ASIRT recommended charging Lethbridge officers who spied on MLA, but Crown won't prosecute: letter

Alberta's police watchdog recommended laying charges against three Lethbridge officers who used police databases to improperly access the personal information of two people, including NDP MLA Shannon Phillips, but the Crown's office has declined to prosecute, CBC News has learned.

Details of two recently completed Alberta Serious Incident Response Team (ASIRT) investigations come from a letter sent byASIRT director Mike Ewenson to Phillips's lawyer, Michael Bates.

CBC has obtained a copy of the letter, dated May 17.

The correspondence details the outcomes of two ASIRT investigations into unauthorized access of police data at the Lethbridge Police Service (LPS) in 2017 and 2018.

When asked for comment, ASIRT directorEwenson said he would let the letter speak for itself ahead of the release of the full report.

'A sliver of accountability'

Despite calling the Crown's refusal to pursue charges "quite regrettable," Phillips says she is feeling vindicated after years of pursuing police accountability.

"I think it sends a message to the public that in order to get even a sliver of accountability, even a tiny little ray of light on transparency and accountability in a police service, you have to fight, you have to pay a personal cost, you have to wait years, and even then it will be partial," said Phillips in a phone interview.

"The system overall is quite broken."

• Lethbridge MLA targeted in unauthorized surveillance wins right to appeal officers' punishment

But the head of theLethbridge Police Service union says while police can issue or recommend charges based on "reasonable grounds to believe an offence took place," the Alberta Crown Prosecution Service (ACPS) standard for laying charges is higher.

Jay McMillan, president of the union, the Lethbridge Police Association,says the Crown is tasked with reviewing and testing the investigation.

"It is also the basis for an extra level of accountability being built into law enforcement in this province through pre-charge approvals by the ACPS," said McMillan.

"In the absence of the full ASIRT report, we don't know why this particular case was weeded out as garbage. Even with the report, we may not fully understand why.All we know is that ACPS did not see it as valuable or viable to pursue."

Phillips followed, photographed

In 2017, Phillips,the NDP's environment minister at the time, along with local conservationist Harvey Locke and some other friends were watched andphotographed by Sgt. Jason Carrier and Const. Keon Woronukas they met at aLethbridge diner.

Woronuk then followed Phillips and ran Locke's licence plate through the police database after the pair left the diner.

The officers had also taken photos of the group and posted them anonymously online.

Both officers were involved in the off-roading community, whose members were upset by plans by the then-NDP government to restrict off-road vehicle use and create a provincial park in the environmentally sensitive Castle area of southwestern Alberta.

Carrier and Woronuk who admitted his actions were motivated by his personal and political views were both convicted of offences under the Police Act and demoted.

'Reasonable grounds'

In its investigation, ASIRT determined that there were "reasonable grounds to believe that one officer committed a criminal offence" by accessing Locke's information without a lawful purpose.

ASIRT sent its investigative findings to the Alberta Crown Prosecution Service.

But the Crown's office returned an opinion that its test for prosecution was not met "and therefore there will be no charges related to this investigation."

After Phillips learned she'd been surveilled and followed at the diner, she submitted a Freedom of Information and Protection of Privacy Act (FOIP)request, asking for information on searches done on her name within Lethbridge police service.

She received more than 9,000 mostly redacted pages of documents which showed that in 2018, Phillips's name was searched eight times by five different police officers and one civilian employee.

• Alberta MLA was monitored by 5 different police officers, documents show

According to Ewenson's letter, ASIRT cleared all but two of the officers who searched Phillips's name.

"ASIRT determined that there were reasonable grounds to believe that two officers committed criminal offences by accessing Ms. Phillips' data in 2018," the letter said.

'No comment': Crown

Again, ASIRT's investigative findings were sent to the Alberta Crown Prosecution Service.

And again, as they did with the officer involved in breaching Locke's privacy, the Crown declined to charge the two different officers believed to have improperly accessedPhillips's data, sending back an "opinion" that theCrown's test for prosecution was not met.

One of the two officersresigned in 2021. LPSsays an internal, Police Act investigation is now underway into the actions of the officer who is currently employed bythe service.

"To have law enforcement targeting a minister because they don't like her, they don't like her politics, they don't like her party, they don't like that a woman's in charge; that's what this is about," said Phillips in a phone interview.

"I'm glad that even though it came at tremendous personal cost at least the Alberta Serious Incident Response Team agrees with me on this."

A spokesperson for theCrown Prosecution Service said the service has "no comment" on the decision not to lay charges.

'Absolute independence'

On Monday afternoon, Justice Minister Mickey Amery told reporters thatwhile the ACPS takes ASIRT recommendations "very seriously," it has a "difficult task" of weighing the evidence to meet the standard of a reasonable likelihood of conviction.

Amerystressed theimportance of ensuring the Crown's office has "absolute independence" in making its assessments.

"I think that it's important for us to respect those decisions," said Amery. "We want to make sure that the Crown prosecution makes these decisions independent of any type of pressure, including political pressure."

That said, Amery says he's"undertaken a review of the relationship between ASIRT and the ACPS," although the minister didn't elaborate.

• Public inquiry ordered by justice minister into Lethbridge police to proceed

The public report containing further details on ASIRT's investigative conclusions will be released in the coming weeks.

The letter was sent to Phillips's lawyer Michael Bates because of other proceedings "which may be affected by ASIRT's timeline in this investigation."

In 2021, an inquiry into LPS's practices and policies was ordered by then-justice minister Kaycee Madu following multiple instances of unauthorized access of police databases.

That inquiry has been on hold pending the outcome of ASIRT's investigations.

At Monday afternoon's question period at the legislature, Public Safety MinisterMike Elliswas vague on whether the inquiry would now proceed.

"We will be looking and taking all options including an inquiry of some kind and we'll be discussing that with my department to see what's the best path forward for accountability," said Ellis.

In 2022, Phillips filed a $400,000 lawsuit against LPS officers, claiming illegal searches of police databases were an invasion of her privacy intended to cause her psychological and emotional harm.