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

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.

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

These issues raise constitutional questions relating to ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms .

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.

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.

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.

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.]

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.]

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".

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.

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.

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.]

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

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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".

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.

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.

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.]

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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

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.

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. . . .

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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)".

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 ?

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.

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.

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.

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.)

The public inquiry has been even more broadly characterized as serving a particular "social function" within our democratic culture: