Park v The Election Commissioner of Alberta, 2023 ABKB 351

Court of King’s Bench of Alberta Citation: Park v The Election Commissioner of Alberta, 2023 ABKB 351 Date: 20230609 Docket: 1901 07269 Registry: Calgary Between: Jeffrey Park Appellant - and - The Election Commissioner of Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ Table of Contents I. Introduction . 3 II. Background . 3 III. Standard of Review .. 7 IV. Record on this Appeal 8 V. Issues . 10 VI. Analysis . 11 A. Should the Penalty be Quashed or Set Aside as a Result of Breaches of the Charter ? . 11 1. Can Park Rely on Alleged Breaches of

Section 11 of the Charter ? . 11 a. Is Park Collaterally Attacking the Constitutionality of the EFCDA , Without Notice? 11 b. Should Park be Allowed to Raise a Charter Breach as a New Issue on Appeal? . 12 2. Does

Section 11 of the Charter Apply to Administrative Penalty Proceedings under the EFCDA ? 14 a. Is the EFCDA’s Administrative Penalty Regime Criminal in Nature? . 14

b. Do True Penal Consequences Flow from an Administrative Penalty in the EFCDA ? 16 c. Conclusion re Application of

Section 11 of the Charter . 22 3. Were Park’s

Section 11 Charter rights breached? . 22 B. Should the Penalty be Quashed or Set aside for the Commissioner’s failure to provide Park the Required Amount of Procedural Fairness? . 23 1. The Baker Factors Point to Low-to-Moderate Procedural Fairness . 23 a. Nature of the Decision Being Made and the Process Followed in Making It 24 b. The Nature of The Statutory Scheme . 25 c. Importance of the Decision to the Individual Affected . 26 d. The Legitimate Expectations of the Person Challenging the Decision . 27 e. The Choices of Procedure Made by the Commissioner 28 f. Conclusion re Baker Factors . 29 2.

Park Was Given Adequate Notice and Disclosure . 29 a. Notice Prior to the January 21 Interview .. 29 b. Notice Prior to the March 20 Interview .. 30 c. March 20 Letter 31 3. The Investigator and the Commissioner did Not Have a Closed Mind . 31 4. Conclusion re Procedural Fairness . 33 C. What is the Appropriate Result or Remedy in this Case? . 34 VII. Conclusion . 34 I. Introduction [ 1 ] In September 2017, Jeffrey Park ( Park ) and his spouse each contributed $3,500 to the United Conservative Party ( UCP ) leadership campaign of Jeff Callaway ( Callaway ).

After receiving an anonymous tip in November 2018 about the Callaway campaign, the office of the Election Commissioner ( Commissioner ) investigated and then levied a Notice of Penalty with two penalties of $5,250 (in the aggregate amount of $10,500)( Penalty ) against Park for contributing funds to the Callaway campaign that did not belong to him, and giving some of those funds to his spouse ( Ms.

Park ) to contribute to the Callaway campaign, in breach of sections 34(1) and 34(1.1) of the Election Finances and Contributions Disclosure Act , RSA 2000, c E-2 as it existed at that time ( EFCDA ). [1] [ 2 ] Park appeals the Penalty alleging breach of

section 11 of the Charter and violation of principles of procedural fairness. [2] His appeal turns on (1) whether Park can raise a breach of

section 11 of the Charter in his appeal; (2) if so, whether the process under the EFCDA that leads to an administrative penalty engages

section 11 of the Charter ; (3) if so, whether Park’s

section 11 Charter rights were breached; (4) whether the Penalty should be quashed or set aside because of a breach of Park’s

section 11 Charter rights and (5) whether, in any event, the Penalty should be quashed or set aside because the Commissioner failed to give Park proper notice or disclosure, or had a closed mind, such that the Commissioner failed to provide Park appropriate procedural fairness. [ 3 ] The Commissioner takes no position on the merits of Park’s appeal, but makes submissions addressing (1) the underlying facts and record; (2) the EFCDA legislative framework; (3) admission of new evidence on appeal; (4) collateral attacks on the constitutionality of the EFCDA ; (5) potential applicability of

section 11 of the Charter to EFCDA investigations and administrative penalty processes; (6) the applicable standard of review; and (7) the content of the duty of procedural fairness under the EFCDA . [ 4 ] For the reasons set out below, Park’s appeal is dismissed and the Penalty is confirmed. II.

Background [ 5 ] This is one of several cases arising out of Callaway’s candidacy for the UCP leadership in 2017: Callaway v Office of the Election Commissioner (Alberta) , 2019 ABQB 573 ; Lore and Agropyron Enterprises Inc v Office of the Election Commissioner (October 13, 2022, unreported); Callaway v Office of the Election Commissioner , 2023 ABKB 233 [ Callaway ]; Maitland v Alberta (Election Commissioner) , 2023 ABKB 265 . [ 6 ] The Commissioner’s process related to Park’s donation and involvement in the Callaway campaign, and the Penalty, is summarized

below. [ 7 ] On November 30, 2018, the Commissioner received an email complaint ( Complaint ) from an anonymous UCP member about Callaway’s UCP leadership campaign. Among other things, the Complaint alleged that in summer 2017 Jason Kenney, representatives of one or more political action committees, Randy Kerr, and two others met at Callaway’s house to discuss Callaway entering the leadership race to “be an attack dog against Brian Jean”.

The Complaint alleged that several of Callaway’s top campaign donors used money that was not their own money, in violation of the EFCDA . [ 8 ] The Complaint identified Park as one of those donors, as follows: Jeffrey Park is a political activist and in 2017 was a constituency assistant for Calgary MP Tomas Kmiec. Constituency assistants are not well paid. Michelle is his spouse. They have never made political donations before. Jeffrey is a friend of Cameron Davies.

It is unreasonable that this household contributed $8,000 to an also ran candidate who did not fully complete the race. [ 9 ] On December 17, 2018, the Commissioner approved a “Complaint Analysis” (file 2018-11-021), which identified that the subjects of the Complaint were Callaway, Randy Kerr, Jason Kenney, Lenore Eaton, Mary Adams and “unknown PAC members”. The Complaint Analysis summarized the complaint but did not specifically reference Park.

It stated: The allegations in this case could be quickly qualified through a series of interviews and the production of financial records and receipts from the involved contributors. The Office of the Election Commissioner has the authority to conduct inquiries of this nature.

These allegations are of a particularly serious nature and could have widespread implications if they are proven to be factual. [ 10 ] On December 18, 2018, the Commissioner’s Investigations Manager approved an Investigation Plan for an investigation ( Investigation ) that included numerous steps, including obtaining copies of contributor receipts and other related documents for Callaway contributors. It also contemplated interviewing contributors to the Callaway campaign to confirm the origin of their funds. The Parks were identified as two of eleven people to be interviewed in a first round of interviews.

The Investigation was to be conducted in part by a contract investigator, Dave Jennings ( Jennings ). [ 11 ] On January 21, 2019, after initial communications with Park, Jennings interviewed Ms. Park and then Park. Park’s interview ( January 21 Interview ) was lengthy. During the interview Park provided details of his recollection of his work for, and his donation to, the Callaway campaign. Park explained that in August 2017 he had reached an unwritten employment arrangement with a Political Action Committee called “Energize Alberta”, for him to work on the Callaway campaign.

He was to receive a $10,000 upfront payment ( Signing Bonus ) plus $1,500 per week for working exclusively for the Callaway campaign. [ 12 ] Park was not sure if he had a copy of an invoice for the Signing Bonus. Park explained that he did not receive the Signing Bonus until September 2017, that it was his money, and that he and Ms. Park agreed to donate $3,500 to the Callaway campaign from the Signing Bonus.

Park was uncertain why the payment he received in September ( $10,000 Payment ), which he said was for the Signing Bonus, was not from Energize Alberta, but was from an individual named Cameron Davies ( Davies ). Parks had thought the $10,000 Payment had come from Energize Alberta.

A 153-page transcript of the January 21 Interview was in the “Joint Extracts from the Certified Record” ( Joint Extracts ). [ 13 ] On January 22, 2019, Jennings sent the Parks an email requesting documents from the Callaway campaign that Park had advised he had in his garage, as well as specific records to provide Park the opportunity to support his statement made in the January 21 Interview. By January 24, 2019, Jennings was concerned that Park’s cooperation was waning and warned Park not to tamper with, remove or destroy records or evidence, or to unreasonably delay provision of records.

Following some further emails, including in which Park agreed to provide certain records, on January 29, 2019, Jennings repeated his request for records and requested additional records. [ 14 ] On February 1, 2019, the Commissioner wrote to Park ( February 1 Letter ) in relation to the Complaint and advised that the Commissioner had commenced an investigation regarding “a number of irregular political contributions that may have been made to the campaign of a party leadership contestant in 2017”. The letter provided an update on the progress of the Investigation.

It stated: Our office has reason to believe that you have made a political contribution(

s) to the Jeff Callaway campaign during the month of September 2017. We have reason to believe that the political contribution may have been made contrary to the requirements described in the EFCDA. Additionally, we have learned that one or more persons have taken recent steps to obstruct our investigation by interfering with witnesses. Although you did attend an interview with one of our investigators on January 21, 2019, you have not been forthcoming with our investigator's repeated requests for documentation and records.

As part of this investigation, we must analyze records and documents, including financial transaction records, in order to make a determination regarding your contribution .

Additionally, there are other evidentiary items, which we believe are in your possession, that we require to further our investigation. [Emphasis added] [ 15 ] The February 1 Letter repeated or augmented requests for certain information from Park about his donations, banking and tax return information, his alleged agreement, his involvement in the Callaway campaign, and information respecting potential obstruction of the Investigation by Davies.

The letter referenced certain provisions of the EFCDA and the Public Inquiries Act , RSA 2000 c P-39 to explain what the Commissioner asserted were the Commissioner’s powers, and Park’s obligations, in the Investigation. [ 16 ] On March 4, 2019, Jennings personally served Park with a letter from the Commissioner ( February 28 Letter ), which provided a further update on the progress of the Investigation, including that Park had not been responding to Jennings and the Commissioner’s information requests.

The letter stated “[a]s part of this investigation, it is necessary to speak with you to learn your records, and to make a determination regarding your contribution.”. It directed Park to attend an interview on March 20, 2019, and to bring requested documentation and information with him. Park was advised that failure to attend the interview “without lawful excuse may constitute obstruction and be subject to penalties under the EFCDA”.

[ 17 ] On March 18, 2019, Jennings’ notes indicate Park phoned him and apologized for not cooperating, which he said was based on legal advice, but that Park was now choosing to cooperate. Jennings’ notes indicate that Park was just starting to compile the requested documents and may not have everything ready for the March 20 interview. [ 18 ] At 3:30 a.m. on March 20, 2019, Park sent several emails to Jennings, which Jennings reviewed that morning. Jennings’ notes indicate that “none of these materials directly related to the questioned $10k transaction or alleged contractual arrangement”.

Later that morning, Park attended his 2 nd interview with Jennings ( March 20 Interview ). Park brought additional records but not all the records that had been requested since late January. The March 20 Interview lasted 33 minutes.

Jennings and Park discussed the emails Park had sent, the additional documents he had brought with him, and confirmed the requested records that Park had still not yet provided but agreed to provide (including phone logs of conversations with Davies in January 2019 and Park’s 2017 tax return). [ 19 ] Near the end of the March 20 Interview, Jennings and Park discussed that no invoice from Park to Energize Alberta had been located for the Signing Bonus.

At that point, Jennings indicated to Park that one of the primary purposes of the March 20 Interview was to give Park an opportunity to tell the truth about the $10,000 Payment. Park continued to assert that the $10,000 Payment was for the Signing Bonus pursuant to the unwritten agreement with Energize Alberta. At that point, Jennings ended the interview. [ 20 ] At the end of the March 20 Interview, Park was provided a letter from the Commissioner ( March 20 Letter ) entitled “Notice of Investigation Findings”.

The March 20 Letter provided numerous Investigation findings to that point, including in conclusion: I find it unreasonable to believe that you would contribute $7,000 of your own funds to a campaign that, by your own admission, you knew would be unsuccessful and not run its course.

In the absence of any evidence to the contrary it is my belief that you made your contribution, and the contribution in the name of your wife Michelle Park, using funds that were furnished to you by Cameron Davies, for the sole purpose of making these contributions to the Jeff Callaway leadership campaign. [ 21 ] The March 20 Letter cited sections 51.01(2)(

d) and 50 of the EFCDA , and then stated: Given the circumstances, I am considering issuing you an administrative penalty for each of the two contributions made in your name and in the name of Maja McAllister [3] , to the 2017 Jeff Callaway leadership campaign. Before I make any adverse findings against a person or organization the Election Commissioner must provide that person or organization has had [sic] reasonable notice of the substance of the allegation and a reasonable opportunity to present his or her or its views.

You are, therefore, invited to respond to this Notice and include any information you consider to be relevant in my determination of an appropriate penalty. The deadline for you to reply is April 19, 2019. [ 22 ] On April 18, 2019, Park responded to the March 20 Letter, through a 5-page letter from his legal counsel ( Park Letter ). In that letter, Park again provided his explanation that he used his own funds for his contributions, which were from funds he received as the Signing Bonus owing to him for services rendered to the Callaway campaign.

He noted his cooperation with the Investigation, including attending the January 21 and March 20 meetings, and the provision of documents and other information. He did not provide any further documentation or evidence in support of his submission, nor is there any indication that he provided the records that Jennings confirmed were still missing at the time of the March 20 Interview, including Park’s 2017 tax return. Park asserted that a finding that he contravened section 34(1)(

b) of the EFCDA is not factual, was unreasonable, and should be reversed. [ 23 ] On April 24, 2019, the Commissioner issued a letter to Park entitled “Notice of Penalty” ( Notice of Penalty ). In the Notice of Penalty, the Commissioner concluded that Park had contributed funds in contravention of the EFCDA . The Notice set out extensive findings of the Investigation, including that the Park Letter contained “additional factual misrepresentations” based on other known facts. The Notice of Penalty considered factors pursuant to

section 51.01(4) of the EFCDA , as well as the Park Letter, and imposed two administrative penalties of $5,250 each (one in relation to his donation, and one in relation to the donation made in Ms. Park’s name). [ 24 ] Park filed an Originating Application in respect of the Notice of Penalty seeking to appeal, and judicial review of, the Notice of Penalty. On November 12, 2021, Park amended his Originating Application to remove his request for judicial review, and to include a claim that his Charter rights were breached. On September 19, 2022, Park filed a Notice of Question of Constitutional Law dated April 22, 2022, which provided notice that Park intended to argue that his

section 11(a), (

c) and (

d) Charter rights were violated in the course of the Investigation. III. Standard of Review [ 25 ] This is a statutory appeal from the decision of the Commissioner pursuant to

section 51.03(1) of the EFCDA . Accordingly, the appellate standard of review applies: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 37 ; Walker v Alberta (Election Commissioner) , 2022 ABQB 499 at para 18 ; Callaway at para 5 ; Maitland at para 7 . [ 26 ] Accordingly, questions of law, including questions of statutory

interpretation and those concerning the scope of a decision maker’s authority, are reviewed for correctness: Vavilov at para 37 ; Housen v Nikolaisen , 2002 SCC 33 at para 8 . Where the scope of the statutory appeal includes questions of fact or questions of mixed fact and law where the legal principle is not readily extricable, the standard of review is palpable and overriding error: Vavilov at para 37 ; Housen at paras 10, 19 and 26-37 .

Extricable questions of law are reviewed on a standard of correctness: Callaway at para 5 . [ 27 ] Where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are also subject to appellate standards of review: Law Society of Saskatchewan v Abrametz , 2022 SCC 29 at para 27 . Issues of procedural fairness and natural justice are reviewed, having regard to the context, to determine whether the appropriate level of fairness required by the relevant legislation and

the common law had been afforded, which is sometimes described as a correctness review, in the sense that the reviewing court will notgive any deference: Mission Institution v Khela, 2014 SCC 24 at para 79 [Khela]; Canadian Pacific Railway Company v Canada(Attorney General), 2018 FCA 69 at paras 35-36; Nadarasah v Uthayakumar, 2022 ABCA 119 at para 20; Esfahani v Samimi, 2022ABCA 178 at para 11; Baron Real Estate Investments Ltd v Edmonton (City), 2021 ABCA 64 at para 17. This formulation of thestandard of review has been applied in appeals or judicial review in the context of under

section 51.03 of the EFCDA: Rebel NewsNetwork Ltd v Alberta (Election Commissioner), 2021 ABCA 376 at para 10; Aheer v Alberta (Election Commissioner), 2022 ABQB513 at para 20; Maitland at para 16; Callaway at para 6. IV. Record on this Appeal [28] The Commissioner advised that it prepared what it refers to as a “Certified Record” in July 2021, which related to the entiretyof the Investigation arising out of the Complaint (not just those matters pertaining to Park).

I expect that this was prepared, at least inpart, because some parties in other proceedings applied for judicial review of the Commissioner’s decisions and the Certified Recordwas required pursuant to rules 3.18 and 3.19 of the Alberta Rules of Court, Alta Reg 124/2010. [29] In this appeal, the parties helpfully provided the Joint Extracts. Neither party objected to this being before the Court. [30] Park seeks leave of the Court to augment the Joint Extracts with an affidavit he swore in July 2022.

The Commissioner’sposition is that test in Palmer v The Queen, (SCC), [1980] 1 SCR 759 at para 22 should apply to new evidence in anappeal under

section 51.03 of the EFCDA. The Commissioner also points out that the Certified Record was filed in July 2021 and Parkhas never complained that it is incomplete. Decisions of the Alberta Court of King’s Bench have applied the Palmer test in

section 51.03appeals: Aheer at para 30; Anglin v Alberta (Chief Electoral Officer), 2020 ABQB 131 at para 12; Wenzel v Election Commissioner ofAlberta, 2021 ABQB 445 at para 11. [31] I agree that the Palmer test applies to a statutory appeal under

section 51.03 of the EFCDA, but in my view the analysis ismore nuanced. This is particularly so where the statutory appeal provisions do not specifically delineate the complete scope of the appealrecord: Esfahani v Samimi, 2022 ABKB 795 at paras 117-122 [Esfahani KB]; Campbell v Alberta (Chief Electoral Officer), 2018ABQB 248 at paras 39-45. For example,

section 51.03(6) of the EFCDA (which was not in force when the appeal in this case was filed),sets out certain records that must be included in the appeal record but does not necessarily preclude inclusion of other records. [32] Without specific statutory restrictions on the contents of the appeal record, in my view any material that was before theCommissioner that is “necessary to resolve the issues on appeal”, or that is relevant and material to an issue to be decided on the appeal,may potentially be included in the record put before the appeal court: Campbell at para 39; rule 3.14(1)(d); Anglin at para 73; EsfahaniKB at para 122. [33] I recently summarized when the Palmer test applies in statutory appeals in Esfahani KB at paras 126-127, in the context of astatutory appeal of an arbitration, however, the same principles apply to a statutory appeal under the EFCDA: [126] Where the fresh evidence is directed to issues decided at trial (or here, at the arbitration), it generally must meet the test in R vPalmer, (SCC), [1980] 1 SCR 759 at 775: Saunder v 360373 Alberta Ltd (Arlington Apartments), 2021 ABCA 222 atpara 8.

The R v Palmer criteria is (1) the evidence should not generally be admitted if, by due diligence, it could have been adduced attrial; (2) the evidence must bear upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sensethat it is reasonably capable of belief; and (4) the evidence, if believed, could reasonably, when taken with other evidence adduced attrial, be expected to have affected the result.

Fresh evidence applications are not avenues for litigants who regret trial tactics: ArabianMuslim Association v Canadian Islamic Centre, 2006 ABCA 152 at para 9. [127] Where the fresh evidence sought to be admitted is not directed at a factual or legal determination but rather the validity or fairnessof the trial process itself, a determination of the interests of justice may require an examination of the grounds of appeal raised, thematerial tendered and the remedy sought: Essa v APEGA, 2021 ABCA 116 at paras 53-54; R v Ngeruka, 2018 ABCA 43 at para 13; R vWolkins, 2005 NSCA 2 at paras 58-61; Beaulieu v Winnipeg, 2021 MBCA 93 at para 35; Trenchard v Westsea Construction Ltd, 2020BCCA 152 at para 46; United States of America v Shulman, 2001 SCC 21 at paras 43-46; JP v British Columbia (Children and FamilyDevelopment), 2017 BCCA 308 at para 194.

For example, supplemental evidence may be allowed to show evidence that a party mayhave brought had they been given notice of the process: Aheer v Alberta (Election Commissioner), 2022 ABQB 513 at para 16. [34] Park made a similar argument based on an exception to Palmer for procedural fairness issues, relying on cases under section689 the Municipal Government Act, RSA c M-21: Sellors v Greenview (Municipal District No 16), 2016 ABCA 312 at para 16; Madukev Leduc (County No 25), 2010 ABCA 331 at para 16.

In my view, these authorities are consistent with the authorities cited in EsfahaniKB. [35] Although Park did not file a formal application to adduce fresh evidence, the Commissioner was aware of Park’s intention torely on it and there is no prejudice in considering whether it should be admitted: Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA12 at para 12. [36] Park’s affidavit only relates to Park’s dealings with Jennings before the January 20 Interview, including emails and Park’srecollection of a phone call.

Having regard to the principles outlined above, I find that certain aspects of his affidavit are properlyadmissible as part of the record and others are not: (

a) Paragraphs 2-4 describe and exhibit a January 7, 2019, email from Jennings to Park. This email forms part of the recordbefore the Commissioner and is referenced in other records in the Joint Extracts. It is relevant and material to, and necessary todetermine, Park’s allegations of breach of procedural fairness prior to the January 20 Interview. Paragraphs 2-4 summarize the email.These paragraphs and Exhibit A to the Park affidavit are admissible on this appeal;

(

b) Paragraphs 5-8 describe a phone call that Park had with the Commissioner sometime between January 8 and January 11, 2019. These paragraphs were not before the Commissioner and are not properly considered part of the “record” before the Commissioner. Further, Jennings’ investigator notes indicate that he had a phone call with Park on January 7, 2019 (and not any other time between January 8-11, 2019) that was audio recorded, which may have been better evidence of this conversation. There is no indication that Park ever requested that this audio recording be included in the Joint Extracts.

Instead, he has attempted to adduce his recollection of a conversation over three years later. In all the circumstances, the interests of justice do not support the inclusion of Park’s description of this conversation. Paragraphs 5-8 of Park’s affidavit are not admissible and have not been considered; (

c) Paragraph 9 of Park’s affidavit describes and exhibits a January 15 email from Jennings to Park. For the same reasons as the paragraphs related to the January 7 email, paragraph 9 and Exhibit B to the Park affidavit are properly part of the appeal record and are admitted; and (

d) Paragraphs 10-11 of Park’s affidavit were not before the Commissioner and are not material. They are not admitted. V. Issues [ 37 ] The issues on this appeal are: (

a) Should the Penalty be quashed or set aside as a result of breaches of the Charter and, in particular: (

i) Can Park rely on an alleged breach of

section 11 of the Charter ? (ii) In any event, are the proceedings under the EFCDA that lead to an administrative penalty pursuant to

section 51.01 of the EFCDA proceedings to which the Charter applies? (iii) If Park is able to rely on the Charter , and the Charter applies, were Park’s

section 11 Charter rights breached? If so, what is the appropriate remedy? (

b) Should the Penalty be quashed or set aside for the Commissioner’s failure to provide Park the required amount of procedural fairness? (

c) What is the appropriate result or remedy in this case? VI. Analysis A. Should the Penalty be Quashed or Set Aside as a Result of Breaches of the Charter ? 1. Can Park Rely on Alleged Breaches of

Section 11 of the Charter ? [ 38 ] The Commissioner raised principles that might preclude Park from raising a Charter breach on appeal:

(1) Park’s Charter arguments are a collateral attack on the constitutionality of the EFCDA , and Park failed to provide a Notice of Constitutional Question as required by

section 24 of the Judicature Act , RSA 2000 c J-2 ; and

(2) Park did not raise the Charter before the Commissioner and, therefore, he attempts to raise a new issue on appeal. a. Is Park Collaterally Attacking the Constitutionality of the EFCDA , Without Notice? [ 39 ] The Commissioner asserts that Park’s Charter arguments collaterally challenge the constitutionality of sections 44.97(1) and 44.97(3) of the EFCDA , and that Park failed to comply with

section 24 of the Judicature Act . The Commissioner references Engel v Alberta (Director of SafeRoads) , 2022 ABQB 377 at paras 17-19 and 22-23 . [ 40 ] As noted above, Park filed a Notice of Constitutional Question on September 19, 2022, about 5 weeks before the appeal was heard. Park’s counsel advised he provided an unfiled form of the Notice of Constitutional Question to the Attorney Generals of Alberta and Canada in April 2022, and both of them indicated they were not going to participate in the appeal. [ 41 ] Park argues that, based on the Notice of Constitutional Question, he is not actually challenging the constitutionality of the EFCDA , but is arguing that

section 11 of the Charter applies, and the Commissioner must exercise discretion in compliance with it. I note that section 24(1) of the Judicature Act , which provides the requirement to give a Notice of Constitutional Question, only applies “if in a proceeding the constitutional validity of an enactment ... is brought into question”, in which case the enactment shall not be held to be invalid unless 14 days’ written notice has been given to the Attorney General of Canada and the Minister.

If Park is not challenging the constitutionality of the EFCDA , it begs the question of why he filed a Notice of Constitutional Question at all. [ 42 ] Ultimately, I find that I do not need to decide whether Park is, in fact, challenging the constitutionality of the EFCDA by raising Charter arguments. If he is not attacking the constitutionality of the EFCDA , as he argues, then his Notice of Constitutional Question was unnecessary. If he is effectively challenging the constitutionality of the EFCDA , then he has provided notice through the Notice of Constitutional Question under

section 24 of the Judicature Act . In either scenario, this case is distinguishable from Engel . [ 43 ] Accordingly, I find that Park is not precluded from raising his Charter arguments on the ground that they are a collateral attack on the constitutionality of the EFCDA made without notice.

b. Should Park be Allowed to Raise a Charter Breach as a New Issue on Appeal? [ 44 ] The general rule is that new issues may not be raised on appeal without leave because it can cause prejudice owing to the lack of opportunity to respond with evidence, and because of the lack of a record upon which to make findings of fact necessary to rule on the new issue: Webber Academy Foundation v Alberta (Human Rights Commission) , 2018 ABCA 207 ; Quan v Cusson , 2009 SCC 6 at paras 36-37 .

This is particularly so when a constitutional argument is raised for the first time on appeal in the absence of a contextual evidentiary foundation: Webber Academy at para 48; Ernst v Alberta Energy Regulator , 2017 SCC 1 , [2017] 1 SCR 3 at paras 22 , 65, and 99-113. [ 45 ] The courts have discretion to consider a new issue on an appeal, but do not do so routinely or lightly: Guindon v Canada , 2015 SCC 41 at para 22 .

The test is stringent, and courts should allow new issues to be determined only where it is able to do so without procedural prejudice to the opposing party and where the refusal to do so would risk an injustice: Guindon at para 22 ; R v Downes , 2023 SCC 6 at para 57 ; Performance Industries Ltd v Sylvan Lake Golf & Tennis Club Ltd , 2002 SCC 19 at para 33 . [ 46 ] Courts should also consider whether there is sufficient evidentiary record and findings of fact to entertain the new issue and whether, had the question been raised at the proper time, no further light could have been thrown upon it: Quan at paras 36-37 . [ 47 ] In Guindon , at para 23 , the Supreme Court of Canada highlighted that new constitutional issues engage additional concerns: New constitutional issues engage additional concerns beyond those that are considered in relation to new issues generally.

In the case of a constitutional issue properly raised in this Court for the first time, the special role of the attorneys general in constitutional litigation — reflected in the notice provisions — and the unique role of this Court as the final court of appeal for Canada must also be carefully considered. The Court must be sure that no attorney general has been denied the opportunity to address the constitutional question and that it is appropriate for decision by this Court.

The burden is on the appellant to persuade the Court that, in light of all of the circumstances, it should exercise its discretion to hear and decide the issue. There is no assumption of an absence of prejudice. The Court’s discretion to hear and decide new issues should only be exercised exceptionally and never unless the challenger shows that doing so causes no prejudice to the parties. [ 48 ] I have considered the points raised by the Commissioner and Park’s responses.

On balance, I find that it is appropriate to exercise my discretion to allow Park to raise his Charter arguments on the appeal, for several reasons. [ 49 ] First,

section 11 of the Charter provides protections to any person “charged with an offence”. The question of whether the EFCDA administrative penalty regime, and the Penalty in this case, gives rise to

section 11 protection is a question of law reviewable on the correctness standard. Even if the Charter could have reasonably been raised, and was raised, before the Commissioner, the Commissioner’s

interpretation of whether

section 11 applies would not be given deference. [ 50 ] Second, if the Commissioner had undertaken an analysis of whether

section 11 of the Charter applied, the Commissioner’s ability to address it would be limited because he would not have been able to make a determination of Park’s

section 11 Charter rights, which is a “question of constitutional law” over which the Commissioner lacks jurisdiction: Administrative Procedures and Jurisdiction Act , RSA 2000, c A-3,

section 11 . [ 51 ] Third, I am satisfied that there is no prejudice to consider Park’s

section 11 Charter arguments on appeal. The Commissioner has not taken a position on the appeal, as is often the case where an administrative tribunal is the respondent on an appeal of its decision. Further, neither Attorney General has indicated any interest in participating or any prejudice. [ 52 ] Fourth, there is a reasonable prospect of some prejudice to Park if he is not allowed to raise

section 11 of the Charter on appeal. At the time of the January 20 Interview, the March 20 Interview, and his receipt of the March 20 Letter (which provided him an opportunity to provide further information), Park only had the disclosure that had been given to him by Jennings on behalf of the Commissioner. Park argues that he did not know the full extent of the information known to the Commissioner at various stages until he received the Certified Record long after he received the Notice of Penalty, and therefore did not know until later when he first became a target of the Investigation. [ 53 ] Fifth, I am satisfied that there is a sufficient record to address the

section 11 Charter arguments. The Joint Extracts, as supplemented by the admitted paragraphs of Park’s affidavit, provides a detailed background to address Park’s

section 11(a)(c), and (

d) Charter arguments. I have not been advised of any other evidentiary record that is required to address the Charter arguments. [ 54 ] Sixth, I am not aware of any decisions of the Alberta Court of King’s Bench that address whether

section 11 of the Charter is engaged in the EFCDA investigation and administrative penalty regime. A Notice of Constitutional Question has been filed in respect of the constitutionality of

section 34 of the EFCDA in another case, but was adjourned: Maitland at para 6 . The applicability of

section 11 of the Charter to the EFCDA administrative penalty regime is an issue that will have implications for the Commissioner’s implementation of its statutory mandate. [ 55 ] Finally, the principles governing the Charter analysis have been fully canvassed by Park and the Commissioner in their written and oral arguments. It would be a waste of resources not to consider this important issue. [ 56 ] In conclusion, I exercise my discretion to consider Park’s

section 11 Charter arguments. 2. Does

Section 11 of the Charter Apply to Administrative Penalty Proceedings under the EFCDA ? [ 57 ] The parties have not pointed to any case and, to my knowledge, no appellant in any of the reported judicial decisions under the EFCDA has argued that

section 11 of the Charter applies to the EFCDA’s investigation and administrative penalty process that culminates in an administrative penalty under

section 51.01 of the EFCDA . Therefore, I treat the applicability of the Charter here as a question of first instance.

[58] Administrative regimes do not attract protection under

section 11 of the Charter. The Supreme Court of Canada has oftencautioned against the direct application of criminal justice standards in the administrative law area: Goodwin v British Columbia(Superintendent of Motor Vehicles), 2015 SCC 46 at para 44; Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44at para 88. Accordingly, the Supreme Court has deliberately adopted a narrow definition of the opening words of

section 11 and what itmeans to be “charged with an offence”: Guindon at para 44. [59] The analytical framework to determine whether statutory infractions are criminal offences or are administrative penalties wasset out in R v Wigglesworth, (SCC), [1987] 2 SCR 541 at p 558 and confirmed by the Supreme Court of Canada in 2015:Guindon at para 44; Goodwin at para 40. An individual may be entitled to the procedural protections of

section 11 of the Charter undertwo distinct branches: (1) where the proceeding is, by its very nature, criminal, or (2) where a “true penal consequence” flows from thesanction: Guindon at para 44; Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153 at para 82. [60] I address these two branches below. a. Is the EFCDA’s Administrative Penalty Regime Criminal in Nature? [61] A proceeding is criminal by its very nature when it is aimed at promoting public order and welfare within a public sphere ofactivity: Guindon at para 45.

The focus of the inquiry is not on the nature of the act which is the subject of the proceedings, but on thenature of the proceedings themselves, taking into account their purpose as well as their procedure: Guindon at para 45; Martineau vMNR, 2004 SCC 81 at para 19. [62] Three criteria may be helpful in reviewing the nature of the proceeding: the objectives of the legislation, the objectives of thesanction, and the process leading to the imposition of the sanction: Guindon at para 52; Martineau at para 24. [63] With respect to the objectives of the legislation, the question is whether the objectives have a regulatory or penal purpose:Guindon at para 53.

Criminal matters are public in nature and aim to redress the wrong done to society “by applying the principles ofretribution and denunciation in an open courtroom”: Goodwin at para 41. Proceedings have a criminal purpose when they seek to bringthe subject of the proceedings “to account to society” for conduct “violating the public interest”: Guindon at para 45.

On the other hand,administrative regimes are primarily intended to maintain discipline, professional integrity and professional standards or to regulateconduct within a limited private sphere of activity: Goodwin at para 41; Guindon at para 45. [64] The objectives of election finance disclosure legislation, like the EFCDA, is to ensure fairness, transparency andaccountability: Lall v Alberta (Chief Electoral Officer), 2016 ABQB 117 at para 19; Mandel v Alberta (Chief Electoral Officer), 2019ABQB 157 at para 26.

The financing of elections is at the core of the legitimacy of elections which in turn are at the core of ourdemocracy: Bildhauer v Alberta (Chief Electoral Officer), 2017 ABQB 54 at para 29.

The role of electoral offices is critical to preservethe integrity of the electoral financing regime and as bulwarks against improprieties that could undermine Canada’s democraticprocesses: Lall at para 20; Mandel at para 26; Bildhauer at para 29; Figueroa v Canada (Attorney General), 2003 SCC 37 at para 72. [65] Clearly, the EFCDA has an important public purpose in supporting the integrity of the democratic process, but that does notnecessarily mean it is a matter “intended to promote public order and welfare within a public sphere of activity” as per Guindon at para53.

In my view, the EFCDA’s more specific purpose is to regulate and foster compliance with the EFCDA (section 51.04), within alimited sphere of private activity, namely the private funding or financing of political parties, nomination contests, leadership campaigns,and election campaigns, and related election expenses (including third party advertising). [66] With respect to the process, the heart of the analysis is concerned with the extent to which it bears the traditional hallmark ofa criminal proceeding: Guindon at para 63; Martineau at para 45. The process that leads to an administrative penalty under

section 51.01of the EFCDA is expressly described as an “administrative penalty” and does not have the procedural hallmarks associated with acriminal process as described in Martineau and adopted in Guindon at para 63. There is no laying of a charge, arrest, a summons toappear. Although other provisions of the EFCDA refer to an “offence”, “guilt”, and “prosecution”,

section 51.01 of the EFCDA onlyreferences a “contravention” of the EFCDA. In the context of administrative penalties, there is no mention of guilt, acquittal, indictment,summary conviction, prosecution, trial, oral hearing, criminal record, or application of “the principles of retribution and denunciation inan open courtroom” (Goodwin at para 41). [67] Further,

section 51.01(6) of the EFCDA specifically provides that if a person has been served with a notice of administrativepenalty in respect of a contravention, they “shall not be charged under [the EFCDA] with an offence in respect of the same contraventionthat is described in the notice of administrative penalty”. Administrative penalty provisions in similar dual-track systems have been heldnot to be criminal in nature, although each case is specific to the legislative regime in issue: Guindon at paras 67-69 and 73. [68] Accordingly, based on the foregoing, I find that the EFCDA administrative penalty proceedings culminating in

section 51.01are not “criminal in nature”. My conclusion is consistent with Justice Ross’ conclusion that an investigation and administrative penaltyprocess under the Elections Act, RSA 2000, c E-1 was an administrative, and not a criminal, process (even though the application of theCharter was not the issue before her): Anglin at para 52. b. Do True Penal Consequences Flow from an Administrative Penalty in the EFCDA? [69] The second branch to engage

section 11 of the Charter is the “true penal consequence” branch. A true penal consequence isimprisonment or a fine by which its magnitude and other relevant factors, is imposed for the purpose of redressing the wrong done tosociety “at large” rather than to secure compliance or the maintenance of internal discipline within a limited sphere of activity: Guindonat paras 46 and 75. [70] A statutory provision that includes the possibility of imprisonment will be criminal no matter the actual sanction imposed:Guindon at para 76; Wigglesworth at p 562.

The EFCDA does not include the possibility of imprisonment, rather it contemplates “fines”in the event of the commission of an “offence” (sections 48, 48.1, 48.11, 48.2, 49, 49.1, 50, 50.1), and letters of reprimand (section

51(1)), penalties (section 51(1)), and administrative penalties (section 51.01) in the event of a “contravention” of the EFCDA . [ 71 ] A monetary penalty will be a true penal consequence when it is, in purpose or effect, punitive: Guindon at para 76 . [ 72 ] Park relies on the Election Commissioner’s position, and Justice Dario’s decision, in Rumpel v Alberta (Election Commissioner) , 2019 ABQB 938 to support his argument that administrative penalties under the EFCDA are punitive. Rumpel involved an appeal of an administrative penalty levied due to an over-contribution.

At the time, the Commissioner’s practice was to always impose a penalty of double the over-contribution amount, up to the maximum $10,000 penalty. The Commissioner justified its practice by arguing that it needed a “punitive element” to the penalty, which it says is not present unless the penalty is greater than the over- contribution.

In finding the Commissioner’s penalty unreasonable, Justice Dario noted that “every dollar of the penalty has a punitive effect”: Rumpel at para 60 . [ 73 ] Park asserts, referencing Rumpel , that the “Commissioner has previously argued (and this Court has previously held) that the penalty of the type imposed on Mr. Park is punitive in nature”. I disagree with Park’s characterization. Park takes the word “punitive” in Rumpel out of context.

A penalty may be “punitive” in the “broad sense of the word” for some purposes, but not in the “narrow sense of the word” if it is not imposed as a punishment for the wrongdoer’s past transgressions or moral failings: R v Samji , 2017 BCCA 415 a para 100, citing Thow v British Columbia (Securities Commission) , 2009 BCCA 46 at para 49 .

It may be regarded “punitive” from the perspective of the person on whom it is imposed, but that does not necessarily make it a true penal consequence: Alberta Securities Commission v Brost , 2008 ABCA 326 at para 54 ; Lavallee v Alberta (Securities Commission) , 2010 ABCA 48 at para 25 Alberta Securities Commission v Hennig , 2021 ABCA 411 at paras 50-51 . [ 74 ] The issue of whether the administrative penalty was a “true penal consequence” giving rise to the applicability of

section 11 of the Charter was not before Justice Dario in Rumpel . Therefore, her references to “punitive” were in the “broad sense of the word” in the context of an administrative regime, or in respect of how a penalty may be perceived by the recipient, not the legal question of possibly penal criminal sanctions. This is obvious from her statement that “every dollar” of a penalty has “punitive effect”. If Park’s

interpretation of Rumpel were adopted, it would lead to the absurd result that any provision that provides for any monetary penalty, in any amount, would be punitive and give rise to true penal consequences. I reject that

interpretation. [ 75 ] Further, any argument made by the Commissioner in Rumpel is not an admission that EFCDA administrative penalty regime gives rise to true penal consequences, nor does it bind this Court in this case. [ 76 ] I must assess the nature of the EFCDA provisions under the guidance from the Supreme Court of Canada.

In Guindon , the Court noted that whether monetary penalty is a true penal consequence is assessed by looking at considerations such as (1) the magnitude of the penalty; (2) to whom the money is paid; (3) whether its magnitude is determined by regulatory considerations rather than principles of criminal sentencing; and (4) whether stigma is associated with the penalty: Guindon at para 76 ; Canada (Attorney General) v United States Steel Corp , 2011 FCA 176 , 333 DLR (4th) 1, at paras 76-77 [ Canada v United States Steel ]. I consider these non-exhaustive considerations below. i.

Magnitude of the Sanction [ 77 ] The magnitude of the sanction on its own is not determinative; the test is whether the amount at issue is out of proportion to the amount required to achieve regulatory purposes and, if so, it is suggestive of a true penal consequence: Guindon at para 77 .

The amount of the penalty should reflect the objective of deterring non-compliance with the administrative or regulatory scheme: Guindon at para 77 . [ 78 ] In this case, the magnitude of the administrative penalties levied ($5,250 each), and even the magnitude of the maximum potential administrative penalty that could be levied for a breach of

section 34 of the EFCDA ($10,000 per contravention as per

section 51.01(5)(e)), is relatively small. In Goodwin , the Supreme Court of Canada held that a 90-day licence suspension and $4,000 in possible costs and penalties were significant but were not “sufficient to engage” the fair-trial rights in

section 11 of the Charter , which are “some of the most fundamental in our legal system”. The Court noted that financial penalties considerably more severe have been found not to constitute true penal consequences: Goodwin at para 45 ; Guindon at para 80 ; Rowan v Ontario Securities Commission , 2012 ONCA 208 ; Canada v United States Steel ; Lavallee . In Guindon , at para 87 , the Court held that a maximum penalty of $100,000 for a false statement, plus gross compensation related to the statement, “does not demonstrate a purpose extending beyond deterrence to denunciation and punishment”. [ 79 ] In my view, the magnitude of the sanctions actually levied or available under

section 51.01 of the EFCDA is more indicative of an objective of deterring non-compliance with the EFCDA , rather than redressing the wrong done to society arising out of a contravention of the legislation (namely the erosion of the integrity of the election financing system). The administrative penalties are not out of proportion with their regulatory purpose. [ 80 ] This factor is a strong indicator that the administrative penalty does not give rise to true penal consequences. ii.

To Whom the Fine is Paid [ 81 ] If penalties are paid to the administrative body, they are indicative of an administrative penalty and, if they are paid to a general revenue fund, they are indicative of a true penal consequence: Canada v United States Steel at para 76; Wigglesworth at p 561. However, this is but one consideration and is not a determinative indicator of true penal consequences: Canada v United States Steel at para 77; Guindon at para 88 . [ 82 ] Section 51(3) of the EFCDA provides that all penalties collected under

section 51 shall be paid into the General Revenue Fund. The administrative penalties in this case were under

section 51.01, which does not have a similar section. The Commissioner argued that section 51(3) also applies to administrative penalties under

section 51.01, which is consistent with Rumpel at para 60 . Given the Commissioner’s position on this issue, I need not settle the question of whether section 51(3) applies to administrative penalties

under

section 51.01. I proceed on the assumption that it does and that the administrative penalties in this case would be paid into the General Revenue Fund. [ 83 ] This factor is more consistent with a true penal consequence. iii. Whether the Magnitude is Determined by Regulatory Considerations Rather than Principles of Criminal Sentencing [ 84 ] The question is whether the magnitude of the administrative penalty is determined by regulatory considerations rather than principles of criminal sentencing: Guindon at para 76 ; Martineau at para 62 . [ 85 ]

Section 51.01(4) of the EFCDA mandates that the Commissioner must take into account certain factors in determining the amount of an administrative penalty: (

a) the severity of the contravention; (

b) the degree of wilfulness or negligence in the contravention; (

c) whether or not there were any mitigating factors relating to the contravention; (

d) whether or not steps have been taken to prevent reoccurrence of the contravention; (

e) whether or not the person or entity has a history of non-compliance; (

f) whether or not the person or entity reported the contravention on discovery of the contravention; (

g) any other factors that, in the opinion of the Election Commissioner, are relevant. [ 86 ] Park argues that these factors directly reflect several fundamental principles of sentencing, including proportionality of the sentence to the gravity of the offence and degree of responsibility and blameworthiness of the offender, the presence of aggravating and mitigating factors, and the totality principle: Criminal Code , RSC 1985, c C-46, sections 718.1 and 718.2 .

In response, the Commissioner points to other administrative penalty regimes that include the consideration of similar factors that are clearly administrative and not criminal: Moll v College of Alberta Psychologists , 2011 ABCA 110 at para 91 ; Litchfield v College of Physicians and Surgeons of Alberta , 2008 ABCA 164 at para 20 . [ 87 ] On first blush, Park’s argument appears compelling, and I agree that some of the factors in

section 51.01(4) bear resemblance to criminal sentencing principles. However, flagging some similarities to criminal sentencing principles is not enough. The sanctioning principles in an administrative penalty regime must be assessed in their totality to determine if the similarities to criminal sentencing move them beyond a regulatory compliance purpose to the purpose of redressing the wrong done to society “at large” by applying the principles of retribution and denunciation: Guindon at paras 46 and 75 ; Goodwin at para 41 .

On a detailed review, significant differences emerge between the EFCDA and criminal sentencing principles in respect of determining the magnitude of the administrative penalty under

section 51.01(4) of the EFCDA . [ 88 ] The fundamental purpose of criminal sentencing is to “protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society”: Criminal Code ,

section 718 . In crafting a just and appropriate punishment, proper consideration is to be given to various objectives such as denunciation, deterrence, rehabilitation, providing reparations for harm done to victims, promoting a sense of responsibility and, when necessary, separating offenders from society: R v Hills , 2023 SCC 2 at para 54 ; Criminal Code ,

section 718 . No criminal sentencing objective should be applied to the exclusion of all others: Hills at para 54 . [ 89 ] The EFCDA does not have a provision like

section 718 of the Criminal Code that sets out the purpose of the administrative penalties, but it is clear that the factors set out in

section 51.01(4) do not expressly address the Criminal Code concepts of rehabilitation, reparations to victims of the contravention, or separating offenders from society. [ 90 ]

Section 718.1 of the Criminal Code sets out the “fundamental principle” of criminal sentencing, namely that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. This the “central tenet” and “the key principle” of Canada’s criminal sentencing regime: Hills at para 56 ; R v Nasogaluak , 2010 SCC 6 at para 41 ; R v Chowdhury , 2019 ABCA 205 at para 14 .

Its purpose is founded in “fairness and justice”, and expresses that the “amount of the punishment an offender receives must be proportionate to the gravity of the offence and the offender’s moral blameworthiness”: Hills at para 57 ; R v Lacasse , 2015 SCC 64 at paras 51-54 ; R v Ipeelee , 2012 SCC 13 at paras 36 and 38 . Whatever weight a judge may wish to accord to the sentencing objectives, the resulting sentence must respect the fundamental principle of proportionality: Nasogaluak at para 40 . [ 91 ] While elements of proportionality are present in the list of factors in

section 51.01(4) of the EFCDA , they are just some of several factors the Commissioner must consider. The EFCDA does not employ a central tenet, key principle, or fundamental requirement of proportionality like the Criminal Code . A review of the elements of the criminal principle of proportionality supports this conclusion. [ 92 ] The “gravity of the offence” in the criminal sentencing proportionality principle refers to the seriousness of the offence in a general sense and is reflected in the potential penalty imposed by Parliament and in any specific features of the commission of the crime: Hills at para 58 .

It should be measured by taking into account the consequences of the offender’s actions on the victims and public safety, and the physical and psychological harms that flowed from the offence: Hills at para 58 . [ 93 ]

Section 51.01(4)(

a) of the EFCDA (severity of the contravention) may address the seriousness of the offence in the “general sense”. However, the “potential penalty” under the EFCDA is limited to relatively small monetary penalties, and

section 51.01(4) must be considered within the limits of the sanctioning options in which it operates. Further,

section 51.01(4)(

a) of the EFCDA , by referencing “severity of the contravention” focuses more on the conduct of the offender (how severely was the EFCDA contravened?) rather than the

“consequences of the offender’s actions” as per Hills at para 58 . In my view, the EFCDA does not employ the same “gravity of the offence” concept as criminal sentencing, nor does it give it the same prominence as criminal sentencing. [ 94 ] The consideration of the “degree of responsibility” ( Criminal Code

section 718.1 ) and “moral blameworthiness” in the criminal sentencing proportionality principle means that the sentence must be no greater than the offender’s moral culpability and blameworthiness: Hills at para 59 . In assessing the degree of responsibility or moral culpability, courts must take into account the harm the offender intended or was reckless or wilfully blind to: R v Friesen , 2020 SCC 9 at para 88 ; R v Arcand , 2010 ABCA 363 at para 58 . The greater harm intended or the greater degree of recklessness or wilful blindness, the greater the moral culpability: Arcand at para 58 .

Other relevant factors may include the offender’s personal circumstances, mental capacity or motive for committing the crime: Arcand at para 58 . [ 95 ]

Section 51.01(4)(b) (degree of willfulness or negligence in the contravention) arguably addresses similar concepts as the degree of responsibility and moral blameworthiness aspects of the proportionality principle in criminal sentencing. However, by referencing negligence the EFCDA acknowledges that they may flow without a mens rea or intention. Accordingly, the EFCDA sanctioning factor in

section 51.01(4)(

b) is primarily comparing whether there was mens rea , or not, as opposed to the degree of intent which is more the focus in the criminal moral culpability analysis (with some exceptions). Further, even if

section 51.01(4)(

b) effectively equates to “degree of responsibility” and moral blameworthiness, as noted the EFCDA does not give it the same prominence as criminal sentencing principles because proportionality is not the central tenet of determining an appropriate administrative penalty. [ 96 ] When other sentencing principles in

section 718.2 of the Criminal Code are reviewed in more detail, they also illustrate differences between

section 51.01(4) of the EFCDA and criminal sentencing principles. [ 97 ]

Section 718.2 (

a) of the Criminal Code expressly provides that a sentence should be “increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender” and provides a list of deemed aggravating circumstances. In the EFCDA , the Legislature chose only to expressly refer to mitigating factors, and only relating to the contravention , not the offender . Further, the EFCDA does not expressly reference aggravating circumstances as a factor that must be considered. Arguably, the mitigating circumstances of the offender, and aggravating circumstances, are partially covered by

section 51.04(

e) and (

f) of the EFCDA , although the lack of similar language as employed in the Criminal Code suggests the Legislature was contemplating different objectives than in the Criminal Code . [ 98 ]

Section 718.2 (

b) of the Criminal Code provides that criminal sentencing courts shall take into consideration that a sentence should be “similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. The sentencing principle of “parity” aims to prevent any substantial or marked disparities in sentences imposed on offenders for similar crimes committed in similar circumstances: Lacasse at para 2 ; R v Hilbach , 2023 SCC 3 at para 67 . The complete absence of the parity principle in

section 51.01(4) of the EFCDA illustrates a marked departure from criminal sentencing principles. The Commissioner is not expressly statutorily restricted by its previous decisions in the same way courts are in criminal sentencing provided the Commissioner considers the required factors in

section 51.01(4). [ 99 ] As pointed out by the Commissioner, there are also factors that the Commissioner must consider and weigh under

section 51.01(4) of the EFCDA that are not expressly referenced in criminal sentencing principles. In particular, the requirement that the Commissioner consider “whether or not steps have been taken to prevent reoccurrence of the contravention” (51.01(4)(d)) appears related to regulatory compliance.

Further, the required consideration of “whether or not the person has a history of non-compliance” (51.01(4)(e)) and “whether or not the person reported the contravention on discovery of the contravention” (51.01(4)(f)), while arguably relevant to degree of responsibility, moral culpability or aggravating circumstances, which are criminal sentencing concepts, appears more clearly and directly linked to compliance with the specific elections financing requirements in the EFCDA . [ 100 ] In my view, considering

section 51.01(4) of the EFCDA , in the context of the overall purposes and objectives of the EFCDA , I find that the main purpose of the factors in

section 51.01(4) are to provide the Commissioner guidance and flexibility in determining a penalty that will provide specific deterrence to individuals who contravene the EFCDA as well as general deterrence to future participants who engage in activity that is the focus of the EFCDA . Like other administrative regimes, its focus is preventative: Hennig at para 50 ; Cartaway Resources Corp (Re) , 2004 SCC 26 at paras 4 ; 55, 60. The fact that a penalty is intended to have a deterrent effect does not take it out of the realm of administrative penalties: Guindon at para 83 ; Martineau at para 38 .

As an aside, in my view, it is the deterrent effect that the Commissioner was arguing in Rumpel when it referred to the need for a “punitive element” in its penalties. [ 101 ] In conclusion, while there are elements of

section 51.01(4) of the EFCDA that are consistent with some aspects of criminal sentencing, the EFCDA is quite different in many respects. It does not rise to the level of employing “principles of retribution and denunciation”: Goodwin at para 41 .

Had the Legislature intended otherwise I expect the structure and focus of the EFCDA would have been quite different. [ 102 ] For all these reasons, in my view the magnitude of the administrative penalty under the EFCDA is determined by regulatory considerations rather than principles of criminal sentencing. [ 103 ] This factor is an indicator that the administrative penalty does not give rise to true penal consequences. iv. Whether Stigma is Associated with the Penalty [ 104 ]

Section 5.2(3)(

a) of the EFCDA requires the Commissioner to publish its findings and decision on the Chief Electoral Officer’s website where an administrative penalty is issued under

section 51.01. [ 105 ] Park argues that publication of the administrative penalty is akin to creating a criminal record and is designed to be punitive given the impact it will have on someone who specializes in the management of political and government relations campaigns. The Commissioner acknowledges that there is a stigma attached to publication, which is consistent with Callaway at para 56 . The Commissioner argues that the mandatory publication is consistent with the transparency objective of the EFCDA and is part of the

deterrent component of the penalty. The Commissioner argues that the impact does not approach having a permanent criminal record. [106] In my view, the stigma associated with the imposition of an administrative penalty in this case, while real, is not a stigmacomparable to that attached to a criminal conviction: Guindon at para 84. Further, the mere act of publishing disciplinary decisions andfindings is but one factor and does not necessarily mean they have true penal consequences rendering them criminal in nature.

Whilepublication of the administrative penalty under the EFCDA amplifies the stigma to some extent, and is certainly a relevant factor, in myview, considering it in the overall context of the EFCDA, it does not come close to the stigma associated with a criminal conviction. v. Conclusion re True Penal Consequences [107] Based a consideration of all the factors noted in Guindon, and the overall context of the EFCDA, I find that the administrativepenalties contemplated by the EFCDA, and actually imposed in this case, do not give rise to true penal consequences. c. Conclusion re Application of

Section 11 of the Charter [108] I have concluded that the administrative penalty regime under the EFCDA is not criminal in nature and does not give rise to truepenal consequences. Accordingly, I find that

section 11 of the Charter does not apply and is not engaged. 3. Were Park’s

Section 11 Charter rights breached? [109] Given my finding that

section 11 of the Charter is not applicable to the administrative penalty regime in the EFCDA, and is notengaged, the answer to this question is no. No remedy under

section 24 of the Charter is available. B. Should the Penalty be Quashed or Set aside for the Commissioner’sfailure to provide Park the Required Amount of Procedural Fairness? [110] The duty to act fairly has two key components: the right to be heard (the audi alteram partem rule) and the right to an impartialhearing (the nemo judex in sua causa rule): Therrien (Re), 2001 SCC 35 at para 82. [111] Park asserts that the Commissioner violated both of these principles by breaching common law and statutory principles ofprocedural fairness.

He relies on two arguments that ripple through his submissions, namely, that (1) he was not provided adequatenotice or disclosure that he was the subject of the Investigation, or of the allegations made against him; and (2) the investigator Jenningshad a closed mind to Park’s evidence and, therefore, impacted the impartiality of the Commissioner’s decision. [112] As noted earlier, issues of procedural fairness and natural justice are reviewed, having regard to the context, to determinewhether the appropriate level of fairness required by the relevant legislation and the common law had been afforded: Khela 2014 SCC24 at para 79; Canadian Pacific Railway Company at paras 35-36; Nadarasah at para 20; Baron Real Estate at para 17. [113] In the context of a judicial review of an administrative penalty under the EFCDA, in Rebel News the Court of Appealconfirmed, at para 10, that issues of “procedural fairness and natural justice are reviewed, having regard to the context, to determinewhether the appropriate level of fairness required by the relevant legislation and the common law has been afforded”.

The Court ofAppeal cited Vavilov at para 77 and Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2SCR 817 at para 21. [114] The application of Baker to inform the required procedural fairness has been consistently applied by Justices of the Court ofKing’s Bench to appeals of administrative penalties under the EFCDA: Callaway at para 6; Maitland at para 16; Aheer at para 20. 1.

The Baker Factors Point to Low-to-Moderate Procedural Fairness [115] Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific proceduralrequirements that the duty imposes are determined with reference to all the circumstances: Baker at paras 22-23; Moreau-Bérubé v NewBrunswick (Judicial Council), 2002 SCC 11, [2002] 1 SCR 249 at paras 74-75; Vavilov at para 77; Re Therrien at para 82. [116] In Baker, at paras 22-23, the Supreme Court set out a non-exhaustive list of factors that inform the content of the duty ofprocedural fairness in a particular case, including (1) the nature of the decision being made and the process followed in making it; (2) thenature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectationsof the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself.

I considerthese factors below before assessing Park’s specific procedural fairness arguments. [117] As per Baker, at para 22: [U]nderlying all of these factors is the notion that the purpose of participatory rights contained within the duty of procedural fairness isto ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and itsstatutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidencefully and have them considered by the decision-maker. a.

Nature of the Decision Being Made and the Process Followed in Making It [118] The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinationsthat must be made to reach a decision, resemble judicial decision making, the more likely it is that procedural protections closer to thetrial model will be required by the duty of fairness: Baker at para 23; Callaway at para 54.

[ 119 ] In carrying out the purposes of fairness, transparency and accountability inherent in the EFCDA , the statutory process followed by the Commissioner is critical in assessing this factor. [ 120 ] Pursuant to

section 44.95 of the EFCDA the Commissioner has the power to conduct investigations of the financial affairs and records of registered leadership contestants in relation to leadership contests (section 44.95(a)(iii)) and into “any manner that might constitute an offence” under the EFCDA (section 44.95(b)). [ 121 ] For the purposes of its investigations under

section 44.95, the Commissioner has “all the powers of a commissioner under the Public Inquiries Act as though the investigation were an inquiry under that Act” (section 44.96(1)). The Commissioner’s representatives also have the power to enter the premises of, among others, any “third party relevant to the subject-matter of the investigation” to examine, copy or remove books or documents (section 44.96(2)). [ 122 ] The incorporation of powers under the Public Inquiries Act provides the Commissioner with the power to engage services of counsel, clerks, reporters, assistants, experts, persons have special technical or other knowledge, or other qualified persons: Public Inquiries Act ,

section 3 . It also provides the Commissioner with powers ancillary to the investigation, to summon any persons as witnesses and requiring them to give evidence on oath, orally or in writing, and to produce any documents, papers and things that the Commissioner considers to be required for the full investigation of the matters the Commissioner is investigating: Public Inquiries Act ,

section 4 . There are also similar powers to enforce the attendance of witnesses, compulsion of evidence and production of documents as vested in a court of record in civil cases: Public Inquiries Act ,

section 5 . [ 123 ]

Section 44.97(1.1) of the EFCDA imposes disclosure obligations on the Commissioner, unless the Commissioner believes that doing so would compromise or impede the investigation. It provides:

(1.1) At any time before completing an investigation referred to in

section 44.95(b), the Election Commissioner shall notify any person or organization who is the subject of the investigation that the person or organization is being investigated and inform the person or organization of the nature of the matter being investigated, unless the Election Commissioner believes that doing so would compromise or impede the investigation. [ 124 ]

Section 44.97(3) precludes the Commissioner from making any adverse findings against a person unless that person “has had a reasonable notice of the substance of the allegations and a reasonable opportunity to present his or her or its views”. [ 125 ]

Section 45 provides that no person shall obstruct any person carrying out an inquiry, investigation or examination under the EFCDA , or withhold from that person or conceal or destroy any books, papers, documents or things relevant to the subject-matter of the investigation.

The failure to comply with the Commissioner’s directions is an offence (section 48.2). [ 126 ] Although the Commissioner is obligated to maintain the confidentiality of all information, complaints and allegations that come to its knowledge (section 5.2(1)), it has the power (but not a statutory obligation) to disclose them to a person or organization whose conduct is subject of proceedings under the EFCDA (section 5.2(2)(c)) or in the course of an investigation to the extent necessary to enable that person to obtain information from another person (section 5.2(2)(f)). [ 127 ]

Section 51.01(2) provides that if the Commissioner is of the opinion that, among other things, a person has contravened a provision of the EFCDA , then the Commissioner may serve on that person a notice of administrative penalty or a letter of reprimand. The notice of administrative penalty must contain certain details, including the particulars of the contravention and a statement of the right of appeal (section 51.01(3)). [ 128 ] This

summary illustrates that the process under the EFCDA is quite dissimilar from judicial decision-making process. In this case, the Commissioner received a complaint, decided to investigate, conducted a confidential investigation (including the interview of various people including Park), gave Park, and others, opportunities to provide information, and then elected to proceed to provide a Notice of Penalty pursuant to

section 51.01 of the EFCDA . While there were opportunities for Park and others to provide input into the process, the Commissioner’s decision did not adjudicate between two parties in a public forum and there was no traditional oral hearing process like in a judicial decision-making process. This is in contrast to a prosecution of an offence under the EFCDA , which would be a public process involving a judicial process. [ 129 ] In these circumstances, this supports a low to mid range level of procedural fairness: Callaway at para 54 . b.

The Nature of The Statutory Scheme [ 130 ] As per Baker , at para 24 : A second factor is the nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”: Old St. Boniface, supra , at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made.

Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted: see D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 7-66 to 7-67. [ 131 ] The lack of an internal appeal, but the presence of an appeal to the Court of King’s Bench as set out in

section 51.03 of the EFCDA , supports a low to moderate level of procedural fairness: Callaway at para 55 . [ 132 ] Park appears to argue that

section 44.96 of the EFCDA , which bestows powers on the Commissioner as though the investigation were an inquiry under the Public Inquiries Act , somehow also means other sections of the Public Inquiries Act apply to bestow rights on the subjects of investigations, including the right to counsel (

section 11 ), the right to call witnesses (

section 12 ), and the right to notice of allegation of misconduct (

section 13 ).

[ 133 ] In my view,

section 44.96 only incorporates provisions of the Public Inquiries Act that provide powers to the Commissioner. It does not incorporate other aspects of the Public Inquiries Act . Nor does it render an investigation process under the EFCDA an “inquiry” under the Public Inquiries Act . Park’s argument is rejected and does not assist his position that a high level of procedural fairness is required.

In fact, it supports a lower level of procedural fairness – had the Legislature intended to incorporate procedural fairness safeguards like those in sections 11 , 12 and 13 of the Public Inquiries Act , it could have done so expressly.

Sections 11 , 12 and 13 of the Public Inquiries Act are not part of the statutory framework engaged in this case. [ 134 ] Similarly, Park argues that the procedural protections under sections 3, 4 and 5 of the Administrative Procedure and Jurisdiction Act , RSA 2000 c A-3 [ APJA ], which provide notice and participatory rights, also apply to the Commissioner’s investigatory and penalty processes under the EFCDA . Again, Park’s argument is misguided and does not assist his position. Sections 3 , 4 and 5 of the APJA are part of

Part 1 of the APJA , which only applies to an authority if the Lieutenant Governor in Council has designated that

Part 1 applies to that authority. The Commissioner is not one of the authorities designated under the Authorities Designation Regulation , Alta Reg 64/2003 made under the APJA . [ 135 ] This factor supports a low to moderate level of procedural fairness. c. Importance of the Decision to the Individual Affected [ 136 ] This is a significant factor affecting the content of the duty of procedural fairness: Baker at para 25 .

The greater the impact on the person, the more stringent the procedural protections that will be mandated: Baker at para 25 . [ 137 ] The administrative penalties at issue here, while not in the magnitude seen in other regulatory contexts, can and would be significant on an individual basis. While the administrative penalty does not preclude Park from continuing in his profession in the political realm, the practical reality is that it does create a stigma which will likely negatively affect his ability to find work in the election or leadership campaign field.

This factor weighs toward a more moderate level of procedural fairness: Callaway at para 56 . d. The Legitimate Expectations of the Person Challenging the Decision [ 138 ] If a person has a legitimate expectation that a certain procedure will

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