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Told ‘no’ on amnesty, Danielle Smith tests a premier’s limits on COVID prosecutions

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In her months of touring the province to win the UCP leadership, Danielle Smith operated on an assumption that Alberta’s justice system worked like the American one. Armed with that mistaken impression, she promised those aggrieved by charges against them for COVID rule violations that, as premier, she’d grant them amnesty.

Alberta’s Justice Ministry was apparently well aware, and wanted to quickly put to rest her assumption, Smith herself told a legislature committee earlier this month.

“When I got elected on Oct. 6 and was sworn in, I discovered that the Department of Justice had proactively, having heard the things I was campaigning on, decided to put together a PowerPoint presentation on the issue of amnesty to talk about what was possible and what was not possible,” the premier said.

Following that, Smith explained, her justice minister and deputy justice minister clarified that, in Canada, it’s the Governor-General who can wield the rare power of extinguishing charges.

CBC News Calgary10:50Premier to Pawlowski: “Can you just leave this with me?”

Premier Danielle Smith reassured Artur Pawlowski, a Calgarian facing COVID-related charges, that she discusses such cases “almost weekly” with Alberta Justice officials, and that she wishes there could be a political decision to end it.

Smith also says she has learned, early in her premiership, that there are two questions a politician can ask about Crown prosecutions: if a case was in the public interest, and if a conviction was reasonably likely.

That’s the limited line of interrogation Smith said she was “confined” to in her now-public conversation in January with street preacher Artur Pawlowski, ahead of his trial on a criminal charge of mischief and a provincial offence.

Confined? Fine

But she apparently took this as licence to approach those limits quite regularly. Smith told the accused man she brought up the cases and the prescribed questions “almost weekly.” (She directly said she was bringing them up with “prosecutors” but has since insisted that she actually meant her minister and deputy justice minister.)

And after expressing sympathy for Pawlowski and his then-looming trial, she pledged to do so again.

“Can you just leave this with me and I will make that request one more time?”

On the recorded phone conversation, Smith expresses wishes she could do more, so much more — that a “political decision” couldn’t get Pawlowski or others out of their legal plight.

Smith’s keenness to do so, to maximize the limits of a premier’s relationship with Alberta’s justice system, has once again raised the eyebrows of political and legal watchers. NDP Leader Rachel Notley has ramped up her demand for an independent investigation into Smith’s actions into one for a formal judicial review, ideally done before the election campaign officially kicks off May 1.

Smith has thus far shown resistance to expose her actions to such third-party scrutiny. And while she and her team insist she has done nothing improper, what she has done may exist in a grey area between what is acceptable conduct and what isn’t — and rest on politically uncertain grounds, because it’s wholly unconventional and norm-bending for a political leader to do what she has done.

“I don’t know if there is something called the legal threshold of political interference. It’s a political standard,”  said University of Alberta law professor Eric Adams on the CBC Eyeopener on Thursday. It’s up to voters and Albertans to determine if this is “healthy” in a rule of law system, “every time a politician gets too close to a set of criminal charges.”

He poses the alternative scenario to Smith and Pawlowski, the anti-COVID-rule activist she agreed with — what if an NDP leader had called a union leader charged with offences, and said she’d do what she could to support him?

an officer wearing a medical mask handcuffs Artur Pawlowski on an airport tarmac. They are standing near an airplane.
Artur Pawlowski is shown being arrested in 2021. He was charged again last year after a speech at the Coutts border blockade that prosecutors say incited protestors. In January, he got Premier Danielle Smith on the phone to talk about his case. (@RonFilipkowski/Twitter)

It’s clear from the call to Pawlowski that Smith was wary about crossing lines, given her multiple references to Prime Minister Justin Trudeau and the pressure his team had applied on his then-attorney general in the SNC Lavalin saga.

But she was not wary enough, nor was the premier’s staff able to shield her from the questionable wisdom of conversing with someone facing charges about those very charges.

“When you have a system where you have the state bringing charges and prosecuting individuals, in no cases can you have certain of those people because of their connections or their because of their beliefs or because of their political ideology be able to gain access right back into the heart of power and have the premier say: let me help you with that,” Adams said.

One wonders where her aides were during this call — it was apparently arranged by Dennis Modry, a fellow COVID rules critic and then-leader of a pro-separatist group. Her top aide, lawyer and ex-MLA Rob Anderson, was also her campaign chair and probably in a position to disabuse Smith of her presumptions about U.S.-style amnesty.

Deputy premier Kaycee Madu, who was a UCP justice minister until he was accused of crossing the political interference line regarding his own traffic violation, defended the premier’s exercise of the permissible interactions with Justice officials.

But when asked Thursday about the appropriateness of Smith speaking with Pawlowski, he chose his words carefully.

Madu stated that Smith is aware COVID restriction issues have been divisive, and has instead focused on issues like affordability, health care, and economic growth.

“In the course of that particular work, the premier is free to speak with anyone that she wishes to speak with. That is the way I would like to address that particular question.”

One may wonder what Tyler Shandro, the current justice minister, thinks about the Pawlowski call. One inquired. One did not receive a reply.

Coming to an understanding

Smith has been careful with her public discussion of the COVID prosecutions — and even on private calls, it turns out. Yet her language around prosecutors is imprecision that has caused her to play damage control. (She has since stated she understands how plainly inappropriate it would be to speak directly with Crown prosecutors about cases, and has insisted that she and her staff have not done so.)

Like with the amnesty file, this wrong use of “prosecutors” may have been borne out of a mistaken understanding about a provincial justice system she now, as premier, must steward and protect.

As Madu stated, the UCP has pushed to keep their leader and whole team focused on the more election-friendly issues. They’d much rather go into the election by smoothing Smith’s edges, portraying her as a more conventional and caring leader, and not one with erratic ideas who wants to fight on issues like COVID prosecutions that only appeal to a minority of Albertans.

Here’s a sign of why.

Last fall, Conservative media outfit Rebel News hired reputed pollster Leger to ask Albertans if they backed the premier’s push to grant amnesty to pastors and small businesses charged with pandemic-related offenses.

The answer can’t be what a group campaigning for amnesty would have wanted, or Smith for that matter. Fifty per cent of Albertans opposed the idea, and only 36 per cent supported it. The rest were unsure. 

Smith’s outreach to someone facing criminal trial, and committed emphasis on fighting for him and his ilk, remind Albertans of a side of their leader that United Conservatives prefer not to emphasize. There’s a reason the NDP are swinging hard at this, and Madu and others would much rather move on.