CALGARY—Alberta’s election commissioner can continue investigating the campaign of former United Conservative Party leadership candidate Jeff Callaway through the provincial election, a Calgary judge ruled Wednesday.

Justice Anne Kirker denied a request from Callaway and five co-applicants for an emergency court order that would’ve paused the investigation until after the April 16 vote. In order to succeed, Callaway’s side would have had to prove there would be irreparable harm unless the investigation was paused immediately — something it failed to do, Kirker ruled.

“Even if there were evidence of irreparable harm ... it would, in my view, be outweighed” by the public interest in allowing the investigation to continue without delay, Kirker said.

The office of the commissioner, Lorne Gibson, has been probing the way in which UCP Leader Jason Kenney’s team appeared to orchestrate Callaway’s 2017 leadership bid to attack Kenney’s main rival — and allegations that Callaway’s “kamikaze” campaign was fuelled by illegal donations.

The application filed Friday named Callaway, his wife Nicole, and four others — Jennifer Thompson, Darren Thompson, Bonnie Thompson, and Robyn Lore, who all donated to Callaway’s campaign.

Their lawyer, Ivan Bernardo, declined to speak with media after the judge’s decision Wednesday evening.

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Though Kirker questioned whether it was proper for the commissioner to have issued findings and penalties related to the Callaway campaign without interviewing Callaway himself, she ultimately found the situation did not merit an injunction. 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. It also fined a former Callaway communications staffer, Cameron Davies, for obstruction of the investigation.

Kirker also said courts should be very hesitant to interfere in investigations.

The ruling will allow the commissioner to continue investigating the Callaway campaign as the province approaches the election.

In court Monday, Bernado had alleged the commissioner was acting in bad faith. By issuing findings without talking to his clients, the commissioner was showing bias, he argued.

In response, the election commissioner’s lawyer, Corinne Petersen, said the investigation has followed rules set by the province, and that allowing anyone to delay an investigation over bias allegations would set a dangerous precedent.

Wednesday evening, Kirker said Bernardo’s concerns about bias are reasonable, and should be heard in court at a later date. To do so, Bernardo — who also alleges the commissioner’s process is a violation of charter rights — would have to start a new process, for which no timeline has been set.

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 it seemed aimed at kneecapping 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.

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The RCMP is also investigating aspects of the Callaway campaign.

Since January, the election commissioner’s investigators have been trying to arrange interviews with key players, including four of the applicants: Jennifer and Darren Thompson, Nicole Callaway, and Robyn Lore. Those interviews have not happened.

In court Monday, Bernardo said Lore and Nicole Callaway wouldn’t attend their interviews, which were scheduled for Tuesday. Lore is currently out of the country, Bernardo added. The Thompsons’ interviews were set for March 26, but haven’t yet happened.

It’s not clear if those interviews will now go ahead following Kirker’s decision.

Bernardo argued in court filings that if the commissioner was sharing the results of the 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 the unwritten government convention of avoiding interference with the provincial election.

In the application, Bernardo argued that requiring the applicants to sit for interviews with the commissioner “interferes with their charter right to participate in the electoral process,” and that the investigation isn’t urgent.

He also read from a letter sent by the commissioner to one person who has since been fined, which said the commissioner has found the Callaway campaign had “questionable and unethical motives.” That’s a moral judgment that clouds the motives behind the investigation, especially since key figures haven’t yet been interviewed, Bernardo said.

In response, Petersen said that the commissioner is a non-partisan, independent officer of the legislature who has acted according to the law. If Callaway or his co-applicants disagree, she said, they can seek a judicial review once the commissioner’s investigation is complete.

The commissioner has not yet made any findings about Callaway, Petersen said.

In court Wednesday, however, Kirker said an informed bystander would likely find it impossible to separate the findings against Callaway staffers from findings against Callaway himself.

On Wednesday, CBC reported the Callaway campaign’s chief financial officer, Lenore Eaton, could face up to two years in prison for allegedly paying campaign staff with unlawful corporate money, according to a letter from the commissioner to Eaton. Eaton’s lawyer said she was unaware of any wrongdoing and is co-operating with investigators, CBC reported.

Callaway, who wasn’t in court Monday or Wednesday, has denied any wrongdoing.

Kenney and the UCP have said communications between the campaigns were normal, and denied any knowledge of the Callaway campaign’s finances. Over the weekend, the party leader said he wouldn’t comment on the application by Callaway and his co-applicants while it was before the courts.

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

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