggest why this matter cannot be adjourned … for a couple of weeks or even a couple of months," argued Ivan Bernardo, the lawyer for Callaway and others named on the application.
Instead, Bernardo said, he's gotten "complete radio silence" from the Office of the Election Commissioner (OEC) when asking for an explanation as to the urgency of the investigation.
Referring to the commissioner as "the referee," Bernardo argued Gibson "should be entirely focused on the election prescribed by our constitution and they should pause any investigation related to an 18-month-old internal party contest."
A key concern submitted by Callaway and the other applicants is the fact that the commissioner has not only made findings but made them public in the middle of the investigation, before key witnesses were interviewed.
Lawyer notes irregular contributions
But the investigation is a series of investigations, not necessarily of one person, but also considering into irregular contributions to Callaway's campaign, according to Corinne Petersen, who represents elections commissioner Lorne Gibson.
Petersen also argued the applicants have not shown they've suffered irreparable harm, which they must do in order to meet the test for an injunction.
"Not one of the applicants who has been asked for an interview has sworn an affidavit," she argued. "What evidence of harm is before the court? None."
'Questionable and unethical motives'
Of particular concern to the applicants is the letter sent to Hardyal (Happy) Mann by the OEC, which was leaked to the media, lists a number of findings, including a claim from Mann that he was "manipulated by senior UCP members to participate in this contribution scheme."
But Petersen argued Mann's decision to share the OEC's findings against him was out of the commissioner's control.
Bernardo also took issue with the OEC's findings in the letter to Mann that Callaway ran as a "kamikaze" candidate and that contributions were made "knowing that there were questionable and unethical motives behind the Callaway Campaign," which the lawyer categorized as an "extraordinary finding of fact while an investigation is going on."
Bernardo likened the commissioner making findings mid-investigation to a judge making a finding of liability mid-trial after hearing only from a few plaintiffs, some of whom, he said, "are very disgruntled people."
To date, the OEC has issued $15,000 in fines on Callaway's former communications director, Cam Davies, for obstruction of an investigation and identified five people who donated money that was not their own to that campaign.
The election commissioner found Mann contributed a total of $9,000 to the Callaway campaign that was not his own, after he agreed to attach names to contribution forms that had pre-filled amounts of $3,000 for himself and two others.
It's alleged Callaway ran in 2017 for the purpose of targeting Jason Kenney's top rival, former Wildrose leader Brian Jean, with a plan to step down before the vote and throw his support behind Kenney, who won the race.
Both Kenney and Callaway have denied that claim.
But CBC News has obtained emails showing higher-ups in Kenney's campaign circle providing resources — strategic political direction, media, and debate talking points, speeches, videos and attack advertisements — to the Callaway campaign.
Kenney's deputy chief of staff, Matt Wolf, even emailed a resignation speech to Callaway the day he dropped out of the leadership race.
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Robyn Lore has also been named as an applicant on the injunction paperwork. On March 18, Maclean's reported on $60,000 that was given to Cam Davies by Lore, money that Davies alleges was then redistributed to the Callaway campaign.
In that report, Lore does not dispute giving the funds to Davies, saying it was a loan. When contacted by CBC News, Lore did not dispute the accuracy of the Maclean's report.
There was concern the details provided to the RCMP would become public during the campaign and that the interviewees' Charter right protecting against self-incrimination was at risk, Bernardo noted.
Kirker will issue her decision at 4 p.m. Wednesday afternoon.
Read the full originating application here:
With files from Drew Anderson