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 effect.
I. Facts and Procedural Background
18 As my colleague Cory J. has set forth the facts and procedural background of this case in his reasons, it is not necessary for me to review them at length. For ease of reference, however, I will briefly summarize the facts and proceedings in this case.
A. Facts
19 On May 9, 1992, an underground explosion occurred at the Westray Coal Mine, resulting in the death of 26 men. In response to this tragedy, the Nova Scotia government established a public inquiry by Order in Council No. 92-504 to
inquire into, report findings, and make recommendations to the Governor in Council and the people of Nova Scotia respecting:
(a)the occurrence, on Saturday, the 9th day of May, A.D., 1992, which resulted in the loss of life in the Westray Mine at Plymouth, in the County of Pictou;
(b)whether the occurrence was or was not preventable;
(c)whether any neglect caused or contributed to the occurrence;
(d)whether there was any defect in or about the Mine or the modes of working the Mine;
(e)whether the Mine and its operations were in keeping with the known geological structures or formations in the area;
(f)whether there was compliance with applicable statutes, regulations, orders, rules, or directions; and
(g)all other matters related to the establishment and operation of the Mine which the Commissioner considers relevant to the occurrence....
Justice K. Peter Richard (the "Commissioner") was appointed a Commissioner under the Public Inquiries Act, R.S.N.S. 1989, c. 372, and a Special Examiner under the Coal Mines Regulation Act, R.S.N.S. 1989, c. 73, and charged with conducting the Inquiry.
20 The individual respondents (hereinafter collectively referred to as the "respondent managers") were all employed by Westray Coal, a division of Curragh Resources Inc., and held managerial or supervisory positions. On October 5, 1992, the respondents Gerald Phillips, Roger Parry, Glyn Jones and Robert Parry, along with the mine owner (Curragh Resources Inc.), were charged with a total of 52 violations of the Occupational Health and Safety Act, R.S.N.S. 1989, c. 320. These charges have all since been stayed.
21 On April 20, 1993, criminal charges were laid against the respondents Roger Parry and Gerald Phillips, along with Curragh Resources Inc. At the time of these charges, the RCMP indicated that no further charges were contemplated.
22 When this appeal was heard before us, the trial of Roger Parry and Gerald Phillips had not yet begun. These two respondents had elected or were deemed to have elected, however, to be tried before a judge and jury. Since then, they have changed their election and their trial has now begun before a judge alone at the Supreme Court of Nova Scotia.
B. Proceedings
23 On September 24, 1992, the respondent managers applied to the Supreme Court of Nova Scotia, Trial Division for a declaration that the Order in Council establishing the Inquiry was ultra vires the province and that it infringed their rights under the Charter . They also applied for an injunction to prevent the Inquiry from proceeding.
24 Glube C.J.T.D. of the Supreme Court of Nova Scotia heard the respondent managers' application and concluded ((1992), 116 N.S.R. (2d) 34) that the Order in Council was in fact ultra vires the provincial government. Glube C.J.T.D. therefore did not rule on the Charter arguments, dismissing them as moot.
25 The appellants appealed to the Nova Scotia Court of Appeal ((1993), 117 N.S.R. (2d) 218). The respondent managers filed a notice of contention with respect to the alleged violation of the Charter . On January 13, 1993, the Court of Appeal overturned Glube C.J.T.D.'s finding that the Order in Council was ultra vires. However, the Court of Appeal also found that to proceed with the Inquiry would infringe or pose a threat to the s. 7 and s. 11( d ) Charter rights of those respondent managers charged with offences arising out of the events of the explosion. The Court of Appeal, therefore, ordered that the public hearings of the Inquiry be stayed until the completion of the trials of charges under the Occupational Health and Safety Act, as well as of any criminal charges. In addition, the Court of Appeal noted, at p. 240, that, according to the Charter , the respondent managers could not "be compelled to testify before Justice Richard respecting their involvement in the operation of the Mine in the period leading up to the explosion so long as the charges against them under the Occupational Health and Safety Act [were] alive and the criminal investigation ... ongoing".
26 It is from this decision that the appellants appeal to this Court. This appeal only concerns the Charter issue since the respondent managers were denied leave to cross-appeal on the issue of whether the Order in Council setting out the terms of reference of the Inquiry was ultra vires the province.
II. Analysis
A. Section 7
27 This question concerns whether or not the respondent managers can be compelled to testify at the Inquiry and whether or not compelling them to so testify is consistent, to the extent that they are or may be charged with criminal or other offences arising out of the explosion at the Westray Mine, with s. 7 of the Charter . In answering this question, my colleague Cory J. relies on both Iacobucci J.'s reasons in R. v. S. (R.J.), [1995] 1 S.C.R. 451, and Sopinka and Iacobucci JJ.'s joint reasons in British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, and concludes that the respondent managers can be compelled to testify at the Inquiry. While I agree that the respondent managers are compellable, I do not share Cory J.'s reasons to this effect. Instead, I refer to my concurring reasons in S. (R.J.) which dealt with a similar issue.
28 The main issue in S. (R.J.) concerned whether a person, charged separately with an offence, could be compelled to testify as a witness in the criminal trial of another person charged with an offence arising out of the same set of circumstances. Iacobucci J. adopted a broad interpretation of the principle against self-incrimination contained in s. 7 of the Charter which led him to conclude that while an accused could, as a general rule, be compelled to testify at such a parallel proceeding, neither the resulting testimony nor a class of evidence derived from that testimony ("derivative evidence") could later be used to incriminate the accused in other proceedings (save for proceedings in respect of perjury or for the giving of contradictory evidence). I agreed with my colleague that an accused could generally be compelled to testify at a parallel proceeding and that the resulting testimony could not later be used to incriminate the accused in other proceedings. However, having adopted a narrower view of the principle against self-incrimination, encompassing only self-incrimination that is communicative in character, I found, at pp. 599-600, that derivative evidence could be used to incriminate the accused in other proceedings:
...the "but for" test [derivative evidence immunity test] advocated by Iacobucci J. is potentially over-inclusive as a test for the self-incriminatory nature of evidence. Both the common law and the Charter draw a fundamental distinction between incriminating evidence and self-incriminating evidence: the former is evidence which tends to establish the accused's guilt, while the latter is evidence which tends to establish the accused's guilt by his own admission, or based upon his own communications. The s. 7 principle against self-incrimination that is fundamental to justice requires protection against the use of compelled evidence which tends to establish the accused's guilt on the basis of the latter grounds, but not the former. [Emphasis in original.]
29 As well, in S. (R.J.), I articulated a test based on the principle of fundamental fairness included in s. 7 of the Charter whereby, in exceptional circumstances, a witness could claim an exception from the general rule of compellability. Specifically, I stated at pp. 608-9 that:
A witness may be entitled to claim an exception under s. 7 from the principle that the state is entitled to every person's evidence if it is established that the Crown is engaging in fundamentally unfair conduct. Attempts to by-pass the procedural safeguards that are intrinsic to the notions of dignity and individual liberty contained in the Charter and to our conception of fundamental trial fairness are fundamentally unfair conduct that violates the principles of fundamental justice. . . .
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 that witness instead of acting in furtherance of those pressing and substantial purposes validly within the jurisdiction of the body compelling the testimony. The Crown will be predominantly advancing its case against the accused when, by calling the witness, it is engaging in a colourable attempt to obtain discovery from the accused and, at the same time, is not materially advancing its own valid purposes. Such action would bypass the safeguards to the dignity of the individual under the Charter and fundamentally undermine the integrity of the judicial system. The principles of fundamental justice under s. 7 do not allow the state to have a general power of interrogation, that is, to permit the state to pass a law requiring all suspected persons to answer pre-trial questions, even if such a law prevented later use of those statements at trial. [Emphasis added.]
Accordingly, I found that if the state's actions in compelling a witness could be characterized as fundamentally unfair, as that term is defined above, compelling the witness to testify would be inconsistent with the principles of fundamental justice and an application for appropriate relief could be brought under s. 24(1) of the Charter . Such an application could be made, as I noted in S. (R.J.), 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. However, as I noted in S. (R.J.), at pp. 610-11, a challenge at the subpoena stage to the validity of a subpoena is highly speculative and should only succeed in the clearest of cases:
As a practical matter, fundamentally unfair conduct may be quite difficult to establish at the subpoena stage, since the Crown's real purpose may not be apparent at that point. Information that may establish this violation, such as particular colourable lines of questioning by the Crown at the accused's trial, will only become available and properly appreciable at the trial stage.
Consequently, I emphasized at p. 612 that a compelled witness must also be permitted to allege a violation of s. 7 of the Charter at the trial stage:
At the trial stage, the court will essentially be asking itself whether, if what is now known had been known at the time the state sought to compel the witness, an exception would have been made to the general rule of compellability and the subpoena would have been quashed.
If fundamentally unfair conduct contrary to s. 7 of the Charter is demonstrated at the trial stage, the court may provide a remedy, pursuant to s. 24(1) of the Charter , which it considers appropriate and just in the circumstances, generally a stay of proceedings.
30 Applying these considerations to the present case, I note that nobody contested the fact that the Inquiry was established for a valid purpose. Furthermore, I note that there is no evidence that the respondent managers are being compelled for a colourable purpose. Consequently, I conclude that the respondent managers are compellable at the Inquiry and that this is fully consistent with the Charter . 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), given that they will enjoy the protection of s. 13 of the Charter . Derivative evidence, on the other hand, will be admissible against them in other proceedings, provided its relevance can be independently established. This, of course, is subject to the added proviso that if the state engages in "fundamentally unfair" conduct, as that term is defined above, vis-à-vis the respondent managers at the Inquiry, an application for appropriate relief could be made by the respondent managers at the trial stage.
B. Section 11(d)
31 The respondent managers also argue that proceeding with the Inquiry would likely infringe their s. 11( d ) Charter right to a fair trial. As my colleague Cory J. notes, the bulk of the argument concerning this issue relates to the alleged prejudice the two respondents Roger Parry and Gerald Phillips (who face active criminal charges as a result of the Westray explosion) would suffer if the Inquiry hearings were held prior to or concurrently with their trials.
32 While these two respondents contend that they would suffer several general types of unfairness if the Inquiry were held prior to or concurrently with their trials, in my view the only serious threat to their s. 11(d) rights 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. While 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 him or her at trial, it is not in every case that such prejudice will result. In fact, assessing the potential prejudicial impact of pre-trial publicity is highly speculative. 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 his or her right to a fair trial. As my colleague Cory J. notes in his reasons at p. 172:
...it must be assumed that a trial judge trained to be objective and well-versed in the legal burden resting upon the prosecution can readily disabuse him- or herself of the prejudicial effects of pre-trial publicity.
33 In the case before us, counsel proceeded on the assumption that Roger Parry and Gerald Phillips would be tried before a judge and jury. This was reasonable in light of the fact that, at the time, both these respondents had elected or had been deemed to have elected to be so tried. However, since then, these respondents have changed their original elections and have chosen to be tried before a judge alone. In fact, as I noted earlier, their trial before a judge alone has already begun at the Supreme Court of Nova Scotia. In light of this fact, it appears clear that proceeding with the Inquiry could not possibly prejudice their right to a fair trial. Consequently, I find that no violation of s. 11(d) has been made out by the respondent managers and conclude that the stay of the public hearings of the Inquiry should be lifted.
34 While I reach this conclusion based on the fact that Roger Parry and Gerald Phillips are being tried before a judge alone, I note that even if they had not changed their original elections to be tried by a judge and jury I would have still reached the same conclusion. In my view, although an accused who is being tried before a judge and jury may be prejudiced by pre-trial publicity related to a public inquiry, it is only in the most extraordinary of circumstances that a stay of a public inquiry's proceedings should be issued to remedy such 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. Consequently, it will be extremely difficult to prove such a prospective violation of s. 11( d ) of the Charter 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.
35 Where an accused person demonstrates with sufficient probability that his or her s. 11(d) rights are threatened by pre-trial publicity related to a public inquiry, it will generally be possible to fashion a remedy short of a stay of proceedings that adequately protects the fair trial rights of that accused. I do not wish to limit the creativity of judges and commissioners in developing such remedies by establishing an exhaustive list of appropriate remedies. However, as examples of appropriate remedies, I note that if, for instance, pre-trial publicity of an accused's testimony before a public inquiry is likely to prejudice his or her fair trial rights, it might be appropriate to order a publication ban, order in camera hearings, postpone that person's testimony before the inquiry to a later date, or provide some other measure that effectively restricts the public dissemination of details of his or her testimony before the completion of his or her trial. As a rule, there is no one remedy that is necessarily better than another. Instead, 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.
36 In this respect, I feel it necessary to comment briefly on the appropriate forum in which an accused should seek such a remedy. Without outlining any procedures too strictly, I note that an application for a remedy should generally be made to the commissioner of the public inquiry in question. It is, in my view, the commissioner who is generally in the best position to determine whether or not there is a serious threat to an accused's s. 11(d) rights from pre-trial publicity related to the inquiry and, if so, what the appropriate remedy should be. If the accused is not satisfied with the decision of the commissioner, he or she can apply for judicial review of the commissioner's decision according to normal principles of administrative law (see, for example, Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218, where a witness subpoenaed to appear before a provincial commission of inquiry applied for a writ of evocation to quash the subpoena).
37 This said, it is important to note that a commissioner's power to provide an appropriate remedy is dependant on the statutory regime under which he or she is appointed. Without expressing an opinion on the interpretation of any particular statutory regime, I note that a commissioner's jurisdiction to provide an appropriate remedy may, in certain circumstances, be limited. For example, some commissioners may not have the authority to issue an actual publication ban. Nonetheless, a commissioner who cannot issue a publication ban will frequently be able to provide an accused with some other equivalent remedy (such as in camera hearings). I acknowledge, however, that there may be circumstances where the powers of a commissioner are so limited that he or she is unable to provide an accused with any appropriate remedy. In such circumstances, the accused can seek redress by applying to his or her trial judge or, if no trial judge has yet been appointed, to a judge of the highest court of first instance before which his or her trial could proceed for a publication ban or another appropriate remedy: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
38 I wish, however, to emphasize that while a judge's jurisdiction to entertain an application by an accused for a publication ban or another 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. This is particularly true where the trial will not be beginning for a relatively long period of time and the public inquiry is already under way or is soon to begin. In such cases, the commissioner of the inquiry is clearly in the best position to determine whether a remedy is needed and if so what remedy is most appropriate. Consequently, in such cases a judge should generally defer to the expertise of the commissioner.
39 In the case at hand, however, no application, either to the Commissioner or the courts would be appropriate because Roger Parry and Gerald Phillips are being tried before a judge alone. As I noted earlier, in such circumstances, pre-trial publicity will not prejudice an accused's right to a fair trial. Consequently, no prospective breach of s. 11(d) has been made out and no remedy is needed.
40 Before concluding, I feel it is necessary to comment briefly on an obiter statement of Cory J.'s with which I disagree. Specifically, in his reasons, Cory J. suggests that, had Roger Parry and Gerald Phillips not changed their election to be tried before a judge and jury, it would have been appropriate to order that the publication and release of the Commissioner's final report be delayed so as to provide them with an opportunity to review it and, if they deemed it necessary, to bring an application to ban its publication until such time as the criminal proceedings against them were completed or disposed of in some other manner. In my view, however, the imposition of such a temporary publication ban would not have been appropriate. First, for a publication ban, even a temporary one such as the one suggested by Cory J., to be imposed, the risk of prejudice to the fair trial rights of an accused must be serious and not overly speculative. In the hypothetical situation proposed by Cory J., however, the risk of prejudice to the fair trial rights of the respondents in question would have been, in my opinion, based far too heavily on speculation. Furthermore, the determination of the need for a publication ban, even a temporary one, should generally be made, as I noted above, by the Commissioner or the trial judge, not by this Court. For these two reasons, I disagree with Cory J.'s suggestion that a temporary publication ban with respect to the Commissioner's final report would have been appropriate had Roger Parry and Gerald Phillips not changed their election to be tried before a judge and jury. The determination of the need for such a publication ban must be made by the Commissioner or the trial judge, and such a determination must take place at a later date, when the risk of prejudice to the fair trial rights of the respondents in question is not overly speculative.
III. Disposition
41 For the reasons outlined above, I would dispose of the appeal in the same manner as my colleague Cory J.
The reasons of Cory, Iacobucci and Major JJ. were delivered by
42 Cory J. -- On May 9, 1992, tragedy struck Plymouth, Nova Scotia when an underground explosion at the Westray Coal Mine killed 26 miners. The event shocked the community, the province, indeed the entire country. The Nova Scotia government ordered an immediate public inquiry into the tragedy. This appeal is brought to determine whether the Nova Scotia Court of Appeal was correct in holding that the Canadian Charter of Rights and Freedoms requires that this inquiry be halted until the disposition of the outstanding criminal charges against two former managers of the Westray mine.
I. Factual Background
43 On May 15, 1992, the appellant Justice K. Peter Richard was appointed a Commissioner under the Public Inquiries Act, R.S.N.S. 1989, c. 372, in order to conduct an inquiry into the accident. Richard J. was also appointed a Special Examiner under the Coal Mines Regulation Act, R.S.N.S. 1989, c. 73. His mandate was set out in Order in Council No. 92‑504, and included the following:
WHEREAS it is deemed appropriate to cause inquiry to be made into and concerning the public matters hereinafter mentioned in relation to which the Legislature of Nova Scotia may make laws;
By and with the advice of the Executive Council of Nova Scotia, His Honour the Lieutenant Governor is pleased to appoint the Honourable K. Peter Richard, a Judge of the Supreme Court of Nova Scotia, to be, during pleasure, a Commissioner under the Public Inquiries Act, and a Special Examiner under the Coal Mines Regulation Act, with power to inquire into, report findings, and make recommendations to the Governor in Council and the people of Nova Scotia respecting:
(a)the occurrence, on Saturday, the 9th day of May, A.D., 1992, which resulted in the loss of life in the Westray Mine at Plymouth, in the County of Pictou;
(b)whether the occurrence was or was not preventable;
(c)whether any neglect caused or contributed to the occurrence;
(d)whether there was any defect in or about the Mine or the modes of working the Mine;
(e)whether the Mine and its operations were in keeping with the known geological structures or formations in the area;
(f)whether there was compliance with applicable statutes, regulations, orders, rules, or directions; and
(g)all other matters related to the establishment and operation of the Mine which the Commissioner considers relevant to the occurrence. . . .
44 The Commissioner established rules of practice and procedure and the Commission began its preliminary work. Commission staff interviewed about 140 witnesses, collected over 250,000 pages of documents, and commissioned reports from mining experts from around the world. The staff indexed and summarized all the documents and provided the indices and summaries to the RCMP. The police in turn used these materials to obtain search warrants for the documents in the Commissioner's possession. These warrants were executed in September and December of 1992. 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.
45 The appellant union is certified under the Trade Union Act, R.S.N.S. 1989, c. 475, to represent surface and underground employees of the Westray Coal Mine. The respondent Westray Families' Group is comprised of relatives of the 26 miners who were killed in the May 9 explosion. Both groups, along with the intervener Attorney General of Nova Scotia, were granted general status to participate in the Westray Mine Public Inquiry.
46 The individual respondents were all employed by Westray Coal, a division of Curragh Resources Inc., in managerial and supervisory positions. Their different positions carried certain 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, R.S.N.S. 1989, c. 320. On October 5, 1992, the respondents Gerald Phillips, Roger Parry, Glyn Jones and Robert Parry, along with Curragh Resources Inc. (the mine owner), were charged with 52 violations of the Occupational Health and Safety Act. No charges were laid against the remaining individual respondents.
47 The individual respondents applied to the Nova Scotia Supreme Court, Trial Division, for a declaration that the Order in Council No. 92‑504 was ultra vires the province, and that it infringed their rights under ss. 7 , 8 and 11( d ) of the Charter . They also sought an injunction preventing the inquiry from proceeding. On November 13, 1992, Glube C.J.T.D. 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 to the Appeal Division of the Nova Scotia Supreme Court, which allowed the appeal and set aside the declaration. However, the Appeal Division ordered that the public hearings of the Westray Inquiry be stayed pending the resolution of the charges against the individual respondents.
48 Prior to the release of the judgment of the Appeal Division, the Attorney General of Nova Scotia quashed 18 of the 52 charges under the Occupational Health and Safety Act. On April 5, 1993, all remaining charges under the Act were quashed. On April 20, criminal charges of manslaughter and criminal negligence causing death were laid against the respondents Roger Parry and Gerald Phillips, along with Curragh Resources Inc. On May 19, 1994, preferred indictments were laid against all three. At the time these charges were laid, the RCMP indicated in a news release that no further charges were contemplated.
49 On January 17, 1994, this Court granted leave to appeal to both the appellant Commissioner and the appellant union. Since both appeals raise substantially the same issues, I will treat them as a single appeal for the purposes of this judgment. Leave was denied the individual respondents to cross‑appeal on the vires of the terms of reference.
II. Relevant Legislation
Canada Evidence Act , R.S.C., 1985, c. C‑5
5. (1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.
(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence.
Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
. . .
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
Coal Mines Regulation Act, R.S.N.S. 1989, c. 73
67 Where any accident occurs in any mine from any cause resulting in the loss of life, the Fatality Inquiries Act shall not apply, but the following provisions shall have effect:
. . .
(e) if, upon such inquiry, the special examiner is of the opinion that death was caused by explosion or accident and resulted from culpable negligence, or that there is reasonable ground for suspecting the same, he shall forthwith file a copy of his report with the clerk of the Crown for the county in which the accident occurred, and transmit a copy thereof to the Attorney General, together with a notice stating that, in his opinion, it is expedient that a further inquiry shall be held respecting the cause of such accident;
III. Judgments Below
A. Nova Scotia Supreme Court, Trial Division (1992), 116 N.S.R. (2d) 34
50 Glube C.J.T.D. began by expressing her hope that a public inquiry would be held into mining in Pictou County and into the details of the May 9 explosion. Nonetheless, after a careful review of all the material before her, she concluded at p. 50 that the terms of reference creating the Westray Inquiry were "in pith and substance a criminal investigation" because their dominant purpose and effect was to assign criminal, quasi‑criminal and civil responsibility for the explosion. She also held that s. 67(e) of the Coal Mines Regulation Act, which requires a Special Examiner who is of the opinion that an accident was caused by culpable negligence to transmit a copy of his or her report to the Attorney General, was ultra vires.
51 Glube C.J.T.D. found that, because the Coal Mines Regulation Act places specific responsibilities upon persons in designated positions, it would be extremely difficult for the appellant Commissioner to determine the matters set out in the terms of reference without identifying individuals. After examining Starr v. Houlden, [1990] 1 S.C.R. 1366, and Nelles v. Ontario, [1989] 2 S.C.R. 170, she concluded at p. 54 that the "commissioner is being effectively asked to determine both civil and criminal responsibility of particular individuals, which the case law says he must not do". She found that the "double aspect" doctrine did not apply to save the terms of reference and that it was not possible to read them down in order to allow the Inquiry to continue.
52 Glube C.J.T.D. pointed out that findings based on s. 91 of the Constitution Act, 1867 disposed of the case, but went on to say that the s. 96 argument would fail since the Order in Council established a fact‑finding inquiry rather than a court. Turning to the Charter issues raised, Glube C.J.T.D. remarked that the individual respondents' argument that their ss. 7, 8 and 11(d) rights would be violated by the Inquiry was "appealing". However, she declined to rule on these points, which were moot in light of her decision on the s. 91 argument.
B. Court of Appeal (1993), 117 N.S.R. (2d) 218 (Hallett J.A. for the Court)
53 Hallett J.A. found that Glube C.J.T.D. had erred in holding that the terms of reference were ultra vires. He held that she had wrongly equated the terms of reference in this case with the terms which were found to be ultra vires the province of Ontario in Starr v. Houlden. He was of the view that the dominant purpose and effect of the Westray Inquiry is to make findings and recommendations relating to a coal mining disaster. It is therefore distinguishable from the inquiry considered in Starr v. Houlden, which was primarily aimed at the investigation of whether certain individuals had committed specific criminal offences. Hallett J.A. found support for this conclusion in the decision in O'Hara v. British Columbia, [1987] 2 S.C.R. 591, in which this Court held that a provincial inquiry into police wrongdoing was valid even though the subject matter of the inquiry might later form the basis for criminal charges. The Court of Appeal concluded at p. 229 that:
The pith and substance of the Westray inquiry is firmly anchored to the province's power to regulate coal mines within the province. The dominant purpose and effect of the Order‑in‑Council is to authorize Justice Richard to inquire into the explosion with a view to ascertaining the cause of the explosion; whether the explosion was preventable; whether the operation of the Mine complied with the provincial regulatory laws; and by implication, whether amendments need to be made to the provincial laws so as to prevent a disaster of this nature occurring in the future.
Neither the fact that part of this task would involve the investigation of the conduct of the mine managers nor the possibility that criminal charges might ensue once the report was made were fatal to the validity of the terms of reference.
54 The Court of Appeal found also that s. 67(e) of the Coal Mines Regulation Act was not ultra vires the Province of Nova Scotia. Hallett J.A. explained that s. 67 establishes a particular type of coroner's inquiry where there is an unexplained death in a coal mine. However, under s. 67(e), the Special Examiner is precluded from assigning criminal responsibility, and can instead only suggest to the Crown that a further investigation into possible criminal conduct is warranted. Hallett J.A. therefore held that s. 67(e), unlike the coroner's inquest in Faber v. The Queen, [1976] 2 S.C.R. 9, did not encroach upon the federal power to legislate in respect of criminal law and criminal procedure.
55 The Court of Appeal went on to consider the Charter issues. Beginning with s. 7 of the Charter , Hallett J.A. observed that the four individual respondents who (at that time) faced charges under the Occupational Health and Safety Act had significant liberty interests at risk. He noted that R. v. Hebert, [1990] 2 S.C.R. 151, was of considerable importance to the determination of whether the s. 7 right to silence was infringed. From this case, Hallett J.A. determined at p. 238 that "where a person's liberty is in jeopardy that person cannot be required to give evidence against himself or herself but rather has the right to choose whether or not to speak". Although the right to silence discussed in Hebert applied to a person detained as a suspect, Hallett J.A. held it equally applicable to anyone under the control of the state. This included all those charged with an offence that places their liberty at risk. He concluded that the right to silence of the accused respondents would be violated if the terms of the Order in Council and the Public Inquiries Act compelled them to testify at the Westray Inquiry.
56 Although he did not think it necessary to decide the point, Hallett J.A. would have rejected the s. 8 argument. He was not convinced that any unreasonable seizure had occurred owing to the low expectation of privacy which Curragh Resources Inc. had in corporate documents which it was required to maintain under the Coal Mines Regulation Act.
57 On the s. 11(d) issue, Hallett J.A. held that, owing to the inevitable media coverage of the Inquiry, the fair trial interests of those respondents charged with provincial offences would be violated if the Westray Inquiry were to hear any evidence which would implicate them in either provincial or criminal offences. This was true whether or not the accused respondents were themselves compelled to testify. He noted that the present case could be distinguished from R. v. Kenny (1991), 92 Nfld. & P.E.I.R. 318 (Nfld. S.C.T.D.). In Kenny, the publicity which was damaging to the accused's fair trial interests had already occurred and the only options open to the trial judge were to stay the proceedings or allow the trial to continue. In this case, other options exist because the public hearings of the Inquiry have not yet begun. Hallett J.A. therefore turned to s. 24(1) of the Charter to determine what an appropriate remedy would be.
58 Even though no breach of the respondents' Charter rights had yet occurred, Hallett J.A. observed at p. 244 that Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, and R. v. Vermette, [1988] 1 S.C.R. 985, established that a court of competent jurisdiction can order relief for an anticipated Charter violation when there is a "high degree of probability" that the harm feared will occur. He noted the risk that the accused respondents' fair trial interests would be compromised by pre‑trial publicity which would affect the ability to impanel an impartial jury and by the fact that the Crown would be able to take advantage of the Commission's inquiry without being subject to the limitations imposed upon the police investigating a crime. He also found that the procedural fairness requirements of s. 7 would be breached if the accused respondents were to be simultaneously subjected to a public inquiry, to charges under a provincial act, and to a criminal investigation and possible criminal charges. Hallett J.A. noted that this case differed from both Vermette and Kenny because the conduct relied upon to show potential damage has not yet occurred, and also referred to the risk that any eventual criminal charges could be stayed as a result of the adverse effects of the Inquiry upon the respondents' Charter rights. He concluded at p. 253 that "there is a very real risk that the investigation by the Commissioner if it proceeds forthwith to public hearings will result in the infringement of the four respondents' s. 7 Charter right to liberty and right to silence as well as their right to a fair trial as guaranteed by s. 11(d)".
59 After satisfying himself that he, rather than the eventual trial judge, had jurisdiction to grant Charter relief, Hallett J.A. stated that on the facts of this case the rights of the individual respondents must prevail over the interests of the state in proceeding expeditiously with the Inquiry. He rejected other proposed remedies on the grounds that they did not provide sufficient protection to those who were accused of crimes, and ordered that the public hearings of the Inquiry be stayed until the completion of the criminal investigations, and until all provincial charges and any criminal charges against the respondents had been disposed of by a trial court or stayed.
IV. Issues on Appeal
1.Whether the decision of this Court in Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465, applies in the circumstances of this case such that the respondents Roger Parry and Gerald Phillips would be compellable witnesses at the Westray Inquiry.
2.Whether proceeding with the hearings of the Westray Mine Public Inquiry would give rise to an actual or an apprehended breach of s. 7 of the Charter .
3.Whether proceeding with the hearings of the Westray Mine Public Inquiry would give rise to an actual or an apprehended breach of s. 11( d ) of the Charter .
4.If the answer to (2) or (3) is yes, whether a temporary stay of the public hearings is a just and appropriate remedy under s. 24(1) of the Charter ?
V. Analysis
A. Commissions of Inquiry
60 Commissions of inquiry have a long history in Canada. This Court has already noted (Starr v. Houlden, supra, at pp. 1410‑11) the significant role that they have played in our country, and the diverse functions which they serve. As ad hoc bodies, commissions of inquiry are free of many of the institutional impediments which at times constrain the operation of the various branches of government. They are created as needed, although it is an unfortunate reality that their establishment is often prompted by tragedies such as industrial disasters, plane crashes, unexplained infant deaths, allegations of widespread child sexual abuse, or grave miscarriages of justice.
61 At least three major studies on the topic have stressed the utility of public inquiries and recommended their retention: Law Reform Commission of Canada, Working Paper 17, Administrative Law: Commissions of Inquiry (1977); Ontario Law Reform Commission, Report on Public Inquiries (1992); and Alberta Law Reform Institute, Report No. 62, Proposals for the Reform of the Public Inquiries Act (1992). They have identified many benefits flowing from commissions of inquiry. Although the particular advantages of any given inquiry will depend upon the circumstances in which it is created and the powers it is given, it may be helpful to review some of the most common functions of commissions of inquiry.
62 One of the primary functions of public inquiries is fact‑finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover "the truth". Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide‑ranging investigative powers. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long‑term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an excellent means of informing and educating concerned members of the public.
63 This important characteristic was commented upon by Ontario Supreme Court Justice S. Grange following his inquiry into infant deaths at the Toronto Hospital for Sick Children:
I remember once thinking egotistically that all the evidence, all the antics, had only one aim: to convince the commissioner who, after all, eventually wrote the report. But I soon discovered my error. They are not just inquiries; they are public inquiries. . . . I realized that there was another purpose to the inquiry just as important as one man's solution to the mystery and that was to inform the public. Merely presenting the evidence in public, evidence which had hitherto been given only in private, served that purpose. The public has a special interest, a right to know and a right to form its opinion as it goes along. [Emphasis in original.]
(S. G. M. Grange, "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, at pp. 154‑55.)
64 The public inquiry has been even more broadly characterized as serving a particular "social function" within our democratic culture:
. . . a commission . . . has certain things to say to government but it also has an effect on perceptions, attitudes and behaviour. Its general way of looking at things is probably more important in the long run than its specific recommendations. It is the general approach towards a social problem that determines the way in which a society responds to it. There is much more than law and governmental action involved in the social response to a problem. The attitudes and responses of individuals at the various places at which they effect the problem are of profound importance.
What gives an inquiry of this kind its social function is that it becomes, whether it likes it or not, part of this ongoing social process. There is action and interaction. . . . Thus this instrument, supposedly merely an extension of Parliament, may have a dimension which passes beyond the political process into the social sphere. The phenomenon is changing even while the inquiry is in progress. The decision to institute an inquiry of this kind is a decision not only to release an investigative technique but a form of social influence as well.
(Gerald E. Le Dain, "The Role of the Public Inquiry in our Constitutional System", in Jacob S. Ziegel, ed., Law and Social Change (1973), 79, at p. 85.)
65The investigative, educational and informative aspects of inquiries clearly benefit society as a whole. As well, many commissions of inquiry have, through their recommendations, achieved improvements in the particular situation being reviewed. Nonetheless, it cannot be forgotten that harsh and persuasive criticisms have been levelled against them. Every inquiry created must proceed carefully in order to avoid complaints pertaining to excessive cost, lengthy delay, unduly rigid procedures or lack of focus. More importantly for the purposes of this appeal is the risk that commissions of inquiry, released from many of the institutional constraints placed upon the various branches of government, are also able to operate free from the safeguards which ordinarily protect individual rights in the face of government action. These are very real dangers that must be carefully considered. First, however, it may be helpful to examine the need for and the positive attributes of this inquiry.
66 Coal mining has been a vital contributor to the Nova Scotia economy for nearly three hundred years. Pictou County encompasses numerous small mining communities which owe their existence to the Foord seam into which the Westray mine was sunk. Several generations of Pictou County men have earned their livelihood as miners working in conditions that were always difficult and all too often dangerous. The first commercial mine was begun around 1807, and the area developed and grew in tandem with the coal mining industry. Companies established mining communities and recruited immigrants to work the mines. It was the coal which provided the cargo for the ships built locally and acted as an incentive for steel manufacturers to locate in Nova Scotia.
67 From the 1860s until the 1950s, coal was the source of livelihood for more inhabitants of Pictou County than any other industry or profession. With the opening of the Westray Mine, the apparently defunct Pictou County coal industry was revitalized. Coal became again a source of steady employment and income. It was once again the economic bulwark of the region. (See Judith Hoegg Ryan, Coal in Our Blood (1992), and James M. Cameron, The Pictonian Colliers (1974).)
68 Mining coal in this area of Nova Scotia is a hazardous undertaking. The depth of the seams and the pockets of methane gas contained in the coal have created dangerous and highly volatile working conditions for the miners. Despite sketchy early records, one author has estimated that more than 600 men have been killed in Pictou County mines since 1827: see Hoegg Ryan, supra, at p. 12. Probably the worst disaster was the Allan Shaft explosion of 1918, in which 88 men were killed. Caught between their economic need for the industry and their fear of its destructive nature, the inhabitants of Pictou County and their employers have struggled to develop safe mining practices. Unfortunately, the strongest impetus for the enactment, implementation and enforcement of safety regulation has been the tragic and recurring mine accidents.
69 As the appellant Commissioner observes in his factum, an inquiry has been created subsequent to every major mining disaster in the area since 1938 (as well as many before). The first inquiries were in the nature of coroner's inquests. Following the 1918 explosion in the Allan Shaft, the Coal Mining Regulation Act was amended to provide for the appointment of a "Special Examiner" to investigate mining disasters. It was common practice for both coroner's juries and special examiners to attempt to identify the cause of a disaster, to determine whether any blame should be assigned, and to make recommendations to avoid future accidents: see Cameron, supra, at pp. 200‑245.
70 These inquiries were supplemented by both federal public inquiries into general matters affecting the coal mining industry and, later, by public inquiries into serious accidents: see Cameron, supra, at pp. 288‑304. As early as 1895, the Nova Scotia Government commissioned Edwin Gilpin, Jr. to "enquire into the cause, history, and effects of fires in the Pictou Coal Mines". Many of the recent mining tragedies in Nova Scotia have been the subject of subsequent Royal Commissions. (See 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; 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; 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; Report of Commission of Inquiry: Explosion in No. 26 Colliery, Glace Bay, Nova Scotia, on February 24, 1979; Report of Investigation into Mine Rescue Operations at No. 26 Colliery Fire on April 5, 1984.) The appellant Commissioner suggested in oral argument that the long history of inquiries in Nova Scotia has created an expectation in the industry that any mining disaster will be followed by an inquiry.
71 Equally important are the expectations of the public. Many Nova Scotians have friends or family who are or have been affiliated with the mining industry. Those who do not are at least very much aware of its historic and economic importance. The concerns of the Westray families which arose in the wake of the May 9 explosion were shared by the whole of the province. The loss of faith in the practices of the mining industry and in the government regulatory processes relating to it has not been limited to the residents of Pictou County. The Westray disaster and the lack of progress of the Inquiry must be matters of concern for all caring Nova Scotians. The appellant Commissioner estimated that since the time of the explosion, about 860 articles relating to the incident have appeared in the two leading Halifax papers alone. This is evidence of the strong community interest in the Westray disaster. There is a clear and pressing public interest in having, as soon as possible, a broad and open investigation of the events leading up to the deaths of the miners. This is essential in order to reduce the fear that the same thing might happen again to other miners, to identify preventative measures, and to relieve the frustrations and concerns of the families of the victims. The longer this public inquiry is postponed, the greater the likelihood of increasing public disillusionment, frustration and mistrust.
72 There is therefore a compelling community interest in proceeding expeditiously with the Inquiry. It must be determined in this appeal whether the protection of individuals, particularly those accused of crimes, guaranteed under the Charter is incompatible with the immediate resumption of the work of the Commission.
B. Compellability of Witnesses and the Prohibition against Self‑Incrimination
73 The issue which concerned the various Attorneys General participating in this case is whether, if the Inquiry were to proceed prior to any criminal trials, the mine managers could be compelled to testify before the Commissioner. After these reasons were circulated, the criminal trial began before a judge alone. Nevertheless, since a criminal trial and a public inquiry may still proceed concurrently, the compellability of the respondents before the public inquiry remains a live issue.
74 Those parties who submitted that the stay of the Inquiry should be lifted were generally of the view that the subpoena powers of the Commissioner are unlimited. The notable exception amongst this group was the appellant United Steelworkers, which was prepared to concede that the two mine managers charged with Criminal Code offences would not be compellable witnesses before the Commissioner. The respondent mine managers argued that neither the two accused nor the remaining named individuals (since they may be suspected of having committed a criminal offence) would be compellable witnesses.
75 In light of the conclusions I have reached, nothing turns upon whether the individuals sought to be compelled to testify are accused or merely suspected of criminal offences, and I do not propose to dwell upon this distinction. The fact that I refer primarily to "accused" persons in the discussion which follows should not be taken as excluding, in appropriate situations, the use of the same approach for determining the compellability of "suspects" as well.
1. Batary v. Attorney General for Saskatchewan
76 To a large extent the debate on this point has focused upon the current status of a decision rendered by this court nearly thirty years ago: Batary v. Attorney General for Saskatchewan, supra. In Batary, that part of the Coroners Act, R.S.S. 1953, c. 106, which purported to make an individual charged with murder a compellable witness at a coroner's inquest into the death of the person with whose murder he was charged was held to be ultra vires the Province of Saskatchewan. A majority of this Court was of the view that for a province to endow a coroner with such a power amounted to an infringement of the exclusive federal legislative authority in respect of the criminal law found in s. 91(27) of the Constitution Act, 1867 .
77 As the submissions in this case have demonstrated, the ratio and the continuing validity of Batary have been the subject of fierce debate. Despite the fact that the case turned on a division of powers point and that subsequent decisions of this Court (see for example Faber v. The Queen, supra, and Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152) appear to have limited its scope, the mine managers contend that Batary applies in these circumstances. Other parties suggest that Batary is either distinguishable or obsolete, and in any event is no obstacle to the compellability of witnesses at the Westray Inquiry.
78 In addition to examining the status of Batary, it is also necessary to consider the extent to which the Charter now provides additional protections to accused persons in proceedings other than their own criminal trial. The task of fully investigating these difficult questions has recently been very ably undertaken by my colleagues Iacobucci J. in R. v. S. (R.J.), [1995] 1 S.C.R. 451, and Sopinka and Iacobucci JJ. in British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3. These reasons provide great assistance and guidance in resolving the issue of compellability.
79 As Iacobucci J. explained at pp. 525 ff. of S. (R.J.), the majority in Batary may have erred in determining compellability by focusing upon the status of an individual in other proceedings (i.e., a criminal prosecution). Regardless of whether or not Batary was correctly decided, the important point to remember is that any court faced with a question of compellability must investigate the nature of the proceedings in which the testimony is sought to be compelled rather than merely looking to the status of the individual subject to a subpoena. This approach also applies under the Charter , although the various rights guaranteed under ss. 7, 11(d), and 13 afford an accused greater protection than he or she was previously guaranteed.
2.Analysis to be followed in light of S. (R.J.) and British Columbia Securities Commission v. Branch
80 The fundamental principle which guides the analysis concerning compellability is the long cherished principle prohibiting self‑incrimination. That principle has been described in R. v. P. (M.B.), [1994] 1 S.C.R. 555, R. v. Jones, [1994] 2 S.C.R. 229, and S. (R.J.), at pp. 488 ff. This same principle finds expression in ss. 11( c ) and 13 of the Charter , as well as in the residual protections contained in s. 7. The paramount concern is to ensure that the state is not permitted to conscript individuals against themselves. Rather, the state must always be subject to a positive obligation to establish a case to meet against the accused through other sources or only with the informed and voluntary cooperation of the accused. In order to ensure compliance with these principles, the court must strive to identify the extent to which they may be jeopardized by compelled testimony outside a criminal trial. Like Iacobucci J. at pp. 535-36 of S. (R.J.), I adopt the following passage from Ed Ratushny, "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. 1989), at p. 484, as illustrative of the type of mischief which can result from compelled testimony:
The earlier hearing might be used as a "fishing expedition" to subject the witness to extensive questioning with a view to uncovering possible criminal conduct. The questioning might also be used to investigate a particular offence. For example, the accused might be required to reveal possible defences, the names of potential defence witnesses and other evidence. Moreover, the publicity generated by the hearing may seriously prejudice the likelihood of a fair trial.
The problem is that the initial hearing is likely to have none of the protections guaranteed by the criminal process. There will be no specific accusation, no presumption of innocence, no protections against prejudicial publicity, no rules of evidence and so on.
81 At the outset, it must be emphasized that a witness who is compelled to testify is not bereft of protection against self‑incrimination. Pursuant to this Court's reasons in S. (R.J.) and Branch, a witness who is compelled to testify will receive the protection of s. 13 of the Charter against the self‑incriminatory use of his or her testimony and, as well, protection under s. 7 of the Charter against the use of evidence which has been derived from that testimony.
82 In S. (R.J.) and Branch, this Court recognized the need to strike an appropriate balance between the state's interest in obtaining the evidence for a valid public purpose and the individual's right to remain silent and to have a fair trial. To that end, a two‑stage analysis has been developed to ascertain whether a witness is compellable in particular proceedings. First, the court must consider the importance to the state of obtaining compelled testimony from the witness. As noted in Branch, at p. 15, "the crucial question is whether the predominant purpose for seeking the evidence is to obtain incriminating evidence against the person compelled to testify or rather some legitimate public purpose." Second, even where the purpose of compelling testimony is valid, it is necessary to assess the prejudicial effect of such compulsion upon the witness.
83 The first stage of this analysis involves a consideration of the nature and public importance of the proceedings, the purposes for which the compelled testimony is sought, and the likely importance of that testimony. Branch provides guidelines for determining the predominant purpose of obtaining evidence in a non‑criminal proceeding in these words at p. 15:
Where evidence is sought for the purpose of an inquiry, we must first look to the statute under which the inquiry is authorized. The fact that the purpose of inquiries under the statute may be for legitimate public purposes is not determinative. The terms of reference may reveal an inadmissible purpose notwithstanding that the statute did not so intend: see Starr v. Houlden, [1990] 1 S.C.R. 1366. Indeed, even if the terms of reference authorize an inquiry for a legitimate purpose in some circumstances, the object of compelling a particular witness may still be for the purpose of obtaining incriminating evidence.
84 The same case recognized, at p. 16, that when the purpose for calling a particular witness is not readily apparent, it may often be inferred from the overall effect of the evidence proposed to be called:
If the overall effect is that it is of slight importance to the proceeding in which it is compelled but of great importance in a subsequent proceeding against the witness in which the witness is incriminated, then an inference may be drawn as to the real purpose of the compelled evidence. If that relationship is reversed then no such inference may be drawn.
85 If, at this stage, the court is of the opinion that the proceedings are undertaken or functioning primarily in such a way as to obtain evidence for the prosecution of the witness, then s. 7 requires that the accused person be exempted from testifying. To allow the authorities to utilize separate proceedings as a substitute for a criminal investigation amounts to a breach of the fundamental requirement that the state must build its case without the unwilling assistance of the accused, and is incompatible with s. 7. In those situations, there is no need to proceed further with the analysis. The accused person will not be a compellable witness. I wish to point out, however, that the situations in which an improper purpose for compelling evidence arises may be infrequent: see, for example, Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724 (B.C.C.A.), and Buffalo v. Canada (Minister of Indian Affairs and Northern Development) (1994), 86 F.T.R. 1. Where, on the other hand, the court finds that the proceedings in question were created to achieve goals of substantial public importance and not to further a criminal prosecution, it must continue to the second stage of the analysis.
86 The second stage of the analysis requires the court to balance the rights of the individual accused against the interests of the state in receiving the compelled testimony in a way which ensures that all the requirements of the Charter are upheld. The result of the balancing will depend upon the circumstances of each case. The reasons in Branch, at p. 16, provided some guidelines to this end:
If it is shown that the only prejudice is the possible subsequent derivative use of the testimony then the compulsion to testify will occasion no prejudice for that witness. The witness will be protected against such use. Further, if the witness can show any other significant prejudice that may arise from the testimony such that his right to a fair trial will be jeopardized, then the witness should not be compellable.
What must now be done is to apply the principles set out in S. (R.J.) to the situation presented on this appeal.
3. Application of the Principles
87 The accused managers claim that their criminal trial will be compromised because evidence introduced at the Inquiry, which is not subject to the rules governing the admissibility of evidence in criminal trials, will later be used against them. This, they say, will be the inevitable result because the overlap between the criminal charges and the mandate of the Inquiry is so great that the findings of the Commissioner will be tantamount to findings as to criminal responsibility. Further, as a consequence of being forced to speak, their own testimony may lead the authorities to other evidence which can later be used against them at trial. It is important to note, however, that these concerns focus more upon the detrimental effects of the publication of Inquiry evidence and its conclusions rather than upon the mere conduct of the proceedings. Yet, as will be seen, I think that s. 11( d ) of the Charter can adequately protect the accused and provides an answer to their concerns.
88 The first stage of the analysis requires that the public interest in obtaining the compelled testimony be identified. The nature and purpose of the Inquiry must be examined. In this case the division of powers issue has already been decided. The Court of Appeal found that the Inquiry came within the jurisdiction of the province. Leave to appeal on that issue was refused by this Court. In discussing the nature of the Westray Inquiry, Hallett J.A. was of the opinion, at pp. 224‑25, that the Commissioner's legislative mandate is:
. . . to conduct a wide‑ranging inquiry which includes investigation, of the role of, not only the managers and supervisory personnel at the mine, but inspectors of the Department of Labour charged with the responsibility of monitoring the operation of the mine. He is directed to inquire into the geological structure in the area where the mine is located, and whether neglect caused or contributed to the explosion. By implication he is to inquire into and report on the adequacy of the existing legislation regulating coal mines. He is empowered to inquire into "all other matters relating to the establishment and operation of the mine"; to report and make recommendations.
In other words, the primary purposes of the Inquiry are to identify the causes of the explosion, to determine whether or not it could have been prevented, and to suggest the means for preventing the recurrence of such a disaster. Its aim is not to conduct a criminal investigation or assign criminal responsibility.
89 These purposes are of very significant public importance. The mandate of the Inquiry is of a similar nature to the types of proceedings which the Law Reform Commission of Canada has suggested in its Working Paper 17, at p. 31, are important enough to warrant broad investigatory powers:
What is of "substantial public importance"? A new statute should not list categories of such matters; legislative life being what it is, inevitably such a list would quickly prove incomplete and obstructive. In most instances, however, whether a given matter is of such a kind should be evident. Does it involve, for example, serious accusations of incompetence or venality in government itself? Serious breakdown in the implementation or administration of an established government policy? Natural disaster badly handled or an unexplained serious accident? It is fair to say that, although one cannot anticipate all questions that can reasonably be deemed to be of substantial public importance, "one will know one when one sees one". [Emphasis added; quoted at pp. 538-39 of the majority reasons in S. (R.J.).]
90 In this case the magnitude of the tragedy, its impact throughout Nova Scotia, the extensive publicity which has followed the explosion and accompanied the progress of the Inquiry, and the undeniable importance of the mining industry to the Nova Scotia economy all emphasize the great public significance of the inquiry. The public interest in learning the truth about what happened includes a very real desire to obtain all of the relevant information in as timely a manner as possible. The scale of this disaster and its widespread impact are of such a notable and exceptional nature that the strong and continuing community interest in holding an open inquiry must be given ample weight.
91 Under the second stage of the analysis, there are three important factors which must be considered in the effort to achieve a fair balance between the threat to individual rights and the public interest in compelling testimony. First, to conduct the inquiry without full access to the information which will be provided by the testimony of the two most senior mine managers would severely impair the effectiveness of the Inquiry. More importantly, it would aggravate rather than assuage the public cynicism concerning the ability of government to protect industrial labourers adequately or to investigate the circumstances surrounding this tragedy properly. A good deal of the public interest in proceeding with the Inquiry is therefore dependent upon the Inquiry having access to the testimony of the respondents.
92 Second, the long‑standing and unique Canadian approach to the problems of compelling witnesses to testify must be considered. As explained in S. (R.J.), at p. 534, "the Canadian solution is to couple compellability with protection in the form of evidentiary immunity", and our Constitution is "willing to permit a unique balancing of individual and societal interests". This situation has not been altered by the passage of the Charter , which has instead added to the protections enjoyed by an accused. Thus, s. 11(c) provides that an accused is not compellable at his own trial and s. 13 prevents any evidence given by an accused in prior proceedings from being introduced at that trial. Further, the residual guarantees contained in s. 7 can prevent evidence discovered or appreciated by the authorities as a result of the earlier testimony from being introduced at the later criminal trial. Witnesses subpoenaed before the Westray Inquiry are protected against the subsequent use of that testimony at their later criminal trial by s. 13 of the Charter , without having to request such protection expressly. They are also protected against the use of certain types of evidence which would not be discovered by the authorities "but for" the earlier compelled testimony of the witnesses. (See the discussion of the derivative use immunity contained at pp. 544‑66 of S. (R.J.).) Although, as stated in Branch, the issue of improper purpose may be raised at the subpoena stage, it will be difficult to establish at that point since the true purpose of the evidence will often not be apparent until the subsequent proceeding.
93 At this point, it may be helpful to examine briefly the protection against the use of derivative evidence. Although the issue is not, at this stage, directly before the Court, it may be helpful to say something about the broad scope of the protections afforded to an accused at a later stage in the proceedings. In S. (R.J.), Iacobucci J. noted the semantic difficulties involved in any attempt to define "derivative evidence". He therefore proposed instead not a definition of the term, but rather a test to identify the types of derivative evidence which should be excluded at a later criminal trial. This approach (at p. 561) excludes "evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness". This "but for" test is to be applied in a flexible and practical manner at the discretion of the trial judge. The burden of proving that the admission of this evidence would violate the residual protection against self‑incrimination found in s. 7 rests with the accused person claiming the violation. However, as a practical matter, much of the evidentiary burden will be borne by the Crown. This must follow since once the accused can point to a "plausible connection" between the compelled testimony and the evidence, then realistically only the Crown will have access to information as to how the evidence was obtained. This is the test which will eventually have to be applied at the criminal trial of the respondents Gerald Phillips and Roger Parry should they claim that evidence relied upon by the Crown was derived from their earlier testimony given at the Westray Inquiry.
94 There are as well other protections available under the Charter to an accused compelled to testify before a public inquiry. Section 11(d) allows an accused to seek limits upon the publication of inquiry proceedings while they are continuing. In cases of severe prejudice, an accused can seek a stay of the criminal charges if the inquiry is found to function primarily as a substitute for a proper criminal investigation or if the accused can demonstrate that he can no longer obtain a fair trial as a result of adverse publicity pertaining to the inquiry.
95 Therefore, although there is no absolute rule that all witnesses other than accused at their own trials are compellable, there is a presumption in our system of criminal justice that persons will in fact be compellable witnesses. Any harm which may be suffered by a witness as a result of compelled testimony can be avoided by granting the appropriate Charter remedy short of testimonial immunity. If this approach is adopted, Charter relief can be properly tailored to the actual harm suffered. Further, the search for truth is promoted by such a system which couples a principle of broad compellability with Charter protections for the witness in subsequent criminal proceedings.
96 The third factor relevant to the balance which must be struck between the rights of the individual mine managers and the public interest in proceeding with a full inquiry with compelled testimony is the consideration of the role of government in the circumstances of this case. There are, in this case, two separate sets of proceedings; one is a public inquiry and the other is a criminal trial. They are initiated by the government, which is ultimately responsible for their conduct. There is clearly a strong public interest in proceeding with the Inquiry, but there is also a public interest in seeing that those guilty of criminal offences are brought to trial. Even if, in the circumstances of this case, there is a reasonable likelihood that the immediate holding of the Westray Inquiry is constitutionally incompatible with later criminal trials, it will not, as a general rule, be for the courts to decide which of the two proceedings should take precedence.
97 In the circumstances of this case, for example, the government must, and undoubtedly has, carefully considered the choices open to it. If it chooses to proceed with the Westray Inquiry and to endow the Commissioner with an unlimited power to subpoena, then it runs the risk that the criminal trials of the accused managers may possibly be irreparably compromised either because much of the evidence given at the Inquiry may prove to be inadmissible testimony or derivative evidence at the criminal trial, or because excessive publicity will make a fair trial impossible. On the other hand, if the government wishes to take every possible precaution to ensure that there is no risk to the criminal trials, then it could choose to halt, delay, or limit the powers of the Inquiry. To follow this latter course, however, involves the inevitable risk that the public will lose faith both in the government's ability and willingness to get at the truth and in the political system as a whole. Whatever route is selected, the courts must, as a general rule, respect the government's choice. A similar approach has been taken in the United States in respect of criminal proceedings which followed a highly publicized congressional inquiry. In Delaney v. United States, 199 F.2d 107 (1st Cir. 1952), Magruder C.J. stated at p. 114:
We think that the United States is put to a choice in this matter: If the United States, through its legislative department, acting conscientiously pursuant to its conception of the public interest, chooses to hold a public hearing inevitably resulting in such damaging publicity prejudicial to a person awaiting trial on a pending indictment, then the United States must accept the consequence that the judicial department, charged with the duty of assuring the defendant a fair trial before an impartial jury, may find it necessary to postpone the trial until by lapse of time the danger of the prejudice may reasonably be thought to have been substantially removed.
98 In oral argument before this Court, the Attorney General of Nova Scotia acknowledged the risks in proceeding immediately with a full inquiry. He nonetheless stated that his government considered the immediate resumption of the Inquiry to be of such overriding importance to the community that it is willing to accept the risk that the criminal prosecutions may be adversely affected or even stayed as a result of the Inquiry proceedings. The government is almost certainly better placed than the courts to assess the need for and value of the Inquiry. It is best able to calculate and weigh the risks and benefits to the public of proceeding with the Inquiry. In the absence of demonstrated misconduct on the part of government, such as a refusal to enforce the criminal law in a manner that amounts to a flagrant impropriety, courts should not interfere with the choice it has made.
99 To put it another way, unless it can be shown that the government is acting in bad faith, prior restraint of government action in creating and proceeding with a public inquiry that is within its jurisdiction will be rare. There is no evidence of bad faith or of a refusal to enforce the criminal law in this case. The government of Nova Scotia has appreciated and considered the possibility that Gerald Phillips and Roger Parry may never be brought to trial, and there is nothing to indicate that its decision should be reviewed by this Court. If the Inquiry were to be held prior to the criminal trials by jury, it would be for the trial judge to determine the appropriate remedy for the breach of any Charter rights which the hearings might have occasioned.
100 To summarize, there can be no doubt that the respondents Gerald Phillips and Roger Parry would be compellable witnesses before the public Inquiry. They clearly meet all the requirements set out in S. (R.J.) and in Branch. They are not being called to testify in order to demonstrate their criminal guilt. Rather, the predominant purpose of obtaining their evidence is to further the objectives of the Inquiry which are of very significant public importance central to the nature and effectiveness of the Inquiry.
101 Nonetheless, although Phillips and Parry are compellable witnesses, there may be grounds for objecting to individual questions posed to them which might go beyond the purposes of the Inquiry. For the moment, however, the only prejudice which they stand to suffer relates to the use of evidence derived from their testimony. As indicated in Branch, this is not a sufficient ground for refusing to compel them.
C. Section 11(d): The Right to a Fair Trial
102 The respondents Gerald Phillips and Roger Parry contend that the Appellate Division of the Nova Scotia Supreme Court correctly determined that their rights to a fair trial would be violated if the Westray Inquiry were to proceed prior to or at the same time as their trials. Their position differs from that of some of the other participants in this appeal in two respects. First, they argue that the Court of Appeal applied the correct test as to when relief should be granted for a threatened Charter breach. This point is disputed by the appellant United Steelworkers of America. Secondly, the respondent managers assert that the Court of Appeal properly considered the relevant factors which would affect the fairness of the trial and appropriately weighed these factors in light of the circumstances of this case. A contrary position is taken by the Steelworkers, the Commissioner, those Attorneys‑General who address the issue and, to a lesser extent, the Westray Families' Group.
1. The threshold test for Charter relief
103 Section 11( d ) of the Charter guarantees to every person charged with an offence the right:
11. . . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. . . .
104 The right to be presumed innocent is the single most important principle of our system of criminal justice. In R. v. Généreux, [1992] 1 S.C.R. 259, Lamer C.J. explained, at pp. 282‑83, the necessity of independence and impartiality to
ensure that a person is tried by a tribunal that is not biased in any way and is in a position to render a decision which is based solely on the merits of the case before it, according to law. The decision‑maker should not be influenced by the parties to a case or by outside forces except to the extent that he or she is persuaded by submissions and arguments pertaining to the legal issues in dispute. Secondly, however, irrespective of any actual bias on the part of the tribunal, s. 11(d) seeks to maintain the integrity of the judicial system by preventing any reasonable apprehensions of such bias.
105 It is the fond hope and reasonable expectation of all Canadians that the unifying foundation of these guarantees is the concept of fairness. All persons charged with an offence must have their criminal liability determined in proceedings which are fair. The Nova Scotia Court of Appeal found that this fundamental constitutional entitlement would be breached were the Westray Inquiry to proceed to hold public hearings prior to the trials of the accused managers (on charges of, at that time, violating provisions of the Occupational Health and Safety Act). It must now be determined whether the threat to the fair trial rights of the respondents Gerald Phillips and Roger Parry require that the Inquiry proceedings be stayed.
106 The respondent mine managers and the Westray Families' Group identify several aspects of the Inquiry which pose a risk to the fair trial interests of the accused. The foremost is the concern that Gerald Phillips and Roger Parry will be prejudiced by the pre‑trial publicity which will undoubtedly accompany the Inquiry hearings. It is also contended that it would be unfair to subject these two respondents to simultaneous proceedings (inquiry and trial) in respect of their role in the Westray disaster, and to allow the Inquiry to continue prior to trial in light of the record of close cooperation by Inquiry staff with the police.
107 No public hearings have yet been held by the Commissioner. When this appeal was argued the trials of the accused mine managers had not yet begun. Any infringement of their rights to a fair trial was then prospective in nature. It will still be helpful to address the preliminary question of when relief can be granted for an anticipated Charter breach before turning to a consideration of the specific question as to whether the impugned state action (the Inquiry) would have the effects that it is alleged would flow from it, and whether those effects would amount to a violation of s. 11( d ) of the Charter .
2. When will relief be granted for a prospective Charter breach?
108 The onus of proving a Charter breach lies upon the individual who claims it. It is true that relief may be granted for a prospective Charter violation. (See Operation Dismantle Inc., supra.) However, relief will only be granted in circumstances where the claimant is able to prove that there is a sufficiently serious risk that the alleged violation will in fact occur. In Operation Dismantle Inc., supra, where the anticipated violation was of s. 7, Dickson C.J. adopted (at p. 458) the requirement that the individual seeking to restrain government action must demonstrate a "high degree of probability" that the Charter infringement will occur before the court will grant relief.
109 Two cases have considered the issue of the proper test to apply to an apprehended breach of s. 11(d). In Canadian Broadcasting Corp. v. Keegstra (1986), 35 D.L.R. (4th) 76, at p. 78, the Alberta Court of Appeal phrased the test as follows: "is there a real and substantial risk that a fair trial will be impossible in the circumstances of the case if [the action is not restrained]". The Ontario Court of Appeal adopted this test in Dagenais v. Canadian Broadcasting Corp. (1992), 99 D.L.R. (4th) 326. The majority reasons of Lamer C.J. in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, focus upon arguments for and against a specific type of relief (a publication ban) and do not specifically address the prior issue of the standard of proof which must be met in order to obtain relief for prospective harm to a Charter right.
110 Frankly, I cannot see much difference between the test of "high degree of probability" and that of "a real and substantial risk". The essence of both tests is that before a court will restrain government action, it must be satisfied that there is a very real likelihood that in the absence of that relief an individual's Charter rights will be prejudiced. This determination cannot be made in the abstract. Rather, the proper approach should be a contextual one, which takes into account all the surrounding circumstances, including, for example, the nature of the right said to be threatened and the extent to which the anticipated harm is susceptible of proof. This was the method advocated by Wilson J. in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326. The nature and importance of the government action sought to be restrained is also a significant factor but it should be considered under s. 1 of the Charter .
111 Thus the applicable standard may fluctuate between the requirement of "a real and substantial risk", "a high probability" or even a "virtual certainty" of a Charter breach depending upon all the circumstances presented by the particular case and the particular applicant.
112 In assessing a threatened breach of s. 11( d ) of the Charter , it must be remembered that the right to a fair trial is of fundamental importance to the criminal process. This Court has already decided that the question of a breach or potential breach of the s. 11(d) fair trial right is best determined at the time of trial: Vermette, supra, at p. 992. While this is not an absolute rule, it is a factor which complicates the task of an individual seeking to establish a prospective breach of the section as it requires a court to speculate as to whether or not the right to a fair trial will be violated when, in the future the criminal charges against the accused are brought to trial. Because it is an exercise in speculation, it will be difficult for the applicant to demonstrate the high degree of probability that a Charter breach will occur which is required to warrant relief being granted. As well it must be remembered that an applicant will always have the opportunity to apply for relief to the trial court once the prejudice, flowing, for example, from the publicity, is more easily ascertainable and demonstrable.
3. Section 11(d): Public Inquiry and Pre‑Trial Publicity
113 When this appeal was argued the trial of the respondents Roger Parry and Gerald Phillips had not yet begun. Their counsel indicated that they would probably elect to be tried by a judge with a jury. Since these reasons were circulated their trial has begun before a judge sitting without a jury. As a result the concern raised pertaining to the effect of pre‑trial publicity on potential jurors is no longer relevant. Yet, the question was argued at length before the Nova Scotia Court of Appeal and this Court. The reasons of the Nova Scotia Court of Appeal dealt with the issue and complete submissions were made in the factums and oral argument. In those circumstances I thought it might be helpful to consider the issue.
114 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.
115 The May 9 blast killed 26 men. A tragedy of this magnitude, occurring within a vital local industry, will inevitably be followed by an explosion of public concern and a great deal of publicity relating to the event. The public appetite for information and the tremendous media response to it arise from the nature of the event itself. An inquiry may increase this appetite, but it is not responsible for its creation. The task here is to assess the prejudice which may arise from the media coverage of the Inquiry. This analysis cannot be undertaken in a vacuum. The extensive publicity which the events of May 9 have already received must be borne in mind.
116 Openness has long been a feature of our system of criminal justice. Various justifications for the public nature of most criminal proceedings have been put forward. Most relate in some way to the simple truth that an individual is much less likely to be subject to unfair or oppressive treatment at the hands of the State if tried in open proceedings. As well, the public is much more likely to have confidence in an open system. The benefits of openness are not restricted to the criminal justice system but apply as well to civil proceedings: Edmonton Journal v. Alberta (Attorney General), supra. The conduct of a public inquiry is no different, although it may differ from a criminal trial in that the inquiry process itself may be more important than the result.
117 Open hearings function as a means of restoring the public confidence in the affected industry and in the regulations pertaining to it and their enforcement. As well, it can serve as a type of healing therapy for a community shocked and angered by a tragedy. It can channel the natural desire to assign blame and exact retribution into a constructive exercise providing recommendations for reform and improvement. In the wake of the Sick Children Hospital Inquiry conducted by Justice Grange it was written:
Imagine that the public had no access to the proceedings of the lengthy and costly Grange Inquiry into the deaths of babies at Toronto's Sick Children's Hospital, and was informed at the end of its vague conclusion that some babies had been killed by an unknown or unnamed individual. Such a conclusion to the state's failure to solve a string of murders deeply troubling to the population, after extensive investigation, prosecution and inquiry procedures, would have been entirely unacceptable. The Grange Inquiry was open, however, and one of the virtues of the exercise in openness was that the public became privy to the problems the state faced in trying to solve the mysterious deaths and could assess the efficacy of the state's actions. Where different phases of the proceedings are closed or where information about them is censored, the public's ability to judge the functioning of the system, rate the government's performance and call for change is effectively removed.
(Jamie Cameron, "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 (1986), 331, at pp. 340‑41.)
118 Brandeis J. writing extra‑judicially of the need for openness put it very succinctly and well when he said that "sunlight is the most powerful of disinfectants". (See Sir Louis Blom‑Cooper, "Public Inquiries" (1993), 46 Cur. Leg. Prob. 204, at p. 211, n. 9.)
119 What, then, are the interests which must be weighed in determining whether or not the Westray Inquiry should proceed? On one side stand the interests of the public in a timely and open inquiry into a tragedy occurring in an important local industry. There is, as well, the government interest in having the state‑appointed Commissioner proceed with the tasks assigned to him by the Order in Council, including the making of recommendations which might prevent a future tragedy.
120 On the other side are the fair trial interests of the accused. The experience of the Grange Inquiry, and, more recently, the Hughes Inquiry into events at the Mount Cashel Orphanage, serve as examples of the extent to which the details of public hearings will receive media coverage. These Inquiries demonstrate that there is a risk that jurors may hear and be influenced by evidence which is not admissible at trial but which, owing to its more relaxed procedures, has been admitted during an inquiry. This will be particularly true of the testimony of accused persons given at a public inquiry. These individuals may be compellable at the public inquiry but certainly not at their trial. The notoriety which they have achieved merely by virtue of being charged will almost certainly guarantee that their testimony at the Inquiry will be widely reported. Therefore, in order to avoid the risks that potential jurors will be influenced by exposure to this evidence which, unless the accused elects to testify, will certainly be inadmissible at trial, a court may, upon proper notice to interested parties, order a restraint on the publication of the testimony or a portion of the testimony of accused persons. This procedure would accord with the ability of courts to order bans on the publication of evidence given in other pre‑trial proceedings, which may not be admissible at trial. See for example, Criminal Code , R.S.C., 1985, c. C‑46, ss. 517 (bail hearings) and 539 (preliminary inquiries).
121 Another feature of public inquiries with potential implications for juror impartiality and fair trial rights is the fact that the inquiry will normally reach some conclusions on the facts. The reasoning in Nelles v. Ontario, supra, referred to with approval by this Court in Starr v. Houlden, supra, precludes a provincial inquiry from reaching any conclusions as to criminal liability, or "naming names". Yet it is quite possible that some of the findings of fact reached by an inquiry would, if known and accepted by jurors, impair their ability to judge a case impartially.
122 Counsel for the respondent Roger Parry gave an example which I find persuasive. In filing his report, the Commissioner may, for example, state that, in his opinion, the May 9 explosion was caused by an excessive build‑up of coal dust. Coal dust build‑up is a variable which can usually be controlled by careful mine management techniques. The responsibility for ensuring that such tasks are carried out is assigned to the manager and the underground manager under the Coal Mines Regulation Act. It may be, however, that the defence presented by the two accused mine managers at their trial will be that the explosion was not caused by an accumulation of coal dust, but rather by an unforseen and unpreventable build‑up of methane gas. Jurors who have already heard the conclusions of the Commissioner as to the cause of the explosion may reject that defence out of hand rather than examining its merit on the basis of the evidence presented at the criminal trial.
123 The respondents Gerald Phillips and Roger Parry argued that our jury system is incapable of disabusing jurors of the effects of any pre‑trial reports they may have heard concerning the proceedings of an inquiry. I cannot accept that argument in its entirety. However, I do accept the distinction drawn by the respondent Parry between the prejudicial effects of the publication of evidence taken at the Inquiry and the prejudicial effects of the publication of the Commissioner's final report.
124 Public inquiries such as the one which is the subject of this appeal are not and cannot be mere substitutes for criminal proceedings. That their primary purpose is not to assign responsibility or blame is not always recognized by the public. In the eyes of most citizens, a public inquiry has many of the characteristics of a criminal trial. The inquiry is often chaired by a judge, who hears the testimony of witnesses under oath and the submissions of lawyers, and who draws conclusions from the evidence presented. A potential juror watching parts of televised hearings may not be unduly influenced by the testimony of any particular witness or witnesses. Common sense, however, suggests that the potential for lasting impartiality is much less when what is published are the carefully reasoned conclusions of a judge who has heard all the testimony and examined all of the evidence relevant to the inquiry mandate. The publication of these findings of facts and conclusions will create a much greater risk of prejudice to fair trial rights. It is this distinction which may require a different treatment of evidence presented in a public hearing and the final inquiry report. Thus, for example, the publication of the final report of the Hughes Inquiry was delayed until the completion of the trials of all the former brothers of Mount Cashel.
125 Some of the ideas expressed recently in Dagenais v. Canadian Broadcasting Corp., supra, concerning the nature of the risks posed by pre‑trial publicity to the fair trial rights of individual accused should be repeated. The influence which publicity will have upon jurors must be assessed in light of the circumstances presented by each case. Despite the helpful studies of social scientists in this area, identifying the lasting effects of publicity on jurors remains an inexact science. Recent increases in the number of studies which have been done on juror prejudice are encouraging and promise better guidance for the future. I do not think it possible yet, however, to disregard the warning given in 1952 by Frankfurter J. dissenting in Stroble v. California, 343 U.S. 181 (1952), at p. 201:
Science with all its advances has not given us instruments for determining when the impact of such newspaper exploitation has spent itself or whether the powerful impression bound to be made by such inflaming articles as here preceded the trial can be dissipated in the mind of the average juror by the tame and often pedestrian proceedings in court.
Perhaps science will one day be able to prove that in certain situations juror prejudice is inescapable. Until that time, common sense must provide guidance in these decisions.
126 What factors should be considered in assessing the effect of publicity? The circumstances in which the impugned publicity or threatened publicity occurs must be reviewed. The form which the publicity takes (i.e., television or print), the size of the geographical area over which it is disseminated and the extent of the audience are all relevant considerations. The existence of prior unrestrained publicity or other publication sources which are not subject to restraint proceedings is pertinent. So too is the nature of the publicity sought to be restrained. For example, if a docudrama were to identify the accused in all but name and portray them clearly as the actual perfidious perpetrators of the crime with which they were charged then the docudrama might well have a negative impact upon the presumption of innocence with which each juror must begin a trial. Consideration must also be given to the extent to which the publicity is a complete report or at least a comprehensive summary of the proceedings rather than merely a collection of "soundbites" which do not accurately represent the proceedings as a whole. Further, the way in which the publication is presented is important particularly if the testimony is commented upon in an unfair and prejudicial manner by journalists or others.
127 A related factor is whether or not the publication is inflammatory. For example, there may be expression by journalists or others that the accused are criminally liable. In cases such as Dagenais v. Canadian Broadcasting Corp., supra, Kenny, supra, and R. v. French (No. 2) (1991), 93 Nfld. & P.E.I.R. 14 (Nfld. S.C.T.D.), etc., it was easier to assess the effect upon the impartiality of jurors since the publications had already occurred. Where, as here, publication pertaining to the Inquiry testimony is anticipated, the assessment is necessarily more speculative.
128 All these considerations form a part of the judicial task in determining an application to restrain an alleged impending breach of s. 11(d). They should not, however, overshadow the true goal of the analysis. What must be found in order for relief to be granted is that there is a high probability that the effect of publicizing inquiry hearings will be to leave potential jurors so irreparably prejudiced or to so impair the presumption of innocence that a fair trial is impossible. Such a conclusion does not necessarily follow upon proof that there has been or will be a great deal of publicity given to the hearings. Evidence establishing the probable effects of the publicity is also required.
129 It is for this reason that I must respectfully disagree with the suggestion made by the trial judge in Kenny, supra, at p. 351, that an accused enjoys a constitutional right to "be free from excessive adverse publicity while his or her trial is pending". The right which the accused enjoys is a right to a fair trial. If excessive adverse pre‑trial publicity will violate this right, then s. 24(1) of the Charter requires that judicial relief be given. But relief should only follow satisfactory proof of a link between the publicity and its adverse effects. Negative publicity does not, in itself, preclude a fair trial. The nexus between publicity and its lasting effects may not be susceptible of scientific proof, but the focus must be upon that link and not upon the mere existence of publicity.
130 Further, the examination of the effects of publicity cannot be undertaken in isolation. The alleged partiality of jurors can only be measured in the context of the highly developed system of safeguards which have evolved in order to prevent just such a problem. Only when these safeguards are inadequate to guarantee impartiality will s. 11(d) be breached. This simple determination requires the resolution of two difficult questions. First, what is an impartial juror? Second, when do the safeguards of the jury system prevent juror prejudice?
131 The difficulties inherent in defining an impartial jury were pointed out by Newton N. Minow and Fred H. Cate in "Who Is an Impartial Juror in an Age of Mass Media?" (1991), 40 American Univ. L. Rev. 631. The authors note (at pp. 637‑38) that in the early days of the jury system, jurors were required to be familiar with the facts and parties to a case in order to be eligible to serve. An accused was literally "judged by his peers". Juries and trials became more sophisticated, and it was no longer seen as necessary that individual jurors be familiar with the case. As concern for the individual rights of the accused developed, it became preferable for jurors to be objective, and this was facilitated if they had no previous knowledge of the facts. However, even before the days of television and mass media coverage, this ideal was criticized by the American writer Mark Twain, as quoted in Minow and Cate, supra, at p. 634:
[when juries were first used] news could not travel fast, and hence [one] could easily find a jury of honest, intelligent men who had not heard of the case they were called to try ‑‑ but in our day of telegraph and newspapers [this] plan compels us to swear in juries composed of fools and rascals, because the system rigidly excludes honest men and men of brains.
132 The objective of finding 12 jurors who know nothing of the facts of a highly‑publicized case is, today, patently unrealistic. Just as clearly, impartiality cannot be equated with ignorance of all the facts of the case. A definition of an impartial juror today must take into account not only all our present methods of communication and news reporting techniques, but also the heightened protection of individual rights which has existed in this country since the introduction of the Charter in 1982. It comes down to this: in order to hold a fair trial it must be possible to find jurors who, although familiar with the case, are able to discard any previously formed opinions and to embark upon their duties armed with both an assumption that the accused is innocent until proven otherwise, and a willingness to determine liability based solely on the evidence presented at trial.
133 I am of the view that this objective is readily attainable in the vast majority of criminal trials even in the face of a great deal of publicity. The jury system is a cornerstone of our democratic society. The presence of a jury has for centuries been the hallmark of a fair trial. I cannot accept the contention that increasing mass media attention to a particular case has made this vital institution either obsolete or unworkable. There is no doubt that extensive publicity can prompt discussion, speculation, and the formation of preliminary opinions in the minds of potential jurors. However, the strength of the jury has always been the faith accorded to the good will and good sense of the individual jurors in any given case. The confidence in the ability of jurors to accomplish their tasks has been put in this way in R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 761:
Today's jurors are intelligent and conscientious, anxious to perform their duties as jurors in the best possible manner. They are not likely to be forgetful of instructions. The following passage from R. v. Lane and Ross (1969), 6 C.R.N.S. 273 (Ont. S.C.), at p. 279, approved in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 695, is apposite:
The danger of a miscarriage of justice clearly exists and must be taken into account but, on the other hand, I do not feel that, in deciding a question of this kind, one must proceed on the assumption that jurors are morons, completely devoid of intelligence and totally incapable of understanding a rule of evidence of this type or of acting in accordance with it. If such were the case there would be no justification at all for the existence of juries. . . . [Emphasis in original.]
134 The solemnity of the juror's oath, the existence of procedures such as change of venue and challenge for cause, and the careful attention which jurors pay to the instructions of a judge all help to ensure that jurors will carry out their duties impartially. In rare cases, sufficient proof that these safeguards are not likely to prevent juror bias may warrant some form of relief being granted under s. 24(1) of the Charter . The relief may take many forms. It may be the enjoining of hearings at a public inquiry, a publication ban on some of the evidence given at the inquiry, a staying of the criminal charges, or the imposition of additional protections for the defence at the stage of jury selection: see, as an early example, R. v. Kray (1969), 53 Cr. App. R. 412, referred to with approval in R. v. Hubbert (1975), 29 C.C.C. (2d) 279, aff'd [1977] 2 S.C.R. 267. As this Court has held in the past, this type of relief will not be granted on the basis of speculation alone. Normally the time for assessing whether or not an accused's fair trial rights have been so impaired that s. 24(1) relief is required will be at the time of jury selection: Vermette, supra; R. v. Sherratt, [1991] 1 S.C.R. 509.
135 It is not necessary to spend time reviewing the proper method of considering a publication ban. That is now set out in the reasons of Lamer C.J. in Dagenais v. Canadian Broadcasting Corp. Namely, the publications ban should only be ordered when: (a) such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban. This is the test that must be applied in this case.
136 It is significant that other jurisdictions have also adopted stringent tests that must be met by those seeking to ban pre‑trial publication in order to prevent an accused's fair trial being compromised. In England, fair trial rights are statutorily protected and enforced by means of a contempt of court process. There the Court of Appeal recently held that the section of the Contempt of Court Act 1981 (U.K.), 1981, c. 49, which endows courts with the power to order bans imposes three requirements which an applicant must satisfy. These are: (1) "that publication would create `a substantial risk of prejudice to the administration of justice'"; (2) that the ban "`appears to be necessary for avoiding' that risk"; and (3) that the court, "having regard to the competing public interests of ensuring a fair trial and of open justice, considers it appropriate to make an order". See Ex parte Telegraph plc, [1993] 2 All E.R. 971, at p. 975.
137 The American position can be even stricter. In a leading "prior restraint" case the United States Supreme Court ruled that an applicant for a publication ban must introduce evidence to prove (1) the probable nature of and extent to which pre‑trial publicity would influence potential jurors; (2) that other measures would not be likely to mitigate the effects of pre‑trial publicity; and (3) that the limit on publication will probably prevent the threatened prejudice. See Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), at p. 562. However, in a later case the court suggested that this test should be relaxed when applied to pre‑trial proceedings, where judges may order "protective measures even when they are not strictly and inescapably necessary": Gannett Co. v. DePasquale, 443 U.S. 368 (1979), at p. 378.
138 One other issue which was raised in the context of fair trial rights and pre‑trial publicity was whether an accused who has elected trial by judge alone can nonetheless assert a breach of his or her fair trial rights by reason of pre‑trial publicity. This issue does not arise directly in this appeal since, as of the date of the hearing of the appeal, both accused were deemed to have elected trial by judge and jury. Nonetheless, the point was raised in argument as it appears that both accused respondents had indicated some interest in a trial by judge alone prior to the laying of the preferred indictments.
139 In my view, an individual who has elected to be tried by judge alone cannot also claim that his fair trial rights have been breached by excessive pre‑trial publicity. This was the view of the Newfoundland Court of Appeal in R. v. Burke (No. 3) (1994), 117 Nfld. & P.E.I.R. 191, at p. 208 (per Gushue J.A., dissenting on another point). The process of electing the mode of trial is a voluntary exercise freely undertaken by the accused. It follows that an accused must accept all of the consequences flowing from his choice of mode of trial. One of these is that if trial by judge alone is selected it must be assumed that a trial judge trained to be objective and well‑versed in the legal burden resting upon the prosecution can readily disabuse him‑ or herself of the prejudicial effects of pre‑trial publicity.
140 In summary the following can be stated. The public Inquiry is important to the province of 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 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.
141 As well, some general principles can be seen to 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.
142 1. 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.
143 2. 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.
144 3. 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.
145 4. The rights of those witnesses are generally protected by the provisions of the Charter , particularly ss. 11(d), 13 and 7.
146 5. 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 S. (R.J.).
147 6. 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.
148 7. 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.
149 8. The applicant seeking the ban must establish that there are no alternative means available to prevent the harm the ban seeks to prevent.
150 9. The remedy should not extend beyond the minimum relief required to ensure the fair trial of the witness.
151 10. 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.
152 11. If the accused elect 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.
4. Application of the Principles
A.Would the Section 11(d) Rights of the Accused be Violated by Proceeding with the Inquiry?
153 First, it must be determined whether the respondent mine managers have satisfied the burden of proof which lies upon them to demonstrate that the holding of the public hearings prior to or concurrently with the trials of the two accused would violate their fair trial rights. In my opinion, subject to two possible exceptions, they have not. This conclusion does not preclude them from making submissions to a court at a later time that they have by that time suffered more prejudice to their fair trial rights than I can reasonably foresee at this point. If at that stage they successfully establish the requisite degree of prejudice, they will no doubt be granted appropriate relief.
154 The two accused contend that there are three general types of unfairness which they will suffer as a result of the Inquiry hearings. These are: the adverse effects of the publicity which is sure to accompany the public hearings of the inquiry, the fact that the two accused may be subject to simultaneous criminal and inquiry proceedings, and the allegedly unfair and oppressive collaboration of the RCMP and the Commission staff.
(i) Adverse publicity
155 There is no doubt that the Westray disaster has been the subject of intense media attention for over two years. It is reasonable to assume that this same attention will continue unabated at both the Westray Inquiry and the criminal trials of the accused mine managers. Evidence was adduced that over 860 articles pertaining to the event and the subsequent proceedings have appeared in the two Halifax newspapers alone. The sheer magnitude of coverage indicates that there is a risk that the fair trial interests of the accused individuals may be jeopardized.
156 Little evidence was lead, however, on the nature of this coverage. The sample newspaper articles submitted deal principally with the progress of the Inquiry. The articles are not inflammatory, and seem to be objective. The two accused are mentioned only in passing. I have no reason to doubt the claims made by some of the respondents that the press has reported allegations of poor mining and safety practices at the mine while it was under the supervision of the two accused, but unfortunately no examples of this negative publicity were produced.
157 The form of the publicity is also relevant. The publicity to this point is news coverage which, in theory, should mean the accurate and unbiased reporting of events as they unfold. This is a far different and less damaging form of publicity than say a fictionalized docudrama which appears to identify the accused as evil people who have committed the very crime with which they are charged.
158 There has been no evidence put forward that the publicity to date has resulted in any actual bias in the community from which the jury pool will eventually be drawn. Nor has any explanation been offered as to why the standard safeguards for guaranteeing an impartial jury will not function adequately in this case. Neither has there been any attempt to demonstrate why publicity from the inquiry in particular will prejudice jurors more than any of the publicity which has already occurred.
159 Although the Court of Appeal held that nothing short of a stay of the inquiry hearings could adequately prevent the threat posed to the Charter rights of the accused persons, a closer review of the reasons of Hallett J.A., at p. 259, suggests that the threat posed by publicity was not his primary concern:
I have considered whether in camera sessions or publication bans or a combination of the two would be sufficient safeguards to allow the inquiry to proceed. That solution does not respond to the anticipated breaches of the respondents' right to silence if the hearings proceed. I also agree with Chief Justice Glube that public inquiries should be public.
Delaying the filing of the Commissioner's report until after the trials does not answer the problem as the public hearings would have gone ahead in the meantime with the consequent infringement of the respondents' Charter rights. Most importantly the Commissioner's mandate cannot be fulfilled until he delves into the cause of the explosion and that can only be done after the respondents' trials. [Emphasis added.]
Hallett J.A. also conceded at pp. 251‑52 that:
There is a temptation to apply Vermette and simply say any Charter infringement issues can be dealt with at the trial. . . . While such a course of action might be satisfactory to deal with the effect of pretrial publicity on the respondents right to a fair trial, it would not take into account the unfairness that is created by the Commissioner's ability to conduct an investigation into the respondents' involvement, if any, leading to the explosion without the respondents having the protection of normal criminal law procedures. . . . [Emphasis added.]
160 These statements indicate that the hearings were stayed primarily on the basis of an apprehended violation of the accused persons' right to silence, rather than owing to a threat to their fair trial rights. In light of the protection provided to the witnesses relative to the testimony at the Inquiry, no such threat to the right to silence exists in the circumstances of this case. In the absence of that threat, it appears that the Court of Appeal might have concluded that merely proceeding with the public hearing did not present a serious risk to the s. 11(d) rights of the respondents Roger Parry and Gerald Phillips.
161 In my view, the Westray Inquiry hearings would not present an unacceptable risk to the s. 11(d) fair trial rights of the respondent managers. Often the publicity pertaining to the evidence given at the Inquiry will have little effect on potential jurors. The impact may be fleeting and quickly fade away. How very quickly the details of a news story can be forgotten. The passage of a very few days may suffice to dim if not obliterate the memory of the reporting of Inquiry evidence. The likelihood of a prejudicial effect upon fair trial rights may be small indeed, a minor item washed away in the flood of information generated daily by the media.
162 However, the publication of the testimony of the two accused managers presents a very different situation. Obviously anything said by the accused will have a far greater impact than the evidence of many other witnesses. There is a real possibility that it will be stressed in media reports and well remembered by potential jurors. Yet, as accused, the managers can never be required to testify at their trial. The publication of their evidence at the Inquiry might mean that potential jurors would have been exposed to testimony that they might never hear at the trial. This coupled with the fact that it came from the accused themselves would make it difficult for jurors, despite their good intentions and the best of instructions from the trial judge to set it aside and leave it out of their considerations. In respect of this evidence, then, there is a clearly identifiable and serious risk that the fair trial rights of the two accused will be jeopardized. The risk does not warrant the staying of the hearings. Rather, if the trial had proceeded before a judge and jury an appropriate remedy for this breach would have been an application by Roger Parry and Gerald Phillips to the Commissioner for an order banning the publication of all or a part of their testimony. The decision of the Commissioner could have been appealed to a judge of the court with jurisdiction to hear the pending criminal charges. This issue is no longer relevant in light of the election of Parry and Phillips to be tried by a judge alone.
163 The second condition relates to the Commissioner's final report. For the reasons set out earlier, I am of the view that the publication of the Commissioner's conclusions prior to the completion of the criminal trials could have very well influenced the jurors in their deliberations. The publication of the report should be delayed until such time as Parry and Phillips have had an opportunity to review it and, if so advised, to bring an application to ban its publication until such time as the criminal charges had been disposed of after trial or stayed.
(ii) Concurrent Proceedings
164 The respondent Roger Parry takes the position that the oppressive nature of the state's simultaneously taking action against himself and Gerald Phillips in two separate proceedings constitutes a violation of his s. 11(d) rights. In my opinion, this submission is not sufficiently supported by the evidence to warrant the granting of prospective relief.
165 Neither the fact that an individual is subject to other judicial or state‑initiated proceedings in addition to a criminal trial (Re Orysiuk and The Queen (1977), 37 C.C.C. (2d) 445 (Alta. C.A.)) nor that these proceedings may be held contemporaneously with the criminal trial (Stickney v. Trusz (1973), 2 O.R. (2d) 469 (H.C.)) precludes the fairness of that trial. As with pre‑trial publicity or any other action or circumstance which is alleged to jeopardize an accused's fair trial rights, what must be proven is not simply the act itself or the existence of the circumstances, but rather the prejudice which flows from them. That prejudice has not been demonstrated in this case. As a general rule, it is desirable that the public inquiry proceed as quickly as possible. However, in the present case, as the Attorney General has elected to proceed with and is now well into the criminal trial, I trust that such care and courtesy will be displayed by the Commission and the judge presiding at the trial that the managers and their counsel will not be unduly prejudiced by the commencement of simultaneous proceedings.
166 The respondent Parry claims that he will be subjected to increased legal costs if the Inquiry is held concurrently with the trial. I am not convinced that this is necessarily so, but in any event it has never been recognized that the cost of a criminal trial to the accused constitutes a denial of constitutional rights. It is true that simultaneous proceedings may impose a higher level of stress upon an accused. Yet this does not establish that the accused will be unable to obtain a fair trial. It might conversely be argued that an accused's stress, although higher in intensity, will be shorter in duration since concurrent proceedings will lead to a quicker resolution of all matters than would be the case if the proceedings were consecutive.
167 Should the criminal trials of the two accused have been held simultaneously with the public inquiry they would present no more than a potential risk. That potential risk would not be enough to establish a breach of s. 11(d). To hold to the contrary would jeopardize all civil actions, administrative hearings, and professional disciplinary proceedings which relate in some manner to criminal trials and proceed contemporaneously with them.
(iii) Complicity between the police and the Inquiry
168 The respondent Roger Parry also asserts that his right to a fair trial has been jeopardized by the cooperation of the police and the Commissioner in the amassing of evidence against him. I do not think that the respondent has produced the evidence required to substantiate his claim that the conduct of the officials in this case amounted to the type of "unwelcome complicity" cautioned against by La Forest J. in R. v. Colarusso, [1994] 1 S.C.R. 20.
169 This tragedy occurred in a small community. Judicial, administrative and police resources must have been strained in the aftermath of the explosion. Cooperation between different agencies must have been not only efficient and sensible, but also perhaps 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. Obviously the privacy interest in the mandatory records which must be maintained by a company in this heavily regulated industry is likely to be extremely low. I am not satisfied that any Charter breach has been established. Furthermore, the impact of the alleged complicity upon the fair trial rights of the accused should, as a rule, be assessed at the time of the trial.
B. Guidelines for the Commissioner
170 Were the public hearings to be held today, evidence which, if published, runs a sufficiently high risk of prejudicing the accused persons' constitutional right to a fair trial by jury would be the testimony of the accused themselves. Accordingly, the Commissioner could, upon the application of Roger Parry and Gerald Phillips, consider imposing a ban on the publication of all or a part of their evidence. Further, the report of the Commissioner should not be released until such time as Parry and Phillips had an opportunity to review it and, if so advised, to bring an application to ban its publication until such time as the criminal charges have been disposed of after trial by jury or stayed. The Westray Families' Group suggested that the Court could offer some further guidance to the appellant Commissioner as to how to deal with some of the other threats to fair trial rights which may arise during the course of the Inquiry. This would be to embark upon an unnecessary and highly speculative course. Further, it must be emphasized that the individual charged with the conduct of a public inquiry is best suited to assess the potentially harmful effects of evidence introduced at the inquiry. The judicial use by a commissioner of flexible ad hoc measures adapted to overcome individual threats to fair trial rights represents the most efficient means of protecting constitutional rights during the inquiry process and the criminal proceedings.
171 The Commissioner is granted some power to control the inquiry proceedings. Under s. 5 of the Public Inquiries Act, the powers of a commissioner appointed under the Act include the following:
5 The commissioner or commissioners shall have the same power to enforce the attendance of persons as witnesses and to compel them to give evidence and produce documents and things as is vested in the Supreme Court or a judge thereof in civil cases, and the same privileges and immunities as a judge of the Supreme Court.
The appellant union submits that this section should be given a broad interpretation. In its view, these powers include by necessary implication, the ability to order whatever measures are necessary to control the proceedings and protect individual rights. Thus, asserts the union, the Commissioner alone has the power to order in camera hearings, delay or ban publication of certain evidence introduced at the Inquiry, or delay the release of its conclusions.
172 The respondent Families' Group does not read the section so widely. They submit that, since the section contains no express power to provide protective measures, the only way to obtain them is for the Commissioner to seek an order from the Nova Scotia Supreme Court.
173 Some support for the position of the appellant union may be found in the authorities and in the writing of Law Reform Commissions. The Ontario Act, unlike either the Alberta or the Nova Scotia Act, specifically provides that any hearings are to be held in public subject to a discretion to hold closed hearings. Nonetheless, the Alberta Law Reform Institute was of the view that under its Act (which, like the Nova Scotia Act, is silent on whether or not hearings are to be public) the openness principle favoured public hearings in an inquiry, but that a commission would still have an implicit power to control its proceedings by means of holding in camera hearings. Both the Alberta and the Ontario Law Reform reports, supra, recommend that a limited power to grant publication bans be enacted without ever directly addressing the issue of whether or not such a power may already be included amongst the more general powers of an inquiry: see Alberta Law Reform Institute, Recommendations 15 and 16, and Ontario Report, Recommendation 17.
174 Judicial comments on this section suggest that commissions of inquiry have a general power to control their proceedings and are not tied to a narrow interpretation of the enabling statute: Re Yanover and Kiroff and The Queen (1974), 6 O.R. (2d) 478 (C.A.), at pp. 490‑91, and Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494, at pp. 524‑25.
175 In my view, the nature and the purpose of public inquiries require courts to give a generous interpretation to a commissioner's powers to control their own proceedings under the Nova Scotia Act. One of the functions of an inquiry is to insulate an investigation from both the legislative and the judicial branches of government. It is crucial that an inquiry both be and appear to be independent and impartial in order to satisfy the public desire to learn the truth. It is the commissioner who must be responsible for ensuring that the hearings are as public as possible yet still maintain the essential rights of the individual witnesses.
176 On the other hand, when relief is sought upon the basis that to continue with current inquiry proceedings without any restraint will prejudice a subsequent criminal trial, it is arguable that the court charged with the subsequent trial is the best suited to decide the nature of the restraints to be issued. This was the approach adopted by Lamer C.J. in Dagenais v. Canadian Broadcasting Corp. Yet the situation presented in Dagenais is very different from that of this case. The competing jurisdictions in Dagenais were two courts. Here, the choice is between a commissioner conducting a public inquiry and a court. It must be remembered that publicity bans, in camera hearings and other protective measures are exceptional remedies which will rarely be ordered on the basis of a prospective breach of s. 11(d). In an inquiry it is the commissioner who should first determine whether such exceptional orders should be issued. The authority to make those orders derives from and relates to the conduct of the inquiry hearings. This authority should be given a reasonable and purposeful interpretation in order to provide commissions of inquiry with the ability to achieve their goals. It is appropriate that the Commission should be the first body to determine whether any of the exceptional orders concerning publicity bans or in camera hearings should be made.
VI. Disposition
177 I would allow the appeal and set aside the order of the Nova Scotia Court of Appeal and the stay of the public hearing of the Westray Inquiry.
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