Told 'no' on amnesty, Danielle Smith tests a premier's limits on COVID prosecutions

In her months of touring the province to win the UCP leadership, Danielle Smith operated on an assumption that Alberta's justice system worked like the American one. Armed with that mistaken impression, she promised those aggrieved by charges against them for COVID rule violations that, as premier, she'd grant them amnesty.

Alberta's Justice Ministry was apparently well aware, and wanted to quickly put to rest her assumption, Smith herself told a legislature committee earlier this month.

"When I got elected on Oct. 6 and was sworn in, I discovered that the Department of Justice had proactively, having heard the things I was campaigning on, decided to put together a PowerPoint presentation on the issue of amnesty to talk about what was possible and what was not possible," the premier said.

Following that, Smith explained, her justice minister and deputy justice minister clarified that, in Canada, it's the Governor-General who can wield the rare power of extinguishing charges.

Smith also says she has learned, early in her premiership, that there are two questions a politician can ask about Crown prosecutions: if a case was in the public interest, and if a conviction was reasonably likely.

That's the limited line of interrogation Smith said she was "confined" to in her now-public conversation in January with street preacher Artur Pawlowski, ahead of his trial on a criminal charge of mischief and a provincial offence.

But she apparently took this as licence to approach those limits quite regularly. Smith told the accused man she brought up the cases and the prescribed questions "almost weekly." (She directly said she was bringing them up with "prosecutors" but has since insisted that she actually meant her minister and deputy justice minister.)

And after expressing sympathy for Pawlowski and his then-looming trial, she pledged to do so again.

"Can you just leave this with me and I will make that request one more time?"

On the recorded phone conversation, Smith expresses wishes she could do more, so much more — that a "political decision" couldn't get Pawlowski or others out of their legal plight.

Smith's keenness to do so, to maximize the limits of a premier's relationship with Alberta's justice system, has once again raised the eyebrows of political and legal watchers. NDP Leader Rachel Notley has ramped up her demand for an independent investigation into Smith's actions into one for a formal judicial review, ideally done before the election campaign officially kicks off May 1.

Smith has thus far shown resistance to expose her actions to such third-party scrutiny. And while she and her team insist she has done nothing improper, what she has done may exist in a grey area between what is acceptable conduct and what isn't — and rest on politically uncertain grounds, because it's wholly unconventional and norm-bending for a political leader to do what she has done.

"I don't know if there is something called the legal threshold of political interference. It's a political standard,"  said University of Alberta law professor Eric Adams on the CBC Eyeopener on Thursday. It's up to voters and Albertans to determine if this is "healthy" in a rule of law system, "every time a politician gets too close to a set of criminal charges."

He poses the alternative scenario to Smith and Pawlowski, the anti-COVID-rule activist she agreed with — what if an NDP leader had called a union leader charged with offences, and said she'd do what she could to support him?