Alberta 'kamikaze' campaign investigation violated charter rights, lawyer argues in appeal
Alberta's election commissioner ordered Jeff Park to pay $10,500 for donating money that was not his
The former executive assistant on Jeff Calaway's so-called "kamikaze" campaign in the 2017 UCP leadership race has appealed his $10,500 fine.
Jeffrey Park is arguing his charter rights were violated because he was not told he was a target of the Alberta Election Commissioner's investigation.
Park was issued a fine in 2019 for contributing money that was "given or furnished by another person," and for providing funds to his wife who also donated to the campaign.
The race for the leadership of the then-new United Conservative Party was eventually won by Jason Kenney, who stepped down earlier this month as premier and party leader.
On Wednesday, Court of King's Bench Justice Michael Marion heard arguments from Park's lawyer and counsel for the elections commissioner. Marion has reserved his decision.
In 2019, Park was interviewed by an investigator and handed over financial disclosure after correspondence referenced obstruction charges for failing to co-operate.
He was then fined for breaching the Election Finances and Contributions Disclosure Act (EFCDA).
Park's lawyer, Michael Swanberg, argued people like his client should be notified they're under investigation before they're required to give evidence against themselves.
But unlike criminal law, the EFCDA states the commissioner must notify a person who is under investigation "at any time before completing" the investigation.
Section 11 of the Canadian Charter of Rights and Freedoms outlines the rights of a person charged with a criminal offence.
Swanberg asked the judge to find overlap between the jeopardy under the EFCDA and criminal principles.
"It's criminal principles which are applied in assessing penalties in the EFCDA," said Swanberg.
The act 'must be respected'
But the lawyer for the elections commissioner argued there was nothing criminal about the 2019 elections commissioner investigation.
There were no criminal charges, no arrests, no prosecution, no threat or possibility of incarceration and no criminal records stemming from the inquiry, Paula Hale pointed out.
"This was an administrative investigation from start to finish," said Hale.
"The election commissioner did not hold a hearing and he does not adjudicate between two parties, he has broad investigative powers and he is also the decider: that may be unsatisfactory to Mr. Park, but that is the system the legislature has created and must be respected."
In 2017, Jeff Callaway ran a "kamikaze" campaign on behalf of Jason Kenney.
Callaway ran for the sole purpose of targeting Kenney's chief rival, Brian Jean, and then dropped out of the race to support Kenney.
It's alleged that money was distributed to individuals like Park, who then donated it to the campaign in order to make it look legitimate.
Park's appeal brief states that the $10,000 electronic bank transfer he received from Cam Davies (Callaway's communications manager at the time) on Sept. 11, 2017, was a "signing bonus" owed to him.
Later that same day, Park and his wife each donated $3,500 to the Callaway campaign.
Callaway dropped out of the leadership race in early October 2017. Kenney won on Oct. 28, 2017.
The anonymous complaint
In November 2018, then-elections commissioner Lorne Gibson received an anonymous complaint naming Park, Callaway and others involved in the campaign. It alleged as much as 50 per cent of contributions to the Callaway campaign was from PACs.
Park had been a constituency assistant for MP Tom Kmiec, and the letter alleged those positions are "not well paid."
"[Park and his wife] lack the financial resources to make three and four thousand-dollar donations to anyone," wrote the anonymous complainant.
On Jan. 7, 2019, Dave Jennings, an investigator with the commissioner's office, contacted Park, explaining he was investigating political contributions to the Callaway campaign and was tasked with conducting numerous interviews.
Park 'felt he had no choice'
Park, said Swanberg, was never told he was under investigation. On top of that, Swanberg says references were made on several occasions to criminal obstruction charges if Park chose not to co-operate.
"He felt he had no choice but to attend the interview with Jennings," said Swanberg.
On Jan. 21, Park was formally interviewed by Jennings. Again, Park was not told he was a target of the investigation.
That interview "resembles a cross-examination," said Swanberg.
Park only learned he was under investigation on Feb. 1, 2019, after he'd been questioned.
An email sent on that day alluded to "wrongdoing" on Park's part. It was the first time he understood he was under investigation, although the email "did not explain what jeopardy he could face," argued Swanberg.
'Perplexing' letter
A second interview was then set for March 20. After he was questioned on that date, Park was handed a letter dated the same day and signed by the commissioner.
The letter was written by Gibson sometime before the questioning "and anticipated Mr. Park would not be helpful and put findings into the letter before the interview even occurred," said Swanberg.
The letter, argued Swanberg, shows the elections commissioner "was not approaching [the investigation] with an open mind as required by the law" and had reached conclusions and findings before Park was questioned on March 20.
Park was fined in April.
The Callaway investigation became the largest electoral investigation ever in Alberta. More than $200,000 in fines have been levied against Callaway, campaign staff and "straw" donors. Many of the fines are the subject of judicial reviews.
Evidence gathered through that investigation and a further criminal complaint spawned an RCMP investigation into the funding of the kamikaze campaign and alleged voter identity theft during the same leadership race.
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