Ethics Commissioner Report Concludes Premier Danielle Smith Did Not Contact Crown Prosecutors, Contrary To A CBC Report
A report by the ethics commissioner in Alberta found that there is no evidence that Premier Danielle Smith ever spoke to any Crown Prosecutor, putting a CBC report in bad light.
On January 19, 2023, the CBC broadcast a story claiming that someone in the Premier’s office had called the Crown Prosecution Service over the Coutts cases. Protesters back in February 2022 blocked the Canada-United States border crossing at Coutts for 18 days in opposition of COVID-19 measures.
In addition to the article, the CBC forwarded an email to the Premier’s office saying that three emails were written in late 2022 disputing the Crown’s assessment and guidance on Coutts-related cases. CBC belatedly admitted that it has not seen the emails and has not revealed the source for who provided the story.
In her investigation, Ethics Commissioner Marguerite Trussler said that she “asked numerous questions of a considerable number of people about the existence of any email and could find no evidence that the event occurred, or that any email exists.”
“The CBC has not seen the emails and has not divulged, quite rightfully, its source… All Crown Prosecutors who have Covid-related files have stated that they did not receive an email critiquing the Crown’s position and all the Premier’s staff have stated that they did not send such an email,” Trussler wrote.
She then concluded that there’s “no evidence of such an email and… 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,” she added. “There is no evidence that the Premier ever spoke to any Crown Prosecutor.”
Trussler, however, noted that Smith would appear to have used the term “Crown Prosecutors” inappropriately. In the now infamous leaked tape call between the Premier and Artur Pawlowski, who was facing criminal charges in relation to the Coutts blockade, Smith made references that “she had frequent contact with Crown Prosecutors.” The Premier clarified to Trussler that she had never personally spoken to any Crown Prosecutor about a Covid or Coutts-related case but had used “Crown Prosecutors” to refer to the Justice Ministry.
“The only people that she spoke to were Minister [Tyler] 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,” the report said.
Trussler added the only incident that is in any way close to what was reported was the email containing a letter sent by conservative media personality Ezra Levant criticizing the prosecutions. The Premier ran into Levant at a gathering in October 2022 where he stated that he had some suggestions for how the Premier may handle the Covid-related issues. The Premier directed him to send an email with a note to her Chief of Staff, Marshall Smith.
Smith forwarded Levant’s email to Chief of Staff to the Minister of Justice, Christopher Thresher, who then provided the email letter to Minister Shandro who in turn forwarded it to the Deputy Minister, Frank Bosscha. It was subsequently forwarded to the Assistant Deputy Minister in charge of the Crown Prosecution Service, who did not forward it to any Crown Prosecutor.
The Pawlowski call
During her campaign, Smith promised to provide amnesty to those charged with non-violent cases that were not contempt of court or firearms-related cases, including those who protested during the Coutts blockade. Pawlowski, who’s still in house arrest years after Smith was elected, seemed to be frustrated with the “the promises that were never fulfilled,” according to his leaked call with the Premier.
Was it improper for the Premier to discuss Pawlowski’s criminal case with him? Trussler had a nuanced conclusion, but eventually concluded that the telephone call itself is “not a matter covered by the Conflicts of Interest Act.”
Pawlowski called Smith’s executive assistant Dr. Dennis Modry in January 2023, asking if he could schedule a meeting between himself and the Premier to discuss the charges. According to the text Modry sent to Smith, he asked if she would be open to the call but did not reference Pawlowski’s charges as part of the agenda for the discussion.
“Hi Danielle. Would you be willing to have a conversation with Artur Pawlowski in person or by telephone in the next 48 hours? I believe that he can help you against Notley. Den,” the text read.
Smith said she was taken aback when Pawlowski asked to discuss his pending criminal prosecution. She and Modry were also unaware that Pawlowski was taping the conversation.
“The Premier has claimed that she agreed to speak to Mr. Pawlowski as he was head of the Independence Party of Alberta,” Trussler wrote. “However, when the Premier became aware that the call was about Mr. Pawlowski’s upcoming trial, she should have clearly told Mr. Pawlowski that she could not speak to him about criminal charges that he was facing and immediately terminated the call.”
The commissioner then said that while Smith breached that principle, the call itself isn’t covered by conflict of interest.
In March of 2023, a tape was posted to the CBC website of a conversation between Smith and Pawlowski.
“Improper attempt to influence”
However, Trussler did find it appropriate when Smith called up Shandro following her call with Pawlowski. In interviewing both, the commissioner saw a few differences in their recollection of the call but she said “Minister Shandro’s recollection was clearer and more precise than the Premier’s.”
According to the Attorney General, Smith called him up and “asked him about the extent to which he could get involved in a prosecution.” In response, he recalled trying to explain the position of the Attorney General and how, while the Crown Prosecution Service is under his jurisdiction, he cannot get involved in cases or speak with prosecutors personally.
The Premier recalled that during the conversation, Shandro clarified the differences between prosecutions under the Critical Infrastructure Defence Act and the Criminal Code vs Public Health Orders, which was the first time she had heard the distinction described to her.
Shandro relayed that he remembered Smith being passive-aggressive throughout the call, asking him specifically if there was anything he could do about 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,” Trussler found in her investigation.
The ethics commissioner described the call as “not acceptable” as Smith is the sole person–through her position–that could clearly exert influence over the Attorney General and can have him removed, drawing parallels to the case with Prime Minister Trudeau in the SNC-Lavalin case. While Shandro reiterated the independence of the Crown Prosecutors, Trussler concluded that “there was an improper attempt to influence the independence of the legal system” on Smith’s part.
“In my opinion, 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,” the commissioner said.
Trussler said that she makes “no recommendations with respect to sanctions against the Premier” but she reserves her right to make such when the Legislative Assembly of Alberta comes back into session.
Smith is currently on the campaign trail as she seeks reelection, with voting slated for May 29.
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