Readers may recall the Ethics Commissioner’s report that found that Danielle Smith breached the Conflict of Interest Act by seeking to intervene in Artur Pawlowski’s prosecution.

Yesterday, the NDP sent a letter to the RCMP asking them to investigate whether Smith’s conduct may have violated various sections of the Criminal Code, as well – reflecting, accurately, that the Ethics Commissioner’s report was (quite properly) limited to considerations under the Conflict of Interest Act.

The NDP aren’t the first to suggest that there may be criminal wrongdoing in this case. Jim Foster, a retired judge of the Court of King’s Bench and the Minister of Justice under Peter Lougheed, also called for further investigation, noting that “if you applied the criminal code lens to her actions, it raises the serious prospect that the Premier may have broken the law.”

As well, in light of the recent news that the RCMP inquired into the similar Federal controversy regarding the SNC Lavalin prosecution, finding “insufficient evidence” to lay charges in that case, it seems quite appropriate to expect a similar investigation here.

Smith’s new Minister of Justice, Mickey Amery, released a statement in response:

“This matter has been investigated by the ethics commissioner. She has released her report indicating the NDP, including Mr. Sabir, lied to Albertans for months regarding their accusations of contact with Crown Prosecutors. The report also provided recommendations that the Premier is implementing. The matter is closed.”

There are various problems with this statement. Most significantly, the Ethics Commissioner made no findings about anybody ‘lying’ in allegations about prosecutorial contact. While the Ethics Commissioner was unable to substantiate those allegations in the course of her investigation, calling that a finding that anyone else – including Mr. Sabir, who is not mentioned at all in the report – is ‘lying’ is a misrepresentation of the contents of the report.

As well, while the matter was investigated by the Ethics Commissioner, the NDP is correct to point out the limits in the Ethics Commissioner’s jurisdiction: Specifically, the Ethics Commissioner did not investigate (and didn’t have the mandate to investigate) any possible violation of the Criminal Code.

Finally, the insistence that the “matter is closed” is particularly weak. Even the Ethics Commissioner’s own file isn’t closed: Because it was released during an election campaign, she chose not to make any recommendations regarding sanctions against Smith at that time, instead reserving the right to do so later when the Legislature is again in session.

In short: This isn’t over.

But the statement of the Minister of Justice has raised eyebrows within the legal community, with Shaun Fluker – a law professor and former NDP candidate – pointing out that it’s inappropriate for a lawyer holding public office to misrepresent the findings of a statutory decision-maker, and Nigel Bankes calling it “outrageous” and querying whether Amery understands the non-partisan nature of the Attorney General’s role.

Given the nature of the controversy underlying the Ethics Commissioner’s report – the Premier leaning on the Minister of Justice inappropriately to try to make Pawlowski’s legal issue go away, for partisan gain – the concerns about the brand new Minister of Justice going out of his way to misrepresent the findings of the Ethics Commissioner, in a manner heavily laden with partisan spin, is particularly troubling.