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Ethics probe finds Danielle Smith violated conflict of interest rule, but no sanctions ordered against her

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Alberta's ethics commissioner has found United Conservative Party leader Danielle Smith contravened the Conflict of Interest Act over a conversation she had with her justice minister about a high-profile COVID-19 case.

Marguerite Trussler's report comes in the waning days of a bitter election campaign with voters going to the polls on May 29.

Trussler, in her report, says the violation has to do with discussions Smith had with Tyler Shandro related to criminal charges against Calgary pastor Artur Pawlowski.

Smith also spoke with the pastor, and stated she did so only because he was the leader of the Independence Party of Alberta.

During that call, Smith told him she sympathized with his situation but said she "did not have the mechanisms" to influence Crown prosecutors' cases.

Trussler determined that once the true nature of the call was determined, Smith should have taken action.

"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," she wrote.

Pawlowski was found guilty earlier this month of mischief and other changes for his role in a protest over COVID-19 restrictions that snarled Alberta's main border crossing into the U.S. in early 2022.

Smith said Thursday that that matter has been concluded and she wouldn't be commenting further.

CALL TO SHANDRO

Several hours after taking the call from Pawlowski, Smith contacted then-Justice Minister Tyler Shandro, a call that the latter remembered "clearly" considering he took it while he was on vacation with his family in B.C.

The ethics commission interviewed both Smith and Shandro about the call and noted that each had "a different version of the conversation."

"(Smith said) she started the conversation by stating that she did not know if it was appropriate to call him. She advised that he indicated that she could continue as the deputy minister shielded him from the COVID-related cases," Trussler wrote.

"Minister Shandro does not recall the premier beginning the call by asking him if it was okay for her to ask him about the COVID-related prosecutions. He advised me that he never felt any such conversation would be appropriate and that he almost certainly would not have indicated it was okay to proceed."

In addition, Trussler suggested that Shandro may have felt pressured by the premier during the call and the outcome could affect his position in cabinet.

"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 wrote, adding she found her conduct on the call "not acceptable."

"Just as was the case with Prime Minister Trudeau in the SNC-Lavalin case, 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 the outcome of that call, in which Smith told him she wanted him to "make it go away" but did not expressly order him to do so, Trussler said Shandro "told her there was nothing that could be done."

Trussler called the phone call between Smith and Shandro "improper."

"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."

EMAIL DID EXIST

While many of topics Trussler covered in her report had to do with Smith's phone call with Pawlowski, it was "not a matter covered by the Conflicts of Interest Act."

The goal of the ethics investigation was to determine if emails were sent from the premier's office to Crown prosecutors about pending court cases.

According to media reports, a member of the premier's office emailed a Crown prosecutor about a case.

Trussler said she found no evidence such an exchange took place.

"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. The CBC has not seen the emails and has not divulged, quite rightfully, its source."

However, even in the absence of that email, Trussler found it to be clear that Smith "used the term inappropriately."

She says during the ethics investigation a troublesome email did surface.

" The only incident that is in any way close to what was reported was the email containing a letter sent by Ezra Levant, criticizing the prosecutions, and purporting to show why they were wrong and what to do about them," Trussler said.

This letter was not passed onto any Crown prosecutors and remained within Smith's office.

"As the letter was within the jurisdiction of the justice ministry, the email was appropriately forwarded from one political staffer to another so that the second political staff member could deal with the letter."

Once it reached the desk of Alberta's assistant deputy minister of justice, a discussion took place with the deputy minister and "nothing further happened with the letter."

'GRATIFIED TO READ'

UCP Leader Danielle Smith, in a statement on Thursday, said the outcome of the report was a confirmation of "false accusations."

"I 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," she said.

She says both the CBC and NDP should apologize and withdraw the statements they made to the contrary and further extend that apology to Alberta's Crown prosecutors and civil service.

As for the phone call she had with Shandro, Smith contended she merely "wanted to find a path of amnesty" for individuals charged with "non-violent COVID-related offences."

"I spoke with Minister Shandro, who is an experienced lawyer (I am not) as I was very interested in his advice on what could legally be done about this.

"He gave me his advice on the matter and, as the commissioner has also confirmed, I accepted it. It went no further after that."

About Trussler's finding that the call was inappropriate, Smith said she requested her to provide "guidance on how to advance sensitive policy issues."

"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 says the possibility of civil litigation against the CBC is still open and she will be meeting with her lawyers following Alberta's election on May 29.

NO IMMEDIATE SANCTIONS

Trussler says she's not recommending sanctions against Smith at this point but reserves the right to do so once the legislature is back in session.

She does recommend new legislature members attend training about the roles of the three branches of government.

She also suggested the Legislative Assembly of Alberta to consider an amendment to the Conflicts of Interest Act to pause any ongoing ethics investigation once an election is called.

"Not having such a provision puts the ethics commissioner and the Speaker of the Legislative Assembly in an extremely difficult position with respect to the timing and release of any report."

(With files from the Canadian Press)

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