Redford tobacco-litigation probe not provided all relevant documents, report says

A former Supreme Court justice has confirmed the findings of a CBC News investigation that revealed Alberta's former ethics commissioner did not have all the information needed to properly investigate conflict of interest allegations against former premier Alison Redford related to the awarding of a potentially lucrative tobacco-litigation contract.

In a report released Monday, former justice Frank Iacobucci said it was "abundantly clear" that former ethics commissioner Neil Wilkinson had not seen a draft of a briefing note, which CBC News obtained and made public, that initially ranked last the legal consortium personally chosen by Redford.

The consortium, International Tobacco Recovery Lawyers (ITRL), included Calgary law firm JSS Barristers, with which Redford shared close personal and political ties.

Iacobucci recommended that Alberta's current ethics commissioner, Marguerite Trussler, should decide whether allegations against Redford need to be investigated again.

"It is for the ethics commissioner to decide whether the threshold for re-investigation set out in the Act is met," Iacobucci wrote in the report, for which the Alberta government paid him $160,000.

A spokeswoman for Trussler confirmed she has received the report but has not had a chance to review it yet.

But even if Trussler agrees to conduct another investigation, Alberta Justice Minister Kathleen Ganley has signalled she has no intention of changing the consortium chosen to conduct the province's lawsuit against the tobacco industry.

"Given that thus far counsel appears to have been operating entirely competently, I don't think that we are looking at this time at altering that in any way," Ganley told reporters outside the chamber Monday.

Ganley announced the review by Iacobucci in November after CBC News obtained leaked internal Alberta Justice documents that showed the independent selection process for the potentially lucrative contract had been manipulated.

Alberta's $10-billion lawsuit against the tobacco industry — the largest lawsuit in the province's history — is an attempt to recoup some of the health-care costs associated with smoking.

If successful, it could provide a multibillion-dollar windfall for the province's depleted coffers — and potentially hundreds of millions of dollars in contingency fees for ITRL.

Briefing note changed

A review committee, comprised of senior justice and health ministry lawyers, was responsible for recommending which legal consortium then justice minister Alison Redford should choose for the potentially lucrative contract.

But CBC News revealed the review committee produced two versions of the same briefing note, labelled AR 39999, in which the committee made its recommendations to Redford.

In the first, the committee ranked ITRL last and effectively excluded it from consideration because it lacked depth. The committee instead recommended Redford chose between two other consortiums it deemed to be equal, but clearly superior to ITRL.

But within a day of sending its assessment in the first draft of briefing note AR 39999 to Jeff Henwood, who was Redford's executive assistant, the committee produced a second version of the same briefing note.

This version inserted ITRL back into the competition, removed the reference to its last place ranking, listed its strengths, and recommended Redford choose the "appropriate" consortium from the three finalists. Redford chose ITRL and signed the second version.

There is nothing in the documents that indicates why the original briefing note was modified, or who made the dramatic reversal to the original version.

Nothing in the documents indicates Redford saw the first version of the briefing note. Redford said the ministry never told her the consortium was initially ranked last.

In May 2012, CBC News first revealed the consortium chosen by the Alberta government, ITRL, was led by Calgary law firm JSS Barristers. A partner in JSS Barristers is Redford's former husband Robert Hawkes.

Redford and Hawkes divorced more than 20 years ago, but Hawkes remained a strong political supporter. He led her transition team when she won the Progressive Conservative leadership campaign and became premier in 2011.

Briefing note withheld in investigation

In November 2012, CBC News revealed that Redford had personally chosen ITRL. The opposition Wildrose and Liberals both filed complaints with Alberta's then ethics commissioner, Neil Wilkinson, alleging potential conflict of interest by Redford.

Wilkinson agreed to investigate, but citing legal privilege, Alberta Justice refused to allow Wilkinson to review Briefing Note AR 39999.

The ministry's lawyer, David Phillip Jones, claimed that even broadly revealing the briefing note's contents could jeopardize Alberta's position in its lawsuit against the tobacco industry.

As a compromise, Jones and lawyers acting for Wilkinson devised a plan where the briefing note would be disclosed to retired Court of Queen's Bench justice Edward MacCallum, who had been contracted by the province. But McCallum would only be allowed to answer yes or no to a series of five mutually-agreed-upon questions.

On the key question of whether Redford's decision was unreasonable or showed bias, MacCallum answered no, as he had with all the other questions related to potential impropriety.

In his report, Iacobucci said Wilkinson declined to be interviewed because of his concerns about "both the independence of the Office of Ethics Commissioner and the confidentiality of his investigation, and I respected those concerns."

But Iacobucci found MacCallum, the retired judge hired to review Briefing Note AR 39999, had only been provided with the final version of the briefing note, and made his responses based on that.

"He did not receive any drafts of that briefing note, and was not aware at that time of any drafts," the report states, adding that the government considered providing MacCallum with the previous version but, on the advice of counsel, "concluded that it was unnecessary to do so, since there was no evidence that Minister Redford had seen the earlier draft."

Judge's review had 'limited scope'

Iacobucci said it was "abundantly clear that (Wilkinson) did not have available to him all of the information relevant to his investigation.

"It is abundantly clear that he did not obtain the draft of AR39999 that ranked the ITRL consortium last and recommended that Minister Redford select either of the other consortiums, or any information regarding the contents of the draft or the changes made to it when it was finalized," the Iacobucci report states.

The report also states that Wilkinson also did not have access to a string of internal Alberta Justice emails — obtained and disclosed by CBC News — which showed the briefing note had been changed and that senior civil servants knew the second briefing note was inaccurate.

The opposition Wildrose had repeatedly called on the government to request a criminal investigation by the RCMP.

Premier Rachel Notley said Iacobucci would inform the government if his review uncovered any evidence that required criminal investigation.

But in his report, Iacobucci said the "limited scope" of his review did not allow him to fully investigate how the contract was awarded.

The Wildrose made a formal request to the RCMP for a criminal investigation. The RCMP will not say if it is investigating.

Ganley's press secretary, Veronica Jubinville, refused to say whether the minister will ask the RCMP to investigate.