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REPORT ON THE
INDEPENDENT
REVIEW
CONDUCTED BY
THE HONOURABLE
FRANK IACOBUCCI C.C. Q.C.
OF INFORMATION
RELATING
TO
AN INVESTIGATION
BY
THE FORMER ETHICS COMMISSIONER OF
ALBERTA
INTO
ALLEGATIONS INVOLVING
THE HONOURABLE ALISON
REDFORD
Q.C.
March 30 2016
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INTRODUCTION
Request for an independent review
1 In November 2015, the Government
of
Alberta retained me to conduct an independent
review of, and provide advice
in
connection with, information that may not have been available
to Alberta's former Ethics Commissioner, Neil Wilkinson, in his conduct of an investigation
under Alberta's onflicts of nterest ct (the Act ).
2 The investigation considered allegations of possible conflict
of
interest raised by two
complainants involving the selection by the Honourable Alison Redford, Q.C., while she was
Minister of Justice and Attorney General, of external counsel to conduct litigation against
tobacco companies on the Government's behalf. The consortium
of
law firms selected by then
Minister Redford included Jensen Shawa Solomon Duguid Hawkes LLP, or JSS Barristers,
of
which Minister Redford's former spouse is a partner. Following his investigation, the Ethics
Commissioner concluded that Minister Redford had not breached the relevant provisions of the
Act.
3. More specifically,
in
her mandate letter to me dated November 30,2015, a copy of which
is appended to this report as Appendix A , the Honourable Kathleen Ganley, Minister of Justice
and Solicitor General, referred to newly-emerged concerns that the Ethics Commissioner may
not have had available to him all of the information relevant to his investigation. Minister Ganley
instructed me to conduct an independent review of the matter and provide advice on what the
Government should do to address it.
4. Minister Ganley advised in her letter that, to facilitate my review, she would be directing
Philip Bryden, Q.C., Deputy Minister, Justice and Solicitor General, to provide me with
potentially relevant documentation, including documents that were before the Ethics
Commissioner. Minister Ganley advised that she would also be directing Mr Bryden to arrange
for meetings, to the extent I considered it appropriate, with government officials involved in the
events subject to review. Minister Ganley also invited me to speak with any individuals who
might be of assistance with my review.
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5. Minister Ganley instructed me to provide my advice in writing, to be made public by the
Government upon receipt.
1
This report constitutes that advice.
Scope of the review
6. The purpose
of
this review, as outlined by Minister Ganley in her mandate letter, was
first, to determine whether the Ethics Commtssioner had before him all
of
the information
relevant to his investigation, and second, to provide recommendations on what should be done
if
he did not.
7 t is important to state
at
the outset that my review was not - in substance or process - a
further investigation into the allegations
of
conflict of interest considered by the Ethics
Commissioner.
Nor
should
my
review be taken as a criticism in any way
of
the Ethics
Commissioner s investigation or report.
8
As a substantive matter,
I
was not asked to arrive
at
my own conclusions on the questions
considered by the Ethics Commissioner. Nor was
I
asked to evaluate the Ethics Commissioner s
investigation or make findings
of
fact in any respect other than whether it proceeded on the basis
of all relevant information. y observations in this report should not be taken as findings of fact
in any other respect.
9 As a procedural matter, my review was neither a formal inquiry nor an investigation.
Consistent with the nature ofmy substantive mandate,
I
was not given the investigative tools
commonly associated with those more formal processes. For example,
I
did not have subpoena
powers, and the individuals whom
I
interviewed were not compelled to meet with me and were
not under oath.
10
Having stated these important qualifications, I provide in the sections that follow the
background to my review, including a summary of the Ethics Commissioner s investigation and
a summary
of
the key information
I
obtained in the course
of
my review.
I
then
turn
to a
Minister Ganley s letter anticipated that my review would be concluded by February 29,2016.
However, owing to interview scheduling difficulties,
I
sought and obtained n extension through
March 30, 2016.
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- 3
consideration of the issues engaged by my review, followed by a discussion of my
recommendation. I conclude with brief acknowledgments.
BACKGROUND
The Ethics Commissioner's investigation
11 In January 2013, in response to two complaints, the Ethics Commissioner advised the
complainants that he had opened an investigation into allegations of possible conflict of interest
involving Minister Redford/ in connection with her selection
of
a consortium known as
International Tobacco Recovery Lawyers, or ITRL, to conduct litigation against tobacco
companies on behalf
of
the Government under the Crown's Right o Recovery Act, S.A. 2009, c.
C-35.
12
The first complaint was received in November 2012 from Dr. Raj Sherman, then Member
for Edmonton-Meadowlark and Leader of the Alberta Liberal Party.
3
The second complaint was
received in December 2012 from Danielle Smith, then Member for Highwood and Leader of the
Official Opposition.
4
Each raised concerns arising from Minister Redford's selection of a
consortium involving the law firm ofwhich her former spouse, Robert Hawkes, Q.C., is a
partner.
13. The investigation thus focused
on
whether Minister Redford, while serving as Alberta
Minister of Justice, made improper use ofher office to further the private interest of her ex
husband, Mr. Hawkes,
or
the private interest of the law firm in which he is a partner, JSS
Barristers.
5
14. The Ethics Commissioner formulated four questions to be answered by his investigation:
(1) Did Minister Redford, while Minister of Justice for the Province ofAlberta, take
part in a decision in the course
of
carrying out her office or powers knowing that
2
Report to the Speaker of the Legislative Assembly ofAlberta of the Investigation by Neil
Wilkinson, Ethics Commissioner, into Allegations Involving The Honourable Alison Redford,
Q.C., Premier, December 4, 2013, para. 7 (the Ethics Commissioner's Report ).
3
Ethics Commissioner's Report, para.
1
Ethics Commissioner's Report, para. 4.
5
Ethics Commissioner's Report, para. 48.
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the decision might further her private interest, or that
o
a person directly
associated with her, or that
o
her minor child, and thereby commit a breach
o
section 2(1)
o
the Act?
(2) Did Minister Redford, while Minister o Justice for the Province o Alberta, use
her office or powers to influence or to seek to influence a decision to be made by
or on behalfo the Crown to further her private interest, or that
o
a person
directly associated with her or her minor child or to improperly further another
person s private interest, and thereby commit a breach o section 3 o the Act?
(3)
Did Minister Redford, while Minister
o
Justice for the Province
o
Alberta, use
or communicate information not available to the general public that was gained by
her
in
the course
o
carrying out her office
or
powers to further or seek to further
her private interest or another person s private interest, and thereby commit a
breach
o
section 4 o the Act?
(4) Did Minister Redford, while Minister
o
Justice for the Province
o
Alberta,
conduct herself in such a way
in
this particular matter that she breached the spirit
o
the Act, as stated in the Preamble to the Act, and i so, does such breach
o
the
spirit o
the Act constitute an actual breach
o
the Act?
6
15 The Ethics Commissioner conducted his investigation largely by way
o
written
interrogatories to various witnesses, who responded in writing with statutory declarations.
7
He
conducted one in-person interview; that interview was
o
Minister Redford.
8
16. The Ethics Commissioner also received documentary evidence, primarily from the
documents released through
Freedom o nformation and Protection o Privacy ct
requests that
preceded the complaints, but also from addendurns to various witnesses statutory declarations.
9
Assertions of r ~ v i l g
17 In June 2013, after the Ethics Commissioner delivered written interrogatories, David
Phillip Jones, Q.C., counsel for the Government (but not for Minister Redford) in relation to the
investigation, contacted counsel for the Ethics Commissioner regarding legal privilege. Mr
Jones advised counsel for the Ethics Commissioner that some
o
the written interrogatories sent
to lawyers employed by the Government (and one other employee o the Crown) engaged
6
Ethics Commissioner s Report, para. 10.
Ethics Commissioner s Report, para.
14
8
Ethics Commissioner s Report, para. 23.
9
Ethics Commissioner s Report, para. 26.
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matters protected
by
legal privilege. Mr. Jones confirmed that the Government wished to assist to
the extent possible without waiving privilege.
1
18. Mr.
Jones'
communication led to discussions and meetings
with
the Ethics
Commissioner's counsel,
in an
effort to identify a
way
for the Government to disclose
information without waiving privilege.
19.
By letter to Mr. Jones, dated September 24, 2013, counsel for the Ethics Commissioner
made a formal request of the Crown to waive privilege.
12
Counsel for the Ethics Commissioner
sought access in particular to a document known as AR
39999-
an Alberta Justice briefing note
to which Minister Redford referred in a memorandum
by
which she conveyed her selection of
the ITRL consortium as
the
preferred counsel.
13
Review of
AR
39999
20. Mr. Jones replied on September
27,2013,
and advised that
the
Government would not
waive privilege
with
respect to AR 39999. Mr Jones noted, among other things, the absence in
the Act of any provision preserving privilege when privileged materials are disclosed to the
Ethics Commissioner. He also reiterated that the Government was extremely concerned not to
do anything which could
in
any way conceivably jeopardize its position
in
the $10 billion
Tobacco Recovery Litigation.
14
21. Mr. Jones instead confirmed that the Government
was
prepared to proceed with an
arrangement, devised
with
the Ethics Commissioner's counsel, that would permit the Ethics
Commissioner to obtain information about AR 39999 while maintaining privilege. Under this
arrangement, the Government would retain a retired judge of the Alberta Court of Queen's
1
Ethics Commissioner's Report, para. 20.
Ethics Commissioner's Report, para. 21.
12
Ethics Commissioner's Report, para. 35.
13
Ethics Commissioner's e p o r t ~ para. 35.
14
Ethics Commissioner's Report, para. 37.
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6
Bench, the Honourable Edward P. MacCallum, to review and answer mutually agreeable
questions concerning
AR
39999.
5
22. Mr. MacCallum was subsequently retained and provided with a copy
of
AR
39999,
together with certain additional documents: the memorandum from Minister Redford conveying
her selection
of
the ITRL consortium, Minister Redford's responses to certain
of
the written
interrogatories posed to her, and the responses
of
the Government-employed lawyers to the
written interrogatories posed to them.
6
Mr. MacCallum was asked to answer five questions
based on his review
of
AR 39999 and the other material.
17
23.
In
response to those questions, Mr. MacCallum concluded that nothing in
AR
39999 (1)
suggested any interference by Minister Redford in relation to the content
ofAR
39999 or the
way in which the information in the briefing note was provided; (2) contradicted the
interrogatory responses
of
Minister Redford that Mr. MacCallum had received; (3) suggested
that Minister Redford's selection
of
the ITRL consortium was made to improperly further the
private interest
of
Mr. Hawkes
or
JSS Barristers;
or
(4) suggested either that Minister Redford's
decision was not consistent with the facts and issues
AR
3 9999 presented,
or
that it was made for
a purpose that did not have proper regard for the public interest.
8
Mr. MacCallum also
concluded that there was nothing in the material provided to him that made Minister Redford's
selection
ofthe
ITRL consortium unreasonable.
19
The Ethics Commissioner's report
24. The Ethics Commissioner filed his report with the Speaker
of
the Legislative Assembly
of
Alberta on December 4, 2013. Applying the standard
ofproof of
a balance
of
probabilities, he
5
Ethics Commissioner's Report, para. 3 7.
6
Letter from the Hon. Edward P. MacCallum to David Phillip Jones, Q.C., and William Shores,
Q.C., Appendix A to the Ethics Commissioner' s Report, p. 1 ( Mr. MacCallum's Letter ).
7
Mr. MacCallum's Letter, p. 2.
8
Mr. MacCallum's Letter, p. 4.
9
Mr. MacCallum's Letter, p. 5.
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concluded that Minister Redford had not breached any
of
sections 2, 3 or 4
of
the Act, and had
not offended its Preamble.
2
25. The Ethics Commissioner concluded that Minister Redford had not breached section 2(1)
of
the Act because Mr. Hawkes was not, at the relevant time, Minister Redford's spouse as
defined by the legislation.
2
Nor was there any evidence that Minister Redford was a partner
of
JSS Barristers or any
of
the firms involved in the ITRL consortium, or had any business
relationship with any of them.
22
Minister Redford therefore did not take part in a decision
knowing that it might further the private interest of a person directly associated with her.
26. With respect to section 3 of the Act, the Ethics Commissioner concluded that Minister
Redford had not improperly furthered another person's private interest. The Ethics
Commissioner found as follows:
I find that the Honourable Alison Redford, Q.C., as Minister of
Justice, directed Ministry of Justice officials to devise an objective
process for determining which fmn or consortium of firms would
be recommended for engagement on the tobacco litigation. I find
this was done within the Ministry of Justice, and that she had no
involvement in the design of the process, its application, or the
resulting Memorandum (Briefing Note AR39999) containing the
Selection Committee's advice to the Minister.
23
27. The Ethics Commissioner also found no evidence of arbitrariness, unreasonableness,
favouritism, nepotism, or anything untoward in Premier Redford's participation, as Minister of
Justice, in the decision to direct Ministry officials to commence negotiations with the ITRL
consortium.
24
28. With respect to section 4 of the Act, the Ethics Commissioner found clear and cogent
evidence that, as Minister
of
Justice, Minister Redford had not communicated, in advance of the
2
Ethics Commissioner's Report, para. 112.
2
Ethics Commissioner's Report, para. 57.
22
Ethics Commissioner's Report, para. 58.
23
Ethics Commissioner's Report, para. 87.
24
Ethics Commissioner's Report, para. 88 .
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-
8-
presentation
of
the
Crown s Right
o f
Recove1y
ct in the Legislative Assembly, with anyone
outside the Government about the tobacco litigation.
25
29. Finally, the Ethics Commissioner concluded that Minister Redford had not breached the
spirit
of
the Act as contained in its Preamble: [t]he evidence [was] clear that Premier Redford
did everything that a Minister would be expected to do in serving the public interest, and did
s
in a forthright, objective and unbiased manner.
26
The Ethics Commissioner also noted that a
Preamble is an aid to interpretation rather than an enforceable provision of the legislation
containing it, and thus cannot not be the subject
of
a breach.
27
Disclosure
of
information subsequent to the Ethics Commissioner's Report
30. Beginning in November 2015, CBC News published a series
of
articles concerning the
Ethics Commissioner's investigation and the matters it covered, including information that CBC
had apparently obtained by way
of
leaked documents.
31 The CBC News disclosure included the following:
(1) excerpts from an email authored by a lawyer involved in the ITRL consortium,
which referred to a discussion between Minister Redford and Mr. Hawkes that
allegedly occurred prior to the selection process for counsel, and a comment by
Minister Redford that the ITRL consortium was
in
the forefront
of
the tobacco
matter;
(2) the fact that a draft ofAR 39999 had ranked the ITRL consortium last of three
consortiums interviewed by the Review Committee tasked with evaluating
proposals from the firms and consortiums interested in the retainer, and had
recommended that Minister Redford select one of the other two consortiums;
(3) the fact that, after the draft was sent to Minister Redford's executive assistant, Jeff
Henwood, it had been changed to remove the third-place ranking of ITRL and the
recommendation that Minister Redford select one
of
the other two consortiums;
(4) an email exchange between two Alberta Justice lawyers, in which one
of
the
lawyers noted that the altered briefing note would not reflect the conclusion
of
the
review committee, on which both had served;
25
Ethics Commissioner's Report, para. 96.
26
Ethics Commissioner's Report, para. 100.
27
Ethics Commissioner's Report, para. 101.
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(5) excerpts from an email authored by Renee Craig, assistant to the Deputy Minister,
Justice and Attorney General, which referred to changes that Mr. Henwood would
make to Minister Redford's memorandum selecting the ITRL consortium, to
changes requested by Mr. Henwood in relation to a responding memorandum
from the Deputy Minister, and to Ms. Craig's understanding that there had been
sensitivity regarding the wording
of
the responding memorandum from the
Deputy Minister; and
( 6) the fact that the Deputy Minister had sent a memorandum to Minister Redford
after her selection
of
the ITRL consortium, confirming that the ITRL consortium
would be capable of adequately conducting the litigation.
MY REVIEW
Methodology
32
My review included both the examination
of
various documents and in-person interviews.
33. I was provided with several categories
of
documents relevant to my review, including the
following:
(1) the documents referred to in the CBC News coverage described above;
(2)
the documents disclosed in response to the Freedom o nformation and
Protection
o
Privacy ct requests that led to the complaints against Minister
Redfo_rd;
(3) documents collected in response to the
reedom
o
nformation and Protection
o
Privacy ct
requests that were withheld from disclosure
on
grounds including
solicitor-client privilege and non-responsiveness to the requests;
( 4) the statutory declarations provided by several witnesses to the Ethics
Commissioner as part of his investigation;
( 5) correspondence between counsel for the Government and counsel for the Ethics
Commissioner in connection with the Government's assertions ofprivilege;
( 6) correspondence between counsel for the Government and Government officials;
and
(7) briefing note R 39999, and the letter and attachments provided to Mr.
MacCallum in advance ofhis review of the briefing note.
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- 10
34. I also conducted in-person interviews with 15 individuals connected with the issues
underlying my review. A list of the interviewees and their positions at the time of the events in
question is appended to this report as Appendix B .
35. In my view, the information disclosed by CBC News, together with the other information
provided to me, gave rise to a number
of
questions about the matters underlying the Ethics
Commissioner's investigation. These included the following.
(
1 Did Minister Redford tell Mr. Hawkes that the ITRL consortium was in the
forefront of the tobacco matter, and, if so, what did she mean?
(2) Was Minister Redford aware of the Review Committee's initial ranking of the
ITRL consortium and recommendation that one of the consortiums other than
ITRL be selected?
(3) Was Minister Redford aware
of
the fact that a draft
of
AR 39999 had been
provided to a member ofher staff?
(4) Why were revisions made to the draft
of
AR39999 to change the recommendation
that retaining ITRL not be considered further?
( 5) Did Minister Redford instruct or direct Mr. Henwood or any other person
concerning a preferred outcome
of
the Review Committee's work, or the
substance
of
briefing note AR 39999?
(6) Was Minister Redford aware of any discussions between members ofher staff and
members
of
the Review Committee in connection with the Review Committee's
recommendation?
(7) What was the rationale for the Deputy Minister's memorandum?
(8) What was the nature
of the sensitivity regarding the wording of the Deputy
Minister's memorandum, to which Ms. Craig referred in her email?
(9) What was the rationale for the changes contemplated by Ms. Craig's ~ a i l
(10) Was Minister Redford aware of the communications involving Ms. Craig in
connection with the Deputy Minister's memorandum?
36. In my review, I pursued these and other questions to a limited extent and in an informal
manner, as contemplated by my mandate. However, bearing in mind the limited scope ofmy
review, I draw no conclusions in this report on these questions, which engage the substantive
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- 11 -
issues that were before the Ethics Commissioner. I focus instead on the issues within my
mandate, as described above.
Summary of information obtained
37. Set out below is a summary
of
the information that I obtained from the documents and
interviews. I repeat that in relating this information I am making no findings of fact; I am simply
recounting the information disclosed to me in the documents I reviewed and the interviews I
conducted. Some
of
this information is repetitive
of
information set out in the Ethics
Commissioner's report, but I have included it here for context.
vents preceding tlte process to select outside counsel
38 Prior to the expression
of
interest process implemented to select outside counsel to
conduct the tobacco litigation, James Cuming
of
the Cuming Gillespie law firm approached
JSS Barristers to gauge that firm's willingness to join a consortium of law firms interested in
conducting the tobacco litigation. Mr Hawkes, Minister Redford's former spouse, was and
remains a partner at JSS Barristers.
39. In April2010, Mr. Cuming sent an email to two lobbyists and two Ontario lawyers
concerning, among other things, JSS Barristers' interest in joining the consortium. In his email,
Mr. Cuming referred to a meeting with Mr. Hawkes and Sabri Shawa, Q.C., also
of
JSS
Barristers. Mr. Cuming advised that JSS Barristers was interested in pursuing the matter as part
of the consortium. He also stated that [t]he 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.
40. With respect to Mr Cuming's statement that Minister Redford had indicated that the
ITRL consortium was in the forefront
of
the matter, I was told in the course ofmy review that
this was a matter of
Mr
Cuming's impression. I heard that
Mr
Cuming's intention was to
convey that the Government was aware at the time
of
the presence
of
the ITRL consortium and
its interest in obtaining the retainer. I was also told that Minister Redford would not have
commented that the ITRL consortium was in the forefront of the tobacco matter.
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- 12
he process to select outside cou11sel
41. In October 2010, Alison Redford, then Alberta's Minister of Justice and Attorney
General, announced that the Province would commence legal action against the tobacco industry
to recover healthcare costs under the Crown s Right ofRecovery Act.
42. Given the anticipated volume of documents and Alberta Justice's lack of experience
conducting tobacco litigation, it was decided that the Government would retain outside counsel
to conduct the litigation. It was also determined that the province would do so using an informal,
expression of interest process. Interested firms and consortiums would submit expressions of
interest, which would be evaluated by a three-member Review Committee consisting ofGrant
Sprague, Q.C., (then Assistant Deputy Minister, Legal Services Division, Department
of
Justice
and Attorney General), Lorne Merryweather, Q.C., (then Executive Director, Legal Services
Division, Department of Justice and Attorney General) and Martin Chamberlain, Q.C. (then
Assistant Deputy Minister, Corporate
Services, Department
of
Health). The Review Committee
would provide recommendations to the Minister, who would ultimately decide which firm or
consortium to retain.
43. In early November 2010, Mr. Merryweather sent an email to several law firms inviting
them to submit expressions
of
interest in conducting the tobacco litigation. Four firms or
consortiums submitted expressions
of
interest by the deadline: Ogilvie LLP, a consortium
involving Bennett Jones LLP, a consortium comprising Field LLP and McLennan Ross LLP, and
the ITRL consortium, in which JSS Barristers was a participant.
44. Based on its evaluation of the expressions of interest, the Review Committee decided not
to interview the Ogilvie firm, but to interview the three consortiums. After concluding its
meetings with the consortiums, the Review Committee discussed its work internally. I was
informed that the Review Committee struggled with finalizing its recommendation to Minister
Redford, since all three consortiums had strong proposals and presentations, and there was no
clear winner. I also heard that the Review Committee had not specifically addressed at the
outset of its process the kind of recommendation that it would ultimately provide to Minister
Redford.
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- 13
45. I was told that the Review Committee developed a set
of
criteria by which to rank the
consortiums, and then assigned weightings to the various criteria to determine which consortium
would best represent the Province in accordance with the priorities assigned to the criteria. I was
told that the ITRL consortium consistently ranked second regardless
of
the weightings assigned
to the criteria, so that when the Review Committee first formulated its recommendation, it
proposed to eliminate that consortium from further consideration, and to recommend that
Minister Redford choose one
of
the other two.
The draft
of
briefing note R 9999
46. Following the Review Committee's meetings with the three consortiums, and internal
discussion, Mr. Merryweather prepared a draft
of
the briefing note to Minister Redford that when
finalized became briefing note AR 39999. Mr. Merryweather's draft included a list
of
positive
features shared by all three consortiums. t also included the following statement about the
relative merits
of
the consortiums:
All three [consortiums] are capable
of
adequately conducting the
litigation.
No
one consortium stood out above the others. However,
after considerable discussion the Review Committee ranked
International Tobacco Recovery Lawyers last, primarily due to
their lack ofdepth and the lack of any presence in Edmonton.
47. The draft briefing note proceeded to state that the Review Committee was unable to
recommend one of the remaining two consortiums over the other. According to the draft
briefing note, both had unique strengths and weaknesses, and the choice between them
depended on what 'package' is most appealing to Government.
48. Mr Merryweather circulated the draft briefing note to Messrs. Sprague and Chamberlain
on December 6, 2010. Mr. Sprague replied on the same date, circulating a modestly revised
version of the draft.
Mr
Sprague's revised draft briefing note retained the comment that the
Review Committee had ranked the ITRL consortium last. It also included a recommendation that
Minister Redford select either the Bennett Jones or the Field McLellan [sic] consortium.
49. Also
on
December 6, 2010, Mr. Chamberlain raised two concerns with the draft briefing
note, neither
of
which touched on the recommendation
or
the ranking
of
the ITRL consortium.
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14
Mr. Merryweather appears to have incorporated Mr. Chamberlain's revisions into the draft
briefing note.
50. All three members
of
the Review Committee stated that the draft briefing note, circulated
on December 6, 2010, reflected the Review Committee's views at the time.
ltanges to tlte draft briefing note
51. On December 7, 2010, a copy
of
the draft briefing note, numbered
AR
39999, was sent
by Mr. Merryweather's assistant by email to JeffHenwood, then executive assistant to Minister
Redford. It does not appear to have been uploaded at that time to the government's document
tracking system, known as ARTS, which I was told was an unusual practice.
52. I was informed that, before the briefing note was finalized, Mr. Sprague discussed the
status of the Review Committee 's work with Mr. Henwood, and that Mr. Sprague explained to
Mr. Henwood that the Review Committee was struggling with its recommendation in light
of
its
view that all three consortiums were capable of carrying
on
the litigation. I also heard that Mr.
Henwood suggested in reply that the Review Committee simply include information about all
three consortiums for Minister Redford's consideration, rather than struggle to arrive at a more
specific recommendation.
53. On December 8, 2010 the day after the draft briefing note was sent to
Mr Henwood
Mr Merryweather prepared, apparently at Mr Sprague's direction, a further revised
draft
of
briefing note
AR
39999. It appears that the further revised draft briefing note was uploaded onto
ARTS on the same day, and a version with the same content was ultimately signed by Minister
Redford. The final version of the briefing note no longer recommended that the Minister select
either the Bennett Jones LLP consortium
or
the Field McLennan Ross consortium. ~ t e a d it
recommended that the Minister "select the appropriate consortium."
54. The final version
of
the briefing note also did not include the statement that the Review
Committee had ranked the ITRL consortium last on the basis of its lack
of
depth and presence in
Edmonton. It included the following in place of that statement:
All three [consortiums] are capable of adequately conducting the
litigation.
No
one consortium stood out above the others. All three
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-
5
-
consortiums have unique strengths and weaknesses, and the
decision really depends
on
what 'package' is most appealing to
Government.
55. On the same day, Mr. Merryweather sent an email to Mr. Sprague concerning the
revisions to the draft briefing note. Mr. Merryweather noted that the proposed revisions would
suggest that the ITRL consortium was on
the same footing as the others, which was not the
conclusion the Review Committee came to. According to Mr. Merryweather's email, the
revised version
of
the briefing note would be inaccurate, and
M
- presumably a reference to
the Minister-
would be missing
a
valuable piece
of
information. Mr. Sprague replied to Mr.
Merryweather as follows: I
think she gets
t
once done can
we
send into system. t appears
that there was no further discussion of the contents
of
the briefing note before it was sent.
56. I heard different views from the members
of
the Review Committee concerning the
significance
of
the changes to the draft briefing note. I was told
on
the one hand that the Review
Committee had attempted to add value to the review process by ranking the consortiums, so there
was reluctance to revise
the
rankings. But I was also told that the changes were supportable by
the Review Committee's work, and were not significant, since the Review Committee had been
struggling with whether there was any rationale for excluding the ITRL consortium from further
consideration.
57. I was not told by anyone I interviewed, and did not see anything to indicate, that Minister
Redford was made aware
of 1)
the earlier draft of AR 39999; (2) the fact that it had been
provided to Mr. Henwood;
or
(3) the Review Committee's initial recommendation. Nor did I see
or hear anything to indicate that Minister Redford had directed
or
instructed Mr. Henwood or
anyone else in connection with the outcome of the Review Committee's work
or AR
39999.
he selection of he TRL consortium
58. In a memorandum to
Ray
Bodnarek, Q.C., then Deputy Minister of Justice and Deputy
Attorney General, dated December 14, 2010, Minister Redford conveyed her selection of the
ITRL consortium to conduct the tobacco litigation. I heard conflicting information about whether
a memorandum such as this from a Minister to a Deputy Minister would have been the normal
course.
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59. The memorandum read as follows:
Thank you for preparing briefing note AR 3 9999 regarding
Tobacco Litigation. I note that the Review Committee considers all
three firms interviewed to be capable of adequately conducting the
litigation and believes that while no consortium stood above the
others, all three have unique strengths and weaknesses.
Considering the perceived conflicts
of
interest, actual conflicts
of
interest, the structure of the contingency arrangement and the
importance of a made in Alberta litigation plan, the best choice·
for Alberta will be the International Tobacco Recovery Lawyers.
60. Mr. Sprague notified the successful ITRL consortium on December 22,2010.
The subsequent memorandum rom the eputy Minister
61. Minister Redford's memorandum
of
December 14, 2010, was followed by a response
from Mr. Bodnarek by way
of
memorandum to Minister Redford, dated January 5, 2011, and
numbered AR 40168. The Deputy Minister's memorandum (signed by Mr. Sprague on the
Deputy Minister's behalf) stated the following:
Thank you for your December 14, 2010 memorandum regarding
Tobacco Litigation (AR 39999). You are correct that the Review
Committee was of the view that any of the three proponents would
be capable
of
adequately representing Alberta's interest.
Therefore, based on the criteria, the International Tobacco
Recovery Lawyers would be capable
of
adequately representing
Alberta's interest.
62. I received conflicting information as to the ratiot;tale for the Deputy Minister's
memorandum. I heard that there had been uneasiness with Minister Redford's reference to ITRL
as the best choice, since the Review Committee had not drawn that conclusion, and so a
response was considered appropriate. I also heard that the Minister's office had sought
confirmation that ITRL was the best choice, and there was reluctance to provide that
confirmation given the Review Committee's conclusions.
63. The second explanation appears to be consistent with email exchanges ofDecember 8
and 29, 2010, involving Renee Craig, then assistant to the Deputy Minister and Deputy Attorney
General. In the first exchange, Ms. Craig sent an email, dated December 28, 2010, to Mr.
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Henwood and Ryan Barberio (another member of the Minister's staff) identifying a discrepancy
between the memo that the Minister sent and the memo for Ray [Bodnarek]
's
signature.
According
to
Ms. Craig's email, whereas the Minister's memorandum was seeking
confirmation
of
a 'best choice, ' the memorandum for
Mr
Bodnarek's signature provided
latitude regarding any of the choices.'' Ms. Craig promised to phone the following day.
64. Mr. Henwood replied by email, dated December 29,2010, and asked Ms. Craig to call
him. Neither Mr. Henwood nor Ms. Craig could recall the specifics of the conversation that
followed, but neither doubted that it had occurred.
65. Later the same day, Ms. Craig sent an email to one
of
Mr. Bodnarek's assistants. n her
email, Ms. Craig stated that Jeff [Henwood] will get the Minister's memo changed so that the
final sentence, a question seeking confirmation of the 'best choice' is deleted. Ms. Craig also
stated that Mr. Henwood had asked for sign-off on the Deputy Minister's memorandum that
week, with the addition
of
the following wording: Therefore, based on the criteria, the
International Tobacco Recovery Lawyers would be capable of adequately representing Alberta's
interest.
66. Ms. Craig asked for the memorandum to be returned to the Legal Services Division to
incorporate the additional language, and referred in doing so to
sensitivity regarding the
wording of the memorandum. Although I made enquiries as to the nature of the sensitivity to
which Ms. Craig referred, I did not obtain any further elaboration.
67. According to the ARTS cover sheet for the memorandum, it was returned for redraft on
December 29,2010. The only version
of
the Deputy Minister's memorandum I have seen
includes the additional language contained in Ms. Craig's email.
68. I did not see or hear anything to indicate that Minister Redford was aware of the
communications between
Mr
Henwood and Ms. Craig in the aftermath
of
her selection
of
the
ITRL consortium, or even that she had seen the Deputy Minister's memorandum.
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Disclosure
of
R 9999
69. As I have already described, counsel for the Government took the position that some of
the interrogatories put to the Government witnesses engaged issues of legal privilege. I was told
that the Government s position was motivated in part by a concern that the tobacco companies
would exploit, in the litigation, any privileged information that was disclosed. In any event, the
Government refused to waive privilege over AR 39999 in response to the Ethics Commissioner s
formal request that privilege be waived. Instead,
AR 39999 was provided to former Justice
MacCallum as part of the arrangement worked out by Mr. Jones and counsel for the Ethics
Commissioner.
70. Mr. MacCallum received AR 39999 in its final form. He did not receive any drafts of that
briefing note, and was not aware at the time
of
the existence
of
any drafts. I heard that the
Government considered whether to bring the existence of the prior draft ofAR 39999 to the
attention of the Ethics Commissioner, 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. Mr. MacCallum s responses were based only on the final version ofAR 39999.
71. I tur now to a consideration
of
the issues.
ISSUES AND DISCUSSION
72. My review engaged two issues.
(1
Did the Ethics Commissioner have at his disposal all of the information relevant
to his investigation? ·
(2)
If
not, what if any steps should the Government take as a consequence?
Issue 1: Did the Ethics Commissioner Have all Relevant Information?
73. I did not interview the Ethics Commissioner as part ofmy review, and therefore did not
hear directly from him as to the information he had available. The Ethics Commissioner raised
concerns about being interviewed based on both the independence of the Office of the Ethics
Commissioner and the confidentiality of his investigation,
28
and I respected those concerns.
28
Section 26 of the Conflicts of nterest ct requires the Ethics Commissioner and the Ethics
Commissioner s staff to maintain the confidentiality of information and allegations that come to
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- 19
Accordingly, I have drawn inferences where appropriate from the materials I reviewed, the
interviews I conducted and the Ethics Commissioner s Report, in order to ascertain whether
certain information was available to the Ethics Commissioner. I also observed that the Ethics
Commissioner comprehensively recorded in his report the sources
of
his information, and I have
taken those statements into account.
74.
t is apparent on this basis that the Ethics Commissioner 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 ofAR 39999 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. As I have described, the Government asserted
privilege over AR 39999, and that document was provided only to Mr. MacCallum for review.
But Mr. MacCallum was not provided with, and was not aware of, any prior drafts ofAR 39999.
Because Mr MacCallum s review ofAR 39999 did not extend to any prior drafts, his responses
to the questions posed to him did not reflect any consideration of the draft that had ranked the
ITRL consortium last.
75.
t
is apparent that the information that the Ethics Commissioner did not have as part
of
his investigation includes the following:
(1) the draft
of
briefing note
AR
39999 that ranked the ITRL consortium last
of
the
three consortiums and recommended that Minister Redford select one of the other
consortiums;
(2) the email from Mr. Merryweather s assistant to Mr. Henwood dated December 7,
2010, attaching the draft ofbriefing note AR 39999;
(3) information about any discussions between Messrs. Sprague and Henwood
concerning
the
Review Committee s recommendation, prior to the revisions to the
draft briefing note;
(4) the email exchange
of
December 8, 2010, between Messrs. Sprague and
Merryweather, including Mr. Merryweather s concerns about the revisions to the
draft briefing note and Mr. Sprague s reply;
their knowledge in the course
of
their administration
of
the Act, subject to certain permitted
disclosures.
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(5)
20
the content of the email from Ms. Craig
to
Mr. Henwood and Mr. Barberio dated
December 28, 2010, concerning the discrepancy between the memorandum that
the Minister sent (seeking confirmation of a best choice ) and the Deputy
Minister's responding memorandum;
(6) the content
of
the email from Ms. Craig to
Mr.
Bodnarek's assistant dated
December 29, 2010, concerning changes to the Minister's memorandum that Mr.
Henwood would make, and changes to the Deputy Minister's memorandum that
Mr. Henwood had requested; and
(7) the Deputy Minister's memorandum.
76. None of this information was released through the reedom
of
nformation and
Protection ofPrivacy
ct requests that preceded the Ethics Commissioner's investigation, and
none was included in the statutory declarations of the Government 's lawyers, Mr. Henwood or
Minister Redford. Nor did the Ethics Commissioner refer to any
of
this information in his report.
I am confident that, given its relevance to the issues under investigation, the Ethics
Commissioner would have referred to it if it had been provided to him. Consequently, the
obvious inference is that none
of
it was available to the Ethics Commissioner.
77. t further appears that the Ethics Commissioner did not have the email, dated April 16,
2010, in which
Mr
Cuming referred to comments allegedly made by Minister Redford to Mr.
Hawkes about the tobacco matter.
78. My conclusion on the first issue that I was asked to consider is, therefore, that the Ethics
Commissioner did not have at his disposal all of the information relevant to his investigation.
Issue 2:
What if
Anything Should the Government Now do to Address the Matter?
79. I begin this section by evaluating whether further action by the Government is warranted
in light of my determination on the first issue, and conclude that it is. I then present several
remedial options. Finally, I consider the relative merits
of
the options and provide my
recommendation for addressing the issues outlined above: referral of the matter to the current
Ethics Commissioner for a determination of whether re-investigation is warranted.
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The
need for
further
action
80. The information that was not available to the Ethics Commissioner raises questions that
bear on the subject matter of the Ethics Commissioner s investigation. In my view, these
questions would very likely have been explored by the Ethics Commissioner had the information
on which they are based been known to him. They therefore now warrant further attention.
81. Leaving these questions unasked and unanswered would, in my judgment, risk
undermining public confidence in the administration
of government-
one
of
the harms against
which the
Conflicts o nterest ct
was intended to protect.
82. The Act - and investigations under i t aims
in
part to preserve and promote public
confidence in the Legislative Assembly and its Members. Speaking in the Legislative Assembly
at second reading
of
the Bill that became the Act, then Attorney General Kenneth Rostad
acknowledged the following:
[I]t s unfortunate that governing bodies, not
just
elected bodies in
this House- whether it s
in
the church
or
the schools
or
whatever,
there seems to be a malaise where the public
doesn t
have the
confidence that I think they should have
in
these people and in us
as elected members. So it s with that juxtaposition that I stand to
introduce the Bill.
9
83. Mr. Sheldon Chumir, then MLA for Calgary-Buffalo, offered similar comments:
I m
very pleased to see this legislation presented to the House. The
strength
of
the democratic process depends upon the respect
of
citizens for government. Accordingly it s important that elected
officials - and senior bureaucrats, I might add, who are not
covered but
I m
pleased to see will be covered by other legislation
be
clearly seen to be acting n the public interest and not for
purposes
of
advancing their own interests. When suspicion is
raised
by
activities
of
public officials,
it
erodes confidence in our
government and hurts us all.
3
84. The
Act s
Preamble reflects the purpose of promoting public confidence in government.
t provides in relevant part:
9
Alberta, Legislative Assembly, lberta Hansard (20 June 1991) at 1868 (Kenneth Rostad).
3
Alberta, Legislative Assembly,
lberta Hansard
(20 June 1991) at 1872 (Sheldon Chumir).
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22
WHEREAS Members
of
the Legislative Assembly are expected
to
perform their duties ofoffice and arrange their private affairs in a
manner that promotes public confidence and trust in the integrity
of each Member, that maintains the Assembly's dignity and that
justifies the respect in which society holds the Assembly and its
Members[.]
85
If the questions arising from the information I have obtained are not considered in an
appropriate forum, it is likely that they will linger in the public arena. Members of the public will
continue to harbour doubts about the propriety
of
the selection
of
external counsel to conduct the
tobacco litigation, and this may lead to an erosion ofconfidence in the administration of
government in the Province more generally.
86
It is therefore my view that the public interest would not be served by a recommendation
that the Government take no further action. The remaining issue is what should be done.
Remedial options
87
I have considered three possible options: (1) referring the matter to the current Ethics
Commissioner for possible re-investigation; (2) conducting a focused public inquiry; and (3)
returning the matter to the Public Accounts Committee of the Legislative Assembly.
3
Referral
or
possible re-investigation
88
The Act provides that the Ethics Commissioner may re-investigate an alleged breach or
contravention for which the Ethics Commissioner's findings have already been reported only if,
in the Ethics Commissioner's opinion, there are new facts that on their face might change the
original findings.
32
The Act thus provides for re-investigation, but restricts its availability to
those circumstances in which the Ethics Commissioner believes, first, that there are new facts
and, second, that those facts on their face might change the original findings. I emphasize that
3
I have not considered any criminal law implications
of
the information that was not available
to
the Ethics Commissioner. Nothing I have seen or heard in the course
ofmy
review raises
questions of criminal wrongdoing. As previously noted, I did not have access to the investigative
tools available to law enforcement authorities. In any event, the question of criminal
investigation should in my view be reserved for law enforcement authorities. I am reinforced in
this view
by
section 25(6)
of
the Act, by which law enforcement investigations take priority over
investigations by the Ethics Commissioner.
32
Conflicts
o
nterest Act
R.S.A. 2000,
c
C-23, s 25(9).
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the availability
of
re-investigation turns on the Ethics Commissioner's views on these matters,
and not on my own.
Conducting a focused public inquiry
89. A public inquiry is a fact-finding process by which the public can become informed and
by which recommendations can be made. Public inquiries are well-established as a mechanism
for ascertaining the facts, airing public grievances and making policy recommendations for
change.
90. Public inquiries have been described as follows:
[Public inquiries] are often convened in the wake ofpublic shock,
horror, disillusionment,
or
skepticism in order to uncover the
truth . Inquiries are, like the judiciary, independent; unlike the
judiciary they are often endowed with wide-ranging investigative
powers. In following their mandates, commissions of inquiry are,
ideally, free from partisan loyalties and better able than Parliament
or the legislatures to take a long-term view of the problem
presented.
34
They have also been described as
an
excellent means
of
informing and educating concerned
members of the public.
35
91. In Alberta, when the Lieutenant Governor in Council considers it expedient and in the
public interest, the Lieutenant Governor in Council may appoint one or more commissioners to
inquire into a matter that is within the jurisdiction of the Legislature, and that is either connected
with the good government or conduct of the public business of the Province, or declared by the
Lieutenant Governor in Council to
be
a matter
of
public concern.
6
In
my
view, the questions
arising from my review could properly be the subject ofa public inquiry.
Simon Ruel, The
aw o
Public Inquiries in Canada (Toronto: Carswell, 2010) at xxv.
34
Phillips v Nova Scotia Commission of nquiry into the Westray Mine Tragedy), [1995]
S.C.R. 97 at 137-38.
5
Phillips v Nova Scotia Commission of nquiry into the Westray Mine Tragedy) at 138.
6
Public Inquiries Act, R.S.A. 2000, c. P-39, s. 2.
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24
92. Here, a public inquiry could be narrowly focused on the information that was not
available to the Ethics Commissioner and whether that information would have resulted in
different findings or a different outcome had it been available.
Returning tile matter to tlte Public ccounts Committee
93. Prior to the commencement
of
my review, this matter had been raised at the Legislative
Assembly's Standing Committee on Public Accounts.
7
In light
of
the announcement
of
my
review, the Committee decided to delay its consideration
of
the matter pending the delivery
of
my report. The Committee passed a motion to tentatively invite the Department
of
Justice to
respond to questions concerning the awarding of the Alberta tobacco litigation contract
following the release
of
my report and a meeting
of
the Committee's working group.
38
94. It would be open to now pursue through the Committee those questions arising from the
information that was not before the Ethics Commissioner.
Recommendation
95. Having considered these alternatives, I conclude that the best course
of
action in the
circumstances is to refer the matter to the current Ethics Commissioner to determine whether re
investigation is warranted. As I have already noted, it is for the Ethics Commissioner to decide
whether the threshold for re-investigation set out in the Act is met.
96. None
of
the other options I have mentioned would in my view be as appropriate in the
circumstances. A public inquiry - even narrowly focused - would be disproportionate to the
issues
at
hand. It could also be seen to ignore the intention
of
the Legislature, as manifested in
the Act, to have the Office of the Ethics Commissioner investigate issues arising under that
legislation. A public inquiry would effectively circumvent the specific investigative regime
chosen by the Legislature, particularly the re-investigation provision contained in the Act.
97.
Nor
does this matter appear to me to be one most appropriately dealt with by the Standing
Committee on Public Accounts. Legislative committees are, in general, better suited to determine
7
That Committee is supported by the Office
of
the Auditor General.
38
Alberta, Legislative Assembly, Standing Committee on Public Accounts, Transcript No. 29-1-
6 at PA-59 1 December 2015).
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25
matters ofpolicy or legislative fact rather than matters of adjudicative fact. They are also part of
the political process, unlike the independent office established to consider conflicts
of
interest
issues - the Office
of
the Ethics Commissioner.
98. I do not mean to suggest that
my
recommendation is without its potential obstacles. There
are at least three possible issues associated with referral for possible re-investigation, and some
preliminary comment
on
each is appropriate.
Limitation period
99. First, section 25(3) of the Conflicts of nterest ct provides that
an
investigation under
section 25 cannot
be
commenced more than two years after the date on which the alleged breach
or contravention occurred. It is conceivable that this provision could
be
invoked against the
possibility
of
a re-investigation. However, having regard to the modern approach to statutory
interpretation,
39
the limitation period set out in section 25(3) would not
in
my view bar are-
investigation where the initial investigation was commenced within the limitation period. Section
25(3) refers to commencing
an
investigation rather than to undertaking a re-investigation.
By definition, a re-investigation is not a new investigation.
And
it would be inconsistent with the
purpose of the re-investigation power to permit the consideration ofnew facts when they
become available - to require a re-investigation to commence within two years
of
the alleged
breach
or
contravention.
Availability
o
sanctions
100. Second, it could be argued that re-investigation is inappropriate where, as here, the
individual who is the subject
of
the complaint is no longer a sitting Member
of
the Legislative
Assembly subject to sanction, so that no sanction could
be
recommended
by
the Ethics
Commissioner to the Legislative Assembly if a contravention were found. I do not find this
objection to
be
especially compelling. In
my
view, the objectives
of
investigation (and re
investigation) include to determine and communicate whether a breach
or
contravention has
39
According to this approach, ''the words
of
an Act are to
be
read in their entire context and in
· their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament : Rizzo Rizzo Shoes Ltd Re), [1998] I S.C.R. 27 at para.
21.
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26
occurred. Fulfilling these objectives serves in
tum
to inform the public and educate others who
are subject to the Act, and does not depend on the availability
of
sanctions.
101. That position is consistent with section 27(1.1) of the Act. Section 27(1.1) provides that
section 27(l)(b)(ii), which allows an Ethics Commissioner's report to_include recommendations
for sanctions that may be imposed by the Legislative Assembly, does not apply to a report that
relates to a former Minister who is no longer a Member. The Act thus contemplates the
possibility of a report with a finding of a breach or contravention but without the
recommendation
of
sanctions to be imposed by the Legislative Assembly.
l11dependence o he Office
o
he Ethics Commissioner
102. Third, it might be suggested that consideration
of
a re-investigation would be
inappropriate on the basis that a particular Ethics Commissioner should not re-investigate a
matter investigated at first instance by a predecessor. While I am fully sympathetic to the need to
protect the independence
of
the Office
of
the Ethics Commissioner, I do not believe that the
availability
of
the re-investigation power conferred by the Legislature can legitimately turn on
whether the Ethics Commissioner handling the original investigation remains in office. To
restrict the power to re-investigate in that way would make the availability
of
re-investigation
depend
on
a particular individual's tenure. This does not appear to me to be consistent with the
scheme and purpose
of
the Act.
103. Finally, I note that referral for possible re-investigation does not preclude the
consideration of additional measures aimed at preventing the recurrence of circumstances such as
those that underlie my review. In this case certain relevant information was not available to the
Ethics Commissioner because it was subject to claims
of
solicitor-client privilege. In making this
observation I do not intend to question the decision by the Government to assert privilege. Legal
privilege is foundational to our legal system; solicitor-client privilege in particular has been
described as fundamental to the justice system in Canada.
40
Nonetheless, the Government may
wish to consider amendments to the Act that would ensure that relevant but privileged materials
can be disclosed to the Ethics Commissioner without waiving claims of privilege in other
40
R v
McClure 2001 SCC 14, [2001] 1 S.C.R. 445 at para. 2.
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27
contexts, or permit the Ethics Commissioner to test claims of privilege in an efficient manner
that is sensitive to the relevant considerations.
104. For these reasons, it is my recommendation that the Government proceed with referring
the matter
to
the current Ethics Commissioner for her determination
of
whether re-investigation
is warranted.
ACKNOWLEDGMENTS
105. I wish to thank Richard Dicemi Deputy Minister ofExecutive Council), Philip Bryden,
Q.C. Deputy Minister, Justice and Solicitor General) and Frank Bosscha, Q.C. Assistant
Deputy Minister, Legal Services Division, Justice and Solicitor General), who provided their
assistance
by
making available the materials I reviewed and arranging the interviews I
conducted.
106. I also wish to thank all of the interviewees for their cooperation.
107. Finally, I wish to thank
my
colleagues at Torys LLP, John
B.
Laskin and Jonathan Roth,
for their invaluable assistance with the conduct of this review.
Respectfully submitted,
--·
···-
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-
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.
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APPENDIX A
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ALBERTA
JUSTICE AND SOLICITOR GENERAL
November 30, 2015
The Honourable Frank Iacobucci
Torys
LLP
P.O.
Box27
Office
o f t i J ~
vlinisur
M
A Ca/gmJ - lluj]nlo
79
W.ellington St.
W., TO
South Tower
Toronto, ON
MSK
1N2
Dear
Mr
.Iacobucci:
Re:.
R·eview of Conflict of Interest Inquiry Concerning
Former Premier Allison ·Redford
I
.am
~ r i t i n g ·to confirm. the terms of your review of the ·investigation into allegations ·ot
potential conflict of interest involving former Premier Allispn Redford, related to the
engagement of the Tobacco Recovery Lawyers consortium to represent the province in
litigation against
major
tobacco companies.
On November 28,. 2012. Neil Wilkinson, then Alberta s Ethips Cqmmissioner, received a
letter
of
complaint from Dr. Raj Sherman, then leader of the Liberal Party, requesting an
investigation of a possible breach of the
onflicts of Interest Act by
former Premier
Redford while she was Minister of Justice ahd Attorney General of Alberta. A second
letter
of
complaint, from ·tnen Opposition Leader DanieUe Smith, dated November 30,
2012 was received by ·the
C o m m i s s i o n ~ r
on De.cember 3, 2012, also requestihg an
i n v e s t i g . ~ t i o n .
Commissioher Wilkinson wrote· to Dr. Sherman and. Ms. Smith on January 4, 2013,
advising
.them·
that t)e
n a ~ i .
9peneq
n
investigation. On-
D . e c ~ m b e r
4·,
2013,
he
filed
a
Report :with the Speaker of the Legisiative Assembly of Alberta concerning his inquiry
and findings. A
copy of
the Report is attached.
Over the course of
the
last few days, concerns have
emerg_ed
that Commissioner
Wilkinson m ~ y not ~ a v e had· available to him all the information that was relevant to his·
.....
: -
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. : . ;::
_ _ :. - - ~ - ; ; _ ;
___
:
; ~ - . ; . ~ : _ _ ; ~ _ ; _ - · - - - -
..
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4 - z 4 ~ U l i s \ a w ~ ~ - : B u i \ d \ n ~ Edmonron.A\\>ena 1 SK 21l6 CatUda
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780-417·2339 Fax
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Telephone 403-244-n37
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8/18/2019 Iacobucci Report
31/33
inquiry. The Government of Alberta seeks your independent review of this matter and
advice on what the Government should do to address it.
For this purpose, I am directing the Deputy Minister of Justice and Solicitor General,
Philip Bryden, to meet with you and provide you with documentation that was received
by
Commissioner Wilkinson, along with other documents that may
be
potentially
relevant to your review. I am also directing, him to make arrangements for you to meet
with government officials who w e r ~ involved
in
the events you are reviewing,
to
the
extent you consider it appropriate.
At the P r e m , i ~ r s
di.reQtion,
any and all government documents you may f e ~ l r ~ l e v a n t will
be provided to you. We also invite you to speak to any and all individuals you may feel
can she.d light on these issues·. Officials have been directed to spe.ak fre·ely with you
about this matter.
It is the
o v e m m e n t ~ s
desire that this review be concluded and your advice provided
by
February 29,
·201 6.
Please provide your advice ·in
a
written letter, which will be
made
public on receipt. If you need any additional support in order to come
to
your
conclusions· as expeditiously
~ s
possible, please do not hesitate to contact Deputy
Minister Bryden.
The
H o n o u r ~ b l e
Kathleen. Ganley
.
.
Minister of Justice and ,Solicitor General
and Minister of Aboriginal Relations
8/18/2019 Iacobucci Report
32/33
PPENDIXB
8/18/2019 Iacobucci Report
33/33
1
2.
3.
4
5
6
7
8
9
10.
11.
12.
13.
14
LIST O INTERVIEWEES
1
The Honourable Ray Bodnarek, Deputy Minister of Justice and Deputy Attorney General
Martin Chamberlain, Q.C., Assistant Deputy Minister, Corporate Support Division,
Department ofHealth
Renee Craig, Assistant to the Deputy Minister and Deputy Attorney General, Department
of Justice and Attorney General
James Cuming, Partner, Cuming Gillespie Lawyers
Robert Hawkes, Q.C., Partner, Jensen Shawa Solomon Duguid Hawkes LLP
Jeff
Henwood, Executive Assistant to Minister Redford
David Phillip Jones, Q.C., Partner, de Villars Jones LLP
The Honourable Edward P. MacCallum, former Justice of the Alberta Court ofQueen s
Bench
Lome
Merryweather, Q.C., Executive Director, Civil Litigation, Legal Services Division,
Department
of
Justice and Attorney General
Denise Perret, Q.C., Assistant Deputy Minister, Legal Services Division, Department of
Justice and Attorney General
The Honourable Alison Redford, Q.C., Minister
of
Justice and Attorney General
Glenn Solomon, Q.C., Partner, Jensen Shawa Solomon Duguid Hawkes LLP
Grant Sprague, Q.C., Assistant Deputy Minister, Legal Services Division, Department
of
Justice and Attorney General
Tim
Wade, Consultant
15. Peter Watson, Deputy Minister
of
Executive Council
1
The interviewees positions listed below are those
at
the time
of
the events in question.