Seeking legal advice OK, trying to 'influence' prosecution not, justice minister confirms after Smith's ethics breach

Premier Danielle Smith addresses the Alberta legislature on June 20, 2023. (Source: Alberta legislature)

Alberta's justice minister has outlined when and how it is appropriate for the premier and ministers to seek the attorney general's legal advice. 

The guidance was requested earlier this year by Premier Danielle Smith, who was found days before the election to have tried to influence the Crown's prosecution of a southern Alberta pastor's COVID-19 case. 

Justice Minister and attorney general Mickey Amery delivered the clarification on Tuesday. 

The parameters apply to the premier, as well as Alberta's ministers, their office staff and the civil service. 

"The Premier and Ministers should not seek to influence the way in which prosecutorial discretion is exercised relative to any existing or potential future prosecution," the document states in relation to criminal matters. 

It also clarifies that while the attorney general may guide Crown prosecutors in evaluating public interest in cases and consult with elected officials, doing so is "an exercise of prosecutorial discretion." It continues, "Outside of that process, the Premier and Ministers should not seek to influence how the Attorney General exercises that discretion."

It is OK for the premier or ministers to seek "general information" about a case, such as its status and legal implications, so long as the inquiries "do not seek to influence prosecutorial decision-making." Such requests should be made in writing directly to the attorney general. 

When unsure whether an inquiry is appropriate, the premier and ministers can ask in writing for the attorney general's advice, as long as they do not attempt or appear to attempt to influence prosecutorial discretion. 

Smith asked for the guidance in June, one month after the ethics commissioner's investigation wrapped. 

The ethics commissioner concluded Smith breached a democratic principle, but did not break an official rule, by speaking to Calgary pastor Artur Pawlowski about his upcoming trial on charges related to the 2022 protest at the Canada-U.S. border in Coutts, Alta. 

However, the ethics commissioner concluded Smith did contravene the Conflicts of Interest Actby calling then-justice minister Tyler Shando, hours after speaking with Pawlowski, concerned about the case's optics. Shandro told the ethics commissioner, "She wanted him to make it go away, although she did not direct him to do so." 

The ethics commissioner did not recommend sanctions against Smith in May, but noted she reserved the right to do so once the legislative assembly was back in session. 

Pawlowski was found guilty of two charges: mischief and breaching a release order. 

Smith won a majority government in the May 29 election. 

The Alberta legislature resumed sitting on Monday. 

With files from CTV News Edmonton's Sean Amato and Michael Franklin and The Canadian Press