liiiil

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

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 Conflicts of Interest Act (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.

-2-

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.

It 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. My 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 of my 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 an extension through
March 30, 2016.

- 3consideration 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 of 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 of which 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 of her office to further the private interest of her exhusband, 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 of Alberta, take
part in a decision in the course of carrying out her office or powers knowing that

Report to the Speaker of the Legislative Assembly of Alberta 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.
4
Ethics Commissioner's Report, para. 4.
5 Ethics Commissioner's Report, para. 48.

-4-

the decision might further her private interest, or that of a person directly
associated with her, or that of her minor child, and thereby commit a breach of
section 2(1) of the Act?

15.

(2)

Did Minister Redford, while Minister of Justice for the Province of Alberta, use
her office or powers to influence or to seek to influence a decision to be made by
or on behalf of the Crown to further her private interest, or that of a person
directly associated with her or her minor child or to improperly further another
person's private interest, and thereby commit a breach of section 3 of the Act?

(3)

Did Minister Redford, while Minister of Justice for the Province of Alberta, use
or communicate information not available to the general public that was gained by
her in the course of 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 of section 4 of the Act?

(4)

Did Minister Redford, while Minister of Justice for the Province of Alberta,
conduct herself in such a way in this particular matter that she breached the spirit
of the Act, as stated in the Preamble to the Act, and if so, does such breach of the
spirit of the Act constitute an actual breach of the Act?6

The Ethics Commissioner conducted his investigation largely by way of written

interrogatories to various witnesses, who responded in writing with statutory declarations. 7 He

conducted one in-person interview; that interview was of Minister Redford. 8
16.

The Ethics Commissioner also received documentary evidence, primarily from the

documents released through Freedom ofInformation and Protection of Privacy Act requests that
preceded the complaints, but also from addendurns to various witnesses' statutory declarations. 9

Assertions of pr~vilege
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 of the written interrogatories sent
to lawyers employed by the Government (and one other employee of the Crown) engaged
6

Ethics Commissioner's Report, para. 10.

Commissioner's Report, para. 14.
8
Ethics Commissioner's Report, para. 23.
9
Ethics Commissioner's Report, para. 26.
7 Ethics

- 5matters protected by legal privilege. Mr. Jones confirmed that the Government wished to assist to
the extent possible without waiving privilege. 10
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. 11

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

10

Ethics Commissioner's Report, para. 20.

11

Ethics Commissioner's Report, para. 21.

12

Ethics Commissioner's Report, para. 35.

Ethics Commissioner's Report~ para. 35.
14
Ethics Commissioner's Report, para. 37.
13

-6Bench, the Honourable Edward P. MacCallum, to review and answer mutually agreeable
questions concerning AR 39999. 15
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. 16 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 of AR 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. 18 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 of proof of a balance of probabilities, he

15

Ethics Commissioner's Report, para. 37.

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").
17
Mr. MacCallum's Letter, p. 2.
18
Mr. MacCallum's Letter, p. 4.
19 Mr. MacCallum's Letter, p. 5.
16

-7concluded that Minister Redford had not breached any of sections 2, 3 or 4 of the Act, and had
not offended its Preamble. 20
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. 21 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
a.~

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

20

Ethics Commissioner's Report, para.

Ethics Commissioner's Report, para.
22
Ethics Commissioner's Report, para.
23
Ethics Commissioner's Report, para.
24
Ethics Commissioner's Report, para.
21

...

112.
57.
58.
87.
88 .

- 8presentation of the Crown's Right ofRecove1y Act 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 so
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.

25

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 of AR 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;

Ethics Commissioner's Report, para. 96.

26
Ethics Commissioner's Report, para. 100.
27
Ethics Commissioner's Report, para. 101.

-9(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 of Information and

Protection ofPrivacy Act requests that led to the complaints against Minister
Redfo_rd;

(3)

documents collected in response to the Freedom ofInformation and Protection of

Privacy Act 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 of privilege;

(6)

correspondence between counsel for the Government and Government officials;

and

(7)

briefing note AR 39999, and the letter and attachments provided to Mr.
MacCallum in advance of his review of the briefing note.

- 1034.

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.

36.

( 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 of her 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 of her 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 e~ail?

(10)

Was Minister Redford aware of the communications involving Ms. Craig in

connection with the Deputy Minister's memorandum?

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 of my

review, I draw no conclusions in this report on these questions, which engage the substantive

- 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.

Events 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 of my 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.

- 12The 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 of Recovery 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 of Grant
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.

- 1345.

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 AR 39999

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. It 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 of depth 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.

- 14Mr. 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.

Cltanges 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 Jeff Henwood, 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.

~tead,

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

- 15 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 it- once done can we send into system." It 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.

The selection of the ITRL 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.

- 1659.

The memorandum read as follows:

Thank you for preparing briefing note AR 39999 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 from the Deputy 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 of December 28

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.

- 17Henwood 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. In 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.

- 18Disclosure ofAR 39999

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 of AR 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 of AR 39999.
71.

I turn 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 of my 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 ofInterest Act requires the Ethics Commissioner and the Ethics
Commissioner's staff to maintain the confidentiality of information and allegations that come to

- 19Accordingly, 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.

It 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 of AR 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.
I

But Mr. MacCallum was not provided with, and was not aware of, any prior drafts of AR 39999.
Because Mr. MacCallum's review of AR 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.

It 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 of briefing 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.

-20-

....

76.

(5)

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.

None of this information was released through the Freedom of Information and

Protection ofPrivacy Act 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.

It 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.
t-~

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.

-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 of Interest Act was intended to protect.
82.

The Act - and investigations under it- 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. 29
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 in 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. 30

84.

The Act's Preamble reflects the purpose of promoting public confidence in government.

It provides in relevant part:

29
30

Alberta, Legislative Assembly, Alberta Hansard (20 June 1991) at 1868 (Kenneth Rostad).
Alberta, Legislative Assembly, Alberta Hansard (20 June 1991) at 1872 (Sheldon Chumir).

-22WHEREAS Members of the Legislative Assembly are expected to

perform their duties of office 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 of confidence 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. 31
Referral for 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
31

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 of my 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 ofInterest Act, R.S.A. 2000, c. C-23, s. 25(9).

-23the 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. " 33
90.

Public inquiries have been described as follows:

[Public inquiries] are often convened in the wake of public 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. 36 In my view, the questions
arising from my review could properly be the subject of a public inquiry.

33

Simon Ruel, The Law ofPublic Inquiries in Canada (Toronto: Carswell, 2010) at xxv.
Phillips v. Nova Scotia (Commission ofInquiry into the Westray Mine Tragedy), [1995] 2
S.C.R. 97 at 137-38.
35
Phillips v. Nova Scotia (Commission ofInquiry into the Westray Mine Tragedy) at 138.
36 Public Inquiries Act, R.S.A. 2000, c. P-39, s. 2.
34

-2492.

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 Accounts Committee

93.

Prior to the commencement of my review, this matter had been raised at the Legislative

Assembly's Standing Committee on Public Accounts. 37 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 reinvestigation 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
37

That Committee is supported by the Office of the Auditor General.

Alberta, Legislative Assembly, Standing Committee on Public Accounts, Transcript No. 29-16 at PA-59 (1 December 2015).

38

-25matters of policy 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 Interest Act 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 areinvestigation 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 of new facts when they
become available - to require a re-investigation to commence within two years of the alleged

i.i

breach or contravention.

Availability of 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 reinvestigation) 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.

-26occurred. 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 of the Office of the 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.

-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 of Executive 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
I

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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._
I

APPENDIX A
I

'

...
1
I

ALBERTA
JUSTICE AND SOLICITOR GENERAL

Office oftiJ~ /vlinisur

M lA. Ca/gmJ' - lluj]nlo

November 30, 2015

The Honourable Frank Iacobucci
Torys LLP
P.O. Box270
79 W.ellington St. W., TO South Tower
Toronto, ON
MSK' 1N2

Dear Mr .Iacobucci:

Re:. Review of Conflict of Interest Inquiry Concerning

Former Premier Allison Redford
I .am -~riting 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 Conflicts 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 Commission~r on De.cember 3, 2012, also requestihg an
investig.~tion.

Commissioher Wilkinson wrote to Dr. Sherman and. Ms. Smith on January 4, 2013,
advising .them that t)e na~i. 9peneq an investigation. On- D.ec~mber 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 ~ave had available to him all the information that was relevant to his

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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 wer~ involved in the events you are reviewing, to the
extent you consider it. appropriate.
At the Prem,i~r's di.reQtion, any and all government documents you may fe~l r~levant 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 freely with you
about this matter.
It is the Govemment~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
Honour~ble
Kathleen. Ganley
.
.
Minister of Justice and ,Solicitor General
and Minister of Aboriginal Relations

...

,6.d

APPENDIXB

LIST OF INTERVIEWEES 1

..
...
...

..
c.::t

1.

The Honourable Ray Bodnarek, Deputy Minister of Justice and Deputy Attorney General

2.

Martin Chamberlain, Q.C., Assistant Deputy Minister, Corporate Support Division,

Department of Health

3.

Renee Craig, Assistant to the Deputy Minister and Deputy Attorney General, Department
of Justice and Attorney General

4.

James Cuming, Partner, Cuming & Gillespie Lawyers

5.

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

6.

Jeff Henwood, Executive Assistant to Minister Redford

7.

David Phillip Jones, Q.C., Partner, de Villars Jones LLP

8.

The Honourable Edward P. MacCallum, former Justice of the Alberta Court of Queen's
Bench

9.

Lome Merryweather, Q.C., Executive Director, Civil Litigation, Legal Services Division,
Department of Justice and Attorney General

10.

Denise Perret, Q.C., Assistant Deputy Minister, Legal Services Division, Department of
Justice and Attorney General

11.

The Honourable Alison Redford, Q.C., Minister of Justice and Attorney General

12.

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

13.

Grant Sprague, Q.C., Assistant Deputy Minister, Legal Services Division, Department of
Justice and Attorney General

14.

Tim Wade, Consultant

15.

Peter Watson, Deputy Minister of Executive Council

...

..
....

The interviewees' positions listed below are those at the time of the events in question.