Leaked internal documents cast doubt on ethics commissioner's investigation

Leaked internal Alberta government documents cast doubt on the findings of an ethics investigation that cleared former premier Alison Redford of conflict-of-interest allegations.

Experts say investigation of former Alberta premier Alison Redford was undermined

Former premier Alison Redford says the justice ministry never told her the legal consortium she chose had been ranked last. (CBC)

Leaked internal Alberta government documents cast doubt on the findings of an ethics investigation that cleared former premier Alison Redford of conflict-of-interest allegations.

The Alberta Justice documents, obtained exclusively by CBC News, reveal for the first time that the supposedly independent process through which Redford personally chose a legal consortium to represent Alberta in a $10-billion lawsuit was manipulated.

It appears those documents were not disclosed by Alberta Justice to the ethics commissioner, who continues to claim they are subject to legal privilege.

"Key facts were not established, key documents were not produced, and the conclusion of the ethics commissioner was risible," said Arthur Schafer, director of the University of Manitoba's Centre for Professional and Applied Ethics.

"The ethics commissioner's investigation appears, ironically, to have lacked all ethical integrity," Schafer said after viewing the withheld documents.

Former ethics commissioner Neil Wilkinson declined an interview request because he is required to keep all information confidential under Alberta's Conflicts of Interest Act.

The lawyer for Alberta Justice, David Phillip Jones, told the ethics commissioner the ministry could not disclose a crucial briefing note, which CBC News has now obtained. (sagecounsel.com.)

Redford resigned as premier in March 2014 and as an MLA in August of the same year after a series of scandals.

On Nov. 28, 2012, CBC News revealed Redford, while justice minister, had personally chosen International Tobacco Recovery Lawyers (ITRL) to represent Alberta in its $10-billion lawsuit against the tobacco industry. The story was based on a Dec. 14, 2010 memo written by Redford, which was released by Alberta Justice to CBC News through a freedom-of-information request.

The consortium is led by JSS Barristers, a Calgary law firm which includes Redford's former husband, Robert Hawkes. The two divorced more than 20 years ago but Hawkes remained a strong political supporter. He led her transition team after she won the Alberta Progressive Conservative party leadership in 2011 and became premier.

Conflict-of -interest allegations

Back in November 2012, Schafer told CBC News Redford should have recused herself from making the decision because her relationship with Hawkes created a blatant conflict of interest. Lawyers from the consortium, and its lobbyist, also had donated tens of thousands of dollars to the Tory party, Redford's constituency association and her leadership campaign.

Opposition parties requested an investigation by ethics commissioner Wilkinson. His December 2013 report concluded Redford had not been in a conflict of interest by choosing her former husband's firm for the potentially lucrative work, but it confirmed she had selected the winning consortium.

During that investigation, Alberta Justice refused to allow Wilkinson to review a key document as part of his investigation.

Citing legal privilege, the ministry withheld Briefing Note AR 39999, which contained the review committee's evaluations of the three competing consortiums and its recommendation to Redford. Her Dec. 14, 2010 memo, released earlier to CBC News, specifically referenced Briefing Note AR 39999.

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

Alberta Justice has also refused to release the briefing note and other documents to Alberta's freedom of information commissioner, CBC News and lawyers for the tobacco industry. That matter is now before Alberta's Court of Queen's Bench.

University of Manitoba ethics professor Arthur Schafer says the conflict-of-interest investigation of Alison Redford failed even to establish basic facts. (CBC)

But CBC News has obtained leaked documents that reveal the review committee actually produced two versions of Briefing Note AR 39999.

The documents detail how the independent review committee dramatically changed its assessment, which allowed Redford the opportunity to choose ITRL and JSS Barristers.

The first unsigned version of Briefing Note AR 39999 reveals the review committee, comprised of senior justice and health ministry lawyers, ranked ITRL and JSS Barristers last among the three competing consortiums "primarily due to their lack of depth and lack of any presence in Edmonton."

The committee effectively eliminated ITRL from further consideration and instead recommended Redford choose between two other consortiums: Bennett Jones, or the paired law firms of Field and McLennan Ross.

Briefing note altered

But within a day of sending its assessment in the first version of Briefing Note AR 39999 to Redford's executive assistant, the committee inexplicably produced a second version of the same briefing note.

The second version inserted ITRL back into the competition, removed the reference to its last-place ranking, listed its strengths, and recommended Redford choose the "appropriate" consortium from the three finalists. Redford signed this version of the briefing note.

There is nothing in the documents that indicates why the original briefing note was modified or who made the dramatic reversal to the original version. There also is no explanation as to why the committee had completely changed its recommendation.

Nothing in the documents indicates Redford saw the first version of the briefing note.

Former ethics commissioner Neil Wilkinson cleared former premier Alison Redford of conflict-of-interest allegations related to the province’s $10-billion tobacco litigation. (Supplied)

Redford, through her lawyer, told CBC News the ministry did not tell her ITRL had been ranked last and said the matter had been thoroughly investigated by the ethics commissioner.

A string of internal Alberta Justice emails, also leaked to CBC News, show some members of the review committee knew the second briefing note was inaccurate because it omitted the fact ITRL had been ranked last and was less qualified than the other two consortiums.

The emails also reveal other senior justice bureaucrats, and Redford's executive assistant, were concerned Redford, in her Dec. 14, 2010 memo, had characterized ITRL and JSS Barristers as the "best choice."

But none of the civil servants or Redford's executive assistant ever set the record straight either publicly or apparently during the ethics investigation. Again citing legal privilege, the justice and health ministry lawyers who served on the review committee refused to answer any questions from the ethics commissioner that might reveal the contents of the briefing note.

Documents withheld

Schafer said it appears Alberta Justice only provided the second, altered version of Briefing Note AR 39999 to a retired judge hired by the ethics commissioner to maintain the legal privilege asserted by the ministry.

Under a compromise agreement, the retired judge — former Court of Queen's Bench judge Edward MacCallum — was only allowed to answer yes or no to a series of five mutually agreed-upon questions.

MacCallum declined an interview request because he is bound to confidentiality by the contract he signed with the province for the ethics investigation.

During the ethics commissioner's investigation, MacCallum answered no to the key question of whether Redford's decision was unreasonable or showed bias. He gave the same answer to all other questions related to potential impropriety.

Schafer said those responses make sense only if MacCallum had been limited to viewing the second version of the briefing note. He said the retired judge couldn't have drawn those conclusions had he seen both versions, and the related emails.

"Nothing could have been more clear than that (Redford) made a decision in favour of the third-best (consortium) rather than the best (consortium)," Schafer said.

But Schafer said that even if these new internal documents had not surfaced, the ethics investigation should have found Redford was in a blatant conflict of interest due to her close personal and political connection to her former husband and the ITRL consortium.

"She was in a conflict of interest and she shouldn't have been the one making the decision, even if all firms had been ranked highly," Schafer said. "Given that the firm she chose was ranked third, the appearance is of bias."

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