The much-awaited report of the Alberta Ethics Commissioner on conflict-of-interest allegations against Premier Danielle Smith is a travesty of justice. It purports to follow the precedent of the federal Ethics Commissioner, Mario Dion, in his "Trudeau II" report, concerning the prime minister's interference with the SNC-Lavalin prosecution. It does no such thing, because there is no parity between the two cases..A premise shared by all is that the prosecution of a particular case, or a whole class of cases, should not be pursued if it is not in the public interest to do so. In important, high-profile cases, or in classes of cases, the Justice Minister may be called upon to make a judgment on the merits of proceeding. He or she typically makes that call after receiving information and advice from the head of the Prosecution Service, as well as various other sources..In the SNC-Lavalin case, Justice Minister Jody Wilson-Raybould received a briefing from the chief federal prosecutor advising her that a remediation agreement with SNC-Lavalin (which would have avoided a prosecution) would not be in the public interest. That is, it would be in the public interest to proceed with a prosecution. Wilson-Raybould accepted the conclusion of the briefing. The Prime Minister's office mysteriously received a copy of this confidential briefing, and thus began his months-long campaign to undermine or countermand its conclusion..Nobody ever claimed that it was improper for Trudeau, and other Cabinet colleagues, to advise Wilson-Raybould on matters of public interest that might not have been given sufficient attention or emphasis in the briefing. Everyone recognizes that the Justice Minister is entitled to receive information and advice from political actors. It is best if she actively requests it; but offering information is no sin. Merely informing Wilson-Raybould about the economic impact that would allegedly result from a successful prosecution does not count as "interfering" in the prosecution. If Trudeau, his staff, and Cabinet colleagues had offered that information and then let the chips fall where they may, all would have been good. No foul..The deciding factor in Dion's "Trudeau II" report was the "undue pressure" exerted on Wilson-Raybould by the Prime Minister, his office staff, and Cabinet colleagues acting in concert. She was given a full-court press, long after she had told everyone that she was not changing her mind about the briefing. She even warned everyone multiple times that they were treading the line on interference with the judicial system..By the standard employed by Trussler, all of those months of interventions would be considered political interference with the independence of the justice system. There would have been no need to parse every email, phone call, and meeting to discover whether a line had been crossed and if so when and by whom. If that had been the standard Dion employed, then Finance Minister Bill Morneau would also have been found in conflict for talking to Wilson-Raybould about this case. No, Dion concluded that only Trudeau crossed the line of "undue pressure" because only he had power over Wilson-Raybould. It was only when Trudeau sent Michael Wernick to threaten her position as Justice Minister if she didn't do what he wanted her to do that the line was clearly crossed. In her own testimony, Wilson-Raybould stated that she would have resigned if she felt the pressure she was getting was undue. She did not resign until Trudeau's threat to replace her materialized. That's a very high standard before we get to "political interference.".In the Alberta case, we have a Premier who did nothing more than ask the Justice Minister, "Is there anything that can be done about a certain class of cases?" It is true that in the specific phone call that Trussler focused on in her findings, Smith was focused on one particular case, that of Arthur Pawlowski. But as the SNC-Lavalin prosecution shows, there is no harm in political actors discussing specific cases with the Justice Minister, either. And it is clear from the context that Smith regarded Pawlowski's case as merely representative of the whole class she was concerned to find ways to mitigate. When Justice Minister Shandro (mistakenly) told her there was nothing they could do consistently with the principle of prosecutorial independence, she left it at that. Smith exerted no pressure on Shandro at all, let alone "undue pressure." This case is nothing like the SNC-Lavalin case, even superficially..There is no merit to Trussler's speculation that "...Minister Shandro must have felt considerable pressure and concern for his tenure as Minister as a result of the call." Trussler interviewed Shandro in the course of preparing her report; she could have asked him directly if he felt pressured; she didn't have to speculate. Almost certainly, Shandro would have said he did not feel pressured, let alone threatened with termination; otherwise he would have been duty-bound to tender his resignation in protest. That, too, is a lesson Trussler should have derived from the Trudeau II case, but didn't..Perhaps the former judge in Trussler would prefer that the standard for "interference" be as touchy as she implies in her ruling. But that would be a novel interpretation with no precedent that I am aware of. Certainly the Trudeau II precedent she repeatedly refers to does not incorporate that standard; it quite unmistakably rejects it..It is little wonder that Premier Smith kept asking Minister Shandro if there wasn't more that could be done to assist non-violent breachers of the useless public health orders. Her frustration with the stonewalling she was getting from Alberta Justice on this file was entirely justified. There are numerous tools in the Justice Minister's tool box to deal with exactly the kind of concerns that Smith was expressing. Trussler hints at the most obvious remedy when she observes, "No options for changing legislation to nullify the charges using legislative changes to Provincial legislation were ever forwarded from Justice." Only two years ago, the federal government had passed legislation to pardon everyone in the past 100 years who had been found guilty of simple possession of marijuana; it is incredible that nobody in Alberta Justice saw this as a possible precedent in response to the Justice Minister's request to find ways of achieving amnesty..More direct interventions were also possible, without violating the principle of prosecutorial independence. Justice Ministers may issue "directives" to the prosecutorial team on how to deal with a class of cases - and they do so routinely. One of the first things B.C. Premier David Eby did when he became leader last Fall was to mandate his Justice Minister to issue a directive to B.C. prosecutors to seek to deny bail to people charged with repeat violent offenses. Prime Minister Trudeau mandated Wilson-Raybould to issue a whole slate of directives on how the federal prosecutorial service was to handle Crown-Indigenous cases going forward. Nobody looked askance at the issuance of these directives..A third example of how politicians can legitimately influence the course of justice is illustrated by a publication of Alberta Justice itself, a "handbook" for police and prosecutors on how to pursue "zero tolerance" for domestic violence. Zero tolerance is a political objective, not a legal one. If Alberta Justice can thumb the scales of justice in such a political manner in that class of cases, they can do Premier Smith's bidding on amnesty, too. A fourth tool in the Justice Minister's tool box would be to institute "social context" training for prosecutors and provincial court judges who deal with this class of cases, emphasizing the lack of public interest in pursuing the cases..None of these tools has ever been deemed a political interference with the independence of the judicial system in the past. When used in the past, they have typically been applauded, typically loudest by the progressives. There are so many legitimate tools in the Justice Minister's tool box to assist those who have been charged with violating provincial orders, it isn't even funny that Alberta Justice came up blank. That's not rank incompetence; it is deliberate sand-bagging..No, it wasn't the Premier who was interfering in the justice system; it is the legal system that is interfering in politics. It is maddening how everything gets twisted into its opposite these days..Grant A. Brown is a retired philosopher and home renovator who currently resides in Edmonton, Alberta.
The much-awaited report of the Alberta Ethics Commissioner on conflict-of-interest allegations against Premier Danielle Smith is a travesty of justice. It purports to follow the precedent of the federal Ethics Commissioner, Mario Dion, in his "Trudeau II" report, concerning the prime minister's interference with the SNC-Lavalin prosecution. It does no such thing, because there is no parity between the two cases..A premise shared by all is that the prosecution of a particular case, or a whole class of cases, should not be pursued if it is not in the public interest to do so. In important, high-profile cases, or in classes of cases, the Justice Minister may be called upon to make a judgment on the merits of proceeding. He or she typically makes that call after receiving information and advice from the head of the Prosecution Service, as well as various other sources..In the SNC-Lavalin case, Justice Minister Jody Wilson-Raybould received a briefing from the chief federal prosecutor advising her that a remediation agreement with SNC-Lavalin (which would have avoided a prosecution) would not be in the public interest. That is, it would be in the public interest to proceed with a prosecution. Wilson-Raybould accepted the conclusion of the briefing. The Prime Minister's office mysteriously received a copy of this confidential briefing, and thus began his months-long campaign to undermine or countermand its conclusion..Nobody ever claimed that it was improper for Trudeau, and other Cabinet colleagues, to advise Wilson-Raybould on matters of public interest that might not have been given sufficient attention or emphasis in the briefing. Everyone recognizes that the Justice Minister is entitled to receive information and advice from political actors. It is best if she actively requests it; but offering information is no sin. Merely informing Wilson-Raybould about the economic impact that would allegedly result from a successful prosecution does not count as "interfering" in the prosecution. If Trudeau, his staff, and Cabinet colleagues had offered that information and then let the chips fall where they may, all would have been good. No foul..The deciding factor in Dion's "Trudeau II" report was the "undue pressure" exerted on Wilson-Raybould by the Prime Minister, his office staff, and Cabinet colleagues acting in concert. She was given a full-court press, long after she had told everyone that she was not changing her mind about the briefing. She even warned everyone multiple times that they were treading the line on interference with the judicial system..By the standard employed by Trussler, all of those months of interventions would be considered political interference with the independence of the justice system. There would have been no need to parse every email, phone call, and meeting to discover whether a line had been crossed and if so when and by whom. If that had been the standard Dion employed, then Finance Minister Bill Morneau would also have been found in conflict for talking to Wilson-Raybould about this case. No, Dion concluded that only Trudeau crossed the line of "undue pressure" because only he had power over Wilson-Raybould. It was only when Trudeau sent Michael Wernick to threaten her position as Justice Minister if she didn't do what he wanted her to do that the line was clearly crossed. In her own testimony, Wilson-Raybould stated that she would have resigned if she felt the pressure she was getting was undue. She did not resign until Trudeau's threat to replace her materialized. That's a very high standard before we get to "political interference.".In the Alberta case, we have a Premier who did nothing more than ask the Justice Minister, "Is there anything that can be done about a certain class of cases?" It is true that in the specific phone call that Trussler focused on in her findings, Smith was focused on one particular case, that of Arthur Pawlowski. But as the SNC-Lavalin prosecution shows, there is no harm in political actors discussing specific cases with the Justice Minister, either. And it is clear from the context that Smith regarded Pawlowski's case as merely representative of the whole class she was concerned to find ways to mitigate. When Justice Minister Shandro (mistakenly) told her there was nothing they could do consistently with the principle of prosecutorial independence, she left it at that. Smith exerted no pressure on Shandro at all, let alone "undue pressure." This case is nothing like the SNC-Lavalin case, even superficially..There is no merit to Trussler's speculation that "...Minister Shandro must have felt considerable pressure and concern for his tenure as Minister as a result of the call." Trussler interviewed Shandro in the course of preparing her report; she could have asked him directly if he felt pressured; she didn't have to speculate. Almost certainly, Shandro would have said he did not feel pressured, let alone threatened with termination; otherwise he would have been duty-bound to tender his resignation in protest. That, too, is a lesson Trussler should have derived from the Trudeau II case, but didn't..Perhaps the former judge in Trussler would prefer that the standard for "interference" be as touchy as she implies in her ruling. But that would be a novel interpretation with no precedent that I am aware of. Certainly the Trudeau II precedent she repeatedly refers to does not incorporate that standard; it quite unmistakably rejects it..It is little wonder that Premier Smith kept asking Minister Shandro if there wasn't more that could be done to assist non-violent breachers of the useless public health orders. Her frustration with the stonewalling she was getting from Alberta Justice on this file was entirely justified. There are numerous tools in the Justice Minister's tool box to deal with exactly the kind of concerns that Smith was expressing. Trussler hints at the most obvious remedy when she observes, "No options for changing legislation to nullify the charges using legislative changes to Provincial legislation were ever forwarded from Justice." Only two years ago, the federal government had passed legislation to pardon everyone in the past 100 years who had been found guilty of simple possession of marijuana; it is incredible that nobody in Alberta Justice saw this as a possible precedent in response to the Justice Minister's request to find ways of achieving amnesty..More direct interventions were also possible, without violating the principle of prosecutorial independence. Justice Ministers may issue "directives" to the prosecutorial team on how to deal with a class of cases - and they do so routinely. One of the first things B.C. Premier David Eby did when he became leader last Fall was to mandate his Justice Minister to issue a directive to B.C. prosecutors to seek to deny bail to people charged with repeat violent offenses. Prime Minister Trudeau mandated Wilson-Raybould to issue a whole slate of directives on how the federal prosecutorial service was to handle Crown-Indigenous cases going forward. Nobody looked askance at the issuance of these directives..A third example of how politicians can legitimately influence the course of justice is illustrated by a publication of Alberta Justice itself, a "handbook" for police and prosecutors on how to pursue "zero tolerance" for domestic violence. Zero tolerance is a political objective, not a legal one. If Alberta Justice can thumb the scales of justice in such a political manner in that class of cases, they can do Premier Smith's bidding on amnesty, too. A fourth tool in the Justice Minister's tool box would be to institute "social context" training for prosecutors and provincial court judges who deal with this class of cases, emphasizing the lack of public interest in pursuing the cases..None of these tools has ever been deemed a political interference with the independence of the judicial system in the past. When used in the past, they have typically been applauded, typically loudest by the progressives. There are so many legitimate tools in the Justice Minister's tool box to assist those who have been charged with violating provincial orders, it isn't even funny that Alberta Justice came up blank. That's not rank incompetence; it is deliberate sand-bagging..No, it wasn't the Premier who was interfering in the justice system; it is the legal system that is interfering in politics. It is maddening how everything gets twisted into its opposite these days..Grant A. Brown is a retired philosopher and home renovator who currently resides in Edmonton, Alberta.
