Throughout her run for the UCP leadership last year, Danielle Smith promised supporters she would look for ways to end the frivolous prosecution of lockdown protesters and to pardon non-violent mandate flouters. Since becoming leader, however, Premier Smith has slowly walked back this commitment, ostensibly responding to concerns she might be interfering with “prosecutorial independence.” At her press availability on February 10, she backed down completely, on the advice of her Justice Minister that “amnesty is only available through the Governor General.”.This is incorrect legal advice. Several lawful paths are available to the premier to fulfill her commitment to those she once characterized as “the most discriminated-against group that I’ve ever witnessed in my lifetime.” I shall illustrate those paths using recent Canadian precedents..Hundreds of Albertans have been charged with violating a veritable smorgasbord of provincial public-health orders, as well some federal Criminal Code offenses such as obstruction of justice, failure to comply, and breaching a condition of release. For jurisdictional reasons, these two types of offense must be addressed separately..The grain of truth in the advice Premier Smith was given by her Justice Minister is that only the Governor General has the royal prerogative to issue pardons for federal Criminal Code offenses. But Lieutenant Governors of each province do have the royal prerogative to issue pardons for provincial offenses. Indeed, there is a “longstanding practice” in Saskatchewan whereby pardons for provincial offenses are granted to some individuals annually, essentially by Order-in-Council (i.e. cabinet.) Technically, the Lieutenant Governor holds the power ultimately, but that is little more than ceremonial..Pardons may also be granted by ordinary statute. Legislatures have the power to undo past mistakes by commuting sentences, forgiving convictions, wiping slates clean, and even paying compensation. In 2020, Parliament established an administrative process whereby applicants could obtain pardons for convictions for simple cannabis possession by providing the bureaucracy with appropriate documentation. A similar process could easily be set up in Alberta to wipe out breaches of all or select public-health orders..So much for dealing with provincial offenses. Premier Smith is not impotent with respect to Criminal Code offenses, either. While the content of the criminal law is a federal jurisdiction, its enforcement is a provincial responsibility. There is ample precedent for Attorneys and Solicitors General in Canada to issue politicized “guidelines” and “directives” to their prosecutors with the objective of having them pursue cases more or less vigorously..For example, Jody Wilson-Raybould’s final act as Attorney General was to issue a directive to the Public Prosecution Service of Canada that included 20 separate “Guidelines” concerning how lawyers were to handle cases involving First Nations plaintiffs. The preface begins:."In my mandate letter from the Prime Minister, I was tasked as Attorney General of Canada to review the Government of Canada’s litigation strategy. I was mandated to make decisions to end appeals or positions inconsistent with the Government’s commitments, the Charter of Rights and Freedoms, and Canadian values.".Throughout the preface, shifts in litigation strategy to better reflect the Government’s new commitments and relationship with a class of citizens is emphasized. A “decisive break from the status quo” was deemed necessary. This example provides a perfect template for Premier Smith’s goal of reconciliation with the lockdown protesters and mandate flouters..A closer-to-home precedent is the Alberta Handbook on Domestic Violence, published under the auspices of the Solicitor General, which outlines how police and prosecutors are expected to handle files in this category of criminal offense. The Handbook leaves no stone unturned in pursuit of the express objective of increasing the conviction rate in such cases..It is beyond the scope of this essay to provide even a brief summary of the 160-page Handbook. Suffice it to say that it replaces the longstanding criminal-law principles for vetting cases — that there must be a reasonable likelihood of conviction, and it must be in the public interest to go to trial — with the political ideology of “zero tolerance.” Zero tolerance means in practice that every case should be taken to trial, unless the accused pleads guilty..Not only is the Handbook a severe thumbing of the scales of justice against the accused, it does so in a grotesquely sexist manner. It purposefully promotes the myth that every accused is a guilty male, and every complainant is an innocent female. Despite this awful bias, the Handbook was celebrated in legal circles when it first appeared on the scene. The author won accolades and awards. This piece of political meddling was never criticized for being an illegitimate interference with prosecutorial independence..How quickly partisans memory-hole lawful avenues of amnesty and reconciliation when they do not have a taste for the particular forgiveness on offer..Premier Smith, the ball is in your court!.Grant A. Brown is a retired philosopher and home renovator who currently resides in Edmonton, Alberta. An extended version of this article appears on the C2C website
Throughout her run for the UCP leadership last year, Danielle Smith promised supporters she would look for ways to end the frivolous prosecution of lockdown protesters and to pardon non-violent mandate flouters. Since becoming leader, however, Premier Smith has slowly walked back this commitment, ostensibly responding to concerns she might be interfering with “prosecutorial independence.” At her press availability on February 10, she backed down completely, on the advice of her Justice Minister that “amnesty is only available through the Governor General.”.This is incorrect legal advice. Several lawful paths are available to the premier to fulfill her commitment to those she once characterized as “the most discriminated-against group that I’ve ever witnessed in my lifetime.” I shall illustrate those paths using recent Canadian precedents..Hundreds of Albertans have been charged with violating a veritable smorgasbord of provincial public-health orders, as well some federal Criminal Code offenses such as obstruction of justice, failure to comply, and breaching a condition of release. For jurisdictional reasons, these two types of offense must be addressed separately..The grain of truth in the advice Premier Smith was given by her Justice Minister is that only the Governor General has the royal prerogative to issue pardons for federal Criminal Code offenses. But Lieutenant Governors of each province do have the royal prerogative to issue pardons for provincial offenses. Indeed, there is a “longstanding practice” in Saskatchewan whereby pardons for provincial offenses are granted to some individuals annually, essentially by Order-in-Council (i.e. cabinet.) Technically, the Lieutenant Governor holds the power ultimately, but that is little more than ceremonial..Pardons may also be granted by ordinary statute. Legislatures have the power to undo past mistakes by commuting sentences, forgiving convictions, wiping slates clean, and even paying compensation. In 2020, Parliament established an administrative process whereby applicants could obtain pardons for convictions for simple cannabis possession by providing the bureaucracy with appropriate documentation. A similar process could easily be set up in Alberta to wipe out breaches of all or select public-health orders..So much for dealing with provincial offenses. Premier Smith is not impotent with respect to Criminal Code offenses, either. While the content of the criminal law is a federal jurisdiction, its enforcement is a provincial responsibility. There is ample precedent for Attorneys and Solicitors General in Canada to issue politicized “guidelines” and “directives” to their prosecutors with the objective of having them pursue cases more or less vigorously..For example, Jody Wilson-Raybould’s final act as Attorney General was to issue a directive to the Public Prosecution Service of Canada that included 20 separate “Guidelines” concerning how lawyers were to handle cases involving First Nations plaintiffs. The preface begins:."In my mandate letter from the Prime Minister, I was tasked as Attorney General of Canada to review the Government of Canada’s litigation strategy. I was mandated to make decisions to end appeals or positions inconsistent with the Government’s commitments, the Charter of Rights and Freedoms, and Canadian values.".Throughout the preface, shifts in litigation strategy to better reflect the Government’s new commitments and relationship with a class of citizens is emphasized. A “decisive break from the status quo” was deemed necessary. This example provides a perfect template for Premier Smith’s goal of reconciliation with the lockdown protesters and mandate flouters..A closer-to-home precedent is the Alberta Handbook on Domestic Violence, published under the auspices of the Solicitor General, which outlines how police and prosecutors are expected to handle files in this category of criminal offense. The Handbook leaves no stone unturned in pursuit of the express objective of increasing the conviction rate in such cases..It is beyond the scope of this essay to provide even a brief summary of the 160-page Handbook. Suffice it to say that it replaces the longstanding criminal-law principles for vetting cases — that there must be a reasonable likelihood of conviction, and it must be in the public interest to go to trial — with the political ideology of “zero tolerance.” Zero tolerance means in practice that every case should be taken to trial, unless the accused pleads guilty..Not only is the Handbook a severe thumbing of the scales of justice against the accused, it does so in a grotesquely sexist manner. It purposefully promotes the myth that every accused is a guilty male, and every complainant is an innocent female. Despite this awful bias, the Handbook was celebrated in legal circles when it first appeared on the scene. The author won accolades and awards. This piece of political meddling was never criticized for being an illegitimate interference with prosecutorial independence..How quickly partisans memory-hole lawful avenues of amnesty and reconciliation when they do not have a taste for the particular forgiveness on offer..Premier Smith, the ball is in your court!.Grant A. Brown is a retired philosopher and home renovator who currently resides in Edmonton, Alberta. An extended version of this article appears on the C2C website
