Ethics commissioner won't investigate Kenney government's refusal to appoint special prosecutor

Ethics commissioner won't investigate Kenney government's refusal to appoint special prosecutor

Alberta's ethics commissioner says she will not investigate the Kenney government's refusal to appoint an outside Crown prosecutor to assist an ongoing RCMP investigation into alleged voter fraud during the 2017 UCP leadership contest.

But an expert in democratic governance said the reasons provided by ethics commissioner Marguerite Trussler don't hold up under scrutiny.

In a May 2 letter to Trussler, Opposition Leader Rachel Notley alleged the refusal by Premier Jason Kenney and Justice Minister Doug Schweitzer to call in an outside prosecutor was a conflict of interest.

Notley pointed out that the police investigation directly involves the leadership race Kenney ultimately won, and Schweitzer — also a candidate in the leadership race — had raised concerns about voter fraud during the leadership vote.

But in a May 3 letter obtained by CBC News, Trussler told the NDP she would not investigate.

"This matter is under investigation by the RCMP," Trussler wrote, adding that Section 25(6) of the Conflicts of Interest Act "does not allow me to conduct an investigation while a matter is also being investigated."

Trussler also called the complaint "premature."

She said the RCMP "have not yet recommended any charges under provincial or federal legislation. Only then would the issue of a need for a special prosecutor as a result of a conflict of interest apply."

Ethics commissioner's reasons questioned

Duff Conacher is co-founder of Ottawa-based Democracy Watch and an expert in democratic governance. He said both reasons provided by Trussler for refusing to investigate are not valid.

Conacher said Alberta's Conflicts of Interest Act doesn't prevent Trussler from investigating the alleged conflict of interest and the Kenney government's refusal to appoint a special Crown prosecutor because that is not what the RCMP is investigating.

"They're not investigating the conflict of interest, and so she can rule on the situation," said Conacher, who is also an adjunct professor of law and political science at the University of Ottawa.

The section of the act cited by Trussler states that the commissioner must suspend an investigation if she discovers that the "subject matter" of her investigation is also under investigation by a law enforcement agency.

Conacher said the commissioner's conclusion that the NDP complaint was "premature" is also misguided.

"Prosecutors are often involved in cases as they are being investigated, essentially directing the police in terms of what evidence is needed to be gathered to prove a charge," he said, adding later that the province's Crown prosecutors ultimately answer to both Schweitzer and Kenney.

"And so there needs to be a fully independent prosecutor that is fully independently appointed to be overseeing this investigation right now. And it should have happened already."

In Trussler's response to the NDP, she claimed the RCMP had not yet recommended any criminal charges.

Trussler did not respond to a query from CBC News about how she knew the status of the RCMP investigation. The Mounties have refused to publicly even confirm an investigation is underway.

CBC News also asked the RCMP and Alberta Justice if either had provided information about the RCMP investigation to Trussler. Neither responded on Tuesday.

NDP Leader Rachel Notley said she wouldn't comment on what information Trussler did, or did not have, about the RCMP investigation, but she said "we do not agree with some of the contents of her letter, as it is known that the Crown, which is under (Schweitzer's) purview, often consults with the RCMP before charges are laid. This is a clear conflict of interest."

Before becoming the ethics commissioner, Trussler was a judge on Alberta's Court of Queen's Bench for 20 years. It is common knowledge among police, prosecutors and other lawyers, and judges that police often seek advice from prosecutors during an investigation.

Justice minister interviewed by RCMP

On Monday, CBC News revealed that Justice Minister Doug Schweitzer was personally questioned by the RCMP as part of their investigation into alleged voter fraud during the controversial UCP leadership contest.

Schweitzer told the legislature he spoke with the Mounties for 30 minutes on Sunday and answered their questions fully. He said police "had no further, other questions" for him at the end of the interview.

Outside the legislature, Schweitzer told reporters he is not personally under investigation, saying the RCMP "told me as much."

As justice minister and solicitor general, Schweitzer is responsible for ensuring the independence of several ongoing RCMP investigations related to the UCP leadership race. He is also generally responsible for policing in Alberta, and his ministry signs a contract with the RCMP for provincial policing.

Schweitzer was also a candidate in the UCP leadership race. Just hours after the voting process began in late October 2017, he and fellow candidate Brian Jean asked the party to suspend the vote over concerns about voter fraud. The UCP refused, insisting its process was secure.

Investigation 'tainted' without outside Crown: expert

After Schweitzer was appointed justice minister, the NDP asked Kenney's government to appoint an outside Crown prosecutor to ensure there is not even a perception of bias hanging over the RCMP's investigation and any potential charges Crown prosecutors may bring.

The government refused, prompting the NDP ethics complaint.

On Monday, despite the revelation he is now personally involved in the RCMP's investigation, Schweitzer again refused to appoint an outside Crown prosecutor.

Conacher criticized that decision.

"The premier and his attorney general are in a conflict of interest because they are the ultimate boss of those government lawyers," Conacher said.

"And as a result, you need the (ethics) commissioner to be stepping in and saying they cannot be taking any actions, and someone fully independent of them has to be making the decisions about these things right now."

Conacher said the government's refusal to appoint a special prosecutor is telling.

"If they're not going to do that, then they're essentially saying, 'We're OK with having a process tainted by the appearance of political interference,'" he said. "And no one in the public in Alberta should be happy with that.

"They should actually be very upset because of how dangerous it is."

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