Alberta Crown prosecution felt political pressure about Coutts cases: sources

Editor's note (July 5, 2023): An earlier version of this story, published on Jan. 19, 2023, referred to emails allegedly sent by a staffer in Danielle Smith's office to the Alberta Crown Prosecution Service. Based on testimonies by confidential sources, CBC News at the time described those emails as "challenging prosecutors' assessment and direction on cases stemming from the Coutts border blockades and protests." An editor's note was added the following day to specify that CBC News had not seen the emails.

On May 18, 2023, Alberta's Ethics Commissioner Marguerite Trussler released a report that included an investigation of an "allegation published by CBC that a member of the premier's staff emailed a Crown prosecutor about a case before the courts." Trussler reported that she found "no evidence of such an email," adding she can only come to the conclusion, based on the evidence that she has, that "no Crown prosecutor was emailed directly about any of the cases." At the same time, Trussler found that Danielle Smith had contravened the Conflicts of Interest Act in an interaction with the Minister of Justice and Attorney General in relation to Coutts charges, for which Smith has since apologized.

After the Ethics Commissioner's report was released, CBC News reviewed its journalism and re-interviewed a number of sources and parties to the matter. Confronted with the Commissioner's report, our sources have insisted that Crown prosecutors felt political pressure regarding the Coutts cases, but they are not able to confirm that the emails they originally described were sent directly from the premier's office to the Crown. As such, we have updated this story and related pieces, removing references to direct contact between the premier's office and prosecutors – which the premier has vehemently denied. CBC News regrets reporting direct contact by email.

Alberta Crown Prosecutors felt political pressure around their assessment and direction on cases stemming from the Coutts border blockades and protests, sources say. This comes in the wake of concerns about Premier Danielle Smith's campaign pledges to pardon or pursue amnesty for COVID-19 protesters, remarks on which she later backtracked. Some prosecutors worried about "interference" from Smith. However, there is no evidence of direct contact between the premier's office and prosecutors.

Sources told CBC News about emails from Smith's office regarding Coutts cases, but CBC News was not able to substantiate their content or confirm their existence.

In a statement provided to CBC Thursday evening, the premier's office said Smith has not been in contact with Crown prosecutors and has no knowledge of anyone on her staff doing so.

"This is a serious allegation," reads the statement. "If a staff member has been in touch with a Crown Prosecutor, appropriate action will be taken."

Last winter, more than a dozen people were charged following a blockade at the Canada-U.S. border in protest of COVID-related restrictions and vaccine mandates. Four sets of cases — ranging from weapons and mischief charges to conspiracy to commit murder offences — are currently making their way through the courts in Lethbridge.

Crown's office won't comment on potential emails

CBC News asked Kim Goddard, the assistant deputy minister of the justice department, about alleged email correspondence. Alberta Crown Prosecution Service spokesperson Michelle Davio would not provide a "yes" or "no" answer when asked repeatedly if the assistant deputy minister (ADM) had viewed potential emails. 

The same question was asked of prosecutor Steven Johnston, the deputy chief of specialized prosecutions and the Crown assigned to all Coutts-related cases.

Davio wrote in an email that Goddard did "not recall" viewing emails but said "it is difficult to say with 100 per cent confidence that neither Kim [Goddard] nor Steve [Johnston] have seen the emails that you have described but not provided." 

"As the Alberta Crown Prosecution Service (ACPS) has not been provided with the emails, we are unable to provide a comment," wrote Davio.

Report any communication from political staff: internal email to prosecutors 

CBC News has obtained a copy of an internal email sent last Friday by Goddard to Alberta prosecutors after Smith made comments about being in contact with prosecutors, which her office later clarified as the premier using "imprecise" language. Smith added she'd only spoken with the attorney general and his deputy.

In the email, Goddard reassured prosecutors that she is committed to following the ACPS's code of conduct, which dictates that prosecutorial discretion must be free from improper pressures or influences.

"In the rare occasions that information about a particular prosecution has been requested, the proper processes have been followed," said Goddard.

The ADM went on to say she will only provide information to the attorney general or deputy attorney general.

"I will not brief other elected officials or any political staffers on details involving individual cases," wrote Goddard.

"If you are ever approached by any elected official or political staffer to discuss one of your cases it is imperative that you report such communication to your chief prosecutor or myself immediately."

Tensions and public interest

There has been tension between the ministry of justice and the premier's office when it comes to cases before the courts, multiple sources familiar with the matter told CBC News.

They explained Justice Minister Tyler Shandro and his staff were not involved in alleged emails sent to ACPS lawyers — and the ministry has been trying to reinforce the independence of prosecutorial decisions for months.

Last Friday, Smith said definitively that she had not been in contact with Crown prosecutors. That followed two previous occasions where the premier stated she'd requested a review of the COVID-related cases and asked prosecutors whether it was worth pursuing certain cases.

In a December interview with Rebel News, Smith had questioned whether the cases are in the public interest to pursue and if there is a reasonable likelihood of conviction.

"I've put it to the prosecutors, and I've asked them to do a review of the cases with those two things in mind. And I'm hopeful that we'll see a true turning of the page," she said.

"And so do you continue on in prosecuting one when the public has moved on? That's the big question that the Crown has got to to come to terms with."