Commissioner’s Mistake

Vincent J. Curtis

19 May 23

RE: Marguerite Trussler’s findings on Smith

As I anticipated in April, the Ethics Commissioner’s report would come down in the middle of the election campaign.  Also, as expected, the Commissioner would make a finding harmful to the Charter Rights of the politically unclean.  I expected, on the basis of the known facts, that Commissioner Trussler would find Premier Smith naughty, but that’s it.

As it turned out, Premier Danielle Smith’s talking to Artur Pawlowski was indeed found naughty, and Trussler says that Smith should have terminated the call once he raised the matter of his criminal case.  Caesar’s wife and all that.  But the actual breach of ethics came, according to the Commissioner, when Smith “improperly” discussed the matter with the Minster of Justice/Attorney-General, who was unmoved and explained the law to Smith.

Commissioner Trussler erred in respect of Smith having breached conflict of interest.  “To further a primate interest of the Member” in the Act means that Smith attempted to “improperly” further the private interest of Artur Pawlowski.  Tried unsuccessfully, but tried.

The problem is that Pawlowski had a grievance with the government for which he was seeking redress.  He was arrested for speaking in support of the Coutts blockade, which superficially resembles a breach of his Charter Rights of free speech and opinion.  As a matter of equity, Smith campaigned for UPC leader in part on forgiving numerous charges involving protests against COVID restrictions, of which Coutts was a major one.  Pawlowski also has a Charter right to petition the government for redress of grievance, and Smith was the head of the government.  In sum, the Pawlowski case was a matter of a more general interest involving a class of individuals, namely those penalized for protesting COVID restrictions.  The Commissioner does not recognize this.  Smith’s alleged interference with Justice can also be constructed as a search for equity.

The dangerous precedent set by the Commissioner, as I feared, is that the politically unclean can forget about getting their grievances redressed, or even of speaking to a government Minister, because the Optics of the Unethical has been established.

In a representative democracy, a politician has to be able to speak to anyone about anything, including the unclean about their uncleanliness; and Justice officials have to have the integrity to do their jobs in spite of the occasional political breeze.

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