CALGARY—A Calgary judge will rule Wednesday on a bid by former United Conservative Party leadership candidate Jeff Callaway to halt an investigation into his “kamikaze” campaign.

For the order to be granted, Callaway and five co-applicants must prove there will be irreparable harm unless the investigation is paused until after the election — an urgent issue, as two of the co-applicants were supposed to be interviewed by investigators Tuesday. Both the RCMP and the election commissioner are probing allegations that UCP Leader Jason Kenney’s team orchestrated Callaway’s 2017 leadership bid to attack Kenney’s main rival and allegations that Callaway’s campaign was fuelled by illegal donations.

“I appreciate you need a decision quickly and I’m going to give you a decision quickly,” said Justice Anne Kirker.

In court, lawyer Ivan Bernardo argued the investigation by Alberta’s election commissioner is not urgent and should be paused until after the provincial election. In court, Bernardo alleged the commissioner is “biased,” and violated privacy by publishing fines and findings against Callaway staffers before its investigation is complete.

“We are, in fact, alleging bad faith,” Bernardo said.

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Corinne Petersen, who represented the election commissioner, argued there’s no evidence that the commissioner — an independent position that reports to the legislature — is biased. Pausing the investigation would set a dangerous precedent, allowing anyone who wishes to avoid an investigation to delay it by claiming they’re being mistreated, she said.

“It’s really serious to consider taking away the power of a legislative officer,” she said.

The application for the court order, filed Friday, names Callaway, his wife Nicole, and three others — Jennifer Thompson, Darren Thompson and Robyn Lore. Nicole Callaway, the Thompsons and Lore all donated to Callaway’s leadership campaign.

Last month, documents obtained by The Star and other outlets showed how Kenney’s campaign controlled key aspects of Callaway’s campaign — attack ads, talking points, speeches and even when Callaway would drop out of the race.

Callaway’s campaign has been called a “kamikaze” because its efforts seem directed at taking down former Wildrose Party leader Brian Jean, Kenney’s top competitor in the leadership race. During the campaign, Callaway consistently targeted Jean before dropping out a month before the vote and endorsing Kenney.

Furthermore, allegations of illegal campaign contributions made to the Callaway bid have plagued the UCP since Maclean’s magazine published a story in mid-March about a $60,000 payment provided to the Callaway team by a corporate entity, which was allegedly redistributed to make it seem as though it came from a number of donors.

Lore was the source of the $60,000 payment, the report alleged.

Jennifer and Darren Thompson were both supposed to be interviewed March 26, but that did not go ahead, Bernardo said. Nicole Callaway and Lore were scheduled to have interviews with the election commissioner Tuesday, but Bernardo told Petersen to tell the commissioner his clients won’t be coming — Lore is out of the country in any case, Bernardo added.

“We’ll all have to deal with the consequences of that, if there are any,” Bernardo said.

Voters will head to the polls on April 16. Callaway has consistently denied any wrongdoing, and wasn’t in court Monday.

In court filings, Bernardo wrote to the election commissioner on March 19 to ask if his clients’ interviews could be delayed. The commissioner said no.

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Then, on March 22, Bernardo wrote to the election commissioner with concerns that, if the commissioner was sharing the results of its interviews with the applicants with the RCMP, that could breach the applicants’ charter right not to self-incriminate. Bernardo also argued that if the interviews were made public, it could violate a policy that requires the government to avoid interfering with the provincial election.

In response, the commissioner said it is allowed to share information with the RCMP and allowed to continue investigating during an election.

In the application, Bernardo also argued that requiring the applicants to sit for interviews with the commissioner “interferes with their charter right to participate in the electoral process.”

However, in court, Bernardo focused more on the unusual allegation of bias by the election commissioner, Lorne Gibson, rather than his office or his investigators. Bernardo said the commissioner publicized findings about Callaway campaign staffers before interviewing Callaway and other main players — something Petersen said the commissioner had been trying to do as early as January.

In court Monday, Bernardo also alleged that posting fines and penalties against Callaway campaign staffers on its website, the commissioner was trying to intimidate his clients. The election commissioner’s investigation is airing out internal party “machinations” during an election, he added.

“That’s not in the public interest,” he said.

Bernardo also read aloud from a letter the commissioner sent to Happy Mann, a former UCP nomination candidate who was removed from his race. (The commissioner fined Mann $9,000 for donating money that wasn’t his to the Callaway campaign, and giving others money to do the same thing.)

The letter outlines “findings” based on Mann’s statements to investigators. Mann “made these contributions knowing that there were questionable and unethical motives behind the Callaway campaign,” the letter read.

Bernardo said the commissioner isn’t supposed to rule on the ethics of a campaign, and pointed to the line as evidence of bias against his clients and anyone else who donated to or voted for Callaway.

Petersen said the commissioner is required by law to promptly post fines and penalties online. She also argued that there was nothing abnormal about the letter to Mann — it was simply a statement of what the commissioner believes, meant to give the receiver the chance to respond.

Mann chose to publicize the letter, not the commissioner, Petersen added. She also said none of the Callaway team’s evidence shows bias and that it’s also unclear how proceeding with the investigation during the election would cause “irreparable harm” to Callaway and his co-applicants.

“They can’t make their case,” she said.

The election commissioner has identified five people who donated to the Callaway campaign with money that wasn’t theirs, which is against election rules in Alberta. Three were fined and another two received letters of reprimand.

Kenney has said the communications between the two campaigns was normal and his team had nothing to do with the Callaway campaign’s funding. Over the weekend, the UCP leader said he wouldn’t comment on the application by Callaway and his co-applicants.

On Monday, Bernardo said there are allegations of charter breaches in his application that he wants to be heard at a later date. The judge agreed, but will not be ruling on those issues Wednesday.

Emma McIntosh is an environment, justice and investigative reporter with Star Calgary. Follow her on Twitter at @EmmaMci

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