R. v. Curragh Inc.

R. v. Curragh Inc.
Collection
Supreme Court Judgments
Date
1997-03-20
Report
[1997] 1 SCR 537
Case number
25075
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
SCC Case Information: 25075
Decision Content
R. v. Curragh Inc., [1997] 1 S.C.R. 537
Gerald James Phillips and
Roger James Parry Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Curragh Inc.
File No.: 25075.
1996: November 26; 1997: March 20.
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
Criminal law ‑‑ Trial ‑‑ Reasonable apprehension of bias ‑‑ Trial judge making private phone call to head of public prosecution service asking for removal of lead Crown counsel from case otherwise he would take steps to “secure that end” ‑‑ Trial judge denying Crown’s motion for recusal and later allowing accused’s motion for stay of proceedings on manslaughter charges on basis of Crown’s failure to disclose relevant evidence ‑‑ Whether trial judge’s conduct and words creating reasonable apprehension of bias.
Criminal law ‑‑ Costs ‑‑ Delays and legal costs incurred arising from systemic problems beyond control of accused ‑‑ Problems largely occasioned by trial judge’s conduct which gave rise to apprehension of bias ‑‑ Accused should recover their reasonable legal costs of proceedings to date and be paid reasonable legal costs incurred in new trial.
The trial judge ordered a stay of the manslaughter charges against the accused, two members of the managerial staff at a coal mine at which an explosion caused the deaths of 26 miners. He based his decision on the Crown’s non‑disclosure or late disclosure of relevant material. Earlier during the trial, the judge had called the acting director of the public prosecution service and expressed his displeasure with the manner in which the Crown attorney was conducting the case. The trial judge recommended that he be removed from the case and said that if he were not he would take steps “to secure that end”. The Crown, supported by one of the accused, brought a motion for recusal, which the trial judge denied. The Crown sought unsuccessfully to appeal this interlocutory decision. That having failed, the trial continued until the trial judge entered a stay of proceedings due to the Crown’s failure to disclose material information. The Crown raised the issue again in its appeal of the trial judge’s order staying the proceedings. The Court of Appeal disagreed with the trial judge’s conclusion that the material non-disclosure should result in a stay, found that there was a reasonable apprehension of bias and ordered a new trial.
Held (McLachlin and Major JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ.: Prior to the order staying the proceedings, the trial judge’s actions and words during the trial created a reasonable apprehension of bias. In privately phoning a senior member of the Attorney General’s staff to request the removal of the Crown attorney in charge of the case and stating that otherwise he would take steps “to secure that end”, the trial judge interfered with the Crown’s conduct of its case and became inappropriately involved in the fray. He should have recused himself, but denied the Crown’s motion for recusal. Where a reasonable apprehension of bias is demonstrated, the trial judge has no further jurisdiction in the proceedings and the only appropriate remedy is a new trial. Generally the decision reached and the orders made in the course of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable. While the trial judge’s order staying the charges in this case was enforceable until the court of appeal dealt with it, once the court of appeal ruled that the trial judge had demonstrated a reasonable apprehension of bias it retroactively rendered the order void and without effect. The Crown brought its motion for recusal in a timely, appropriate and reasonable manner and cannot be faulted on that score.
The accused should recover their reasonable legal costs of the proceedings to date and be paid the reasonable legal costs incurred in the new trial since the delays and much of the costs incurred arise from systemic problems beyond their control that were to a large extent occasioned by the conduct of the trial judge which gave rise to an apprehension of bias.
Per Sopinka J.: While the breach of the Crown’s obligation to disclose was egregious, a stay is not the only appropriate remedy in the circumstances. Assuming that the trial judge was not functus, one of the circumstances that he did not take into account is the fact that there must be a new trial by reason of the apprehension of bias occasioned by his conduct. The trial judge may be satisfied that full disclosure has been made prior to the commencement of the new trial. While the trial judge proceeded on the basis that, absent a stay, the trial would continue, this Court must decide whether a stay is the only appropriate remedy having regard for the fact that a new trial will otherwise be held. Consequently, it is impossible to say what, if any, prejudice has been caused by the non‑disclosure, or whether full disclosure will have been made prior to the commencement of the new trial. The order directing a new trial should be affirmed.
Per McLachlin and Major JJ. (dissenting): While as a general rule a judge should not discuss a case with one party outside the other party’s presence, much less suggest to one party in the other’s absence who counsel on the case should be, a conclusion of bias does not flow automatically from breach of this rule. The question is whether the content of the discussion in all the surrounding circumstances supports an inference that the trial judge favoured one party over the other. In this case Crown counsel’s conduct was prejudicing a fair trial and might ultimately have caused the trial to be aborted. While the trial judge should not have stipulated that he be removed, it is questionable whether his doing so indicated partiality to either the Crown or the defence. Moreover, even if the inference could be drawn that the trial judge was biased against the Crown, it does not follow that he automatically lost jurisdiction. Judicial conduct giving rise to a reasonable apprehension of bias does not automatically deprive the judge of jurisdiction and render all proceedings thereafter void. The proper course for a party affected by the bias is to move promptly for recusal of the judge. Absent an order disqualifying the judge, the judge retains jurisdiction and the proceedings continue as before. While the issue has not often arisen in criminal proceedings, the authorities support the view that bias or apprehension of bias does not automatically render the trial a nullity. This flows from the general principle that a court order must be obeyed until there is an order to the contrary. It follows that the trial judge in the present case retained jurisdiction after the telephone call alleged to give rise to an apprehension of bias against the Crown. This jurisdiction continued through the recusal motion and after its dismissal. The subsequent decisions of the judge were voidable, not void. Moreover, even if the trial judge lost jurisdiction by not recusing himself from the trial, it is open to this Court, in the interest of justice, to examine the circumstances of the proceedings and to enter a stay if that is the result required.
What occurred in this case was an abuse of process. While the trial judge believed that the non‑disclosed evidence was material to the ability of the accused to make full answer and defence, the entire conduct of the trial has brought the administration of justice into disrepute and in the process violated s. 7 of the Canadian Charter of Rights and Freedoms . Throughout the proceedings the Crown bent and broke rules, and attempted to cover up when it was caught. The Crown actively misled the court on a number of occasions, and ignored or failed to obey court orders. The conduct of Crown counsel at the trial violates the fundamental principles that underlie the community’s sense of fair play and decency and constitutes an abuse of the court’s process.
The trial judge was correct in determining that the only remedy for the conduct of the Crown in this case was a stay of proceedings. While a stay of proceedings is a last resort, only to be entered in the clearest of cases, the trial judge directed himself to consider other remedies, including the exclusion of evidence, an adjournment, or a mistrial. Throughout the pre‑trial process and the trial itself, the trial judge utilized numerous remedies to ensure that the Crown was complying with its obligations, but none was effective. The trial judge granted a stay as a remedy for the prejudicial effect of the Crown’s non‑disclosures on the right of the accused to make full answer and defence. A stay should also be granted as a remedy for Crown conduct that was an abuse of process bringing the administration of justice into disrepute.
Cases Cited
By La Forest and Cory JJ.
Referred to: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623.
By McLachlin and Major JJ. (dissenting)
R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Livingstone (1990), 57 C.C.C. (3d) 449; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Egger, [1993] 2 S.C.R. 451; R. v. Chaplin, [1995] 1 S.C.R. 727; Canada (Canadian Human Rights Commission) v. Taylor, [1987] 3 F.C. 593, aff’d [1990] 3 S.C.R. 892; Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585; Cloutier v. The Queen, [1979] 2 S.C.R. 709; R. v. Pastro (1988), 66 Sask. R. 241; R. v. Smith (1995), 31 Alta. L.R. (3d) 227; United States v. Daley, 564 F.2d 645 (1977), certiorari denied 435 U.S. 933 (1979); Smith v. Danyo, 441 F.Supp. 171 (1977), aff’d 585 F.2d 83 (1978); In re Martin‑Trigona, 573 F.Supp. 1237 (1983), aff’d 770 F.2d 157 (1985); R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Young (1984), 46 O.R. (2d) 520.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (b), (d), 24(1) .
Coal Mines Regulation Act, R.S.N.S. 1989, c. 73.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 220 , 236 , 587(1) (f), (g).
Occupational Health and Safety Act, R.S.N.S. 1989, c. 320.
Public Inquiries Act, R.S.N.S. 1989, c. 372.
Authors Cited
McWilliams, Peter K. Canadian Criminal Evidence, 3rd ed. Aurora, Ont.: Canada Law Book, 1988 (loose‑leaf updated October 1996, release 17).
Stuesser, Lee. “Abuse of Process: The Need to Reconsider” (1994), 29 C.R. (4th) 92.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1995), 146 N.S.R. (2d) 161, 422 A.P.R. 161, 44 C.R. (4th) 274, allowing the Crown’s appeal from an order of Anderson J. (1995), 146 N.S.R. (2d) 163, 422 A.P.R. 163, granting a stay of proceedings, and ordering a new trial. Appeal dismissed, McLachlin and Major JJ. dissenting.
Gordon R. Kelly and N. Kent Clarke, for the appellant Phillips.
Frank E. DeMont and John A. McKinlay, for the appellant Parry.
Craig M. Garson, G. Arthur Theuerkauf and Andrew S. Macdonald, for the respondent.
//La Forest and Cory JJ.//
The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was delivered by
1 La Forest and Cory JJ. -- On June 9, 1995, the trial judge ordered that the manslaughter charges brought against the appellants be stayed. He based his decision upon the failure of the Crown in some instances to disclose relevant material and in others its tardiness in disclosing material: (1995), 146 N.S.R. (2d) 163, 422 A.P.R. 163. The Court of Appeal for Nova Scotia set aside the stay and directed a new trial: (1995), 146 N.S.R. (2d) 161, 422 A.P.R. 161, 44 C.R. (4th) 274. The appellants have appealed that decision.
2 The respondent Crown alleges that prior to making the order staying the proceedings, the actions and words of the trial judge revealed actual bias. Although that may be correct, it is not necessary to consider the issue since it is clear that they certainly created a reasonable apprehension of bias.
3 In July 1994, before the trial commenced, the trial judge made a phone call to a senior member of the staff of the Attorney General. Disturbing as it was the call in itself did not create an apprehension of bias. However, on March 2, 1995, when the trial was well under way, the judge again called the senior member of staff. To make such a call during the trial was, to say the least, unfortunate if not ill advised. It was sufficient in itself to raise the issue of apprehension of bias. Further, the words of the trial judge during this conversation confirmed that there was a reasonable apprehension of bias. He expressed his displeasure with the manner in which the Crown attorney was conducting the case. The trial judge recommended that he be removed from the case and if he were not he would take steps “to secure that end”. He thereby interfered with the Crown’s conduct of its case, and so became inappropriately involved in the fray.
4 The Crown, supported by one of the appellants, brought a motion for recusal. The trial judge should have recused himself, but he denied the motion. It is sufficient to observe that the Crown sought unsuccessfully to appeal this interlocutory decision. The Crown did not waive its rights to raise the issue later and quite properly did so in its appeal of the order of the trial judge staying the action. The Court of Appeal unanimously found that there was a reasonable apprehension of bias and ordered a new trial. We agree with this conclusion.
5 The properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead inexorably to the decision that a new trial must be held. In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction in the proceedings and there is no alternative to a new trial.
6 The significance of a reasonable apprehension of bias was considered by this Court in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at p. 645:
As I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal’s subsequent decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void. [Emphasis added.]
If that be true of a proceeding before an administrative tribunal it must apply with even greater force to a criminal trial.
7 The right to a trial before an impartial judge is of fundamental importance to our system of justice. Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias then a basic right has been breached and the exhibited bias renders the trial unfair. Generally the decision reached and the orders made in the course of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable.
8 Certainly, every order of a trial court is enforceable and must be obeyed until it is declared void by an appellate court. In this sense the order may be viewed as voidable. However, when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding retroactively renders all the decisions and orders made during the trial void and without effect.
9 In the case at bar, the court of appeal correctly found the trial to be unfair as a result of the demonstrated apprehension of bias. The order of the trial judge staying the charges was void. It was made in the course of the trial after the impugned telephone call which clearly rendered the trial unfair. The order of the trial judge was enforceable until the court of appeal dealt with it. However there can be no doubt that once the court of appeal ruled that the trial judge had demonstrated a reasonable apprehension of bias it retroactively rendered void and without effect the order staying the charges.
10 The Court of Appeal properly found that the trial judge ought to have recused himself when the motion was brought before him. Whether he might have had authority to grant a stay after the unfortunate phone call was made is not in issue. Whatever authority he may have had was retroactively removed by the finding that he had exhibited a reasonable apprehension of bias. The only appropriate remedy in this case is to order a new trial.
11 Our colleagues contend that allegations of bias should be made in a timely fashion and cite American cases for this proposition. We accept that in order to maintain the integrity of the court’s authority such allegations must, as a general rule, be brought forward as soon as it is reasonably possible to do so. However, in this case, the Crown took the courageous position of moving to have the trial judge recuse himself within five days of his demonstration of bias or at least the reasonable apprehension of bias. Thus it moved in a timely, appropriate and reasonable manner. The Crown certainly cannot be faulted on that score.
12 It is important that a new trial be held, and as a result as little as possible should be said regarding the issues that may arise or the evidence. Like our colleagues Justices McLachlin and Major, we have carefully considered the facts. We refrain from commenting upon them. We do this so that the judge presiding at the new trial is not inhibited in any way in dealing with any of the issues that may arise. Particularly the trial judge should not be inhibited either by our colleagues’ views of the evidence and issues or by ours, which could well be different. At the new trial, both the Crown and the defence can take whatever steps and raise whatever issues they consider appropriate. The trial of these accused like all who face criminal charges should be fair and be perceived to be fair. To achieve this goal the issues raised at the new trial and the facts upon which they rest must be determined by a judge who is not only impartial but is seen by all to be impartial. This is clearly in the best interests of the accused and the community.
13 It only remains to resolve the issue as to costs. The proceedings in the first trial were complex and lengthy. The new trial will be equally difficult. The appellants have suffered and will continue to suffer from the grievous financial burden of legal costs. Ordinarily this is something which must be accepted by those charged with criminal offences. Yet, in this case the delays and much of the legal costs incurred arise from systemic problems that were beyond the control of the appellants. They were to a large extent occasioned by the words and actions of the trial judge which gave rise to an apprehension of bias. This was followed by his refusal to grant the motion for recusal. In these unique circumstances the appellants should recover their reasonable legal costs of the proceedings to date. As well they should be paid the reasonable legal costs incurred in the new trial for which they cannot in any way be held responsible.
14 In the result, subject to the direction regarding costs, the appeal is dismissed and the order directing the new trial is confirmed.
//Sopinka J.//
The following are the reasons delivered by
15 Sopinka J. -- I have read the reasons of La Forest and Cory JJ. and of McLachlin and Major JJ. and agree with the disposition of this appeal proposed by La Forest and Cory JJ. Although I agree with McLachlin and Major JJ. that the breach of the crown’s obligation to disclose was egregious, I cannot say that in the circumstances a stay is the only appropriate remedy.
16 Assuming that McLachlin and Major JJ. are right that the trial judge was not functus, one of the circumstances that the trial judge did not take into account that must be considered is the fact that, independently of the issue of a stay for non-disclosure, there must be a new trial by reason of the apprehension of bias occasioned by the conduct of the trial judge. In view of this fact, I cannot say what prejudice has been caused by the non-disclosure. Certainly, the situation would be different if the original trial were to proceed. Witnesses would have been called and cross-examined by the appellants without the benefit of full disclosure. If these witnesses are called at the new trial, the appellants will have the benefit of not only the matters disclosed to date but any additional material that may be disclosed prior to the commencement of the new trial. Indeed, it may transpire that before that time, the trial judge will be satisfied that full disclosure has been made.
17 Quite apart from whether the trial judge was functus, I do not see how we can uphold the decision of the trial judge who granted the stay, given the fact that in considering the crucial issue of whether a stay was the only remedy, he proceeded on the basis that, absent a stay, the trial would continue. We cannot do so. We must decide whether a stay is the only appropriate remedy having regard for the fact that a new trial will otherwise be held. While this Court has the jurisdiction to make the order that was appropriate and we could impose a stay, by reason of the circumstances referred to above we are not in a position to say what, if any, prejudice has been caused nor whether full disclosure will have been made prior to the commencement of the new trial.
18 I would dispose of the appeal as proposed by La Forest and Cory JJ.
//McLachlin and Major JJ.//
The following are the reasons delivered by
19 McLachlin and Major JJ. (dissenting) -- On May 9, 1992 an explosion at the Westray Coal Mine in Plymouth, Nova Scotia caused the deaths of 26 miners. Immediately, a search began for the cause of this tragedy.
20 Charges were brought in the present case against Messrs. Phillips and Parry, two of the mine’s managerial staff, in an attempt to affix blame on them for the explosion and deaths. The trial, however, was halted in mid‑course by a decision of the trial judge to stay the proceedings. This decision flowed from his finding that the prosecution had conducted the proceedings in such a way as to deny the accused their right to a fair trial.
21 While society demands to know the cause of the events at Westray, it does not demand the sacrifice of the standard of fairness our society accords to a person accused of committing a crime. The history of the proceedings against Roger James Parry and Gerald James Phillips creates the impression of a prosecution seemingly prepared to obtain a conviction at all costs. A detailed examination of the facts is necessary to ensure this impression is supported by evidence.
Factual and Procedural Background
22 To appreciate the complicated background and procedural activity that occurred throughout the course of this case it is helpful to follow a time line. Everything in the sequence has relevance to the trial judge’s final decision to enter a stay of proceedings.
23 May 9, 1992 -‑ the fatal explosion at the Westray Coal Mine occurred.
24 May 11, 1992 -‑ the Department of Labour of Nova Scotia took control of the mine and initiated the first of three separate governmental investigations. Harry Murphy, an ex‑RCMP officer, led the investigation for the Department of Labour.
25 May 15, 1992 -‑ the Westray Mine Public Inquiry was initiated. Justice K. Peter Richard was appointed Commissioner under the Public Inquiries Act, R.S.N.S. 1989, c. 372, and Special Examiner under the Coal Mines Regulation Act, R.S.N.S. 1989, c. 73.
26 May 21, 1992 -‑ the Royal Canadian Mounted Police (the “RCMP”) began their investigation. In the course of the investigation, the RCMP made application for, and obtained, 18 search warrants, including warrants for the offices of Westray Coal at the mine site, the underground mine site, the offices of the Westray Mine Public Inquiry, and the offices of Curragh Inc. in Toronto. Staff Sergeant Ches MacDonald was named officer in charge of the RCMP investigation.
27 The existence of three separate inquiries initiated into this matter was a cause, but not the only cause, of the problems which took place in the criminal trial. It was difficult enough that the case ultimately required the introduction into evidence of an estimated half million pages of documents. Added to the bulk of the documents was the movement of them between multiple places and the numerous reproductions this entailed.
28 May 25, 1992 -‑ the Commissioner of the Public Inquiry issued an order requiring Curragh Resources Inc., the Government of Nova Scotia and the Government of Canada to deliver to the Commission of Inquiry all documents, records and files that might have relevance.
29 Almost a year later, on April 2, 1993, the Commissioner ordered that all documents, records, files, statements, and other information or evidence obtained by the Commission was to be held in confidence by the Commission staff and that such evidence could not be released or made available to any person other than Commission staff, except upon a further order of the Commissioner. This may have been helpful for the Commission’s purposes, but it hampered the document management in the criminal prosecutions.
30 October 5, 1992 -‑ the appellants and others were charged with 52 offences under the Occupational Health and Safety Act, R.S.N.S. 1989, c. 320 (the “OHSA”), a provincial statute. These charges arose out of the Department of Labour investigation and were laid by the Attorney General and prosecuted by the Public Prosecution Service.
31 October 21, 1992 -‑ defence counsel for Mr. Phillips made his first request for full and complete disclosure. A letter was sent to John Pearson, Director of Public Prosecutions, the lead prosecutor for the offences under the OHSA, extensively detailing all the types of disclosure required. This was the first in a series of requests for full disclosure made by defence counsel. These requests continued throughout the course of this case and were never fully complied with.
32 November 23, 1992 -‑ counsel for Mr. Phillips objected to the limited form of disclosure provided in response to the first request and sent another letter reiterating the request for full and complete disclosure.
33 November 30, 1992 ‑- Mr. Pearson made an application for an adjournment of the arraignment of the appellants on the charges under the OHSA and the taking of a plea which had been set for December 10, 1992. In his application, he indicated that both the Department of Labour and the RCMP were conducting investigations, the RCMP investigation being of offences under the Criminal Code . Pearson indicated that the investigation by the RCMP and the basis for the charges under the OHSA were basically the same. He stated, in written material filed supporting his application, that:
. . . the defendants are entitled to disclosure prior to plea. The defendants have requested disclosure of all information gathered by the R.C.M.P. during the criminal investigation. Adjourning the taking of a plea until after the criminal investigation is complete will avoid the possibility that disclosure at this time might prejudice the police investigation and will ensure that the defendants receive full disclosure prior to entering their plea.
What we take from Mr. Pearson’s submission is that since the appellants were entitled to full disclosure before making a plea in response to the charges under the OHSA, he wanted to delay the taking of that plea until all of the evidence had been gathered with respect to the criminal investigation. We fail to understand Mr. Pearson’s concern. The police were investigating the same events that formed the basis of the charges under the OHSA. How could disclosure of information they gathered possibly “prejudice” that police investigation? If Mr. Pearson was concerned that not all of the information had been gathered in relation to the charges, it raises the question of why the charges were laid at the time.
34 On the same day in November of 1992, the appellants and their co‑accused requested disclosure of all information gathered by the RCMP during their criminal investigation. As well, they requested disclosure of all documents pertaining to the Westray Coal Mine, and files of the provincial Department of Labour, Natural Resources and Economic Development. Mr. Pearson replied to them by letter on November 30, 1992, stating that all documents from all provincial departments were now in the hands of the Westray Public Inquiry. Counsel for Mr. Phillips continued in his attempt to obtain disclosure, writing again on December 10, 1992 and January 21, 1993.
35 February 11, 1993 ‑- the application by the Crown to adjourn the arraignment and take a plea for the charges under the OHSA was denied, and 34 of the 52 charges were stayed by order of Judge Clyde F. MacDonald of the Provincial Court. The Crown was ordered to provide particulars of how the offences were alleged to have been committed in relation to several of the remaining charges to which not guilty pleas had been entered. With respect to disclosure, Judge MacDonald stated:
Failure by the Crown to comply with full disclosure (where lack of proper disclosure denies the accused of [sic] the ability to have a fair trial) may lead to the trial judge entering a stay of proceedings of the charge, which is tantamount to an acquittal.
36 March 3, 1993 ‑- Mr. Pearson advised Judge MacDonald that the Crown was staying the remaining charges under the OHSA, this being some 10 months after the explosion. He expressed concern that proceeding with the provincial charges might jeopardize the Crown’s ability to bring charges under the Criminal Code .
37 April 20, 1993 -‑ eleven and a half months after the fatal explosion, the appellants were charged with the offence of manslaughter contrary to s. 236 of the Criminal Code, R.S.C., 1985, c. C‑46 , and of criminal negligence causing death, contrary to s. 220 of the Criminal Code . Senior Crown Attorney Herman C. Felderhof was the lead prosecutor for these charges.
38 Counsel for Mr. Phillips made an application to quash the charges on the ground of insufficient particulars on the same day.
39 July 20, 1993 ‑- the appellant Phillips’ application was granted by the Honourable Judge Patrick H. Curran of the Provincial Court and both charges were quashed. The judge held:
The information, and for that matter the crown’s brief, implies that various things happened (or didn’t happen) over an eight month period which, taken together, constituted the offence. The information altogether fails to give any indication what any of those things might be.
The crown’s brief implies that the prosecution already knows the bases on which the counts allegedly rest. One would hope that would be the case. The brief goes on to imply that the accused and the court will come to know those bases all in good time, whether as a result of disclosure, particulars or evidence on a preliminary inquiry or trial. That is simply not good enough. The accused are entitled to know those bases before being put to their election.
40 July 23, 1993 ‑- fourteen and a half months after the fatal explosion, new charges were laid against the appellants, charging violations of the same sections of the Criminal Code . The appellants made an application to Judge Curran to quash the new charges and his decision was reserved.
41 October 26, 1993 -‑ Judge Curran dismissed the application to quash. The appellants pled not guilty to the charges and a preliminary inquiry was set for March 1994.
42 November 12, 1993 -‑ counsel for Mr. Phillips wrote to the Senior Crown Attorney, Mr. Felderhof, requesting full and complete disclosure with respect to these newest charges against the appellant. The letter contained the following paragraph:
We hereby request on behalf of Mr. Phillips full and complete disclosure by the Crown in accordance with the principles laid down by the Supreme Court of Canada in Stinchcombe v. The Queen and the Policy Directive on Disclosure issued by the Attorney General of the Province of Nova Scotia.
43 December 10, 1993 ‑- the response to the November 12 letter did not satisfy the defence and counsel for Mr. Phillips wrote to Mr. Felderhof again requesting full disclosure. The letter contained the following paragraph:
As it appears the Crown’s position is that the Preliminary Inquiry should proceed as scheduled we must insist on behalf of Mr. Phillips that we now have full and complete disclosure by the Crown in accordance with the principals [sic] laid down by the Supreme Court of Canada in the Stinchcombe v. The Queen and the Policy Directive on Disclosure issued by the Attorney General of the Province of Nova Scotia. We have approximately three (3) months to prepare for the Preliminary Inquiry which the Crown estimates will take three to four (3‑4) months. Anything less than full disclosure at this time will prejudice Mr. Phillips’ defence.
44 May 18, 1994 ‑- the Crown, two years after the explosion, made the important decision to proceed by preferred indictment, thereby avoiding a preliminary inquiry. It is apparent that proceeding by preferred indictment and denying the accused the benefit of a preliminary inquiry increases the need for disclosure. This increased need for disclosure appeared to have little effect on the Crown.
45 June 16, 1994 ‑- the appellants in response to the direct indictment entered a plea of not guilty to all charges, and elected to proceed to trial before a judge alone. At the election appearance, counsel for Mr. Phillips again raised the issue of disclosure with Senior Crown Counsel Mr. Felderhof.
46 July 5, 1994 ‑- a pre‑trial conference was held by the Honourable Justice A. David MacAdam (not the trial judge) in the presence of counsel for each party. The use of case management techniques for the conduct of the trial was discussed. Justice MacAdam recommended that, separate from the actual trial, there be conducted “a series of case management type meetings for the purpose of dealing with the volumes of potential documentary evidence, including proof of authenticity, and with the number of possible expert witnesses”. These meetings would have been held by a judge other than the trial judge, in order to facilitate the production of evidence and hopefully prevent the actual trial from becoming bogged down with disputes over evidence.
47 July 6, 1994 ‑- Mr. Felderhof rejected case management and wrote to Justice MacAdam:
Upon considerable reflection, it is my opinion, with the greatest respect, that this approach could impinge on prosecutorial discretion as to the mode of presenting its case.
. . .
There is a great deal of public interest in this proceeding; in particular by the Westray Family Group. Given this situation, it is the Crown’s preference that all conferences be recorded. Public perception is of major concern to the Crown.
48 July 8, 1994 -‑ Justice MacAdam replied to Mr. Felderhof and copied the letter to counsel for the defence. He explained that, given the Crown’s position, he had recommended to Chief Justice Glube that the use of case management techniques would not be practical.
49 July 13, 1994 -‑ Chief Justice Glube wrote to Mr. Felderhof’s superior, Mr. Martin E. Hersc [traduction horn, Q.C., Deputy Director of Public Prosecutions. This letter was disclosed at trial but had not been copied to the defence at the time of its writing. The letter stated, in part:
It is most unfortunate that Mr. Felderhof feels that case management in a six month trial with a judge other than a trial judge is not appropriate. The Court is not looking to try to resolve this matter, but they are trying to make sure that the case proceeds in an orderly fashion. I really have difficulty with Mr. Felderhof’s position on this, since what was being attempted was to ensure that the case proceeds with all due dispatch. I do not know about the prosecution and the defence, but certainly from the administration of justice and the efficient use of judges’ time, it is important that trials progress in an orderly fashion as quickly as possible.
. . .
I doubt that we will see any reversal of Mr. Felderhof’s position considering his letter of July 6th, but I did feel it important to let you know that we are certainly very disappointed in the outcome.
50 Chief Justice Glube’s disappointment with the prosecution’s position was prophetic. The trial became an endless dispute over the Crown’s obligation to disclose. The prosecution, always reluctant, seemed to be trying to disclose as little as possible to the defence.
51 September 6, 1994 -‑ as the Crown had rejected case management, the first of a series of pre‑trial conferences with the trial judge Mr. Justice Anderson began. There were eight conferences, during which the Crown refused written defence requests for certain disclosures on the basis that they would “fetter Crown discretion”. Crown Prosecutor Felderhof took the position in a brief that “[i]t is the Crown position that it has provided all disclosure it is legally obligated to provide”. This was a position the Crown would return to frequently.
52 As a result of the Crown’s reluctance to disclose, it was necessary for the trial judge to specifically order disclosure of:
(1) the Crown’s intended witnesses (ordered September 2, 1994),
(2) the order in which these witnesses (exceeding 200 in number) would be called (ordered December 2, 1994),
(3) a list of all the exhibits to be tendered by the Crown (ordered September 27, 1994), and
(4) all Crown expert reports by November 15, 1994 (ordered October 18, 1994).
53 January 18, 1995 ‑- counsel for Mr. Phillips wrote to G. Arthur Theuerkauf, Assistant Crown Prosecutor and a member of the prosecution team, with respect to Crown disclosure. The letter stated:
As you know throughout the pre‑trial period of this case, we, on behalf of Mr. Phillips, have on numerous occasions asked for full disclosure of all relevant material in the possession of the Crown. You have on file previous requests in writing from us asking for same. This is consistent, as well, with the position that we have taken in pre‑trial conferences.
We are greatly concerned that there is still a large volume of relevant material in the Crown’s possession which has still not been disclosed to the defence. As you know, tomorrow we intend to meet with Sgt. MacDonald in Truro to review the material being stored at the Truro Detachment in an attempt to discover if such material has been deposited there.
Particularly, we are concerned that the Crown has still not disclosed material compiled by the Department of Labour concerning the mine and the May 9th explosion. We take the position that the Crown is singular and as part of the Crown’s obligation to disclose, any information in the Department’s possession must also be disclosed.
54 January 30, 1995 ‑- for the first time, defence counsel received notice from the team of Crown Attorneys that they did not agree “that the Crown is singular” and accordingly that the files of the Department of Labour were not, for the purposes of disclosure, in the possession o