Westray at the Supreme Court

Westray Coal Mine Disaster
Supreme Court of Canada
Proceedings




File 23621

Appeal of decision by the Nova Scotia Supreme Court that the terms of reference of the Westray Public Inquiry Commission were ultra vires because they encroached upon the federal criminal law power

Ultra vires is a Latin phrase that means "beyond the power" – an action outside the proper authority or power of a legal entity.  In this case, the Nova Scotia Supreme Court decided that the Order in Council establishing the Westray Public Inquiry Commission was ultra vires (not legally valid) – and thus the Inquiry itself had no legal authority – because no provincial government has authority over criminal law, and the Inquiry's hearings would breach section 7 or section 11(d) of the Charter of Rights and Freedoms.  An administrative act (the Nova Scotia Order-in-Council) that is found by a court to exceed a statutory grant of authority is null and void.  The Nova Scotia Supreme Court's ultra vires decsision stopped the Westray Inquiry dead in its tracks.  Those who wanted the Inquiry to continue – the Union (supported by the Westray Families Group), and the Inquiry Commissioner – appealed the ultra vires decsision to the Supreme Court of Canada.  The accused opposed this appeal.


Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)
4 May 1995 — 2 Supreme Court R. 97
United Steelworkers of America, Local 9332, Appellant

and

The Honourable Justice K. Peter Richard...

versus

Gerald Phillips, Roger Parry, Glyn Jones, Arnold Smith, Robert Parry, Brian Palmer and Kevin Atherton
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... 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 section 7 or section 11(d) of the Charter; and if so, whether a temporary stay of the public hearings is a just and appropriate remedy under section 24(1) of the Charter...

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 (section 7) or right to fair trial (section 11(d)) of the Charter — If so, whether a temporary stay of the public hearings is a just and appropriate remedy under section 24(1) of the Charter — Canadian Charter of Rights and Freedoms, sections 7, 11(d), 13 — Public Inquiries Act, Revised Statutes of Nova Scotia 1989, chapter 372, section 5 — Coal Mines Regulation Act, Revised Statutes of Nova Scotia 1989, chapter 73, section 67(e)...

Decision: The appeal should be allowed.




File 24641

Motion to quash the Crown's application for leave to appeal from an order of Justice Anderson (presiding at the Westray Criminal Trial) dismissing the Crown's motion for a mistrial.

R. v. Curragh Inc. 5 April 1995
Her Majesty The Queen, Applicant

versus

Curragh Inc., Gerald Phillips and Roger Parry, Respondents
Motion to quash an application for leave to appeal
Motion by respondents to quash the Crown's application for leave to appeal from an order of Anderson J. dismissing the Crown's motion for a mistrial.
Decision: Motion granted

Criminal law — Appeals — Supreme Court of Canada — Jurisdiction — Manslaughter trial — Trial judge privately asking head of public prosecution service to remove lead Crown counsel from prosecution team — Trial judge complaining of counsel's lack of preparation and uncooperative attitude toward defence counsel — Crown bringing motion for mistrial because of reasonable apprehension of bias — Trial judge dismissing Crown's motion — Crown applying for leave to appeal decision to Supreme Court of Canada — Motion to quash application for leave granted — Supreme Court having no jurisdiction to hear appeal at this stage.

Note: The criminal trial came to an abrupt halt on 9 June 1995 with the granting of a judicial stay of proceedings by Justice Anderson of the Nova Scotia Supreme Court.  The granting of the stay of the criminal proceedings then allowed the Westray Public Inquiry to proceed with fulfilling its mandate.  The stay of proceedings was appealed by the prosecution and the Nova Scotia Court of Appeal allowed the appeal and ordered a new trial.  The ruling of the Appeal Court was subsequently upheld by the Supreme Court of Canada.



File 25075

The Crown's appeal from the Nova Scotia Court of Appeal's decision that disagreed with the trial judge's conclusion that the material non-disclosure should result in a stay, and ordered a new trial

R. v. Curragh Inc. S.C.R. 537 20 March 1997
Gerald James Phillips and Roger James Parry, Appellants

versus

Her Majesty The Queen, Respondent

Criminal law — Trial — Reasonable apprehension of bias — Trial judge making private phone call to head of public prosecution service asking for removal of lead Crown counsel from case otherwise he would take steps to "secure that end" — Trial judge denying Crown's motion for recusal and later allowing accused's motion for stay of proceedings on manslaughter charges on basis of Crown's failure to disclose relevant evidence — Whether trial judge's conduct and words creating reasonable apprehension of bias.

Criminal law — Costs — Delays and legal costs incurred arising from systemic problems beyond control of accused — Problems largely occasioned by trial judge's conduct which gave rise to apprehension of bias — Accused should recover their reasonable legal costs of proceedings to date and be paid reasonable legal costs incurred in new trial.

Decision: The order directing a new trial is affirmed.  Appeal dismissed with costs to the appellants

Note: The Nova Scotia Court of Appeal ordered that the accused mine manager Gerald Phillips and underground manager Roger Parry must be given a new trial (the 44-day original trial having been stayed).  However, the Crown (Nova Scotia Public Prosecution Service) decided not to go ahead with this prosecution because no reasonable chance of conviction existed.  The charges were dropped.





Dismissal of application for leave to appeal

15 August 2002

In a decision released on 10 August 2001, the Nova Scotia Supreme Court ruled that the province had submitted to the Workers' Compensation Act, was therefore an employer within the meaning of the Act (though not the employer of the miners), and consequently could not be sued for compensation.

Within a few days, families of the deceased Westray coal miners announced they would appeal the ruling.  That appeal was heard by the Nova Scotia Court of Appeal on 11 December 2001.  In a judgment delivered on 16 January 2002, the court upheld the Nova Scotia Supreme Court's ruling.

Lawyers for the families then filed a leave application with the Supreme Court of Canada to have an appeal heard in Canada's highest court.  The Supreme Court announced the dismissal of the application on 15 August 2002, meaning that the Nova Scotia Court of Appeal's ruling would stand.

So, after ten years of legal wrangling, no individual or entity was ever held responsible for the disaster.






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