The UCP: Against Rule of Law

Artur Pawlowski was charged in connection with the Coutts blockade, where he delivered a speech to fire up the protesters, telling them to hold the line even against the police, and comparing the blockade to the Alamo (where a group of fighters seeking Texan independence famously fought against the Mexican army and were massacred, and became a rallying cry to others to join the cause).

His charges included mischief, breach of a release order, and a violation of Alberta's Critical Infrastructure Defence Act. So both Criminal Code and Provincial charges.

Today, he was convicted of mischief and breach of release order. The judge has delayed ruling on the CIDA charge because Pawlowski is making a constitutional challenge against it. (You may recall that CIDA was famously and controversially Jason Kenney's flagship legislation.)

This is timely, in respect of the election, because this is the same person who Smith tried to help with his case in the now-infamous recording. Smith scheduled no press conferences today, and has not made any comments on the conviction.

Smith and the Convoy

Smith took the Premier's office, winning the UCP leadership, largely by winning the support of convoy-affiliated groups like Take Back Alberta. Organized and motivated, these groups were able to marshal lots of people to join the UCP and vote in a coordinated way to swing the leadership.

One of the things she promised, in the course of her campaign, was clemency for people charged in connection with COVID and the convoys. (The mechanism and scope of that was vague, but while some of us law nerds discussed measures that might have that effect at least in respect of Provincial charges, the general criticism of her was "That's not a thing in Canada.")

After she became Premier, she said on a number of different occasions that she'd reached out to prosecutors to try to get them to drop COVID charges. She later sort of walked this back, saying that she was imprecise and had only spoken with the Minister of Justice and his Deputy Minister.

More recently, a recording leaked of her having a similar conversation with Pawlowski in January, telling him that she'd spoken to prosecutors regularly, repeatedly asking them if prosecuting him was in the public interest and had a reasonable prospect of conviction.

And so the scandal has cemented around this specific case, because we have Smith on tape telling Pawlowski that she's leaned on prosecutors, and leaned on the Justice Minister about the tactics employed, to help him out - and acknowledging that she was surprised that she didn't have a US-style pardon power. It's a notable specific case in a few ways, in part because the charges include Federal criminal charges.

Let's be charitable for a moment, and assume that her more recent story - that she wasn't talking to prosecutors about the case, but just the Justice Minister and Deputy Minister - is true. That's still a problem. For a Premier to try to pressure the Justice Minister in respect of a specific case violates all sorts of constitutional norms. (More details on that in this excellent piece by Nigel Bankes and Jennifer Koshan.)

Let's step outside the legal minutia of impropriety, however, and ask at a 10,000 foot level: An individual commits a crime, but he's influential with a group of people who are critical to the current Premier's support base. How do we feel about leveraging that influence to try to pressure the Ministry of Justice to not prosecute those individuals?

It's a pretty dystopian picture, isn't it?

Sure, the system worked in this case - our institutions proceeded with the prosecution notwithstanding Smith's best efforts to the contrary, and convicted him. But if she could effectively control whether a criminal prosecution proceeded, giving her friends, compatriots, and donors the ability to commit crimes and get away with it, I think we can all see why that's a problem.

Not An Isolated Case

Kaycee Madu, MLA for Edmonton-South West and current Deputy Premier, has his own scandal from when he was Minister of Justice.

He got a traffic ticket for distracted driving...and so he called up the police chief about it.

When the scandal broke, a retired judge was appointed to investigate it, and she came to the conclusion that Madu had attempted to interfere with the administration of justice. There are appropriate channels to go through if Madu had concerns about the appropriateness of the stop or issuance of the ticket. None of those channels start with a personal phone call from the Minister of Justice to the police chief.

After that, he was shuffled to another cabinet post (Labour, I believe), and was replaced as Justice Minister by Tyler Shandro (just after the Law Society of Alberta announced a disciplinary process against him).

When Smith became Premier, she made Madu Deputy Premier.

So two of the most powerful politicians in Alberta think it's just fine to use their access to the internal gears of the justice system to try to deal with their own legal troubles and the legal troubles of those who are important supporters.

Can Our Institutions Survive Four Years of Danielle Smith?

I've written about the dangers of the "Free Alberta Strategy" at length before, and how it interacts with Smith's campaign. Attempting to thwart Federal policy through local control of enforcement, the FAS envisions an Alberta government appointing their own police, and their own judges, on the expectation that these police and judges will do what Alberta tells them to.

The Alberta Sovereignty Act, which Smith enacted on a promise that it would remedy a laundry list of grievances against Ottawa, has yet to be invoked, so we don't know what it will look like when it is. But among the powers in it? A sweeping power on Cabinet to issue any orders or directives to police services, among others.

This is unusual: Under the Police Act, the government has very indirect oversight of most police functions, and very narrow abilities to intervene in local policing.

On its face, an invocation of the ASA would allow Danielle Smith and her Ministers to direct police, say, not to investigate certain crimes, or not to charge certain people. They can make allegations of malfeasance - corruption, breaches of election law, etc. - just...go away. It's a vast power.

As well, the premise of the desire for an Alberta police service - which would cost Alberta a veritable fortune, is significantly about getting a service accountable only to the Alberta government.

Police and prosecutors aren't supposed to be directly answerable to politicians - not when it comes to front-line decisions of who to investigate, who to charge, who to prosecute. The UCP's desire for police who are answerable to the whims of political leaders? It's incredibly dangerous.

It takes time to really dismantle the institutions safeguarding our democracy. But four years is a long time, and with a party that's already demonstrated that they think the justice system should serve their interests, there's no telling how much damage can be done.