Alberta premier offers new version of why she contacted Pawlowski before criminal trial

Editor's Note: This article follows a Jan. 19, 2023 story that has been updated. As detailed in the Editor's Note accompanying that story, CBC could not substantiate the content of emails referenced here or confirm their existence. Read the full Editor's Note here.

Alberta Premier Danielle Smith has delivered a new version of why she engaged in a controversial phone call with a Calgary street pastor in which they discussed his upcoming criminal case related to COVID-19 public health measures.

Smith told her weekly phone-in radio show Saturday that she took the call from Artur Pawlowski because she thought it was going to be in the context of his role as the leader of another political party.

She said when the discussion veered into Pawlowski's court case, she simply reminded the former head of the Alberta Independence Party that she had tried to gain amnesty for COVID accused but was told by justice officials the cases must play out independently, and that she accepted that advice.

She also said she disagrees strongly with Pawlowski's "extreme views."

"When we talked, I thought we were talking in the context of him being a political party leader because [Pawlowski] was at the time the head of the Independence Party," Smith told her Corus radio audience on her show Your Province Your Premier in response to a question from the host.

"It turned into a discussion about what I was doing with COVID amnesty.

"And I've been very clear about what I was trying to do with COVID amnesty. I campaigned [for the party leadership] on it. I said I would look into ways in which we might be able to address the non-violent, non-firearms-related, non-contempt-of-court-related charges."

The 11-minute phone call took place in early January, weeks before Pawlowski went on trial on charges related to the 2022 protest at the U.S. border at Coutts, Alta., over COVID restrictions.

He was charged with breaching a release order and mischief for allegedly inciting people to block public property at the border crossing.

He was also charged under the Alberta Critical Infrastructure Defence Act with willfully damaging or destroying essential infrastructure.

The trial has ended but the judge has yet to render a verdict.

NDP justice critic responds

A recording of the pre-trial phone call was obtained by the Alberta New Democrats and played for media on March 29.

In response to the account Smith offered on Saturday, NDP justice critic Irfan Sabir wondered why politics never came up if the phone call was ostensibly to discuss politics.

"The entire call between Pawlowski and Smith is her describing her efforts to block these charges, either by weekly calls to prosecutors or her expressing her dissatisfaction to the attorney general and deputy attorney general," said Sabir.

"This is yet another desperate move from Danielle Smith to distract from her attempt to block the prosecution of Pawlowski and others at Coutts."

Sabir repeated a call for an expedited internal probe into the matter before Albertans go to the polls on May 29 for a provincial election.

Smith first publicly acknowledged that she had spoken with Pawlowski on Feb. 9 when asked about it at a news conference.

She answered at that time she had engaged in discussions with those facing COVID-related charges to tell them she had explored amnesty and that it was not possible. She did not say the Pawlowski discussion was supposed to have been about politics or that she had expected to be talking to him in his role as a party leader.

Considering defamation action

When the NDP released the call recording seven weeks later, Smith announced she would not discuss the issue publicly because she was considering defamation action and was acting on the advice of her lawyer.

Saturday's explanation comes two days after reporters asked Smith whether the call with Pawlowski means her government has changed policy and that politicians were free to discuss active criminal cases with the accused.

Smith said there has been no policy change. She said it remains offside for politicians to discuss active court cases with accused, but her call with Pawlowski passed muster because it's her job as an elected official to listen and act on concerns from members of the public.

Legal experts say the call was a clear violation of the firewall between politicians and the justice system to prevent politicians from getting a say in who gets charged and how.

They note while Smith is heard on the call reminding Pawlowski she can't intervene directly, she also confides in him that she is questioning justice officials "almost weekly" about the cases.

On the call, Smith is also heard sharing details of an internal disagreement over Crown case strategy with Pawlowski. She promises to make inquiries on Pawlowski's behalf and report back to him while also telling him the charges against him were politically motivated.

Controversial figure

She commiserates with Pawlowski when he accuses the Crown prosecutor in his case of a last-minute "document dump" of files which he said was aimed at frustrating his defence.

Legal experts have also said regardless of the context, Smith at the very least should have ended the call when Pawlowski raised the issue of his case.

Pawlowski is a controversial figure in Alberta for his high-profile, disruptive demonstrations against the LGBTQ community and COVID-19 health rules.

The Alberta Independence party announced it was parting ways with Pawlowski as leader late last month, saying their values no longer aligned.

On the January call, Smith is heard telling Pawlowski, "I've been watching your public advocacy for many years so it's nice to connect with you."

She struck a different tone on Saturday's radio show.

"Obviously, Mr. Pawlowski holds some very extreme views that I disagree with completely," she said.

Smith has faced questions about her involvement with prosecutors since telling the media in mid-January she regularly reminds Crown lawyers the cases can only be pursued if they are winnable and in the public interest.

She later walked those comments back, saying she didn't talk to front-line prosecutors but only senior justice officials, as is proper. Her assertion is backed up by the Justice Department.

Since then, Smith has offered multiple, at times conflicting, explanations on who she talked to, what was discussed and when. She has said the talks were only about broad prosecution principles but has also said they were about issues related to the cases. She has stated the talks were ongoing and that the talks had ended.

On April 2, lawyers representing Smith sent a notice of defamation letter calling on the CBC to retract and apologize for a January story. The article alleged a member of her staff sent emails to the Alberta Crown Prosecution Service challenging how it was handling court cases from the Coutts blockade.

While the CBC says it stands by its reporting, Smith has said a review found no evidence of contact between her office and the prosecution service.

That review has also featured conflicting statements from the Justice Department on how far back the search went on any emails between the department and Smith's office.

Smith said her United Conservative Party, not the government, is paying for the lawsuit. Smith's office and the party have declined to say why the party is paying.

Smith has long been critical of COVID-19 masking, gathering and vaccine mandate rules, questioning if they were needed to fight the pandemic. She has called them intolerable violations of personal freedoms.