Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)
Collection
Supreme Court Judgments
Date
1995-05-04
Report
[1995] 2 SCR 97
Case number
23621
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
Constitutional law
Notes
SCC Case Information: 23621
Decision Content
Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97
United Steelworkers of America, Local 9332 Appellant
(Intervener)
and
The Honourable Justice K. Peter Richard,
in his capacity as Commissioner under the
Public Inquiries Act and as a Special Examiner
under the Coal Mines Regulation Act appointed
pursuant to Order in Council No. 92‑504,
dated the 15th day of May, 1992 Appellant
(Respondent)
v.
Gerald Phillips, Roger Parry, Glyn Jones,
Arnold Smith, Robert Parry, Brian Palmer
and Kevin Atherton Respondents
(Applicants)
and
The Attorney General of Nova Scotia,
representing Her Majesty the Queen in right of
the Province of Nova Scotia Respondent
(Intervener)
and
Westray Families' Group Respondent
(Intervener)
and
Town of Stellarton Respondent
(Intervener)
and
The Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General of British Columbia and
the Attorney General for Saskatchewan Interveners
Indexed as: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)
File No.: 23621.
1994: May 31 and June 1; 1995: May 4.
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.
Cases Cited
By Sopinka J.
Considered: Tremblay v. Daigle, [1989] 2 S.C.R. 530; referred to: Attorney General of Quebec v. Cumming, [1978] 2 S.C.R. 605; The Queen in Right of Manitoba v. Air Canada, [1980] 2 S.C.R. 303; John Deere Plow Co. v. Wharton, [1915] A.C. 330; Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3
By Cory J.
Followed: R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; considered: Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, rev'g (1992), 99 D.L.R. (4th) 326; referred to: Starr v. Houlden, [1990] 1 S.C.R. 1366; Nelles v. Ontario, [1989] 2 S.C.R. 170; O'Hara v. British Columbia, [1987] 2 S.C.R. 591; Faber v. The Queen, [1976] 2 S.C.R. 9; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Kenny (1991), 92 Nfld. & P.E.I.R. 318; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Vermette, [1988] 1 S.C.R. 985; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Jones, [1994] 2 S.C.R. 229; Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724; Buffalo v. Canada (Minister of Indian Affairs and Northern Development) (1994), 86 F.T.R. 1; Delaney v. United States, 199 F.2d 107 (1952); R. v. Généreux, [1992] 1 S.C.R. 259; Canadian Broadcasting Corp. v. Keegstra (1986), 35 D.L.R. (4th) 76; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Stroble v. California, 343 U.S. 181 (1952); R. v. French (No. 2) (1991), 93 Nfld. & P.E.I.R. 14; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Kray (1969), 53 Cr. App. R. 412; Hubbert v. The Queen, [1977] 2 S.C.R. 267, aff'g (1975), 29 C.C.C. (2d) 279; R. v. Sherratt, [1991] 1 S.C.R. 509; Ex parte Telegraph plc, [1993] 2 All E.R. 971; Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); Gannett Co. v. DePasquale, 443 U.S. 368 (1979); R. v. Burke (No. 3) (1994), 117 Nfld. & P.E.I.R. 191; Re Orysiuk and The Queen (1977), 37 C.C.C. (2d) 445; Stickney v. Trusz (1973), 2 O.R. (2d) 469; R. v. Colarusso, [1994] 1 S.C.R. 20; Re Yanover and Kiroff and The Queen (1974), 6 O.R. (2d) 478; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494.
By L'Heureux‑Dubé J.
Followed: R. v. S. (R.J.), [1995] 1 S.C.R. 451; referred to: British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 5 .
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 11 (c), (d), 13 , 24(1) .
Coal Mines Regulation Act, R.S.N.S. 1989, c. 73, s. 67(e).
Constitution Act, 1867, ss. 91 , 96 .
Contempt of Court Act 1981 (U.K.), 1981, c. 49.
Coroners Act, R.S.S. 1953, c. 106.
Criminal Code, R.S.C., 1985, c. C-46, ss. 517 , 539 .
Nova Scotia Order in Council, No. 92‑504.
Occupational Health and Safety Act, R.S.N.S. 1989, c. 320.
Public Inquiries Act, R.S.N.S. 1989, c. 372, s. 5.
Trade Union Act, R.S.N.S. 1989, c. 475.
Authors Cited
Alberta. Law Reform Institute. Report No. 62. Proposals for the Reform of the Public Inquiries Act. Edmonton: The Institute, 1992.
Blom‑Cooper, Sir Louis. "Public Inquiries" (1993), 46 Cur. Leg. Prob. 204.
Cameron, James M. The Pictonian Colliers. Halifax: Nova Scotia Museum, 1974.
Cameron, Jamie. "Comment: The Constitutional Domestication of our Courts ‑‑ Openness and Publicity in Judicial Proceedings under the Charter ". In Philip Anisman and Allen M. Linden, eds., The Media, the Courts and the Charter. Toronto: Carswell, 1986, 331.
Canada. Commission of Inquiry. Report of Commission of Inquiry: Explosion in No. 26 Colliery, Glace Bay, Nova Scotia, on February 24, 1979. R. H. Elfstrom, Commissioner. Ottawa: The Commission, 1980.
Canada. Commission of Inquiry. Report to the Minister of Labour in the Matter of an Inquiry under Section 86 of the Canada Labour Code Concerning a Fire on June 19, 1975 in the No. 26 Colliery at Glace Bay, Nova Scotia. Keith E. Eaton, Commissioner. Halifax: The Commission, 1976.
Canada, Department of Labour, Mine Safety Office, and Nova Scotia, Department of Mines and Energy. Report of Investigation into Mine Rescue Operations at No. 26 Colliery Fire on April 5, 1984.
Canada. Law Reform Commission. Working Paper 17. Administrative Law: Commissions of Inquiry. Ottawa: The Commission, 1977.
Grange, S. G. M. "How Should Lawyers and the Legal Profession Adapt?" In A. Paul Pross, Innis Christie and John A. Yogis, eds., Commissions of Inquiry (1990), 12 Dalhousie L.J. 151.
Hoegg Ryan, Judith. Coal in Our Blood. Halifax: Formac, 1992.
Le Dain, Gerald E. "The Role of the Public Inquiry in our Constitutional System". In Jacob S. Ziegel, ed., Law and Social Change. Toronto: Osgoode Hall Law School, York University, 1973, 79.
Minow, Newton N., and Fred H. Cate. "Who Is an Impartial Juror in an Age of Mass Media?" (1991), 40 American Univ. L. Rev. 631.
Nova Scotia. Royal Commission on the Springhill Mine Explosion. Report of the Royal Commission Appointed to Inquire into the Explosion and Fire in No. 4 Mine at Springhill, N.S. on the 1st Day of November, 1956. Halifax: Queen's Printer, 1957.
Nova Scotia. Royal Commission on the Upheaval or Fall in No. 2 Mine, Springhill. Report of the Royal Commission Appointed to Inquire into the Upheaval or Fall or other Disturbance Sometimes Referred to as a Bump in No. 2 Mine at Springhill, in the County of Cumberland, Province of Nova Scotia, Operated by the Cumberland Railway and Coal Company, on the 23rd Day of October, A.D. 1958. Halifax: Province of Nova Scotia, 1958.
Ontario. Law Reform Commission. Report on Public Inquiries. Toronto: The Commission, 1992.
Ratushny, Ed. "The Role of the Accused in the Criminal Process". In Gérald‑A. Beaudoin and Ed Ratushny, eds., The Canadian Charter of Rights and Freedoms , 2nd ed. Toronto: Carswell, 1989, 451.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1993), 117 N.S.R. (2d) 218, 100 D.L.R. (4th) 79, allowing an appeal from a judgment of Glube C.J.T.D (1992), 116 N.S.R. (2d) 34. Appeal allowed.
Raymond F. Larkin, Q.C., Dianne Pothier and David Roberts, for the appellant United Steelworkers of America.
John P. Merrick, Q.C., for the appellant the Honourable Justice K. Peter Richard.
No one appearing for the respondent Gerald Phillips.
Robert Wright, Q.C., for the respondent Roger Parry.
Robert L. Barnes, for the respondents, Glyn Jones, Arnold Smith, Robert Parry, Brian Palmer and Kevin Atherton.
Reinhold Endres and Louise Walsh Poirier, for the respondent the Attorney General of Nova Scotia.
Brian J. Hebert, for the respondent Westray Families' Group.
Roseanne Skoke, for the respondent Town of Stellarton.
Jay L. Naster, for the intervener the Attorney General for Ontario.
Monique Rousseau and Gilles Laporte, for the intervener the Attorney General of Quebec.
Marva J. Smith, for the intervener the Attorney General of Manitoba.
George H. Copley, for the intervener the Attorney General of British Columbia.
Ross MacNab, for the intervener the Attorney General for Saskatchewan.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier and McLachlin JJ. was delivered by
1 Sopinka J. -- I have read the reasons of Justice Cory and agree that this appeal should be allowed, but I would do so on the ground that the foundation upon which the Court of Appeal based the stay of the Westray Inquiry has disappeared in that the respondents Phillips and Parry have elected to be tried by a judge alone and the Crown is proceeding with the trial before a judge alone.
2 The issues raised in this appeal were the following:
1.whether the stay of the Westray Inquiry which was ordered by the Court of Appeal should be maintained; and
2.whether the respondents Phillips and Parry are compellable as witnesses at the Inquiry.
The Stay of Proceedings
3 These issues raise constitutional questions relating to ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms .
4 The appeal before the Court of Appeal and in this Court was argued on the assumption that the criminal trial would be tried by a judge and jury. After the argument in this Court the respondents Phillips and Parry elected trial by judge alone. The trial has commenced and the Crown is in the midst of leading evidence. The Court of Appeal decided that Phillips and Parry were not compellable but nevertheless the publicity that would likely be generated by conduct of a public inquiry would result in the infringement of the s. 7 Charter rights of the individuals charged by reason of its effect on jurors. There is nothing in the record to support the view that the anticipated publicity would have any effect on a trial judge so as to support a stay.
5 It is, therefore, unnecessary and undesirable to decide this case on a basis that has disappeared. My colleague, Cory. J., aptly summarizes the appeal as presented to this Court as follows at p. 60:
On this appeal, the bulk of the argument regarding a potential breach of s. 11 (d) dealt with the alleged prejudice the two accused would suffer if the inquiry hearings are held prior to or concurrently with their trials. Although objections were taken to the holding of any public hearings, it is clear that it is not the hearings themselves, but rather the publication of evidence given at those hearings which probably will be read by potential jurors in the subsequent criminal trials which the accused find objectionable. The Court of Appeal did not feel that it would be possible or practical to conduct the hearings with anything short of full and unrestricted publicity. I disagree with this view. Nonetheless, in order to assess the merits of the s. 11 (d) claims, it is necessary to consider the effects which unrestricted public hearings would have upon the rights of the two accused to a fair trial by jury.
6 This Court has said on numerous occasions that it should not decide issues of law that are not necessary to a resolution of an appeal. This is particularly true with respect to constitutional issues and the principle applies with even greater emphasis in circumstances in which the foundation upon which the proceedings were launched has ceased to exist.
7 In Attorney General of Quebec v. Cumming, [1978] 2 S.C.R. 605, an issue arose concerning the interpretation of the word "divorce" in the Quebec Civil Code and whether an award of alimony should have been made. Another issue which arose concerned the constitutionality of the provincial legislation in terms of division of powers. Pigeon J., for the Court, held at pp. 610-11:
Having come to the conclusion that the word "divorce" in the new art. 212 of the Civil Code means a divorce granted by a court and does not refer to a dissolution of marriage granted by private Act, it is unnecessary to consider the other reason, which found favour with some of the judges of the Court of Appeal....
Save in exceptional circumstances, it is not desirable to express an opinion on a question of law which it is not necessary to decide in order to dispose of the case at hand, especially when it is a constitutional question. [Emphasis added.]
8 In The Queen in Right of Manitoba v. Air Canada, [1980] 2 S.C.R. 303, this Court considered the constitutionality of the Manitoba Retail Sales Tax Act as it applied to tax Air Canada on overflights through Manitoba air space. Laskin C.J. held that the Act was ultra vires. He then stated at p. 320:
In view of this conclusion, I find it unnecessary to deal with the question whether the tax (even on the assumption that it is within the Province) is a direct tax. Although the Court ordered a rehearing with particular reference to this question, I think it preferable to avoid dealing with it, in conformity with the general rule in constitutional cases not to engage issues which do not squarely arise for decision. [Emphasis added.]
9 The policy which dictates restraint in constitutional cases is sound. It is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen. Early in this century, Viscount Haldane in John Deere Plow Co. v. Wharton, [1915] A.C. 330, at p. 339, stated that the abstract logical definition of the scope of constitutional provisions is not only "impracticable, but is certain, if attempted, to cause embarrassment and possible injustice in future cases".
10 This is a practice that has been generally followed by this Court before and since the Charter . In Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, Taschereau J. (as he then was) stated, at p. 915:
As the present appeal is not a reference, this Court should not, I think, be called upon to answer questions which are not essential for the determination of the case.
11 In Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, Estey J. stated, at p. 383:
The development of the Charter , as it takes its place in our constitutional law, must necessarily be a careful process. Where issues do not compel commentary on these new Charter provisions, none should be undertaken.
12 This practice applies, a fortiori, when the substratum on which the case was based ceases to exist. The court is then required to opine on a hypothetical situation and not a real controversy. This engages the doctrine of mootness pursuant to which the court will decline to exercise its discretion to rule on moot questions unless, inter alia, there is a pressing issue which will be evasive of review. See Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. The practice applies notwithstanding that the appeal has been argued on the basis which has disappeared. Accordingly, in Tremblay v. Daigle, [1989] 2 S.C.R. 530, the Court was advised, in the middle of argument, that the appellant, who was appealing an order enjoining her from having an abortion, had proceeded with an abortion. The Court felt constrained to deal with legal issues with respect to the propriety of granting an injunction in the circumstances. It did so because the nature of the issue was such that it would be difficult or impossible for another woman in the same predicament to obtain a decision of this Court in time. The Court, however, declined to deal with the issue of fetal rights under s. 7 of the Charter and stated, at pp. 571-72:
As we have indicated, the Court decided in its discretion to continue the hearing of this appeal although it was moot, in order to resolve the important legal issue raised so that the situation of women in the position in which Ms. Daigle found herself could be clarified. It would, however, be quite a different matter to explore further legal issues which need not be examined in order to achieve that objective. The jurisprudence of this Court indicates that unnecessary constitutional pronouncement should be avoided: Morgentaler (No. 2), [[1988] 1 S.C.R. 30], at p. 51; Borowski, [[1989] 1 S.C.R. 342]; John Deere Plow Co. v. Wharton, [1915] A.C. 330 (P.C.), at p. 339; Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, at p. 915. [Emphasis added.]
13 In Borowski, although the appeal was fully argued on the merits in the Court of Appeal and in this Court, it was dismissed on the ground of mootness. I cannot, therefore, agree with my colleague that the fact that the case was fully argued in the Nova Scotia Court of Appeal and in this Court is 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".
Compellability
14 The issue of compellability was raised in the court below as one aspect of the prejudice arising from the effect of extreme publicity on a jury trying the criminal charges. Accordingly, what I have said above applies equally to this issue. In addition, however, there are further reasons why this issue should not be addressed. In view of the circumstances to which I have referred above, the issue of compellability is premature. Since the argument of this appeal, this Court has decided the cases of R. v. S. (R.J.), [1995] 1 S.C.R. 451, and British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3. A new test has emerged with respect to compellability and subsequent use protection of compelled testimony. The application of these principles may very well be affected by the circumstances in which the respondents are compelled. It would be unlikely that the Commissioner would try to compel the respondents Phillips and Parry while the trial is in progress, but if this occurred, for example at a point at which the defence was at a crucial stage in its case, it might be a material factor in determining the purpose of the compelled testimony. On the other hand, if the respondents are sought to be compelled after the trial is completed, their claim to a privilege against incrimination may be tenuous or non-existent because the case against them will have been resolved by either acquittal or conviction. At the very least the fact that the proceedings which arise out of the subject matter of the testimony of the respondents have been resolved would be a factor in assessing whether the purpose in compelling their testimony at the inquiry is to secure incriminating discovery from them.
15 Accordingly, I would dispose of the appeal as proposed by Cory J. but on the basis that there is no foundation for a stay of the Westray Inquiry in view of the nature of the criminal proceedings.
The following are the reasons delivered by
16 L'Heureux-Dubé J. -- This case raises two principal issues. First, this Court must determine whether proceeding with the public inquiry into the Westray Coal Mine explosion (the "Inquiry") and compelling the individual respondents to testify at that Inquiry infringes or is likely to infringe the right to silence or the right against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms of one or more of the individual respondents. Second, this Court must determine whether proceeding with the Inquiry infringes or is likely to infringe the right to a fair trial under s. 11(d) of the Charter of one or more of the individual respondents. In addition, if either of these two questions is answered in the affirmative, this Court must determine the appropriate remedy for the apprehended or actual Charter breach.
17 I have read the reasons of my colleague Justice Cory. I agree that the appeal should be allowed and that the stay of the public hearings of the Inquiry should be set aside. However, I do not entirely agree with my colleague's reasons to this e