Bildhauer v Alberta (Chief Electoral Officer), 2017 ABQB 54

Court of Queen’s Bench of Alberta Citation: Bildhauer v Alberta (Chief Electoral Officer), 2017 ABQB 54 Date: 20170125 Docket: 1603 08193, 1603 08194 Registry: Edmonton Between: 1603 08193 Dan Maximilian Bildhauer and Reginald Norman Reid Applicants - and - Chief Electoral Officer of Alberta Respondent And Between: 1603 08194 Aristotle Adam Mounzer and Reginald Norman Reid Applicants - and – Chief Electoral Officer of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Messrs Bildhauer and Mounzer were Alberta Liberal Party candidates in the last provincial election held on May 5, 2015 and Mr. Reid was the Chief Financial Officer for each of them. Bildhauer and Mounzer had financial campaign deficits of $6,940.64 and $4,336.85 respectively, at the end of the potential 10 month period established by election legislation as the period during which campaign deficits must be eliminated.

Because neither Bildhauer nor Mounzer had eliminated their campaign deficit by the required date, as he was required to do by legislation, the Chief Electoral Officer of Alberta sent a letter to the Speaker of the Legislative Assembly of Alberta identifying Bildhauer and Mounzer as candidates who had failed to eliminate a campaign debt and Reid as their chief financial

officer That list was tabled before the Legislative Assembly as Sessional Paper 10/2016. Shortly after the list was tabled, each ofBildhauer and Mounzer, through their chief financial officer Reid, filed an amended Deficit Retirement Period Financial Statementshowing that the campaign deficits had been eliminated. Unless relief is granted by the courts from the effect of being on this list,Bildhauer, Mounzer and Reid could be prohibited from being nominated as candidates or acting as a CFO in a provincial election for upto 8 years. [2] In this application, invoking s. 44(3)(

b) of the Election Finances and Contributions Disclosure Act, Bildhauer, Mounzer andReid each apply to extend the time for compliance with

section 43 or 43.1of the Act. [3] The Chief Electoral Officer of Alberta, who is a statutorily required participant in this proceeding, takes no position on theapplications. [4] The applications are allowed. [5] The financial reporting requirement in relation to the two candidates is, mainly, the responsibility of the candidates’ chieffinancial officer. Here, that official acknowledged that he had been provided with explanatory material about campaign deficits by theChief Electoral Officer.

Despite having had the benefit of that material, the chief financial officer provided evidence that he had beenmisled by consultation on the treatment of deficits with an experienced election campaign volunteer. [6] In order to grant the statutory relief requested, the court must be satisfied that there are “mitigating circumstances”. Thatexpression merely defines the result which is effected when a circumstance is established which justifies abatement of the rigour of thelaw.

What justifies such an abatement varies according to the circumstances. [7] The court recognizes that election finance legislation is designed to provide transparency and accountability in the electionprocess and that the election process is the very foundation of our democracy.

Therefore, any application for relief from theconsequences of breach of that legislation must be carefully scrutinized so as not to undermine the objectives of the legislation. [8] Here, the court takes the following combination of factors into account in concluding that there are sufficient mitigatingcircumstances to grant the relief requested: - each of the applicants acted in good faith.

There is not the breath of a suspicion of any corrupt practice; - campaign deficits are, by their nature, less central to the legitimacy of elections than are campaign contributions and campaignexpenses and therefore breaches of those rules are entitled to more generous treatment; - the campaign deficits in issue here, which were not, objectively, large, were in fact eliminated, albeit not in a timely way. Thelack of timeliness prevents the court from dealing with these breaches as de minimis; - the health of our election process depends on the participation of volunteers.

Where, as here, volunteers are trying to do theirbest, but breaching a regulation without breaching the principles on which the legislation is based, they should not be punished bypreventing them from taking an active

part in future elections. Cases and authority cited [9] By the Chief Electoral Officer: Election Finances and Contributions Disclosure Act, RSA 2000, c E-2 [excerpts]; Lall vAlberta (Chief Electoral Officer), 2016 ABQB 117; Election Act, RSA 2000, c E-1 [excerpts]; Fritz & Cavanagh v Chief ElectoralOfficer of Alberta (8 November 2012) Edmonton 1203-16318 (Alta QB), Transcript; Shim v Chief Electoral Officer; Khan v ChiefElectoral Officer; Wagner v Chief Electoral Officer; Batra v Chief Electoral Officer (24 March 2016) Calgary 1501-15051 (Alta QB),Transcript. [10] By the court: Opitz v.

Wrzesnewskyj 2012 SCC 55; Figueroa v. Canada (Attorney General) 2003 SCC 37; Libman v.Quebec (Attorney General) (SCC), [1997] 3 S.C.R. 569; Lancaster v. St. Catharines (City) Compliance AuditCommittee 2013 ONSC 7631; Helten v Robertson 2015 BCSC 599; Belleau v. Dussault (1885) 1885 CanLII 52 (SCC), 11 S.C.R. 133; Gallery v Darlington (1906) (SCC), 37 S.C.R. 563; Sideleau v Davidson (SCC), [1942] S.C.R. 306;Conservative Fund Canada v. Canada (Chief Electoral Officer) 2010 ONCA 882. Appendix A: Fritz and Cavanagh v Chief Electoral Officer, Edmonton Aon No. 1203 16318, Reasons for decision, Manderscheid J.

Appendix B: Shim v Chief Electoral Officer; Khan v Chief Electoral Officer; Wagner v Chief Electoral Officer; Batra v ChiefElectoral Officer, Calgary Aon No. 1501-13765; Reasons for decision, Brooker J. 1. Background

a) Bildhauer [11] Dan Bildhauer was a registered candidate during the 2015 provincial general election and Reginald Reid was his chieffinancial officer. [12] On April 9, 2015, or one day after Mr. Bildhauer registered as a candidate in the election or which the writ had been issued on

April 7, 2015, the Director Election Finances at Elections Alberta sent Mr. Bildhauer and Mr. Reid a package of information, including A guide to the EFCDA issued by Elections Alberta. In part, the Guide described a campaign deficit. It also warned that failure to eliminate the deficit “may result in the candidate and the CFO being prohibited from being nominated as a candidate or acting as a CFO for up to 8 years”. [ 13 ] Polling day was May 5, 2015. [ 14 ] On May 26, 2015, the Director, Election Finances, sent a letter to Mr. Bildhauer and Mr. Reid.

This letter reminded them that, by operation of section 43(2) of the EFCDA, candidates in the 2015 Election had until September 8, 2015 to file their Candidate's Campaign-Period Financial Statement. The letter also reminded them a. That, if the campaign reported a deficit, they had to eliminate that deficit within 3 months of the September 8th filing deadline; b. That, upon request, the Chief Electoral Officer may grant an additional 3 months; and c. Of various ways a candidate's campaign may eliminate a deficit. [ 15 ] Mr. Bildhauer and Mr.

Reid filed their Candidate's Campaign-Period Financial Statement with the Chief Electoral Officer on September 3, 2015. Mr. Bildhauer's campaign reported a deficit of $12,766.88. [ 16 ] Candidates must eliminate their deficit, if any, under

section 43.1(3) of the EFCDA, which provides: 43.1(3) Where a registered candidate has a campaign deficit, the candidate shall eliminate the deficit within 3 months after the date that the financial statement of the candidate is required to be filed under section 43(2) or such further period approved under subsection (4). [ 17 ] On October 1, 2015, the Director, Election Finances, sent a letter to Mr. Bildhauer and Mr. Reid. The letter enclosed a copy of

section 43.1 of the EFCDA, and noted that: a. Their Candidate's Campaign-Period Financial Statement had reported a deficit; b. The deficit retirement (elimination) period began on September 9, 2015 and would end on December 9, 2015; c. However, before December 9, 2015, they may request an additional 3 months to eliminate the deficit. If approved, the extended deficit retirement period would end on March 10, 2016. [ 18 ] On November 16 and December 17, 2015, Elections Alberta sent Mr. Bildhauer and Mr.

Reid - among others - e-mails reminding them that the deficit elimination period would end on December 9 unless they requested an extension. [ 19 ] Neither Mr. Bildhauer nor Mr. Reid requested an extension to the deficit elimination period. [ 20 ] By operation of

section 43.1(3) and (6) of the EFCDA, Mr. Bildhauer and Mr. Reid were required to eliminate the deficit by December 9, 2015, and file a Deficit Retirement Period Financial Statement by January 11, 2016. [ 21 ] On January 5, 2016, Elections Alberta received Mr. Bildhauer's Deficit Retirement Period Financial Statement. The campaign reported a transfer from a registered party in the amount of $5,565.00, and reported a deficit of $6,940.64. [ 22 ] On January 13, 2016, the Chief Electoral Officer sent a report to the Speaker of the Legislative Assembly of Alberta including the Applicants' names on a list of individuals failing to eliminate a campaign deficit within the 3-month period under

section 43.1(3) of the EFCDA. [ 23 ] On January 14, 2016, the Chief Electoral Officer sent a letter to Mr. Bildhauer and Mr. Reid advising them he had sent the report to the Speaker. The Chief Electoral Officer also advised them that: a. They were both ineligible to be nominated as a candidate, and Mr. Reid was ineligible to act as a CFO, for 5 years; and b. They could apply to this Court for relief under section 44(2). [ 24 ] On March 9, 2016, the Speaker of the Legislative Assembly of Alberta tabled the January 13, 2016, report before the Legislative Assembly as Sessional Paper 10/2016.

The Chief Electoral Officer advised Mr. Bildhauer and Mr. Reid of that fact in a letter dated March 10, 2016, and provided some information of the process of applying for relief from this Court. [ 25 ] On March 16, 2016, Elections Alberta received an amended Deficit Retirement Period Financial Statement for Mr. Bildhauer. It showed new contributions in a total amount of $6,940.64, and enclosed six official contribution receipts. The amended Deficit Retirement Period Financial Statement showed a campaign deficit of $0.00. [ 26 ] Mr. Bildhauer’s chief financial officer, Mr.

Reid, provided evidence to the court establishing that he had received information about financial reporting, but had been misled by another experience campaign volunteer about the nature of receipts required to prove the elimination of a deficit.

b) Mounzer [ 27 ] In a general way, the fact outline of Mr. Bildhauer’s situation applies to Mr. Mounzer, i.e. Mr. Mounzer received the same information as did Mr. Bildhauer, the same deadlines applied to Mr. Mounzer and Mr. Mounzer eventually filed a financial statement indicating that he had eliminated his campaign deficit. The only difference between the two candidates is that Mr. Mounzer’s campaign deficit was $4,336.85.

c) Legislation [ 28 ] At the time of the 2015 provincial general election, the applicable provisions of the Election Finances and Contributions Disclosure Act , EFCDA, required that registered candidates eliminate their campaign deficits within three months after the date set for the filing of financial statements relating to the campaign: s. 43.1(3), EFCDA. Effectively, therefore, a registered candidate has 7 months after polling day to eliminate a campaign deficit.

The deficit elimination period can be extended for an additional three months if requested by the candidate and granted by the Chief Electoral Officer: s. 43.1(4). If a registered candidate fails to eliminate a deficit within the appropriate period – 7 months or 10 months - the Chief Electoral Officer is statutorily required to send the names of both the candidate and the candidate’s chief financial officer to the Speaker of the Legislative Assembly; the Speaker is then statutorily required to lay a report referring to those names before the Assembly.

Alberta’s Election Act , states that all candidates named on the list are prohibited from being nominated as a candidate in a provincial election for the shorter of 5 years after a financial statement is filed or 8 years after the Speaker lays the report before the Assembly: s. 57 , Election Act . The EFCDA states that a chief financial officer named on that list is ineligible from serving a party, constituency association, candidate or third party during the same period. 2. General principles relating to the

interpretation of election legislation [ 29 ] Elections are at the core of our democracy: “Canadian democracy is based on the right to vote” Opitz at para. 27 . The financing of elections is at the core of the legitimacy of elections which in turn are at the core of our democracy: “The systems and regulations that govern the process by which governments are formed should not be easily compromised. Electoral financing is an integral component of that process, and thus it is of great importance that the integrity of the electoral financing regime be preserved.” Figueroa at para. 72 .

Election legislation deals with campaign contributions, campaign spending, and campaign reporting; it must be interpreted in light of the values which the legislation attempts to enshrine and foster. Therefore, it is appropriate to review the way in which courts have interpreted election legislation.

a) Campaign contributions [ 30 ] Although campaign contributions logically initiate electoral financing, there has not been much judicial

interpretation of campaign contribution standards. Albeit in the municipal context, Lancaster characterizes campaign contribution limitations as essentially a mechanism for regulating campaign spending: 11 It has been said that "one very important component of the Act is to control the election expenses of the candidates" in municipal elections: see Braid v. Georgian Bay (Township), [2011] O.J. No. 2818 (S.C.J.), at para. 12. 12 One way of controlling election expenses is to control revenue and that is accomplished somewhat by limiting campaign contributions.

Supposedly, this has the effect of "levelling ... the playing field to prevent a candidate backed by deep pockets from outspending his or her opponents and thus potentially skewing the results of the election ... [and of ensuring] that elections cannot be 'bought' ": see Braid v. Georgian Bay (Township), supra, at paras. 12 and 22. [ 31 ] Also in the municipal context, Helten establishes: 36 As the petitioners' counsel acknowledged during argument, and the cases establish, there is nothing wrong with a politician stating his policy in the hopes of obtaining votes or campaign contributions.

There is also nothing untoward with contributions being made by supporters of that position. There can also not be anything wrong with a politician carrying out a campaign promise if elected.

Most of the case law dealing with campaign contributions deal with aspects of the topic that have no application here, such as, the disposition of unspent contributions, the return of illegal contributions and the conflicts created by contributions. [ 32 ] Despite the dearth of jurisprudence on the subject, it is likely that the importance of regulating campaign contributions goes beyond the mere attempt to limit campaign financing.

Efforts in Alberta to deal with corporate and union contributions as well as the size of individual contributions speak to the additional values which the regulation of campaign contributions attempts to address.

b) Campaign spending [ 33 ] In comparison to campaign contributions, campaign spending has always been in the forefront of judicial scrutiny. As the Supreme Court of Canada stated in Libman : 47 The Lortie Commission pointed out that expenses incurred in an election campaign -- advertising, for example -- have a considerable impact on the outcome of the vote (Lortie Commission, supra, at pp. 324 and 339; testimony of Professor Peter Aucoin, Case on Appeal, at pp. 36-37, 94 and 131). It recognized that spending limits are essential to ensure the primacy of the principle of fairness in democratic elections.

The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens. If the principle of fairness in the political sphere is to be preserved, it cannot be presumed that all persons have the same financial resources to communicate with the electorate (Lortie Commission, supra, at p. 324).

To ensure a right of equal participation in democratic government, laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person's exercise of the freedom to spend does not hinder the communication opportunities of others. Owing to the competitive nature of elections, such spending limits are necessary to prevent the most affluent from monopolizing election discourse and consequently depriving their opponents of a reasonable opportunity to speak and be heard.

Spending limits are also necessary to guarantee the right of electors to be adequately informed of all the political positions advanced by the candidates and by the various political parties. Thus, the principle of fairness presupposes that certain rights or freedoms can legitimately be restricted in the name of a healthy electoral democracy (Lortie Commission, supra, at p. 323).

Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions so that election discourse is not dominated by those with access to greater financial resources (Lortie Commission, supra, at p. 324). It should also be noted that 93 percent of the respondents to a national survey conducted by the Lortie Commission supported limits on spending by political parties (Lortie Commission, supra, at p. 334).

This high percentage shows that the majority of Canadians agree with limiting election spending in order to promote fairness as a fundamental value of democracy

[ 34 ] One of the first election spending decisions, Belleau , issued as early as 1885; in that decision, the Chief Justice of the Supreme Court of Canada said: SIR W.J. RITCHIE C.J.:— This case has come before us on appeal from a judgment of Mr. Justice Caron. I feel bound to say, that as long as I have had the honor of presiding in this court, no case has come before us where there was such a clear, undisguised infraction of the law as there has been in this case. In the first place, without going into the two particulars brought before us, we have what to me is a startling admission made. Dr.

Lacerte, an agent of the appellant, says that he has spent $150. This agent offers $50 to one man, (who will not take it from him) to organize the carters in the interest of the appellant in this case. He then gives it to another, to a devoted friend of his party, and when he is asked who this devoted friend was, he says he does not recollect his name, and no account is rendered by the election agent of this money, nor does the present appellant, the sitting member, profess to know anything about it.

Then we have another leading manager at this election, who expends, he admits, $1,100 in the interest of the present appellant, and yet he renders no account of it to the agent, and cannot tell to whom, cannot apparently name one person to whom he gave this money, or any portion of it, but says it was distributed over the county in the interest of the appellant.

Then we come to the charges of giving drink on voting day, and here it appears to have been done wholesale, that is, to this extent, that in the very committee room of this person, for the purpose, the witnesses say, of amusing the supporters, they put three gallons of spirits, and the people were invited in, and go, and are treated; any one who would take it, got it. Then, again, there is the payment of carters without apparently any disguise - the engagement of carters to take voters to the poll, and payment of them.

All these are known to be corrupt acts, and, if done by an agent, will avoid the election. . . .

I think the evidence fully sustains the conclusions at which the learned judge has arrived, and I think it was impossible for him, or any other man, lay or legal, to come to any other conclusion than that there was a gross violation of the Election Act by agents, admitted to be agents of the candidate; and therefore this appeal must be dismissed with costs here and in the court below. [ 35 ] The Supreme Court of Canada next dealt with these issues 20 years later, in the1906 Gallery decision, Davies J., speaking for the majority of the court, said: Mr.

Gallery is a politician of some experience, having run other elections before the one in question. He cannot and does not plead ignorance of the law. He had a regular agent, through whom he knew that all legitimate expenditure should be made in order to ensure that publicity which is a cardinal principle of the Election Act . He organized his committees after nomination day and there was consequently only a week within which to do such work as committees had ordinarily to do. He went around to these committees a few nights after their organization and paid to their several chairmen a small part of the $6,000.

On the eve of the election day and before leaving his home he carefully made up into packages at his own house, and as he himself says in his own room and by himself, the remaining portion of the money amounting to over $4,000, in sums ranging from $250 to as high as $1,500; placed them on and about his person and distributed them to his various chairmen taking care to deliver the money personally and secretly, and so that even his own financial agent who accompanied him on his rounds is alleged to have known nothing about his acts.

The financial agent who by law was to have sole control over his disbursements, and through whom alone they could be legally made, had the transaction carefully screened from his knowledge, although he accompanied his principal up to midnight before election day in the latter's visits to the committee rooms.

We are asked to believe that this money was intended to be honestly paid to "locators" so called, for bona fide and necessary work to be done by them, while in the same breath we are told that at least one-half of those to whom the money was to be paid, and actually was paid, were electors whom the receipt of these moneys for alleged services in connection with the election would actually disfranchise.

The moneys paid to these chairmen of committees were not counted, no receipt was taken, no memorandum of payments made, no account kept by those to whom it was paid of those electors and others to whom they paid the money, and no evidence or the slightest possible that any actual bona fide work was done by those to whom it was paid, or if and where any work was done by any or by which of them. The moneys paid to Francis McCabe, a relatively small amount, do not appear to be open to these observations, and were not apparently used for corrupt purposes. His case appears to be an exception to the general rule.

About one-half of the moneys paid to these chairmen was admitted in the argument to have been paid to electors on the ostensible ground that they were employed as locators. Some of the chairmen admitted that everyone attending the committee room expected to be paid and Guilfoyle (one of the chairmen) says; he thought the persons to whom he paid out the money on election day had been acting personally and that he should pay them, and he supposed they had worked, and he paid them $10 or more according to his own judgment not having anything to determine the amounts they should severally receive.

During the argument I asked repeatedly whether there was any evidence shewing that these locators actually did bona fide necessary work and reported the results, and where such evidence could be found if it existed at all. But such references as were given were to evidence of the flimsiest and most unsatisfactory kind.

I do not wish to be understood as saying that bona fide payments made through the proper agent to persons for the purpose of locating electors in the congested districts of large cities might not be defended as being within the Act, or that even if made improperly by the candidate they would necessarily under all circumstances, however necessary their work might be and however well it might prove to have been done, gave rise to an irresistible inference that the payment was a "corrupt practice." But in the face of such evidence as we have here, to ask us to assume that the payments were bona fide and made for a bona fide purpose, is to ask us to abdicate our common sense.

I think the only and the irresistible inference which can be drawn from the evidence is that these moneys were paid to the several chairmen of his committees by the appellant colourably for the purpose of paying locators so called for work done or to be done, but actually for the corrupt purpose of improperly influencing electors to whom they were to be paid and in order to induce them to vote or refrain from voting, or for having voted or refrained from voting, and that the moneys having in large part at any rate been paid over by these chairmen to electors and others on election eve and election day in pursuance of such corrupt purpose such payments constituted "corrupt practices" on appellant's part within the meaning of the statute.

Mr. Johnstone contended that the same particularity was required to make a legal finding of the personal guilt of a candidate for corrupt

practices and so disqualify him as was necessary in ordinary penal actions. I do not, however, concur in this view. The reason for the application to findings under the Controverted Elections Act (the penalty for which is personal disqualification) of the rule applicable to penal actions, does not exist. That rule is necessary in penal actions to prevent a party sued from being put in peril twice for the same offence and to enable him to plead his prior conviction or acquittal or discharge as the case may be to any second action.

Certainty in the particulars of the offence must therefore appear on the conviction or judgment. But in trials under the Controverted Elections Act while the party incriminated and sought to be punished is entitled on every principle of justice to have full and clear particulars given him of the offence he is charged with add is also entitled to have the evidence confined to the charge so made, the same reason does not exist for the particular certainty in the statement of facts in the findings of the election court as does exist in a conviction or judgment in a penal action.

There must, of course, be reasonable certainty in the finding of the statutory offence and the different elements necessary to constitute the offence must be found by the election court. But in the case of the "corrupt act" of bribery that fact may depend upon one proved case as well as upon one hundred, and the penalty of disqualification follows alike in the one case as the other. The offence may be proved and found even though the name or names of the elector or electors bribed may not be able to be given.

Several acts of personal bribery do not for the purpose of personal disqualification constitute different offences.

Where large payments of money are made by a candidate to electors by the score either directly or through the hands of his chairmen of committees and the courts find they were so made corruptly and for the purpose of inducing those electors to vote or refrain from voting as in the case before us has been found, it surely would make the Act practically inoperative in this important point if the court, having clearly found the offence committed, had to stay its hand and not pronounce judgment because owing to the faulty memory of the candidate or his agents through whom he paid the money or from other causes the names of the electors could not be given.

Nor is there any sufficient reason why the names must appear in the finding to make it a good one. It is quite sufficient if it is proved that the recipients of the bribe money were electors. The mens rea must be shewn, the fact of payment pursuant to the guilty intent to actual electors proved and that is sufficient. One court alone, the election court, can make the finding and that finding can only be made by it once after trial of the petition; one penalty alone, disqualification, flows from the finding.

The candidate found guilty cannot before any other court or before the same court in any other proceeding or at any other time be put in peril for the same offence. It is true he may be indicted for the crime of bribery in each specific case where bribery can be proved against him.

But the penalties under the Election Act and those for the crime for which he may be indicted are entirely different, and in no case could the proof of conviction under the Election Act with its penalty of disqualification avail to defeat any indictment which might be brought against him for bribery or be received as evidence of his guilt.

In my opinion the appeal should be dismissed with costs and proceeding to give the judgment which in our opinion the court appealed from should have given with respect to the particular and limited part of their judgment appealed from to this court with which limited appeal we alone have the right to deal, we should adjudge and find the appellant to have been guilty at the election aforesaid of paying large sums of money to the several chairmen of his committees between the day of nomination and the day of election corruptly and with the intent that these moneys should be paid and disbursed by these chairmen or some of them in large part at least to electors of the laid electoral district for the purpose of inducing such electors to vote for him (the appellant) or refrain from voting against him, or for having so voted or refrained from voting, and that such moneys or a large part thereof were by such chairmen or some of them so paid and disbursed to such electors for the corrupt purpose aforesaid, and that in so acting and doing the appellant had committed a corrupt act within the meaning of the Dominion Elections Act and was in consequence personally disqualified as prescribed by that Act. [ 36 ] These decisions may have had some effect, because it was 40 years later that the issue returned to the Supreme Court of Canada.

In its 1942 Sideleau decision, the court held: In the Levis case [i.e . Belleau above], it was held, affirming the judgment of the court below that when an agent of a candidate receives and spends for election purposes large sums of money, and does not render an account of such expenditure, it will create a presumption that corrupt practices have been resorted to.

In the present case, we have not only the presumption which has been thus created, but we have the uncontradicted evidence that Noé Jubinville not only sent this quantity of whisky to Maurice for distribution, but distributed some personally to other organizers and voters. Adrien Maurice, the hotelkeeper and one of the organizers, was obviously not satisfied with the quantity of whisky which he had received from Jubinville but purchased an additional quantity from the Quebec Liquor Commission.

He saw personally to the distribution of that whisky, and on the day of the election he treated a number of electors whether they had voted or not. On that point, he is quite frank, for in his evidence he says:-- Q. A tout événement, les personnes savaient que vous en aviez un dépôt chez-vous pour les fins de l'élection? A. On avait ça pour s'en servir. Joseph Laroche, Charles-Emile Audet, Arthur Leclerc, Kenneth Akhurst, René Jean-Marie, Georges Primeau, Thomas Handy, also treated electors within the limits of the places where they were organizing and working on behalf of the respondent.

Some whisky was served to voters in the street, in private houses, in automobiles, and, Georges Primeau treated some employees of the Kilgour Chair Company which he had been asked to bring to the polls, and the same conduct was followed by Kenneth Akhurst with the voters employed by the Belding Corticelli Company. On a smaller scale however, some voters received money for their votes, and some others were the recipients of unexpected gifts, which have been termed by one of the witnesses for the respondent to have been made for "charitable purposes".

The organizers guilty of these particular acts of corruption are Charles-Emile Audet and Arthur Leclerc. With due deference, we believe that all these acts amount to corrupt practices and that they are sufficient to void the election. More than once, this Court has annulled elections for isolated cases of corruption and in other cases for practices which did not have the serious character which the evidence reveals in the present case.

.. . . . We have no doubt that the respondent and his official agent were relying particularly upon the Liberal Organization of the county ofStanstead to secure his election.

As we have already pointed out, the mere fact that a man gives his support to a candidate does not makehim an agent, but, we are of opinion that when a candidate relies upon an organization to promote his campaign, and bring the election toa successful conclusion, the accredited members of the association are the agents of the candidate, and all those employed by theassociation are, within the limits of their duties, in the same sense the agents of the candidate himself.

Taunton, 1 O'M. & H. 185:-- Generally speaking, whenever a person is in any way allowed by a candidate, or has the candidate's sanction to try to carry on hiselection and to act for him that is some evidence to show that he is his agent. . . . . .

The burden was upon the respondent to show that the offences mentioned in the report of the trial judges were committed contrary to theorder and without the sanction of the candidate or his official agent, that they took all reasonable means for preventing the commission ofcorrupt and illegal practices, that the offences were of a trivial, unimportant, and limited character, and that in all other respects theelection was free from any corrupt practices on the part of such candidate and of his agents. We believe that the respondent has failed to show that he may be allowed to take advantage of this section.

Although it has beenestablished that he and his official agent have committed no reprehensible acts, it is not in evidence that the corrupt practices werecommitted contrary to the order of the candidate or his official agent, and nothing in the record can lead us to the conclusion that theyhave taken all reasonable means for preventing the commission of corrupt practices. In Veilleux v. Boucher [

(1932) Q.R. 70 S.C. 339], confirmed by this Court (SCC), [1933] S.C.R. 65], it was held byCoderre and Denis, JJ.:-- A defendant who neglects, whether by himself or his official agent, to give orders forbidding all other agents, and generally all personsworking at the election in his interest, to refrain from all corrupt practices, is not admitted to invoke exoneration under

section 54 of theDominion Controverted Elections Act. Moreover, the offences were not of a trivial, unimportant, and limited character, and we have seen, when analysing the evidence, that theelection was not free from corrupt practices on the part of the agents of the candidate. Even if they had been of a limited character, as ithad been submitted to us, subsection (

c) would still be of no benefit to the respondent, for the offence of treating is surely not trivial --and the limited number of the acts and their triviality are two different elements which must be found to coexist. We, therefore, come to the conclusion that the appeal should be allowed, the petition maintained and the election of the respondentdeclared elected on the 27th of March, 1940, annulled. [Emphasis added]

c) Campaign deficits [37] The subject of campaign deficits has not received the same amount of attention as campaign expenses. [38] “Campaign deficits” is defined in the EFCDA as any liabilities relating to the candidate’s campaign which remain outstandingat the end of the campaign period or any excess of expenses over revenues. [39] In late 2016, the Alberta Legislature passed the Fair Elections Financing Act, introduced as Bill 35, which amended theEFCDA inter alia by repealing and replacing s.43.1 and also repealing and replacing s. 44 which had both been in place at the time of the2015 provincial election.

Therefore, it is clear that the Legislature reviewed those sections of the legislation which it was repealing andreplacing. However, for the purposes of this decision, it is also appropriate to note that the 2016 amendments did not disturb the basicrequirements which applied in the 2015 election; in particular, it remains a feature of s. 44(4)(

b) that the time for compliance with s. 43.1requires a “mitigating reasons for non-compliance with the section” and a feature of s. 44(4)(

c) the court may make any order “that itconsiders appropriate to secure compliance with as much of

section . . . 43.1 as it considers reasonable in the circumstances”. [40] Campaign deficits conceivably come within the notion of “campaign irregularities”. If that were the case, the Supreme Courtof Canada’s decision in Opitz should perhaps be taken into account. That decision reminds us that: 46 The practical realities of election administration are such that imperfections in the conduct of elections are inevitable. Asrecognized in Camsell v.

Rabesca, (NWT SC), [1987] N.W.T.R. 186 (S.C.), it is clear that "in every election, afortiori those in urban ridings, with large numbers of polls, irregularities will virtually always occur in one form or another" (p. 198). Afederal election is only possible with the work of tens of thousands of Canadians who are hired across the country for a period of a fewdays or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They are required toapply multiple rules in a setting that is unfamiliar.

Because elections are not everyday occurrences, it is difficult to see how workerscould get practical, on-the-job experience.

d) Campaign reporting [41] In addition to campaign contributions, campaign expenses and campaign deficits, election legislation also establishesstandards for campaign reporting. None of the substantive standards could be effectively monitored by citizens in the absence ofreporting. As case law has consistently emphasized, campaign reporting is essential to ensure transparency and accountability of theelectoral process.

e) General principles of statutory

interpretation

[42] A court which is interpreting election legislation must also keep in mind general principles of statutory

interpretation, as forexample in Conservative Fund Canada, where the Ontario Court of Appeal reminded us that: 103 The principle of statutory

interpretation that is engaged in this part of the analysis is set out, once again, in Re Rizzo, whereIacobucci J. wrote at para. 27 that "[i]t is a well established principle of statutory

interpretation that the legislature does not intend toproduce absurd consequences." 104 In Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031, Gonthier J. expressed the principle as followsat para. 65: "Since it may be presumed that the legislature does not intend unjust or inequitable results to flow from its enactments,judicial

interpretations should be adopted which avoid such results."

f) Judicial

interpretation of s. 44(3)(

b) in relation to a breach of s. 43(2) of the EFCDA [43] Finally, the Chief Electoral Officer for Alberta cites the March 2016 decision in Lall. In that case, the specific

section of theEFCDA in respect of which relief was required was s. 43(2) rather than 43.1, i.e. the

section which requires the reporting of a candidate’srevenue, expenses, assets and liabilities rather than reporting of campaign deficits. However, the powers of relief set out in s. 44(3)(

b) ofthe EFCDA apply to breaches of both s. 43(2) and s. 43.1. In Lall, this court held: - there is no de minimis exception built into the law for good faith late-filers; - mitigating circumstances are required to grant relief under s. 44(3)(b); - mitigating circumstances “means someone else is at least partially to blame” for the failure to file in time. [44] Indeed, in Lall, the court held that “mitigating has a very specific legal meaning. It means someone else or something else isat least partially to blame”.

With respect, I don’t share the view that there is a specific legal meaning to the word “mitigating” or theexpression “mitigating circumstances”. Rather, the word “mitigate” is defined in the Compact Oxford English Dictionary as “to abatethe rigour or severity of a law”. A “mitigating circumstance” is defined in Black’s Law Dictionary as “A fact or situation that does notjustify or excuse a wrongful act or offence but that reduces the degree of culpability and thus may reduce the damages or thepunishment”.

As examples of mitigating circumstances in the context of sentencing for crimes, one finds such commonplacecircumstances as one’s age and one’s service of time in pre-sentence custody which have nothing to do with anyone else but the offender.The concept of mitigation has to do with the effect of finding a justification or excuse - e.g. lowering the sentence that would otherwisebe imposed - rather than the content of justification or excuse - e.g. age or time served.

As to what may result in the mitigation of thepenalties imposed in the EFCDA, that will presumably vary according to the purpose of the aspect of the law that was breached and thenature of the breach.

Also, while I agree that the legislation does not contain any de minimis exception, in my view the failure to do so inthe legislation does not prevent the court from considering whether a de minimis breach is a mitigating circumstance. [45] In addition to the Lall decision, the Chief Electoral Officer has usefully provided transcripts of two sets of decisions relatingto the application of s. 44; the decision portions of those transcripts are appended as Appendix A and Appendix B. [46] In addition, the Chief Electoral Officer advises that, following the 2008 and 2012 provincial general elections, this Courtheard applications under s. 44(3) of the EFCDA, but none of those decisions was reported except for the Fritz and Cavanagh decision,Appendix A.

Following the 2015 provincial general election, there was the decision involving five applications, all of which weregranted: Appendix B. In addition, there were two other applications for relief granted in 2016, Al-Kukhun v Chief Electoral Officer andKlooster v Chief Electoral Officer; there are, however, no transcripts for those applications. The latter two applications each involved asituation where the financial statements had been posted within the required period but had not reached Elections Alberta within thedeadline. 3. Application of the principles here [47] The applicants before me invoke s. 44(3)(

b) of the EFCDA as it existed in 2015. I do not, therefore, have to determinewhether s. 44(3)(

c) could also apply. [48] I agree with the case law establishing good faith as the pre-requisite to any application for relief under s. 44 of the EFCDA. [49] Here, I am satisfied from the evidence tendered by the applicants that they acted throughout in good faith: the candidatesrelied on the chief financial officer and the chief financial officer relied on the advice of an experienced back room volunteer who wasrepresented as having expertise in the matter at hand. There is absolutely no whiff of any corrupt practice involving any of the threeapplicants.

Moreover, the campaign deficits, which were – objectively – not large were, in any event, eliminated, although not on atimely basis given the long period of time allowed for the elimination of deficits. Had compliance occurred on a more timely basis, Iwould have been prepared to characterize the breaches here as de minimis and granted relief on that basis.

It would be a totallydisproportionate result of late elimination of a deficit to be prevented from participating in an election as a candidate or a chief financialofficer for a period of 5 years [50] It is somewhat difficult to assess the importance of campaign deficits in relation to the importance of reporting campaigncontributions and expenses. On the face of it, contributions and expenses appear to be much more central to the central purpose ofelection legislation, i.e. preserving democracy.

For example, the ideal of a level playing field in relation to the amount of donations thatany individual or organization can make to a campaign and to the amount that any candidate can spend on a campaign is not altered inany way by the existence of deficits: a deficit is merely an excess of expenditures over revenue but within the overarching limits ofpermissible revenues and permissible expenditures. [51] The statutory provisions requiring the elimination of campaign deficits within a reasonable time after the campaign periodshould be read in the context of two other statutory provisions: s. 39.2(1) limits monetary claims against a candidate unless the claims arefiled with the candidate’s chief financial officer within a strict time limit after the polling date and s. 12 requires any surplus to be used

only for purposes permitted by the statute. The purpose and importance of regulating campaign deficits therefore appears to be to serve the objective of regularity, including timeliness, in campaign financing. Presumably, a candidate who can’t financially manage the electoral campaign is a poor candidate both literally and figuratively. Apparently, since an individual is only a registered candidate for a specified period, that candidate’s financial affairs should have a clean end. [ 52 ] The fact is, however, that there is very little guidance on the purpose of eliminating deficits.

Indeed, in the approximately 90 pages of transcript of Hansard on the debates on Bill 35, there was much talk of getting big money out of politics, decreasing contribution limits and setting spending limits, the role of third parties or political action committees and of quarterly constituency financial reporting, but there was not one word that I could find on campaign deficits.

There were, however, numerous comments on the necessity of a transparent and fair electoral system and on the difficulty of recruiting volunteers, especially for the position of chief financial officers. [ 53 ] I can only conclude that compliance with the campaign deficits aspects of the legislation attracts, overall, a somewhat lower level of rigout than compliance with campaign contributions and expenses. [ 54 ] Finally, given the comments of the Supreme Court of Canada in Opitz , the combination of errors in the situations here is not egregious; the negative effect of the breaches is over-ridden by the benefit of citizen participation in the election process. [ 55 ] In

summary then, the court takes the following combination of factors into account in concluding that there are sufficient mitigating circumstances to grant the relief requested: - each of the applicants acted in good faith.

There is not the breath of a suspicion of any corrupt practice; - campaign deficits are, by their nature, less central to the legitimacy of elections than are campaign contributions and campaign expenses and therefore breaches of those rules are entitled to more generous treatment; - the campaign deficits in issue here, which were not, objectively, large, were in fact eliminated, albeit not in a timely way.

The lack of timeliness prevents the court from dealing with these breaches as de minimis breaches which would entitle applicants to relief; - the health of our election process depends on the participation of volunteers. Where, as here, volunteers are trying to do their best, but breaching a regulation without breaching the principles on which the legislation is based, they should not be punished by preventing them from taking an active

part in future elections. 4. Costs [ 56 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 10 th day of January, 2017. Dated at the City of Edmonton, Alberta this 25 th day of January, 2017. J.B. Veit J.C.Q.B.A. Appearances: Dan Bildhauer, on his own behalf Reginald Reid, on his own behalf Aristotle Mounzer, by way of written materials only Fiona N. Vance, Shores Jardin LLP

for the Respondent APPENDIX A – Fritz and Cavanagh v Chief Electoral Officer of Alberta Ruling THE COURT: In cases such as this the Court has to basically take a look at whether or not the actions by the applicant are such that they were remiss in compliance with their statutory obligations. Did they go out of their way to basically use the system to their own gains? I am familiar from my previous life when I was in public practice with civic elections where some of them were contested, and we had legislation very similar to this, it was brought into play.

In those cases, the Court looked at what are the mitigating circumstances that would cause this Court to exercise its discretion to grant an extension of time or basically to forgive the error. In this particular case, the evidence before this Court is that the applicant had a medical situation that arose while she was out of the country. Needless to say, it would be very hard to get an original signature onto a document without having the document sent to where she is and then back. But that again may very well have caused her to breach the statutory time line.

More so, the evidence would strongly suggest that she took every precaution and step to comply with the legislation. She received confirmation from the respondent that all requirements had been met, then later she received notice that no, they had reviewed the situation, and indeed there was no original signature. I am fully aware that the original signature is required. It is a matter of policy as set by the governmental authority. It is to be abided by. However, be that as it may, given the circumstances of this case, this Court will exercise its discretion and grant the extension of time. Thank you.

APPENDIX B – Shim, Khan, Wagner and Batra v Chief Electoral Officer of Alberta Reasons for Judgment THE COURT: It's an application by various candidates and some Chief Financial Officers, for relief under

section 44 of the Elections Finance and Contributions Disclosure Act , RSA 2000

Chapter E-2 . That Act requires candidates to file certain financial records within four months of an election. The filing must be in a manner acceptable to the Chief Electoral Officer. The Act imposes a four-month deadline. In this case, the deadline for filing was September the 8th, 2015. The Chief Electoral Officer has no discretion to extend that deadline or provide relief from imperfect compliance. The Court does have such a discretion under section 44(2) of the Act , ergo these applications.

I have been referred to a number of cases from other jurisdictions where the legislation is different from what we have, and the facts in the cases were different from what pertains here. My brother Tilleman, J has had occasion to consider this legislation recently in Lall v. Alberta (Chief Electoral Officer) 2016 ABQB 117 . In his judgment, Tilleman, J analyzes the applicable legislation in some detail. At paragraph 19 he observed: (as read) The legislation is important. Its objectives are fairness, transparency and accountability.

The Act , along with the Elections Act , govern eligibility and penance for those who fail to comply

with the law. Canadian courts have a long history of viewing opacity in election financing in a very dim light. At paragraph 39, Justice Tilleman observes: (as read) Counsel for the Applicants stressed that they were only two days late (admitting as a matter of law, that they were eight days late) yet that submission still misses the point. It is not the number of days late as much as it is the reason for the delay.

At paragraph 40, he says: (as read) As in Ontario, I do think principles of good faith apply to the late-filing analysis as a starting point for any of the three Alberta options - or as counsel for the CEO opined, an absence of bad faith. When a filing is late, such as in Lall , the Court can grant an extension of time under section 44(3)(b), but only if the Court finds mitigating reasons for non-compliance with the section. At paragraph 49 of Lall , Tilleman, J said: (as read) Ultimately, there is no deminimus exception built into the law for good faith late-filers.

There has to be mitigating reasons to extend the time for compliance. The word "mitigating" has a very specific legal meaning. It means someone else or something else is at least partially to blame. In Fritz bad luck, an illness, was an external factor that caused delay (plus, something beyond her control). In Singh an apparent appropriate mechanism that fell short was the external factor that caused delay. But there, the applicant had set the wheels in motion and showed evidence of diligence.

And at paragraph 50, Tilleman J states: (as read) The applicants here can point to no-one and nothing but themselves for the late financial reporting. It was their fault, and theirs' alone. They were careless and admitted they were foolish or ill advised to have let the contact email address lapse. In the end, Tilleman J refused to grant the relief requested in Lall with respect to the late filing by eight days. He said at paragraph 48: (as read) As I said above, there is no evidence of bad faith and indeed there is evidence of good faith.

What happened, perhaps innocently, is that the applicants lost their focus on the deadlines and simply missed them. But even if "mitigating reasons" equivocates to "excusable neglect" (and I do not think that is what the Legislature intended) that standard was not met. Good faith alone is not

enough. Among other things, the applicants• confusion over mail or deactivating emails is their own fault; indeed there is a statutory requirement on them to maintain correct information including contact information upon registration: Act , s 9. With that review of the law and the applicable principles, I now turn to the specific cases before me. Dealing first with Shim. Shim was a registered candidate for the election. On September the 2nd, 2015, he attended at the office of his CFO, and signed his candidate financial statements as required.

On September 4th, 2015, Shim's CFO included all of the required documents required to be filed with Shim's CFS, and sent the package of documents to the office of Elections Alberta, via one-day Purolator delivery. The documents were received by Elections Alberta on September the 8th, 2015, which was on time. Shim met the deadline. Unfortunately, Shim's CFO neglected to sign the candidate financial statement before sending it. Upon learning of that omission, he signed the document and sent it back, and it arrived on September the 11th.

The facts with respect to Wagner are: He was a registered candidate for the election. His CFO completed and sent the financial statements to Elections Alberta by Canada Post overnight service on September the 3rd, 2015, with a guaranteed date of delivery of September the 4th, 2015. Canada Post failed to deliver the Wagner CFS on September the 4th. In fact, it did not arrive until September the 10th, two days past the deadline and six days past the guaranteed date. With respect to the Khan's situation. The candidate, Khan, was a -- signed the document, as did his CFO.

It was prepared, placed in an envelope addressed to Elections Alberta, at Suite 100, 11510 Kingsway North West, Edmonton, Alberta, and then a postal code. Unfortunately, when the postal code was written in by the CFO, she wrote the postal code T2G instead of T5G. In other words, she wrote 2 where she should have written 5. On September the 4th, in the morning, the candidate Khan took the envelope to Canada Post and sent it to Elections Alberta by way of Express Post, and it was guaranteed to arrive before 12 noon on the next business day, which would have been Tuesday, September the 8th.

In fact, the envelope did not arrive until September the 15th at Elections Alberta. And apparently, between the time that Mr. Khan sent or posted the package and when it was received, it went back and forth twice between Calgary and Edmonton. I note that the address was complete and accurate in every way other than with respect to the postal code. It would appear that no one bothered to forward it to Elections Alberta, nobody in the Post Office, bothered to forward the document to the actual address on it.

With respect to the Batra 's, they prepared their materials and sent it to Elections Alberta, but not until some time in November. It was not delivered until November the 12th, 2015. The reason given by the Batra's was that they'd spent so much time on the election that they had much deferred work on a new business that they were involved in, and simply did not have time to complete the CFS and forward it to Elections Alberta until the November date. With respect to Shim, the Khan's and Wagner, I am satisfied that they acted in good faith.

They prepared and sent their returns to the Chief Electoral Officer in advance of the deadline, and had every reason to expect that they would be received by the Chief Electoral Officer by the September 8th deadline. In each of their cases there are legitimate legal mitigating reasons for the late filing. Someone other than the applicant was, at least partially, if not entirely to blame, for the returns having been received late. In Shim's case, it was the failure of his CFO to sign the document before couriering it to Edmonton. Shim had signed it.

In Wagner's case, the failure was due to the fault of Canada Post, who despite guaranteeing delivery for September the 4th, 2015, did not, in fact, deliver the envelope of material until September the 10th, 2015. With respect to the Khan's, I think, again, the fault lies with Canada Post. While there may have been a one digit error on the postal code used, the address was otherwise full and complete. The mailed item was guaranteed to be delivered September the 8th, and was not -- and was not. Canada Post should have delivered it to the address provided. It did not.

Indeed, giving Canada Post default with respect to Mr. Wagner's filing, I have serious doubts as to whether Kahn's would have arrived, as guaranteed by September the 8th, even if the postal code had been correct. In the result, I am satisfied that the Shim, Wagner and Khan's have shown good faith, as well as mitigating reasons under section 44(3) (b), and I, therefore, grant relief by extending the time for compliance with

section 43 to the dates that the Chief Electoral Officer received their completed returns. I cannot, however, grant such relief to the Batra's. They were well aware of the September the 8th deadline for filing. They did nothing to try and comply with it. One might question, therefore, whether they have even demonstrated good faith in relation to their late filing. I make no finding on that, just an observation.

Because whether or not they acted in good faith, their reason for not filing it in time does not meet the test of mitigating reasons as set out in Lall , nor does it, in my view, in any sense, come within the type of reasons that I would think the Legislature contemplated. The Legislature set the four-month deadline. It did not expect candidates or CFOs to ignore the deadline because they were busy with other business. Here, the Batra's made a deliberate decision to simply ignore the deadline established by the Act , because they were too busy.

Eventually, they did file, but that was a couple of months after the deadline.

In my view, the Batra's have not demonstrated proper legal mitigating reasons, and therefore, I must dismiss their application. That's my decision. With respect to the other relief that was sought, in terms of declarations and so forth, I don't think that's within my purview in these proceedings. It's an application for relief. I've given you the relief. I don't think the Act talks about declarations.