CKNW Editorial
for September 2, 1999

I owe Ujjal Dosanjh at least a partial apology ... I will explain the partial bit in a moment.

I have stated several times that Ujjal Dosanjh, after acquiring knowledge on March 3 that the then Premier was under a criminal investigation, ought to have faced the premier with this and demanded his resignation ... and that if the resignation was not forthcoming, that he should have either announced the facts or resigned. And I say to you at the outset that I still believe that this is what an attorney-general ought to do in such circumstances but I'm persuaded by my old friend and colleague, Allan Williams that this obligation has not only been removed by the 1991 Crown Counsel Act but that the Attorney's obligations have indeed been reversed. Under that act, political investigations have been taken from the Attorney-General's hands and placed in the care of a special prosecutor called Crown Counsel. I am also persuaded by Mr Williams that under that act it would have in fact been improper for Mr Dosanjh to have discussed the criminal investigation with the Premier or made it public. I don't agree with this legislation but that's beside the point - it is the law.

I would like to make my retraction more fulsome but I can't – at least not yet. There remains the question arising by Crown Counsel's letter of June 23rd to all counsel involved in the application to make the warrants public.

To recap, you will recall that many media outlets, including CKNW, applied to have the search warrants and all supporting material made public. As part of that process all counsel involved agreed upon a precis or summary of those documents which might be released without affecting other collateral issues. Part of that precis contained, in clear unmistakable language, the fact that the premier was under criminal investigation. On the 23rd of June.

William Smart, QC, told all counsel involved, by letter, that by July 5^th there was no reason, from Crown Counsel's perspective, that the precis should not be made public. In short, the reason Mr Dosanjh had for not making public the fact of the criminal investigation disappeared as of July 5th. It is true that Mr Dosanjh might still have felt bound not to release other matters but without any doubt he was no longer bound to keep the fact of the criminal investigation confidential (a fact that the premier himself must have known from March 2nd and which most of the public assumed to be the case anyway.) Moreover, if Mr Dosanjh was concerned that to release this information might run afoul of associate Chief Justice Dohm's rulings, he could have quickly applied to the judge for directions which surely would have been that Mr Dosanjh was free to make the fact of the investigation public. So while I say that I was wrong to criticize Mr Dosanjh's lack of action from March 3rd (the day he learned the facts of the investigation) until July 5th I am not so sure I was wrong from July 5^th afterwards.

For Mr Dosanjh's continued silence after July 5 to hold water he must be able to say that he didn't know that William Smart QC had agreed, in a widely circulated letter, that the fact of the criminal investigation into the Premier no longer needed to be kept confidential. I find this very difficult to believe. If Mr Dosanjh knew what all counsel in the hearing knew, and I must assume that he did, he was then obliged to face the premier with the facts and advise him, as his official legal adviser, that parliamentary tradition required that he stand down until the matter was cleared away.

There is another matter. It was open to Mr Dosanjh, under the Crown Counsel Act, to overrule Crown Counsel's demand that the fact of the criminal investigation be kept confidential. He could have, in effect, said this – Mr Taylor, Mr Smart, you have not made any case to me that the bare fact that the premier is under criminal investigation is critical to the investigation. This, he might have said, is known by the Premier and is suspected by most of the public. I believe that the public interest demands that I make the fact of the investigation, and nothing else, known to the public. I think he should have done that but the purpose of this discourse

today is to say that I was wrong to say he was obliged to do this.

In summary, then, on the face of it Mr Dosanjh acted correctly in not disclosing the fact of the criminal investigation of Mr Clark from March 3^rd to July 5th and I was wrong to conclude otherwise. I may also be wrong about the period thereafter but frankly, I'm not convinced I am. Moreover I remain of the view that even though, on the face of it, Mr Dosanjh was obliged to remain silent after March 3rd he had the power to alter that obligation and I think he should have. I concede, however, that he needn’t have.

Finally, I have not commented upon this but I must do so I think. The anonymous cowards in the NDP caucus who accuse Mr Dosanjh of stabbing the Premier in the back are dead wrong. How ironical Mr Dosanjh must find it to be assaulted on one side for not revealing the fact of the investigation and assaulted on another other side for doing so. Once Mr Dosanjh was given formal notice that the Premier was under investigation and that this fact being disclosed would not impair the investigation, his duty was clear and he discharged it.