By: Nigel Bankes, Jennifer Koshan, and Martin Olszynski
Matter commented on: Office of the Ethics Commissioner, Report of Findings and Recommendations into allegations involving Hon. Danielle Smith, Member for Brooks-Medicine Hat, Premier of Alberta, May 17, 2023
In early January of this year, Premier Danielle Smith participated in a lengthy telephone conversation with Pastor Artur Pawlowski, who was at that time facing criminal charges and charges under the provincial Critical Infrastructure Defence Act, SA 2020, c C-32.7 in relation to the Coutts blockade. Artur Pawlowski recorded a video of that call that subsequently became available to the public. That recording triggered complaints to the Ethics Commissioner under the Conflicts of Interest Act, RSA 2000, c C-23 (COIA) by a private citizen and by Irfan Sabir, MLA for Calgary-Bhullar-McCall and NDP Justice Critic.
The report of Commissioner Hon. Marguerite Trussler, K.C., was made available to the public on May 17, 2023, a little less than two weeks before the next provincial election and hours before the leaders’ debate. Commissioner Trussler’s principal conclusion was that:
Premier Smith contravened s. 3 of the Conflicts of Interest Act in her interaction with the Minister of Justice and Attorney General in relation to the criminal charges Mr. Pawlowski was facing. (at 16)
The most important new information gleaned from Commissioner Trussler’s report is that on the same day that she spoke to Mr. Pawlowski, Premier Smith followed up with a call to Attorney General (AG) Tyler Shandro to plead Pawlowski’s case – notwithstanding the fact that during her call with Pawlowski she clearly acknowledged that doing so would be improper in light of the applicable principles and given her prior knowledge of the SNC-Lavalin affair in particular.
This post focuses on the Commissioner’s key findings, and then provides some additional commentary. In our view, a straight and troubling line may be drawn from the conduct at issue here and the Premier’s prior and consistent disregard for the rule of law, the separation of powers, and basic democratic norms.
The Commissioner’s Jurisdiction under the COIA
Section 24(1) of the COIA provides that:
24(1) Any person may request, in writing, that the Ethics Commissioner investigate any matter respecting an alleged breach or contravention of this Act. (emphasis added)
The breach alleged in this case was a breach of section 3 of the COIA, which states:
A Member breaches this Act if the Member uses the Member’s office or powers to influence or to seek to influence a decision to be made by or on behalf of the Crown to further a private interest of the Member, a person directly associated with the Member or the Member’s minor child or to improperly further another person’s private interest. (emphasis added)
The Act does not define “private interest” except by indicating that certain things are not included in that term as used in the Act:
1(1)(g) “private interest” does not include the following:
(i) an interest in a matter
(A) that is of general application,
(B) that affects an individual as one of a broad class of the public, or
(C) that concerns the remuneration and benefits of an individual;
(ii) an interest that is trivial;
(iii) an interest of an individual relating to publicly-traded securities held in that individual’s blind trust or in an investment arrangement…
The Commissioner’s Findings
The specific allegation considered by the Commissioner was that “Premier Smith sought to influence the prosecution of Artur Pawlowski who was facing charges relating to the Coutts border crossing blockade and, thereby, improperly tried to interfere with the administration of justice” (at 6). There were also allegations based on a CBC story released in January that a member of the Premier’s political staff had tried to influence the Coutts and COVID-related cases by sending a critique of the cases directly to a Crown Prosecutor (at 6).
The Commissioner divided her findings of fact under a number of headings, beginning with events prior to Ms. Smith assuming the role of Premier. Here the Commissioner highlighted that Ms. Smith was familiar with the report of the Federal Conflict of Interest and Ethics Commissioner, Mario Dion, into interference by Prime Minister Justin Trudeau in respect of the notorious SNC-Lavalin case (we address the Dion report below). The Commissioner also noted that, during her leadership campaign, Ms. Smith received questions in rural Alberta about amnesty for COVID-related charges under the Public Health Act, RSA 2000, c P-37 and that “[s]he campaigned on providing amnesty to those charged with non-violent cases that were not contempt of court or firearms-related cases” (at 8). The Commissioner’s report also revealed that Ms. Smith’s campaign team contacted Attorney General (and Minister of Justice) Tyler Shandro during the United Conservative Party (UCP) leadership race to sound him out on COVID-related cases. According to the report, “[h]e was asked his opinion on amnesty, clemency and pardon. He replied that clemency was a process limited to the Parole Board and that pardon and amnesty described political interference in the prosecution of cases to which he was opposed.” Ms. Smith claimed to have “no knowledge of the call” (at 8).
The report then turned to briefings provided to each of Premier Smith and AG Shandro by Justice officials. They revealed that Premier Smith expressed a continuing interest in specific COVID-related cases. AG Shandro did not pass on to the Premier the more detailed briefings he received about the limits on political interference in ongoing prosecutions (at 8 – 9).
In October, Premier Smith ran into Ezra Levant at a function and there was some discussion of COVID-related cases that resulted in the Premier advising Mr. Levant to send his thoughts as “an email with a letter attached to her Chief of Staff, Marshall Smith”. Both Marshall Smith and Premier Smith received this communication on October 25, 2022. Unfortunately, the Commissioner’s report does not provide the text of this communication, but we are told that it “advocated direct interference by the Premier by having her order a stay in prosecutions” (at 10). We assume it is this document, which Mr. Levant posted publicly in March 2023. Marshall Mr. Smith passed Mr. Levant’s communication on to AG Shandro’s Chief of Staff. It also made its way to AG Shandro himself, as well as Deputy Attorney General Frank Bosscha and Assistant Deputy Minister Kim Goddard (in charge of the Crown Prosecution Service).
Between late October and into November 2022, there was discussion of COVID-related cases between political staff in the Premier’s office and political and civil service staff in the AG’s office (which also involved AG Shandro at one point). Key named persons from the Premier’s office included Ms. Smith’s Executive Director, Rob Anderson, and her Executive Assistant, Dr. Jeremy Hexham. Indeed, the latter forwarded a remarkable memo to AG Shandro from the Premier on November 1, 2022. The memo read, in part:
…Following up on prior discussions between our offices, I would like you to provide me with a proposal on proceeding with some form of amnesty or clemency for individuals who have been charged with various COVID-19 related offences.
In preparing this proposal, I would like you to delineate between individuals charged with criminal code offences that include violence, are weapons related or are for contempt of court, from those involving alleged mischief, violations of provincial health orders or other minor offences.
If possible, I would like you to provide my office with this proposal by the end of next week, so we can plan implementation and communications surrounding this initiative by the end of the year. (at 9)
During the balance of November and December 2022, Rob Anderson continued to be in touch with AG Shandro and his Chief of Staff for updates, although apparently without discussing particular cases. And, during a casual encounter at the legislature between the Premier and AG Shandro, the Premier expressed the hope that “there was something he could do about the COVID prosecutions” (at 10).
Then, on Friday, January 6, 2023, there was the now infamous three-way telephone call between Dennis Modry, Artur Pawlowski, and the Premier, which became widely publicly available in March 2023. In the course of that call, Premier Smith made it crystal clear that she understood the parallels between the Pawlowski matter and the SNC-Lavalin affair:
We’re in a bit of a bind because of what happened with Jody Wilson-Raybould and the Prime Minister …
…
Let me let me talk to them. Let me talk to Rob about that. The problem is that that’s how the prime minister got himself in such hot water is because he was in a position where he was [sic] he asked the same questions that I did. And then his attorney general said, actually, it is in the public interest and we are going to prosecute. And then he kept trying to push her to make a different decision…. So I’m [sic] I am trying to stay within the lines of asking them the appropriate questions…
What the public did not know until we read the Ethics Commissioner’s report is that the Premier kept her “let me see what I can do” commitment to Mr. Pawlowski. She didn’t even wait for Rob Anderson to come back into the office on the Monday, as she had suggested that she might in their telephone call; instead, the Premier’s commitment apparently compelled her to call AG Shandro several hours later that same day to talk about the Pawlowski matter.
It turns out that the Premier and AG Shandro had somewhat different recollections of their January 6 phone call, but, to the extent that there were differences, the Commissioner preferred AG Shandro’s version of events. According to AG Shandro’s version, his conversation with the Premier quickly turned to Pawlowski’s specific case:
Minister Shandro stated that Premier Smith was passive/aggressive throughout the call. She asked him specifically if there was anything he could do about Mr. Pawlowski’s case. She wanted him to make it go away, although she did not direct him to do so. She was concerned about a press conference that Mr. Pawlowski said he was going to have and how bad the optics would be for the Party. (at 12)
AG Shandro told the Premier that there was nothing that could be done, and there were no further discussions between them.
The Commissioner then went on to examine whether there had been any direct emails, as suggested in the January CBC story, between a person or persons in the Premier’s office and those directly involved in COVID-related prosecutions. Her conclusion was that:
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. There appears to be no interference with the independence of Prosecutors on this level. (at 14, emphasis added)
Furthermore, since the Premier herself had stated to Pawlowski that she had been communicating with “our prosecutors … almost weekly” it was necessary to see whether that was in fact the case. Ms. Smith’s evidence before the Commissioner was rather different:
[The Premier] stated to me, under oath, that she had never personally spoken to any Crown Prosecutor about a COVID or Coutts-related case but had used the words to refer to the Justice Ministry. The only people that she spoke to were Minister Shandro and Deputy Minister Bosscha. It appears that whenever Premier Smith referred to the Crown Prosecutors, she meant the Justice Ministry, Minister Shandro and Deputy Minister Bosscha. (at 11)
Based on this evidence, and statements received from Crown prosecutors involved in COVID-related cases, the Commissioner concluded that “[t]here is no evidence that the Premier ever spoke to any Crown Prosecutor. It would appear that she, unfortunately, used the term inappropriately” (at 14).
We pause to note that Elise von Scheel, the CBC reporter who wrote the January CBC story, was also interviewed under oath/affirmation. Regarding that story, the Commissioner wrote: “[t]he CBC has not seen the emails and has not divulged, quite rightfully, its source. It was public knowledge that this investigation was taking place and one might expect that the CBC source would have come forward on an anonymous or confidential basis” (at 13). It thus appears that the Commissioner was prepared to leave this contradictory evidence unresolved, possibly because her ultimate conclusions regarding the call between the Premier and AG Shandro were dispositive of the allegations in any event.
The Commissioner then turned to examine Premier Smith’s call to AG Shandro to see if it revealed a breach of section 3 of the COIA. For ease of reference here is section 3 again:
A Member breaches this Act if the Member uses the Member’s office or powers to influence or to seek to influence a decision to be made by or on behalf of the Crown … to improperly further another person’s private interest. (emphasis added)
The Commissioner began her analysis of the Premier’s call to AG Shandro by looking at whether Premier Smith had acted improperly in discussing Mr. Pawlowski’s criminal case with him. This way of framing the interpretive issue – starting with the subject matter of and reason for the call to AG Shandro – allowed the Commissioner to discuss the profound constitutional issues at play, and she did so in no uncertain terms:
Members of the Legislative Assembly (particularly, members of Executive Council) and Deputy Ministers and other public servants, with the exception of members of the Crown Prosecution Service, should not speak with any accused person (or his or her representative) about any ongoing criminal matter before the Courts. The legal system is an independent arm of government and neither the Legislative branch of Government nor the Executive branch of Government should interfere or appear to interfere with the Judicial branch of Government. To do so is to endanger the independence of the judicial system. This principle is a fundamental pillar of our democracy. The Premier breached this principle by discussing the accused’s case with him. If a Member of the Legislative Assembly or Public Service inadvertently finds themselves in such a situation, the Member or public servant must terminate the discussion forthwith. (at 14, emphasis added)
But while the Premier’s call with Mr. Pawlowski might have been constitutionally improper, that in and of itself was not a breach of section 3 of the COIA. To establish a breach, it was necessary to examine Premier Smith’s subsequent phone call with AG Shandro.
The first question was whether the call could be said to concern the private interests of another person (Pawlowski). And the Commissioner’s answer was yes:
Private interests are for the most part financial. In this case, Mr. Pawlowski’s private interests include both the possibility of a fine or incarceration, as well as the financial cost of his legal fees. These are clearly private interests. None of these fits any of the exceptions in s 1(1)(g) of the Act. (at 15)
The second question was whether the Premier was using her office or power to influence a Crown decision. Again, the Commissioner’s answer was yes:
The purpose of Premier Smith’s call [to AG Shandro] was to influence a decision of the Crown to prosecute Mr. Pawlowski, which is a private interest of that individual. 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.
…
Premier Smith was the only person who, by virtue of her position, could clearly exert influence over the Attorney General and had the power to remove Minister Shandro from his position as Minister of Justice and Attorney General. I believe that Minister Shandro must have felt considerable pressure and concern for his tenure as Minister as a result of the call. (at 15)
That perhaps was enough to dispose of the complaint, with the added observation that it did not matter that the Premier’s attempt “to influence a decision of the Crown to improperly further another person’s private interest” was not successful (since AG Shandro had “stood his ground in defending the independence of the Crown Prosecution Service and its right to be free from political interference” (at 15-16)). But the Commissioner was not done. She added further commentary on the impropriety of Premier’s Smith’s behaviour and its corrosive effect on the administration of justice and democracy:
It is improper for any elected official to try to interfere with the administration of justice by interfering in a prosecution. In Krieger v Law Society of Alberta, 2002 SCC 65, the Supreme Court of Canada stated: “It is a constitutional principle that Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions.” (para 3)
Speaking to an Attorney General about a specific ongoing criminal case, in the way that Premier Smith did on the call with Minister Shandro, is not acceptable….
…
In the whole scheme of things, it is a threat to democracy to interfere with the administration of justice. It is the first step toward the type of judicial system often found in a non-democratic or pseudo-democratic country where members of and friends of those in power are shielded from prosecution or are acquitted by the courts on the instructions of those in power. As well, those opposing the Government face trumped up charges and are convicted based on political instructions to the judiciary which slavishly follows the government agenda in order to keep their positions. This independence is a cornerstone of any democratic society and democracy will fail without it. (at 15, emphasis added)
We are encouraged that Commissioner Trussler used the power of her office to frame the issues in terms of constitutional principles. Two of us (Bankes and Koshan) had already discussed the constitutional impropriety of Premier Smith’s actions in an ABlawg comment (Premier Danielle Smith and the (Non) Observance of Constitutional Conventions), and we read the Commissioner’s report as confirming much of our analysis, especially as it relates to the constitutional principle of the independence of the Attorney General.
The real “value-added” from the Trussler Report, however, is the revelation that Premier Smith put through a call to AG Shandro on the same day as the Pawlowski call – even though she had essentially just admitted to Pawlowski that she knew that this was completely inappropriate in light of her understanding of the SNC-Lavalin affair.
Commissioner Trussler gives us the facts that confirm Premier Smith’s unconstitutional behaviour. It also lays to waste the Premier’s feigned ignorance of the applicable rules in the aftermath of the report’s release.
Comparisons to Trudeau II
There are a number of references in Commissioner Trussler’s report to the SNC-Lavalin matter involving Prime Minister Justin Trudeau and then-Attorney General of Canada, Jody Wilson-Raybauld. In the 2019 Trudeau II Report, Commissioner Mario Dion found that Prime Minister Trudeau’s actions in that matter violated section 9 of the federal Conflict of Interest Act, SC 2006, c 9. Similar to section 3 of the Alberta COIA, section 9 of the federal Act prohibits public office holders from using their position “to seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests.”
The allegation considered by Commissioner Dion was that PM Trudeau had attempted to influence AG Wilson-Raybould to allow criminal charges against SNC-Lavalin to be resolved by way of a remediation/deferred prosecution agreement. The Director of Public Prosecutions had already decided not to invite SNC-Lavalin to negotiate such an agreement, and AG Wilson-Raybould had stated that she would not intervene in this decision. Commissioner Dion found that “the evidence showed there were many ways in which Mr. Trudeau, either directly or through the actions of those under his direction, sought to influence the Attorney General” (Trudeau II Report at 1). These included a meeting between PM Trudeau and representatives of SNC-Lavalin after criminal charges were laid against the company, and a meeting between the Prime Minister, then Clerk of the Privy Council Michael Wernick, and the Attorney General in September 2018, where Ms. Wilson-Raybould expressed concerns about “inappropriate attempts to interfere politically with the Attorney General in a criminal matter” (at 1). Following this meeting, senior officials under the Prime Minister’s direction continued to engage with the AG’s office, including a final attempt by Mr. Wernick in December 2018, characterized by Commissioner Dion as “an appeal, on behalf of Mr. Trudeau, to impress upon her that a solution was needed to prevent the economic consequences of SNC-Lavalin not entering into negotiations for a remediation agreement” (at 1-2).
Commissioner Dion noted that SNC-Lavalin had “significant financial interests in deferring prosecution”, satisfying the “private interests” component of section 9. Furthermore, “[t]hese interests would likely have been furthered had Mr. Trudeau successfully influenced the Attorney General to intervene in the Director of Public Prosecutions’ decision” (at 2). Commissioner Dion concluded that the Prime Minster’s actions seeking to further these interests “were improper since they were contrary to the Shawcross doctrine and the principles of prosecutorial independence and the rule of law” (at 2; for a discussion of the Shawcross doctrine, see the earlier ABlawg post on the Smith matter at the link above). A breach of section 9 of the federal Act was therefore made out.
In her report, Commissioner Trussler referenced the Trudeau II Report for two main purposes. First, as noted above, she made a finding that Premier Smith was aware of the Trudeau II Report before she became Premier (at 8). While Commissioner Trussler did not directly remark on the significance of this fact, we are of the view that Premier Smith’s knowledge of Trudeau II undermines her excuse following the release of the Trussler report that she is “not a lawyer” and was only interested in AG Shandro’s advice “on what could be legally done” about Pawlowski’s charges.
Second, Commissioner Trussler used the Trudeau II Report as support for her conclusion that it “is not acceptable” for a Premier to speak to their Attorney General “about a specific ongoing criminal case” (at 15). She also cited Commissioner Dion for the point that “it only takes one instance of seeking to influence a decision of the Crown to improperly further another person’s private interest to contravene … the Act” and “[t]he attempt does not have to be successful” (at 15). As we noted above, Commissioner Trussler was of the view that AG Shandro “stood his ground in defending the independence of the Crown Prosecution Service and its right to be free from political interference” (at 15-16). Nevertheless, it is important to recall that Jody Wilson-Raybauld resigned from the federal cabinet after the SNC-Lavalin matter was brought to public attention (although the Prime Minister had already shuffled her out of the AG portfolio by that point). AG Shandro did not resign from cabinet and neither did he publicly call out Premier Smith’s unconstitutional behaviour.
Commissioner Trussler’s Recommendations and Concluding Thoughts
Commissioner Trussler declined to recommend sanctions against the Premier, although she reserved the right to make recommendations after the election once the Legislative Assembly is back in session. She did, however, make two additional recommendations, the first of which was that “all new Members of the Legislative Assembly of Alberta attend mandatory training upon election about the structure of Canadian government and the roles of the three branches of government.” (at 16, emphasis added)
This recommendation strikes us as rather remarkable. We might have even suggested that it is unprecedented except that just last month, the Alberta Branch of the Canadian Bar Association released its “Agenda for Justice 2023,” which sets out a series of recommendations for improving Alberta’s justice system. Several of the CBA’s recommendations centre around the division and separation of powers, with language that bears a striking similarity to Commissioner Trussler’s:
CBA Alberta calls on all political parties to demonstrate their commitment to the principles of our constitutional democracy, and the continuance of the rule of law in the following ways:
1. By establishing an educational backgrounder for their respective members, to ensure that elected representatives have a foundational understanding of why division of powers and separation of powers matter, and how to operate efficiently and effectively within this system of government…
2. By including in their platform a concrete and actionable plan to be advocates for our system. The current climate is deeply concerning for the legal community; we see attacks on the judicial system and our political systems in general that threaten the future of democracy… (“Agenda for Justice 2023” at 43, emphasis added)
We remind our readers that these recommendations were made at the end of last month – well before the Commissioner’s report was released.
What might have prompted such concerns from Alberta’s private bar? Each of the authors to this post has recently observed a troubling and persistent disregard for the rule of law and basic democratic norms in Alberta. When Danielle Smith first tied her candidacy for the leadership of the UCP to a Sovereignty Act, her current executive director, Rob Anderson, suggested ignoring any future court rulings that deemed it unconstitutional while Ms. Smith herself seemed to threaten the courts if they dared to so find: “If a court struck down an Alberta Sovereignty Act as unconstitutional, Smith said, it would trigger a ‘constitutional crisis.’” (See Tyler Dawson, “UCP leadership contender Danielle Smith wants Alberta to ignore federal laws it doesn’t like”, National Post (17 June 2022))
While the rhetoric was toned down for the eventual introduction and passage of the Alberta Sovereignty within a United Canada Act, SA 2022, c A-33.8, the Act itself purports to usurp the role of the courts in declaring federal legislation unconstitutional. Similarly, in an interview from September 2022, Ms. Smith suggested that law enforcement officials had been given too much “latitude” in enforcing COVID-related health restrictions. And it is not just the Premier whose actions pose concerns about the rule of law, separation of powers, and democracy. Former Justice Minister Kaycee Madu was also found to have attempted to interfere with the administration of justice in the Kent Report, released in February 2022.
University of Waterloo professor and political scientist Emmett MacFarlane raised similar concerns in a blog post last week, while also cautioning that the rule of law may not be a “kitchen table” issue:
All that being said, I don’t think there has been sufficient attention to this fundamental question regarding Smith and respect for the rule of law. Why? Part of this is because “the rule of law” as a principle isn’t what we call a kitchen table issue: families are far more concerned about the state of the economy, or the health care system, or schools. As a vote mover, those afraid of Smith for broader reasons – like today’s conflict of interest report – are likely already in the NDP or “undecided” camps.
But the election fundamentally remains a test of how far a political leader can test the limits of democracy and its underlining principles. Few in the modern era have openly pushed against the rule of law like Smith. If she wins, it’s indicative of a real threat we’ve seen in other democracies around the world, including our neighbours to the immediate South: a democratic backslide and an increasingly polarized and uncertain future. (emphasis added)
We share Professor MacFarlane’s, Commissioner Trussler’s, and the Alberta bar’s concerns. The consistent thread through each of the above-noted matters, including the one involving Mr. Pawlowski, is a casual disregard for the bedrock rules of democratic governance: that independent judges – not politicians – decide the constitutionality of laws; that professional law enforcement – not politicians – decide how and when to enforce the laws duly passed by legislatures; and that independent prosecutors – not politicians – decide who to prosecute or not prosecute. It is adherence to these non-partisan rules that safeguards our rights and freedoms – not the whims of any given politician.
Historian Timothy Snyder has suggested that “we might be tempted to think that our democratic heritage automatically protects us from such threats,” but that this “is a misguided reflex” (“On Tyranny: Twenty Lessons from the 20th Century” Graphic ed (Ten Speed Press; California, 2021) at 7). We therefore conclude our post with a friendly amendment to the recommendations of both the Ethics Commissioner and the Alberta branch of the CBA: it is time for all Albertans to reacquaint themselves with the basic structures and rules of our democracy and constitutional order, and to re-commit themselves to protecting them. History has demonstrated that it is on the stability of this foundation that all other issues, whether health care, the economy, or schooling, ultimately rest.
Thanks to our colleague Professor Jonnette Watson Hamilton for her comments on a draft of this post.
This post may be cited as: Nigel Bankes, Jennifer Koshan, and Martin Olszynski, “Ethics Commissioner Confirms that Premier Danielle Smith Breached the Conflicts of Interest Act – and a Fundamental Principle of Our Democracy” (May 24, 2023), online: ABlawg, http://ablawg.ca/wp-content/uploads/2023/05/Blog_NB_JK_MO_Ethics_Report_Smith.pdf
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