United Conservative Partly Leader Danielle Smith broke conflict-of-interest rules while serving as premier in connection with discussions she had about criminal charges laid against a man involved in a pandemic health rules protest, Alberta’s ethics commissioner has concluded.
Marguerite Trussler’s report on the matter was published online on Thursday, the same day Smith was set to take part in an election debate with NDP Leader Rachel Notley. Albertans will head to the polls on May 29.
In her report, Trussler says Smith’s violation has to do with conversations she had as premier with then justice minister Tyler Shandro regarding to criminal charges against Calgary pastor Artur Pawlowski.
Earlier this month, Pawlowski was found guilty of mischief for his role in a protest last year over COVID-19 restrictions that disrupted traffic at Alberta’s main border crossing into the U.S.
While Trussler says she is not currently recommending sanctions against Smith, she reserves the right to do so once the legislature is back in session.
She recommends new legislature members receive training about the roles of played by each branch of government.
The investigation stemmed from leaked audio of a conversation Smith had with Pawlowski about the charges against him after she had become premier.
In the video, Pawlowski asks Smith what she can do to help him with charges he faced in connection with a border blockade near Coutts, Alta.
On the call, believed to have been made in January, Smith tells Pawlowski she is in regular contact with Crown prosecutors and that she believes the legal case against Pawlowski is politically motivated. She is heard telling Pawlowski she reminds prosecutors that their cases need to be winnable and in the public interest.
Trussler said her investigation required her to determine if a call Smith made on Jan. 6 to then justice minister Tyler Shandro about Pawlowski’s case was appropriate.
“The purpose of Premier Smith’s call was to influence a decision of the Crown to prosecute Mr. Pawlowski,” the report reads. “She asked the attorney general if there was something that could be done about the charges and could they help Mr. Pawlowski. She was concerned about the political optics of the press conference Mr. Pawlowski was planning.
“I believe that Minister Shandro must have felt considerable pressure and concern for his tenure as minister as a result of the call.”
In her report, Trussler determined that Shandro defended the right of Crown prosecutors to operate without interference.
Trussler described the call as unacceptable and noted her investigation involved serious allegations as “it is a threat to democracy to interfere with the administration of justice.”
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Trussler said she received a request from a concerned citizen to investigate allegations against Smith of potential judicial system interference. She said later that day, then Calgary-Bhullar-McCall MLA Irfan Sabir also requested an investigation into allegations of potential interference in the justice system. Later that day, Trussler told Smith she had decided to open an investigation.
Among the findings laid out by Trussler in the report are that Frank Bosscha, who was deputy minister of Justice and Attorney General “during the relevant time period,” quite regularly briefed Smith on legislation from the ministry that would be presented to cabinet the next day.
“There was some discussion, at times, in these meetings when the premier would ask for an update on the status of the Ingram case and the CM case, two non-criminal COVID-related cases that were before the courts,” the report reads.
In a statement issued before the ethics probe was even posted online, Smith acknowledged the report’s findings and said she will seek legal advice so that guidelines can be created to make it clear to future premiers on how to speak to justice ministers about sensitive issues.
“In the commissioner’s opinion, I had a discussion with (Justice) Minister (Tyler) Shandro that was inappropriate regarding this subject,” her statement reads. “I invited the commissioner to give me and future premiers the benefit of some guidance on how to advance sensitive policy issues similar to this with the minister of justice if she thought there was a more appropriate way.
“Although she has yet to offer a different approach or advice for me to consider in this regard, I will be seeking legal advice on creating specific formal guidelines as to when and how a premier may speak with a minister of justice in the future about policy issues and other sensitive matters in order to respect all applicable rules and conventions.”
Smith said she plans to ask Trussler to review those guidelines once they are drafted. She also noted that trying to find ways to grant amnesty for people facing COVID-related prosecutions was one of her campaign promises during her bid to become UCP leader in 2022.
Smith said she was looking for input from Shandro on possible amnesty and added that she accepted his advice and did not take the conversation further.
Trussler’s report also explored allegations against Smith first raised in a CBC report. The news report alleged someone in the premier’s office contacted the Alberta Crown Prosecution Service about legal cases related to the Coutts blockade. The CBC attributed the content of its reporting to a source but acknowledged its reporters had never seen the alleged emails in question. Trussler notes the CBC has “quite rightfully” not revealed its source.
Trussler’s report noted the person alleged to have sent one or more of the mails denied doing so and Steven Johnston, a lawyer participating in all Coutts blockade prosecutions, said he was never contacted by the premier’s office. The report also notes the Public Service Commission conducted an extensive email search in relation to the allegation and nothing was found.
“The email search was fairly reasonable given the time parameters in which it was done,” Trussler writes. “A more thorough search would have taken considerably more time and would have been costly.
“I think that it can be said that the members of the Crown Prosecution Services were annoyed and even incensed by the allegation that one of them had received outside political pressure. Assistant deputy minister, Kim Goddard, is confident no one in the service received an email.”
Trussler notes all 44 Crown prosecutors handling Coutts or COVID-related files provided a statement saying they have no contact with the premier’s office about their files. All 32 political staff members in Smith’s office also provided a statement saying they did not contact Crown prosecutors on those files during the time frame that relates to the investigation.
“I found no evidence of such an email and I can only come to the conclusion, based on the evidence that I have, that no Crown prosecutor was emailed directly about any of the cases,” Trussler writes. “There appears to be no interference with the independence of prosecutors on this level.”
In her statement, Smith said she was “gratified to read the ethics commissioner’s findings confirming that neither I, nor anyone in my office, tried to or did contact any Crown prosecutors regarding any COVID-19 prosecutions.”
Smith’s statement released on Thursday, May 18, reiterated a previous statement noting that she is considering taking legal action against the CBC and NDP over allegations someone in her office contacted Crown prosecutors.”
Political commentator calls Smith’s response to report ‘textbook of what we’ve seen of very populist leaders’
Shortly after the report was published online, a Calgary-based political commentator told Global News he would describe Smith’s reponse to the report as “textbook of what we’ve seen of very populist leaders who don’t feel they need to play by rules that everyone has played by for generations.”
“There is a separation between these branches of power — you can’t just say something on the campaign trail that’s ill-advised and then try to make it policy by picking up the phone and leaning on them so to speak,” he said, referring to Smith’s pledge during the 2022 UCP leadership campaign to try to grant amnesty people facing COVID-related legal troubles.
“Her response was basically saying and focusing on the one excerpt that said, ‘Hey, there were no emails sent from her office to the Crown prosecutors — which was true — but ignoring completely what the ethics commissioner actually found.”
Speaking at a news conference in Calgary on Thursday, Sabir, an NDP candidate, said he believes the report should be something voters think about before they cast their ballots at the end of the month.
“They can read that report for themselves … they can pronounce their judgment on May 29,” he said.
–With files from The Canadian Press and Global News’ Sarah Ryan and Heather Yourex-West
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