The Alberta Opposition is once again calling for an independent investigation into allegations of interference in the justice system by the premier.
At issue is whether Alberta Premier Danielle Smith was in contact with the Alberta Crown Prosecutor Service in relation to court cases of people who broke public health measures early in the COVID-19 pandemic and protests against the measures.
On Wednesday morning, Irfan Sabir, MLA for Calgary-Bhullar-McCall and Alberta NDP justice critic, played a video recording that recently came to his attention.
“Once the process is underway, I can ask our prosecutors, ‘Is there a reasonable likelihood of conviction and is it in the public interest?’” Smith told Artur Pawlowski on the video.
“And I assure you, I have asked them that almost weekly ever since I got started here.”
The video, also posted on Pawlowski’s YouTube page titled “January 26, 2023,” documents the roughly 11-minute conversation between the two about the possibility of Smith staying the charges against him in connection with a speech he gave at the Coutts border blockade.
Pawlowski would go to trial in a Lethbridge court to answer those charges on Feb. 2.
On Wednesday afternoon, that previously-unlinked video was made private.
On the phone call, Smith noted “a number of cases” involving breaking public health orders that had been dropped as a result of a similar assessment.
Smith said she was “very hopeful” more cases would be dropped, admitting there wasn’t a mechanism for her to “order them (prosecutors) to drop cases.”
“I’m watching to see evidence that they’re going to come to the judgment that many of these cases are unwinnable and not in the public interest,” Smith said. “And I’m beginning to see some signs that’s the case — I haven’t seen anything in your case yet — but if I can just maybe make that inquiry one more time, but I’ll need until next week to do that.”
Smith admitted she was unaware of the limits to her powers prior to winning the UCP leadership vote in October 2022 and taking over as premier.
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“I thought we probably had the same power of clemency that we did in the U.S. I didn’t understand we have a lot more limitations.”
A decision on Pawlowski’s Coutts trial is expected on May 2.
Smith did opine that the public health measures put in place early in the pandemic — measures that Pawlowski were convicted in court for breaking — “were a political decision.”
“But it can’t be a political decision to end it. And that’s what I’m finding very frustrating about the whole thing,” she said.
Alberta’s COVID-related public health measures were signed off by the chief medical officer of health.
Pawlowski’s charges from the January 2022 Coutts blockade include mischief for inciting people to block public property at the border crossing. He was also charged under the Alberta Critical Infrastructure Defence Act with wilfully damaging or destroying essential infrastructure.
Speaking with Smith, Pawlowski complained about a Crown prosecutor submitting “over a thousand-page document and hundreds of hours of testimonies to frustrate our defence (lawyer).”
“Obviously, the Minister of Justice, Tyler Shandro, is playing a game here, trying to cause us more harm and more grief,” Pawlowski said.
Smith said she doubted the Crown prosecutor was being directed by Shandro to do the document dump.
“I doubt very much that this is being driven by the minister,” she said.
“But I have also raised it with the deputy minister and let him know my dissatisfaction with the tactics. So can you just leave this with me and I will make that request one more time.”
Smith stands firm: no contact with Crown
The premier issued a statement issued Wednesday morning less than an hour before the CBC published a story about the video and the call — a story the premier described as part of the CBC’s “campaign of defamatory attacks.”
In it, Smith reiterated she has never spoken with a member of ACPS and referenced comments she made at a Feb. 9 press conference where she confirmed she had spoken with Pawlowski.
“I have always said – I campaigned on it for seven months – that I would look into what the options were for amnesty,” Smith said on Feb. 9. “My justice minister came back and said amnesty was not possible for a premier. The only role for amnesty is the governor general in our country, the way our system works.”
Two weeks before her conversation with Pawlowski, Smith said she had conversations with the attorney general and deputy attorney general to “look into” options available for “outstanding COVID-related cases.”
“While my language may have been imprecise in these instances, I was referring to the process and discussions above and the advice I received from the attorney general and the deputy attorney general,” Smith said in a Jan. 13 statement.
Since the story of Smith’s inquiries with the Justice ministry broke, she has never wavered publicly from her stance that she has never contacted Crown prosecutors about COVID-related cases, only seeking advice from the attorney general and his deputy.
‘Prima facie interference in justice’
Sabir said the video shows the premier’s comments that she has had weekly conversations about ongoing prosecutions “constitutes prima facie interference in the justice system.”
“That is offside with the Premier. That is inappropriate. That’s why we had been asking that there would be an independent investigation, which Minister Shandro has not responded to yet,” Sabir said.
“The fact that someone accused of encouraging violence against police can get the premier on the phone call at all is extraordinary. It is deeply inappropriate for the premier to be having this conversation with someone facing criminal charges,” he said.
“That she greets him with such admiration says a lot about who Daniel Smith is.”
Sabir also claimed Shandro “failed his duty to uphold the justice system” as minister of justice and attorney general.
“I agree that 100 per cent, Albertans deserve to know what happened,” he said. “Albertans deserve to be reassured that the justice system is independent of political interference. And conversations like this do put a big question mark on that independence.”
Lorian Hardcastle, associate professor at the University of Calgary’s faculty of law and Cumming School of Medicine, said it was “highly problematic” in a modern liberal democracy that an elected leader would be “intruding on prosecutions that are already underway, as she herself notes in the call.”
“Of course, politicians pass laws, but once those laws are being enforced and those prosecutions are underway, then typically we would expect politicians to have a hands-off approach to those and to let the rule of law and let the courts sort those cases out,” Hardcastle told Global News.
Sabir said the premier should have let the Crown prosecutors do their job.
“It’s not for the premier to call them and remind them of their job. She is not a lawyer. Those sitting in the Crown (prosecutor) office, they have the training. They are doing their job. They know what they are doing,” Sabir said.
Duane Bratt, a political scientist at Mount Royal University Party, questioned why Smith was even speaking with Pawlowski weeks before he was going to trial for “inciting violence” at Coutts.
“A premier’s time is incredibly valuable and yet she found time in her schedule to talk with Art Pawlowski in a very sympathetic way,” Bratt said.
He also suggested Smith was “pressuring the justice minister and his deputy” to drop the charges.
“She’s says she’s only asking, ‘Is it in the public interest? And is there a likelihood of conviction?’ But if you’re asking that same question over and over and over again, is that pressuring?”
Hardcastle said it’s unlikely Smith will face any direct legal repercussions from her conversation with Pawlowski or anyone in the justice ministry.
“I think that what people would tend to call for in this kind of situation is for a resignation. And I think we’re already seeing those calls,” Hardcastle said.
“That said, I think it’s unlikely that she’s going to resign or even be apologetic about this.”
Entering election season
Hardcastle suggested Smith’s close association with Pawlowski doesn’t play well with most Albertans.
“I think that associating herself with such a problematic figure that worked so hard to undermine public health efforts, including at the height of the pandemic, is just really bad from an image and an optics perspective,” the U of C associate professor said.
Jared Wesley, a political science professor at the University of Alberta, said public opinion research he’s done agrees.
“It reinforces the narrative that her opponents have put forward, which is quite simply that the premier’s priorities are not where Albertans are on this and that her natural impulse is to find a way around the legal system in order to ensure that folks that are friendly to her party are better off,” Wesley told Global News.
“There’s a reason why we have a court system, an independent judiciary, independent prosecution branches to prevent premiers from meddling in issues like this.
“This is part of a pattern — I would say a worrying pattern — of a premier intent on breaking down institutions that are made to ensure that politics don’t enter into issues of human rights or public health.”
The admission that Smith was unaware of her inability to grant amnesty as premier was also a red flag for the U of A political scientist.
“I think the fact that the premier discloses her ignorance about how the Constitution works suggests that she wasn’t really well-prepared to run for premier when she did.”
In the phone conversation with Pawlowski, Smith admitted that she couldn’t put undue pressure on the justice ministry and Crown prosecutors for fear of repeating the same mistake Prime Minister Justin Trudeau made with Jody Wilson-Raybould.
Bratt said Smith is “doing the same thing, if not worse.
“Imagine if we had a tape of Trudeau talking to the CEO of SNC Lavelin saying, ‘Look,I’ve tried talking to the minister, but she won’t do it. And I don’t have the ability of doing it myself.’ How would that look?” Bratt said.
Wesley said with a provincial election on the horizon, Smith unlikely wants to talk about this issue and will want to “change the channel as best she can.”
“If this is still something that they’re talking about three, four weeks from now, it’s not good news for the premier, for the UCP.”
–with files from Phil Heidenreich, Global News, and The Canadian Press