Anglin v Alberta (Chief Electoral Officer), 2017 ABQB 595

Court of Queen’s Bench of Alberta Citation: Anglin v Alberta (Chief Electoral Officer), 2017 ABQB 595 Date: 20171005 Docket: 1603 14130 Registry: Edmonton Between: Joseph Anglin Applicant - and - Chief Electoral Officer of Alberta Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ I. Facts and Circumstances [ 1 ] Mr. Anglin and the Chief Electoral Officer locked horns relative to Mr. Anglin’s election signs during the May 5, 2015 provincial election campaign.

On March 22, 2016, after an exchange of correspondence, the Chief Electoral Officer made a preliminary finding advising Mr. Anglin that he would impose a financial penalty for alleged violations of s. 134 of the Election Act RSA 2000,

Chapter E-1. [ 2 ] On April 14, 2016, counsel for Mr. Anglin responded by challenging the Chief Electoral Officer’s decision and the process used to arrive at that decision.

[ 3 ] On July 15, 2016, after additional correspondence between counsel, the Chief Electoral Officer and his counsel, the Officer rendered his final decision and imposed a financial penalty upon Mr. Anglin. The decision was styled as: “notice of administrative penalty”. [ 4 ]

Section 153.1(2) (

d) of the Election Act provides that notice of administrative penalty must contain: ... a statement of the right to appeal the imposition or the amount of the administrative penalty to the Court of Queen’s Bench. [ 5 ] Relying on this Court’s rules, Mr. Anglin has filed an originating notice appealing the decision. [ 6 ] The originating notice alleged issues of bias, abuse of process and other errors. The parties have agreed, however, that the determination of the following complaint, in the originating notice, will resolve the appeal: 2. In rendering his decision of July 15, 2016, the Chief Electoral Officer exceeded his jurisdiction and erred in that he: (

i) made a find against Mr. Anglin and imposed a penalty against him, based on Guidelines created by the Chief Electoral Officer, when (

a) such Guidelines were not law; (

b) such Guidelines did not prohibit sponsorship information below a particular size; and (

c) such Guidelines did not provide a penalty for sponsorship information that was below a particular size. [ 7 ] At its core, the dispute between Mr. Anglin and the Chief Electoral Officer relates to the Chief Electoral Officer’s view that the information relating to the sponsor of Mr. Anglin’s election signs was too small. [ 8 ] The legislative context for this dispute is contained in s. 134 and 153.1 of the Act . Those sections are as follows: Printed or electronic advertising 134.

(1) In this section, “advertisement” means an advertisement, for which there is or normally would be a charge, in any broadcast, print, electronic or other media, including telephone, fax, internet, electronic mail and text messaging, with the purpose of promoting or opposing any registered political party or the election of a registered candidate.

(2) A registered candidate, a registered constituency association and a registered political party must ensure that advertisements sponsored by the registered candidate, the registered constituency association or the registered political party comply with the following in accordance with the guidelines of the Chief Electoral Officer: (

a) the advertisement must include the sponsor’s name and contact information and must indicate whether the sponsor authorizes the advertisement; (

b) subject to clause (c), in the case of an advertisement that is broadcast or is made through electronic media, the information referred to in clause (

a) must be stated at the beginning of the advertisement; (

c) in the case of an advertisement transmitted to a telephone, whether in the form of a live call or an automated pre- recorded call, (

i) the telephone number of the sponsor must be capable of being displayed on the call display of called parties who subscribe to call display, and must not be blocked from being displayed; (ii) the name of the sponsor and the sponsor’s party affiliation, if any, must be stated at the beginning of the advertisement; (iii) the advertisement must state whether the sponsor authorizes the advertisement; (iv) the telephone number of the sponsor or the sponsor’s campaign office at which the sponsor can be contacted must be stated at the end of the advertisement.

(3) The Chief Electoral Officer shall establish guidelines respecting the requirements referred to in subsection (2).

(4) The guidelines must be published on the Chief Electoral Officer’s website.

(5) If an advertisement is not in compliance with this section, the Chief Electoral Officer may cause it to be removed or discontinued, and in the case of an advertisement displayed on a sign, poster or other similar format neither the Chief Electoral Officer nor any person acting under the Chief Electoral Officer’s instructions is liable for trespass or damage resulting from or occasioned by the removal. RSA 2000 cE - 1 s134; 2004 c23 s64 ; 2010 c8 s45 ; 2012 c5 s46 153.1

(1) If the Chief Electoral Officer is of the opinion that a person has contravened a provision of this Act, the Chief Electoral Officer may serve on the person either a notice of administrative penalty requiring the person to pay to the Crown the amount set out in the notice, or a letter of reprimand.

[ 9 ] The relevant guidelines established by the Chief Electoral Officer are as follows: Chief Electoral Officer Guidelines for Election Advertising: Section 134(3) of the Act prescribes that the Chief Electoral Officer shall establish guidelines regarding the contact information that is required and the manner in which it must be provided. These guidelines follow below, and appear online in accordance with Section 134(4) of the Act, The following guidelines apply to Section 134(2) of the Act.

They must be followed in all printed and electronic advertising. 1) The sponsor’s contact information must include the telephone number including the area code. In addition, the contact information may also include the full physical contact address.

In each case, the information provided must allow for contact with the sponsor during normal business hours, so concerns and questions regarding the advertisement can be addressed. 2) All required information contained on each advertisement containing written or printed text must be provided legibly in a colour that contrasts sufficiently with the background to make it visible, in a font that displays reasonable definition. 3) All required information contained on each advertisement containing written or printed text must be legible to the intended viewing audience from a normal viewing distance for the advertisement.

Font size for the required information should be at least 25% of the size of the main text of the advertisement. 4) The name, contact information and sponsor’s statement contained in telephone and broadcast advertising must be clear and audible. It must be provided in the same volume and style as the content of the advertisement to ensure consistency and clarity in the messaging. 5) The advertisement must clearly set out the name of the sponsoring registered candidate (including the party affiliation, if any), registered constituency association (including the party affiliation) or the registered political party.

Compliance: It is important that these provisions are followed. Non-compliance may result in the removal or discontinuation of advertisements, and may be subject to administrative penalties or prosecution. [ 10 ] The relevant portions of the Chief Electoral Officer’s March 22, 2016, correspondence in which he notified Anglin of his preliminary findings, are as follows: I have completed my investigation into this allegation. I have found that, leading up to polling day, a number of signs supporting your candidacy were lacking the contact information required under section 134(2) of the Election Act .

On other signs, the contact information was not legible from a normal viewing distance, and the text of the contact information was not in a size 25% of the main text on the signs, as required under the Chief Electoral Officer Guidelines for Election Advertising. ... Your lawyer, Mr. Bur, made submissions on your behalf in relation to this investigation on April 28, 2015; November 13, 2015; and January 4, 2016. I have considered all these submissions and 1 have identified seven primary arguments. Mr. Bur argued: 1. That section 134(2)(

a) does not stipulate any size requirements for the contact information (April 28, 2015 letter p 2). In the Chief Electoral Officer Guidelines for Election Advertising (on our website), page 3 states: “The following guidelines apply to Section 134(2) of the Act.

They must be followed in all printed and electronic advertising.” The Guidelines include these: 2) All required information contained on each advertisement containing written or printed text must be provided legibly in a colour that contrasts sufficiently with the background to make it visible, in a font that displays reasonable definition. 3) All required information contained on each advertisement containing written or printed text must be legible to the intended viewing audience from a normal viewing distance for the advertisement.

Font size for the required information should be at least 25% of the size of the main text of the advertisement. ... In my view, the contact information that was printed on the stickers that were put on some of Mr. Anglin’s signs was not legible from a normal viewing distance. These were signs erected on the sides of roads, and the contact information was not readable to a passing vehicle. The text of the contact information was not in a size 25% of the main text on the signs. ... 6. That the Guidelines use “must” in relation to telephone number, but “should” in relation to font size. Mr.

Bur writes: Unlike “must,” the word “should” implies that there is an obligation of propriety or expedience rather than a legal obligation. It is a suggestion from the CEO as to what candidates ought to do rather than what they must do. (January 4, 2016 letter p 4) As Chief Electoral Officer, I expect regulated entities to respect and follow the Guidelines I established under

section 134. These Guidelines must be enforceable, Font size is as obligatory as a telephone number, regardless of the verb used, It makes no sense to require a telephone number without requiring a certain size to read it. At any rate, the

preamble to the numbered Guidelines states that the Guidelines “must” be followed, and Guideline 3 says the information “must be legible to the intended viewing audience from a normal viewing distance for the advertisement.” In my view, Mr. Anglin’s contact information was not,

7. That

section 153.1 cannot be used for any purported breach of the Guidelines, since

section 153.1 authorizes an administrative penalty only when a person contravenes a “provision of this Act.” (January 4, 2016 letter pp 4-5). A Guideline does not qualify as an “Act” as defined under the

Interpretation Act. The Guidelines are not themselves

an Act of the Legislature, but rather statutory guidelines made under power delegated to the Chief Electoral Officer under section 134(3), which provides: 134(3) The Chief Electoral Officer shall establish guidelines respecting the requirements referred to in subsection (2). I understand Mr. Bur’s reasoning as follows: a Guideline is not a provision of

an Act; a breach of a Guideline is not a breach of a “section” of the Election Act (or any other Act); and therefore the Chief Electoral Officer cannot use

section 153.1 to remedy a breach of the Guidelines .

Section 153.1 applies when a person contravenes “a provision of this Act,” being the Election Act . In my view, while the Chief Electoral Officer Guidelines for Election Advertising are not a provision of the Act, they must be enforceable at law on par with provisions of the Act in order in order to meet the object of fairness in the Election Act . Taken contextually, these Guidelines are intended to have the force of law. As Chief Electoral Officer, I was required to establish guidelines, and had express authority and broad discretion to enact substantive guidelines that would apply to the requirements under section 134(2). The Guidelines are mandatory - the

preamble to the numbered paragraphs states that they “must be followed in all printed and electronic advertising.” There is clear intention that parties to whom

section 134 applies are to be bound by the Guidelines . The Chief Electoral Officer is an independent officer of the Legislature tasked with ensuring fairness of elections. It would go against the intention and spirit of

section 134 to be able to penalize the absence of a sponsor’s contact information, but not penalize illegible sponsor’s contact information. l note also that the

preamble of section 134(2) states that the registered political entity is to ensure that the advertisements comply with the requirements “in accordance with the guidelines of the Chief Electoral Officer.” To me, this also speaks of the Legislature’s intention to build the Guidelines into the requirements in subsection (2). ... After my staff removed some non-compliant signs, Mr. Anglin put stickers with the contact information on some of his remaining signs.

The stickers were very small, the type on the stickers was tiny in relation to the wording on the sign, and the information was totally illegible from a viewing distance of greater than about 8 feet away.

That was a contravention of Guidelines 2 and 3 of the Chief Electoral Officer Guidelines for Election Advertising , which were made under authority of section 134(3) of the Election Act , On the evidence outlined above, and having considered all the relevant information and submissions, I intend to find that you breached section 134(2) of the Election Act and the Guidelines issued by the Chief Electoral Officer under that provision. ... I have determined it is appropriate to impose the maximum administrative penalty on you.

As noted above, the amount of the penalty must not exceed the maximum fine for the corresponding offence under sections 154 - 161 of the Election Act . For a contravention of

section 134, the correspondence offence is under

section 154, a general offence for which the maximum fine is $500. I have determined it is appropriate to impose the maximum amount of $500 on you. In arriving at that amount, I have considered the factors listed in

section 153.1(3), including:

a) Severity: My staff removed 25 signs.

b) The degree of wilfulness or negligence in the contravention: Even after being advised of the problem, and even after you indicated the signs were being fixed, signs without appropriate contact information were found. Even for the signs that were “fixed” the sticker was far too small, I had to employ staff to remove the signs.

c) Whether or not there were any mitigating factors relating to the contravention: You were in the midst of an election campaign, so that could explain a minor delay in removing or correcting the signs. However, the delay in removing or correcting the signs obliged me to take the remedy under section 134(5) and remove the signs myself.

d) Whether or not steps have been taken to prevent reoccurrence of the contravention: As the events that led to this investigation are past and the election is over, reoccurrence is not a concern.

e) Whether or not the person has a history of non-compliance: There is no history of non-compliance.

f) Whether or not the person reported the contravention on discovery of the contravention: You did not report the contravention.

g) Any other factors that, in the opinion of the Chief Electoral Officer, are relevant: None. ... Given my stated intention to make the adverse findings above and impose an administrative penalty of $500, kindly ensure you make any final submissions on my intention on or before April 25, 2016. [ 11 ] Plainly, the Chief Electoral Officer was of the view that his guidelines had “the force of law”. Plainly the penalty imposed related not just to the visibility issue but also other alleged infractions and, in part, to Mr. Anglin’s moral culpability. [ 12 ] Finally, the relevant segments of the Chief Electoral Officer’s Notice of Administrative Penalty dated July 15, 2016 are as follows:

By letter dated March 22, 2016, I advised of my intention to make an adverse finding against you and to impose an administrative penalty upon you. This letter is a Notice of Administrative Penalty following from that letter. ... For the reasons set out in my letter of March 22, 2016: 1. I find that the allegation is well-founded; and 2. I am imposing on you an administrative penalty of $250 under

section 153.1(2) of the Election Act . I attach to this Notice of Administrative Penalty a copy of my March 22 letter. I have considered correspondence since March 22, 2016 from your lawyer, Donald F. Bur, addressed to legal counsel for the Chief Electoral Officer, Fiona Vance at Shores Jardine LLP. Having considered Mr. Bur’s correspondence, my reasoning on the findings has not changed since March 22, 2016, but my assessment of the amount of the penalty has changed and I have determined a lower amount is appropriate. ... In my opinion, you contravened

section 134 of the Election Act by not complying with the following requirements for advertisements sponsored by a registered candidate: • Name and contact information, and whether the sponsor authorized the advertisement, included on the advertisement (section 134(2) (a)); • Telephone number including area code for the campaign, on the advertisement (under the Chief Electoral Officer Guidelines for Election Advertising issued under section 134(3) ); • That the contact information be legible to the intended viewing audience from a normal viewing distance for the advertisement, and that font size of contact information be at least 25% of the size of the main text of the advertisement (under the Chief Electoral Officer Guidelines for Election Advertising issued under section 134(3) ). ...

A

summary of the investigation leading to these findings, as well as a more detailed description of my intended findings and reasons, are set out at pages 7-8 of my letter dated March 22, 2016. I now make the findings as intended in that letter. II. Analysis [ 13 ] I am advised that this proceeding represents the first “appeal” to the Court under the Act . Accordingly, I must begin my analysis by determining the appropriate standard of review: A.

Standard of Review [ 14 ] Although the parties’ briefs were not ad idem on the subject, they were in agreement during argument that administrative law principles govern this application. They disagree on the standard of review. [ 15 ] In resolving this issue it is important to itemize exactly what has been challenged. The fact that a fine was imposed is the result of the Chief Electoral Officer’s exercise of his jurisdiction. It is not, per se , in issue. The creation of guidelines by the Chief Electoral Officer was also an exercise of his authority under the Act . That action is not under attack.

The content of the guidelines is also not under attack. The issue is whether the Chief Electoral Officer acted appropriately concluding that Anglin had violated the Statute . That question involves interpreting the Election Act . The Chief Electoral Officer concluded that the Act had been violated when his visibility guideline had been violated. There is no argument that some of Anglin’s signs did not comply with the guideline. The argument is that noncompliance with the guideline does not amount to non-compliance with the Act . Anglin argues that the standard for reviewing that question is correctness.

The Chief Electoral Officer suggests the standard is reasonableness. Put another way, Anglin argues that the Chief Electoral Officer was wrong to treat his guidelines as having the force of law and the Chief Electoral Officer argues that it was reasonable for him to do so. [ 16 ] In determining the appropriate standard, one must have reference to Dunsmuir v New Brunswick , 2008 SCC 9 and more recently in Edmonton(City) v Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 . [ 17 ] As a result, I must first consider other cases which have determined the appropriate standard.

There are none relating to Alberta’s Election Act and none from other jurisdictions which are analogous. [ 18 ] Next, I must consider whether the presumption of reasonableness is applicable, as I said. The letter of March 22, 2106 it is apparent that the Chief Electoral Officer relied upon his guidelines as binding upon him and as having a force of law. [ 19 ] Coming to the conclusions he did, he plainly was engaged in interpreting the Election Act , his home statute.

As a result, a reasonable standard of review would seem appropriate, at least presumptively. [ 20 ] However, the applicant/appellant argues that in effect the Chief Electoral Officer has exceeded the jurisdiction given to him by his home statute. Exceptionally, therefore, the appropriate standard of review is correctness and not the presumed standard of reasonableness.

[ 21 ] Put another way, Anglin argues that the guidelines do not have the force of law. The Chief Electoral Officer determined that they did and imposed a penalty. The determination that the guidelines had the force of law was a pure question of law outside the scope of the Chief Electoral Officer’s authority and expertise. It follows, Anglin argues, that the decision to treat the guidelines as law was incorrect and therefore the Chief Electoral Officer had no authority to impose the penalties he did. [ 22 ] Plainly, the Election Act imposes a duty to make guidelines upon the Chief Electoral Officer.

There are two reasons to create guidelines. Firstly, to allow the Chief Electoral Officer to formulate a principled foundation for the exercise of his discretion to enforce compliance with the Act . Secondly to inform those persons who may be interested as to what the Chief Electoral Officer requires so as to avoid the potential that the Chief Electoral Officer will find the subject advertisements to be non-compliant. [ 23 ] Can there be any doubt that the Election Act confers upon the Chief Electoral Officer the discretion to find that advertisements do not comply with the Elections Act ?

Even without guidelines, that authority/obligation exists. Determining whether an advertisement complies with the Act is a core obligation of the Chief Electoral Officer’s mandate. The guidelines merely inform the exercise of discretion. As such, determining whether a sign complies with the Act is not a question outside his jurisdiction or vires . [ 24 ] That in my view is all that is necessary in this case to conclude that the standard of review of the Chief Electoral Officer’s decision to impose an administrative penalty is reasonableness.

Plainly, the legislature intended the Chief Electoral Officer to exercise discretion in enforcing compliance with the Act . Presumably, the Chief Electoral Officer has sufficient expertise on the subject to merit the confidence of the legislature. B. Did the Chief Electoral Officer act reasonably [ 25 ] Anglin did not offer any argument as to the reasonableness as to the Chief Electoral Officer’s decision.

Logically, however, his challenge must be that it was unreasonable for the Chief Electoral Officer to approach the exercise of his discretion by effectively determining that a breach of his guideline required him to issue and administer a penalty [ 26 ] In my view, the Chief Electoral Officer was merely fact finding in fulfilling his mandate. By virtue of s 134(2)(a), an advertisement must include the sponsor’s name, contact information and some form of statement that the sponsor authorizes the advertisement. Logically, that information must be visible and intelligible.

For instance a microscopic distributed hieroglyph would plainly be inadequate. To determine what is adequate, the potential advertiser and sponsor may rely upon the advice of the Chief Electoral Officer. That advice is contained in the guidelines. Those same guidelines make it plain that to meet the objectives of visibility and intelligibility, specific steps must be followed. If those steps are not followed, then, depending on the circumstances, the Chief Electoral Officer may act in a number of ways to bring about compliance.

Having created and published guidelines, it is reasonable for the Chief Electoral Officer to act when an advertisement does not meet the guidelines. The choice to act and the action taken are guided by the guidelines. Both decisions are discretionary and dependent on the circumstances. There is nothing in any of that that is unreasonable. There was nothing done by the Chief Electoral Officer in this case which could be said to have been unreasonable, [ 27 ] It follows that the appeal/application must be dismissed. [ 28 ] The parties may seek my direction respecting costs on appointment.

Heard on the 16 th day of May, 2017. Dated at the City of Edmonton, Alberta this 5 th day of October, 2017. T.D. Clackson J.C.Q.B.A. Appearances: Donald F. Bur for the Applicant Fiona N. Vance Shores Jardine LLP for the Respondent