'Clear violation': Experts say Danielle Smith must explain phone call with accused

Premier Danielle Smith must explain to Albertans why she discussed a criminal case with the accused before his trial, whether she still believes such calls are OK and whether she will continue to have these conversations, legal experts and political scientists say.

They say the premier's actions are a violation of the democratic firewall separating politicians from court cases and that Smith's strategy to stay silent and threaten to sue media ensures the controversy will be alive for the upcoming election campaign.

Smith has declined to answer questions from reporters surrounding a leaked phone conversation in which she offered to help Calgary street pastor Artur Pawlowski in his criminal case related to the COVID-19 protest at the Canada-United States border crossing at Coutts, Alta., in early 2022.

In the call, Smith discussed the disposition of other cases with Pawlowski. She revealed to him internal government disagreements over case strategy, commiserated with him that he was being treated unfairly by the prosecutor through a late-day “document dump" and told him the charges against him were politically motivated.

“There's no universe in which any of that information can or should be conveyed to an individual caught up in the criminal justice system by the highest elected official in government,” said law professor Eric Adams with the University of Alberta.

“(Smith) has yet to go on the record to admit that this was an error that shouldn't happen and can't be repeated.

“If she remains of the view that these kinds of calls with (individuals) caught up in the criminal justice system are appropriate, I remain deeply concerned about the state of the rule of law in the province.”

Law professor Steven Penney said it’s a “clear violation” for a premier to discuss court cases involving the government with those charged, as it breaches the democratic guardrail precluding politicians from having any say in whether people are charged or how their cases would be prosecuted.

Penney, with the University of Alberta, said a premier can direct the justice system, but only at a broad policy level.

“The idea that the premier or members of her staff or anyone else in the political branches of government could make contact with prosecutors or with accused persons, speaking directly about their cases, providing them with information, advice or seeking to intervene on their behalf in an individual case — that just very, very clearly crosses the line," he said.

“I've never seen any principled defence of that or a rationale for why we would we would want that in our (justice) system."

Smith’s response to the controversy has been to repeat that she has never spoken directly with prosecutors about cases, which has been backed up by prosecutors and the Justice Department.

On Saturday, on her call-in radio show, Smith declined to answer when asked if she regrets the call with Pawlowski, saying that she has lots of conversations with people and was surprised the call with Pawlowski was recorded.

At a news conference Monday, Smith announced that because she is contemplating a lawsuit, she will stay silent on the advice of her lawyer.

A notice of defamation letter sent from lawyers on behalf of Smith calls on the CBC to retract and apologize for a January story. The story stated a member of her staff sent emails to the Alberta Crown Prosecution Service challenging how it was handling court cases from the Coutts blockade.

Smith has said a review found no evidence of contact between her office and the prosecution service. The CBC has said it stands by its reporting.

The notice of defamation letter gives the CBC until April 28 to retract its article and apologize or face potential legal action, which could be days before a writ drop for the provincial election, expected May 29.

Smith said her United Conservative Party, not the government, is paying for the lawsuit. Smith’s office and the party have declined to say why the party is paying.

Political scientist Duane Bratt said the silence and legal threat is a risky political strategy, given questions will still be asked about what happened. He said the premier may see it as the best plan in a slate of bad options.

“How do you explain this phone call?” said Bratt, with Mount Royal University in Calgary. “(Does Smith say), ‘I told (Pawlowski) what he wanted to hear?' That's not a good answer.

“Or (does Smith say), ‘I needed (Pawlowski’s) help in winning the (UCP) leadership?' That's not a good answer.

“There's no good answer here.”

Bratt said Smith must also explain the contradiction of not speaking about why she talked to someone whose case is before the courts, because she is contemplating related action that may be before the courts.

Pawlowski's trial was heard in Lethbridge, Alta., in early February and the judge has yet to render a verdict.

Political scientist Jared Wesley said by deciding to stay silent, Smith has not put the issue to rest. The debate can be steered by others in ways she might not want it to go, he said.

“It’s naive to think that this won’t make things worse, because there's now only one narrative out there and it's not the government putting the narrative out there, it's everybody else. And Albertans are pretty good at filling in the blanks,” said Wesley, with the University of Alberta.

The solution, he said, is to confront it head on.

In 2019, former premier Jason Kenney was in a similar position before a writ drop. He was forced to react to allegations that his team had surreptitiously worked with a third candidate in the UCP leadership race to undermine Kenney’s main rival, Brian Jean.

Kenney held a news conference and took question after question until reporters ran out of questions. A month later, he won a majority government.

“That is how you solve a political crisis of the magnitude that Danielle Smith is facing: you step in front of the cameras, you answer every question forthrightly until there's no questions left,” Wesley said.

“You don't put it behind you by failing to answer questions. It just raises more questions.

“I don't know what (Smith) is going to do in an (election campaign) debate when (Opposition NDP Leader) Rachel Notley poses the question, or if the moderator does.”

This report by The Canadian Press was first published April 5, 2023.