Vancouver Province
for September 10, 1999

Ladies and Gentlemen of the jury, this is the case of the State v Ujjal Dosanjh, Attorney-General. Here’s what you must decide.

Mr Dosanjh is accused of failing in his common law duty, fortified by centuries of parliamentary tradition, to advise a minister that under the circumstances he must resign. The circumstances are these.

On March 2, 1999 Premier Glen Clark’s home was searched under warrant. The material left with Mr Clark could leave him in no doubt that he was under criminal investigation. In any event, Mr Dosanjh admits he, Dosanjh, knew this the following day and that he didn’t inform Mr Clark that he was under investigation until the 10^th of August. The Premier duly resigned on the 13^th.

The Attorney-General is, by statute and tradition, the First Law Officer of the Crown. This imposes many obligations but the only one we’re concerned about here is his obligation to advise a Minister of the Crown, including a premier, that because of he’s under a criminal investigation, that he must stand down until the matter is cleared up.

In fairness, the Attorney is in a fix. For while he must act as adviser to the Crown, he is also a politician dependent for his job upon the very premier he must advise. Every jurisdiction, which has an attorney-general, is faced with this obvious conflict.

In 1991 the NDP government, recognizing that in the past, "political" investigations caused very serious perception problems, especially if it was claimed that the Attorney-General had not acted quickly enough to deal with a colleague, passed the Crown Counsel Act which, by section 7, empowers the Assistant Deputy Attorney General (ADAG) to, on his own, to set up investigations. Thus even the instigation of an investigation is out of the Attorney’s hands and beyond his supervision. There is a provision for the Attorney to give directions, which I’ll deal with later.

This is Mr Dosanjh’s position, as I understand it. He says that the Crown Counsel Act shielded him from his common law duty to advise Mr Clark that he must resign and that he was asked by the Special Prosecutor not to make public even the mere fact of the investigation – though he offers no proof of this. Indeed he says it goes further and says the Act forbids him from confronting the Premier. In that he is supported by former Attorney-General Allan Williams QC.

I disagree and say he breached his duty and am supported by former Attorney-General Alex Macdonald, QC.

Why is there this difference of opinion? All three learned Attorneys would agree that without the Crown Counsel Act there’s no question but that it was Mr Dosanjh’s duty to advise Mr Clark that he couldn’t continue as Her Majesty’s First Minister and that if his advice were not taken, consider resignation himself.

I think the question turns on interpretation of the Act and on semantics. Unquestionably the Act places all authority to investigate a case in the ADAG and makes it clear that the Attorney can only interfere in writing, accompanied by publication in the Gazette – in other words publicly. But the key question I think is whether or not that relieves the Attorney of divulging to the Premier the mere "fact" of the investigation as opposed to the details of how it is or will be proceeding. This, I suggest members of the jury, is what you might once have called the nitty gritty of the matter.

How, I ask, can it be argued that simply telling Mr Clark about the "fact" of the investigation would in any way prejudice that investigation? Mr Clark had to know he was under investigation and the public, practically to the person, assumed he was. No one, least of all I, would suggest that the Attorney should have disclosed anything at all about the way the investigation was being conducted – he only had to say "Mr Premier, I must advise you that you are subject of a criminal investigation and that, under the traditions of our system, you must resign." No more than that. And I say there is nothing in the Crown Counsel Act, which, even by implication, lets the Attorney-General off the hook. Moreover Mr Dosanjh has presented no evidence that he was even asked to keep the fact of the investigation quiet.

I say Ujjal Dosanjh failed in his duty - how say you?