Ethics probe finds Danielle Smith in conflict of interest in Pawlowski case

Alberta's ethics commissioner says Premier Danielle Smith undermined democracy and broke conflict-of-interest rules by intervening in a criminal case and pressuring her attorney general to "make it go away.”

Marguerite Trussler said Smith's actions illustrate how democratic freedoms can quickly disappear when politicians start deciding who is and isn't above the law.

“(Judicial independence) is a fundamental pillar of our democracy,” said Trussler in a report released Thursday.

“The premier breached this principle by discussing the accused's case with him.”

The accused is Artur Pawlowski, who was convicted earlier this month of mischief for inciting the continuation of a border blockade in protest of COVID-19 pandemic rules. The protest blocked Alberta's main border crossing into the United States for more than two weeks in early 2022.

Trussler's investigation focuses on a Jan. 6 phone conversation between Smith and Pawlowski before his trial, the audio of which was leaked to and released by the Opposition NDP.

In the 11-minute recording, Smith is heard telling Pawlowski the charges against him were politically motivated and that she would make inquiries on his behalf and report back.

Trussler said Smith should not have discussed Pawlowski's case with him. But she said Smith compounded the error — and broke Alberta's ethics rules — by phoning Tyler Shandro, her justice minister and attorney general, to pressure him to drop the case.

Trussler said Shandro's recollection of the call, hours after the Pawlowski-Smith conversation, was clearer and more precise than Smith's.

Trussler said Shandro "stood his ground in defending the independence of the Crown prosecution service and its right to be free from political interference."

Smith told Trussler she did not tell Shandro she had just spoken with Pawlowski.

“Shandro stated that Premier Smith was passive/ aggressive throughout the call,” wrote Trussler.

“(Smith) asked (Shandro) 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."

Smith expressed concern about the optics of an expected Pawlowski press conference, Trussler wrote.

“Shandro told her there was nothing that could be done, and she accepted his advice.”

Trussler concluded it was not acceptable for Smith to talk about the case with Shandro.

“I believe that Minister Shandro must have felt considerable pressure and concern for his tenure as minister as a result of the call.”

Shandro remained in his position as justice minister when writs were issued May 1 to launch the campaign for the May 29 election.

Under Alberta's Conflicts of Interest Act, politicians can't do things to further another person's private interests. Trussler found that Smith tried to do that for Pawlowski when she called Shandro.

The ripple effects of such actions, Trussler added, are far more profound.

“It is the first step toward the type of judicial system often found in a non-democratic or pseudodemocratic 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.”

Trussler did not recommend sanctions against Smith in her report, but said she reserves the right to do so once the legislature is back in session.

Smith, taking questions from reporters after a televised election debate later Thursday, said: “It was a mistake. I’m not a perfect person.

“I thought I was going about it the right way.

“The ethics commissioner said I did it the wrong way. I asked her if she would give me some advice in the report about how to do it right. She hasn’t yet, but when she does, I look forward to taking her recommendations.”

Irfan Sabir, the NDP’s justice critic, said the report is further evidence Smith is in over her head.

“She doesn’t have any understanding of the separation between different branches of the government,” said Sabir.

Trussler launched the investigation by acting on complaints received March 31 from Sabir and an unidentified senior.

Trussler also investigated a Jan. 19 report by the CBC alleging a staffer in Smith’s office emailed prosecutors challenging their handling of border protest cases.

“I 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,” she wrote.

Smith has threatened to sue the CBC for defamation over that story, and said Thursday she would revisit legal action after the election.

CBC spokesman Chuck Thompson said in a statement: “CBC News stands by our journalism and our sources. We would also note (Trussler) did not search for additional emails.”

After the CBC story, Smith directed civil servants to search for any telltale emails between her office and prosecutors.

The search encompassed the preceding four months and did not find any such evidence. The Justice Department later confirmed deleted emails would have been wiped away earlier than that, but declined to clarify how far back the search for deleted emails actually went.

Smith has previously said while it’s wrong for politicians to speak to accused about their cases, she did nothing wrong because it’s her job to listen to and act on constituent concerns.