Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) [1995] 2 S.C.R. 97: Right to fair trial -- Provincial commission of inquiry into mining disaster -- Commissioner empowered to compel testimony -- Mine managers charged with criminal offences relating to disaster -- Whether mine managers charged with criminal offences compellable witnesses at the provincial Inquiry -- Whether proceeding with the Inquiry's hearings would breach principles of fundamental justice or right to fair trial of the Charter -- If so, whether a temporary stay of the public hearings is a just and appropriate remedy

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA

Constitutional law -- Charter of Rights -- Fundamental justice -- Right to fair trial -- Provincial commission of inquiry into mining disaster -- Commissioner empowered to compel testimony -- Mine managers charged with criminal offences relating to disaster -- Whether mine managers charged with criminal offences compellable witnesses at the provincial Inquiry -- Whether proceeding with the Inquiry's hearings would breach principles of fundamental justice (s. 7) or right to fair trial (s. 11(d)) of the Charter -- If so, whether a temporary stay of the public hearings is a just and appropriate remedy under s. 24(1) of the Charter -- Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 13 -- Public Inquiries Act, R.S.N.S. 1989, c. 372, s. 5 -- Coal Mines Regulation Act, R.S.N.S. 1989, c. 73, s. 67(e).

The Nova Scotia government appointed Richard J. as a Commissioner under the Public Inquiries Act to conduct an inquiry into the fatal underground explosion at the Westray Coal Mine and as a special examiner under the Coal Mines Regulation Act. Commission staff indexed and summarized all the documents used in their research and provided the indices and summaries to the RCMP who then used these materials to obtain search warrants for the documents in the Commissioner's possession. The RCMP in turn provided the Commissioner with witness statements taken during the police investigation and cooperated with him in the development of a plan to re-enter the mine to gather evidence.

The union was the certified bargaining agent representing surface and underground employees of the Westray Coal Mine and the Westray Families' Group is comprised of relatives of the miners killed in the explosion. Both groups, along with the Attorney General of Nova Scotia, were granted general status to participate in the Westray Mine Public Inquiry. The individual respondents were employed by Westray Coal, a division of Curragh Resources Inc., in managerial and supervisory positions that carried responsibilities under the Coal Mines Regulation Act. Breach of these responsibilities could invoke consequences under the Coal Mines Regulation Act and the Occupational Health and Safety Act. All charges brought against individual respondents for violations of the Occupational Health and Safety Act were eventually quashed. Criminal charges of manslaughter and criminal negligence causing death, however, were laid against the respondents Parry and Phillips, along with Curragh Resources Inc. and preferred indictments were laid against all three. The RCMP indicated that no further charges were contemplated.

The individual respondents applied to the Nova Scotia Supreme Court, Trial Division for a declaration that the Order in Council establishing the Commission was ultra vires the province, and that it infringed their rights under ss. 7 (the right to security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice), 8 (the right to be secure against unreasonable search and seizure) and 11(d) (the presumption of innocence and the right to a fair trial) of the Canadian Charter of Rights and Freedoms. They also sought an injunction preventing the inquiry from proceeding. The judge at first instance ruled that the terms of the inquiry were ultra vires as they encroached upon the federal criminal law power. The appellants, the Attorney General of Nova Scotia, the Westray Families' Group and the Town of Stellarton appealed and the Court of Appeal allowed the appeal, set aside the declaration and ordered that the Inquiry's public hearings be stayed pending the resolution of the charges against the individual respondents.

Leave to appeal was granted to both the Commissioner and the union, and the appeals, given that both raised substantially the same issues, were treated as one for the purposes of this judgment. The individual respondents were denied leave to cross-appeal on the vires of the terms of reference. At issue here were: whether the respondents Parry and Phillips would be compellable witnesses at the Westray Inquiry; whether proceeding with the Inquiry's hearings would breach s. 7 or s. 11(d) of the Charter; and if so, whether a temporary stay of the public hearings is a just and appropriate remedy under s. 24(1) of the Charter. Subsequent to the hearing of this appeal, the accused mine managers elected trial by judge alone contrary to earlier indications.

Held: The appeal should be allowed.

Per Lamer C.J. and La Forest, Sopinka, Gonthier and McLachlin JJ.: The foundation on which the stay of the Westray Inquiry was based has disappeared in that the accused persons elected trial by judge alone and the trial has started. The appeal was argued, however, on the assumption that the criminal trial would be by judge and jury. Nothing in the record supports the view that the anticipated publicity would have any effect on a trial judge so as to support a stay. It is unnecessary and undesirable to decide this case on a basis that has disappeared. This Court should not decide issues that are not necessary to the resolution of an appeal. This is particularly true with respect to constitutional issues, especially where the foundation upon which the proceedings were launched has ceased to exist. Unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen. The fact that the case was fully argued is not sufficient to warrant deciding difficult Charter issues and laying down guidelines with respect to future public inquiries simply because to do so might be "helpful". The above applies equally to the issue of compellability. As well, the issue of compellability should not be addressed because it is premature. A new test has emerged (R. v. S. (R.J.) and British Columbia Securities Commission v. Branch) with respect to compellability and subsequent use protection of compelled testimony. The application of these principles may be affected by the circumstances in which the respondents are compelled. For example, the timing of the compelled testimony might be a material factor in determining the purpose of the compelled testimony.

Per Cory, Iacobucci and Major JJ.: The public Inquiry is important to Nova Scotia and all concerned with the mining industry. The compelled testimony of the mine managers is vitally important to this Inquiry. Canadian statutes relating to evidence and the Charter have indicated a preference for compelled testimony coupled with later protection for the witness. The Nova Scotia Government has considered and acknowledged the risk it runs with regard to the criminal charges in choosing to proceed with the Inquiry. That decision should not be reversed by the Court. At this time the balance between individual and public rights which must be drawn under s. 7 of the Charter favours the public interest in proceeding with the Westray Inquiry and with the hearing of whatever compelled testimony the Commissioner may decide is necessary to perform his allotted task.

Some general principles apply to the problems which may arise from proceeding with both public inquiries and criminal charges against some witnesses to be called at those public inquiries.

Public inquiries often play an important role in satisfying public interest and concern as to the cause of a tragedy, the safety of persons involved in the operation of the institution or industry to be investigated, the nature of the applicable safety regulations, the governmental enforcement of those regulations and procedures, and recommendations for the future safety of the industry or institution.

The right to a fair trial is of fundamental importance and must always be carefully considered in determining whether Charter remedies should be granted in order to protect that right.

The importance of public inquiries requires that all persons with relevant evidence to be given will be subject to subpoena and compellable to testify as witnesses.

The rights of those witnesses are generally protected by the provisions of the Charter, particularly ss. 11(d), 13, and 7.

Not only will the witness have the right not to have the testimony given used to incriminate him or her, there will also be protection from the use of "derivative evidence" as provided by R. v. S. (R.J.).

Those seeking to have the court ban the publication of evidence have the burden of establishing the necessity of the ban. That is to say they must demonstrate that the effect of publicizing the evidence will be to leave potential jurors irreparably prejudiced or so impair the presumption of innocence that a fair trial is impossible. Before relief is granted in order to preserve the right to a fair trial, satisfactory proof of the link between the publicity and its adverse effect must be given.

Assessment of the effect of the publicity on the right to a fair trial must take place in the context of the existing procedures to safeguard the selection of jurors. Further, the nature and extent of the publicity must be considered.

The applicant seeking the ban must establish that there are no alternative means available to prevent the harm the ban seeks to prevent.

The remedy should not extend beyond the minimum relief required to ensure the fair trial of the witness.

In some circumstances proceeding with the public inquiry may so jeopardize the criminal trial of a witness called at the inquiry that it may be stayed or result in important evidence being held to be inadmissible at the criminal trial. In those situations it is the executive branch of government which should make the decision whether to proceed with the public inquiry. That decision should not, except in rare circumstances, be set aside by a court.

If an accused elects trial before a judge alone, then pre-trial publicity will not be a factor to be taken into consideration in assessing the fairness of the trial.

Holding the public hearings prior to or concurrently with the criminal trials would not violate the fair trial rights of the two accused managers. Two exceptions exist. First, the publication of the testimony of the two accused managers could jeopardize their s. 11 fair trial rights before a jury because it could expose potential jurors to testimony that they might never hear at the trial. (Accused persons are not required to testify at trial.) The publication of some or all of this evidence should be banned temporarily. The risk to the fair trial rights of the accused does not warrant the staying of the hearings. Second, the Commissioner's conclusions should not be released until after the completion or stay of the criminal trials because it too could influence the jurors.

The publicity here, while widespread, was objective and dealt primarily with the progress of the Inquiry. Submissions can be made to a court at a later time if the accused persons suffer more prejudice to their fair trial rights than can reasonably be foreseen now.

The conduct of the commission officials and the RCMP did not amount to unwelcome complicity. Cooperation between different agencies was not only efficient and sensible, but also may have been the only way to proceed with the enormous investigative tasks required. The mere fact that the RCMP received a list of documents from the Inquiry which it later proceeded to seize under a search warrant does not mean that a fair trial is no longer possible. There is no evidence that the police could not have received the same documents directly from the company.

Publication of the testimony of the accused mine managers at the inquiry might be banned in whole or in part since it runs a high risk of prejudicing their Charter right to a fair trial before a jury. As well the Commissioner's report should not be released until the accused have a chance to review it and, if so advised, to bring an application to ban its publication until the criminal charges have been disposed of after trial or have been stayed.

Courts should give a generous interpretation to a commissioner's powers to control his or her own proceedings under the Nova Scotia Act. The commissioner must be responsible for ensuring that the hearings are as public as possible yet still maintain the essential rights of the individual witnesses. It is the commissioner who will first determine whether exceptional orders should be issued. The authority to make these orders derives from and relates to the conduct of the inquiry hearings and should be given a reasonable and purposeful interpretation in order to provide commissions of inquiry with the ability to achieve their goals.

Per L'Heureux-Dubé J.: For the reasons given in R. v. S. (R.J.), an accused can generally be compelled to testify at a parallel proceeding, although the accused's testimony at such a proceeding cannot then be used to incriminate him or her in other proceedings (except in a prosecution for perjury or for the giving of contradictory evidence). Evidence derived from an accused's testimony at a parallel proceeding ("derivative evidence"), on the other hand, can be used to incriminate the accused in other proceedings. In certain circumstances a witness will be able to claim an exception from the general rule of compellability. Specifically, where the state's action in compelling a witness can be characterized as "fundamentally unfair", such compulsion is inconsistent with the principles of fundamental justice and an application for appropriate relief can be brought under s. 24(1) of the Charter. Fundamentally unfair conduct will most frequently occur when the Crown is seeking, as its predominant purpose (rather than incidentally), to build or advance its case against the witness instead of acting in furtherance of those pressing and substantial purposes validly within the jurisdiction of the body compelling the testimony. In such cases, an application for relief under s. 24(1) can be made at two points: (a) when the witness is subpoenaed (the "subpoena stage"); and (b) when the witness is tried (the "trial stage"). At the subpoena stage, if a violation of s. 7 is successfully made out, the appropriate remedy is to quash the subpoena. A challenge at the subpoena stage to the validity of a subpoena is highly speculative and should only succeed in the clearest of cases. At the trial stage, if fundamentally unfair conduct is demonstrated, the court may provide a remedy, pursuant to s. 24(1), which it considers appropriate and just in the circumstances, generally a stay of proceedings.

Here, no one contested the fact that the Inquiry was established for a valid purpose and there was no evidence that the respondent managers would be compelled for a colourable purpose. Accordingly, the respondent managers are properly compellable at the Inquiry. Their testimony at the Inquiry, however, cannot later be used to incriminate them in other proceedings (except in a prosecution for perjury or for the giving of contradictory evidence). Derivative evidence, on the other hand, will be admissible against them in other proceedings, provided its relevance can be independently established. If the state engages in "fundamentally unfair" conduct vis-à-vis the respondent managers at the Inquiry, an application for appropriate relief may be made by the respondent managers at the trial stage.

The only serious threat to the s. 11(d) rights of the respondents Parry and Phillips arises from the possibility that either their testimony at the Inquiry or the Commissioner's conclusions might be published, in whole or in part, before the completion of their trials. Such pre-trial publicity has the potential in some circumstances to prejudice an accused's right to a fair trial to the extent that it concerns information that would not otherwise be admissible against the accused at trial. However, it is not in every case that such prejudice will result. Furthermore, prejudice arising from pre-trial publicity can only be alleged where an accused is being tried by a judge and jury. If an accused is being tried by judge alone, pre-trial publicity is assumed not to prejudice the right to a fair trial. Since the respondents Parry and Phillips are being tried before a judge alone, no violation of s. 11(d) has been made out. Accordingly, the stay of the public hearings of the Inquiry should be lifted.

The same conclusion would have been reached had the respondents in question maintained their original election of trial by judge and jury. Although an accused who is being tried before a judge and jury may be prejudiced by pre-trial publicity related to a public inquiry, a stay of a public inquiry's proceedings should be issued only in the most extraordinary of circumstances to remedy a potential violation of s. 11(d) of the Charter. This is for two reasons. First, the risk of prejudice to an accused's fair trial rights from pre-trial publicity is highly speculative and will be extremely difficult to prove with a sufficient degree of probability to warrant the granting of a remedy. Second, even if the potential violation of s. 11(d) is shown to be sufficiently likely to warrant a remedy, a stay of proceedings would not generally be the appropriate remedy. Instead, it will generally be possible to fashion a remedy short of a stay of proceedings (such as a publication ban or in camera hearings) that adequately protects the fair trial rights of the accused. As a rule, there is no one remedy that is necessarily better than another. In fact, there will generally be a number of appropriate remedies from which, if a violation of s. 11(d) is made out, the least intrusive alternative should be selected.

The application for such a remedy should generally be made to the commissioner. The accused, if not satisfied with the decision of the commissioner, can then apply for judicial review. Where the commissioner's powers are limited and an appropriate remedy cannot be provided, the accused can apply to the trial judge or, if no trial judge has yet been appointed, to a judge of the highest court of first instance before which the trial could proceed for an appropriate remedy. While such a judge's jurisdiction to entertain an application by an accused for an appropriate remedy may be broad, the judge should generally refuse to exercise such jurisdiction if the commissioner also has the necessary jurisdiction to provide an appropriate remedy and is in a better position to determine the necessity of a remedy and the form, if any, it should take. Generally, a commissioner will be in a better position than a judge to make such a determination.

Here, had the respondent managers continued with their election for trial before judge and jury, it would have been inappropriate to impose a temporary publication ban with respect to the Commissioner's final report. First, in such circumstances, the risk of prejudice to the fair trial rights of the respondents in question would have been based far too heavily on speculation. Second, the determination of the need for a publication ban, even a temporary one, should generally be made by the Commissioner or the trial judge, not by this Court.

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