Iacobucci Report

8/18/2019 Iacobucci Report

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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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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



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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


9



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- 5-

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



12


13

Ethics Commissioner's e p o r t ~ para. 35.

14



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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


9



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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


2


22


23


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


26


27



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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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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.


13/33

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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.


14/33

- 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.


15/33

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


16/33

-

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.


17/33

- 16

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.


18/33

- 17-

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.


19/33

- 18

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


20/33

- 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.


21/33

(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.


22/33

-21-

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).


23/33

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).


24/33

-23-

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.


25/33

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).


26/33

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.


27/33

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.


28/33

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,

--·

···-

-

• -· . .

: :

-

. :

.

·

..

-

.:..=_:

-_. _...:. __;

.

..

.:.


29/33

APPENDIX A


30/33

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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780-417·2339 Fax

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Telephone 403-244-n37

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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


32/33

PPENDIXB


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


The Honourable Alison Redford, Q.C., Minister

of


Glenn Solomon, Q.C., Partner, Jensen Shawa Solomon Duguid Hawkes LLP

Grant Sprague, Q.C., Assistant Deputy Minister, Legal Services Division, Department

of


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.

Documents

Iacobucci Report