Partner believed winning Alberta tobacco-litigation team would have political advantage, email suggests

Six months before Alberta launched its "independent" process to select outside legal counsel for a multibillion-dollar lawsuit against the tobacco industry, a partner in the legal consortium eventually chosen believed it was in the "forefront" for the potentially lucrative legal claim.

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CBC News has obtained an internal email that suggests Jamie Cuming, a partner in the winning International Tobacco Recovery Lawyers (ITRL) consortium, believed it had an inside track to then justice minister Alison Redford through its pending association with the law firm of her former husband, Robert Hawkes.

Hawkes is a partner in Calgary-based JSS Barristers, the consortium's lead law firm, which had close personal and political ties to Redford and the ruling Conservative Party.

In the email, dated April 16, 2010, the lawyer Cuming details the outcome of a meeting he said he had that morning with JSS Barristers partners Sabri Shawa and Hawkes, whose firm was then being recruited to join the ITRL consortium.

"Rob is the ex-husband (on a very friendly basis) with Alison Redford, QC (our justice minister)," Cuming wrote in the email to ITRL lobbyist Tim Wade and two of the consortium's Ontario partners.

"The positives that arose from the meeting are that Rob Hawkes has discussed the file directly with Alison Redford, and she indicated to him we were in the forefront on the matter," said Cuming, a partner in Cuming & Gillespie, the other Calgary law firm in the ITRL consortium.

On Nov. 1, 2010, six months after Cuming wrote that email, Alberta Justice asked for expressions of interest from law firms to represent Alberta. On Dec. 14, 2010, Redford issued a memo to her deputy minister in which she chose ITRL to represent Alberta.

Hawkes and Redford divorced in 1991, but Hawkes remained a strong political supporter. Within two months of Redford choosing ITRL in December 2010, Hawkes joined a committee to draft Redford to run for the Conservative Party leadership.

Hawkes then chaired her leadership campaign after she resigned in mid-February 2011 to run, and served as her transition team leader when she won in October 2011 and became Alberta's premier. JSS Barristers, and Hawkes himself, has said Hawkes has no involvement in the Alberta litigation.

Criminal investigation warranted, ex-Mountie says

Last month, a CBC News investigation revealed Alberta's independent selection process had been manipulated, allowing Redford to choose ITRL even after it had been ranked last and effectively eliminated by a review committee consisting of senior justice and health ministry lawyers.

"I think what we are seeing here is potentially a breach of trust," said Garry Clement, a retired RCMP superintendent with 34 years' experience, including investigating corruption within government.

"And that definitely falls within the jurisdiction of law enforcement and probably particularly the RCMP on this," Clement said after viewing the April 2010 email, adding that the RCMP should investigate, even if the government of Premier Rachel Notley doesn't request an investigation.

In an emailed statement to CBC News, Cuming said, "I have no recall of believing that Mr. Hawkes or JSS would provide ITRL with a political advantage."

But he said he did recall that "Mr. Hawkes' experience in politics would be an asset to ITRL in understanding what government might be looking for if they chose to hire outside counsel," he said, adding that "Mr. Hawkes being at JSS played no part in my approaching JSS to ask them to join ITRL."

Hawkes, also in an emailed statement, said: "I did not meet with Minister Redford to discuss tobacco (litigation) as you describe and at no time did Minister Redford ever inform me that ITRL was at the forefront of the selection process."

He said he met with Redford once briefly at a social function and told her JSS was likely to join ITRL. He said Redford told him the decision would be merit based.  

The lobbyist Wade said Alberta's selection process didn't begin until the fall of 2010, and "prior to this, ITRL was at the forefront of the effort to get every government in Canada not yet litigating against tobacco to proceed with litigation."

Redford and JSS partner Shawa did not respond to interview requests.

Selection process manipulated

The entire process to choose a legal consortium for the largest lawsuit in the Alberta government's history took less than seven weeks. If successful, the $10-billion lawsuit could reap billions of dollars for Alberta's coffers and hundreds of millions of dollars for ITRL.

As reported last month, leaked internal Alberta Justice documents obtained exclusively by CBC News show ITRL had been ranked last by an "independent" government review committee and effectively eliminated from consideration.

But the committee inexplicably changed its assessment after it sent its initial recommendation in a briefing note to Redford's executive assistant.

The committee produced a second version of the same briefing note that inserted ITRL back into the competition, removed its last-place ranking and recommended Redford choose whichever of the three remaining consortiums she thought "appropriate."

Less than a week later, Redford chose ITRL, saying it represented the "best choice."

Nothing in the documents shows Redford saw the first version of the briefing note, and she told CBC News no one from the ministry told her ITRL had been ranked last.

CBC News first revealed on Nov. 28, 2012, that Redford had personally selected ITRL. Opposition parties demanded an investigation by Alberta's ethics commissioner, Neil Wilkinson, into conflict of interest allegations against Redford, which in part involved her past relationship with Hawkes.

The subsequent investigation cleared Redford of those allegations, but confirmed — despite her repeated denials — that she had personally chosen ITRL.

But last month CBC News also revealed that critical documents and other information may have been withheld from Wilkinson's investigation. In response, Alberta NDP Justice Minister Kathleen Ganley announced the ethics commissioner's investigation would be reviewed by retired Supreme Court of Canada justice Frank Iacobucci.

Email reveals contradiction

The statements made by Cuming in his April 2010 internal ITRL email directly contradict the ethics commissioner's report in 2013.

"[Cuming] was 'shocked' when it came to his attention through events leading up to this investigation that there was a prior relationship between Mr. Hawkes and Premier Redford," Wilkinson's report states.

Cuming now appears to contradict statements attributed to him in the ethics commissioner's report. In his statement to CBC News, Cuming said he learned a few months after first meeting JSS partners Shawa and Carsten Jensen in January 2010 that "Mr. Hawkes was at JSS and that he was Alison Redford's ex-husband."  

The Wilkinson report also states that "Mr. Hawkes was not involved, in any way, in any of the discussions between JSS and other members of the ITRL consortium."

Hawkes, however, in his statement to CBC News, said "he wasn't asked if he was involved in any internal discussions between ITRL and JSS, and "any internal discussions would be irrelevant to the issues before the ethics commissioner."

Wilkinson made special note that the ITRL lobbyist Wade "was very thorough by providing copies of all communications and conversation notes relating to his engagement by ITRL from start to finish."

If Wade disclosed Cuming's April 2010 email, Wilkinson failed to note the obvious contradictions it created. Wade, in his response to CBC News, did not address this issue.

Wilkinson's investigation report also inexplicably failed to note Hawkes had met with Redford before the selection process began and discussed the selection process for the tobacco lawsuit. That fact was contained in a letter, attached to the report, written by retired Alberta Court of Queen's Bench judge Edward MacCallum, who was hired to assist the investigation.

MacCallum wrote that "the pending tobacco litigation piqued the interest of the legal community, including Hawkes's firm. He told Redford that the firm was likely to submit a proposal, as part of a coalition of firms, to represent Alberta in the tobacco litigation. Redford replied that the process would be merit based. That was the extent of their conversation on the subject prior to the awarding of the contract."

Clement, the retired Mountie, called Wilkinson's investigation a "charade."

"It was done in such a way that there was no way that, from an investigative standpoint, you would ever get to the truth of the matter," Clement said, adding that the Notley government needs to go further than a narrowly defined review of Wilkinson's investigation.

"I think they owe it to the Alberta taxpayer to bring the facts out as they should be so that this does not happen again."