Supreme Court Judgments

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R. v. Curragh Inc., [1997] 1 S.C.R. 537

 

Gerald James Phillips and

Roger James Parry                                                                            Appellants

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Curragh Inc.

 

File No.:  25075.

 

1996:  November 26; 1997:  March 20.

 

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for nova scotia

 

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

 


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

 

The trial judge ordered a stay of the manslaughter charges against the accused, two members of the managerial staff at a coal mine at which an explosion caused the deaths of 26 miners.  He based his decision on the Crown’s non‑disclosure or late disclosure of relevant material.  Earlier during the trial, the judge had called the acting director of the public prosecution service and expressed his displeasure with the manner in which the Crown attorney was conducting the case.  The trial judge recommended that he be removed from the case and said that if he were not he would take steps “to secure that end”.  The Crown, supported by one of the accused, brought a motion for recusal, which the trial judge denied.  The Crown sought unsuccessfully to appeal this interlocutory decision.  That having failed, the trial continued until the trial judge entered a stay of proceedings due to the Crown’s failure to disclose material information.  The Crown  raised the issue again in its appeal of the trial judge’s order staying the proceedings.  The Court of Appeal disagreed with the trial judge’s conclusion that the material non-disclosure should result in a stay, found that there was a reasonable apprehension of bias and ordered a new trial.

 

Held (McLachlin and Major JJ. dissenting):  The appeal should be dismissed.

 


Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ.:  Prior to the order staying the proceedings, the trial judge’s actions and words during the trial created a reasonable apprehension of bias.  In privately phoning a senior member of the Attorney General’s staff to request the removal of the Crown attorney in charge of the case and stating that otherwise he would take steps “to secure that end”, the trial judge interfered with the Crown’s conduct of its case and became inappropriately involved in the fray.  He should have recused himself, but denied the Crown’s motion for recusal.  Where a reasonable apprehension of bias is demonstrated, the trial judge has no further jurisdiction in the proceedings and the only appropriate remedy is a new trial.  Generally the decision reached and the orders made in the course of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable.  While the trial judge’s order staying the charges in this case was enforceable until the court of appeal dealt with it, once the court of appeal ruled that the trial judge had demonstrated a reasonable apprehension of bias it retroactively rendered the order void and without effect.  The Crown brought its motion for recusal in a timely, appropriate and reasonable manner and cannot be faulted on that score.

 

The accused should recover their reasonable legal costs of the proceedings to date and be paid the reasonable legal costs incurred in the new trial since the delays and much of the costs incurred arise from systemic problems beyond their control that were to a large extent occasioned by the conduct of the trial judge which gave rise to an apprehension of bias.

 


Per Sopinka J.:  While the breach of the Crown’s obligation to disclose was egregious, a stay is not the only appropriate remedy in the circumstances.  Assuming that the trial judge was not functus, one of the circumstances that he did not take into account is the fact that there must be a new trial by reason of the apprehension of bias occasioned by his conduct.  The trial judge may be satisfied that full disclosure has been made prior to the commencement of the new trial.  While the trial judge proceeded on the basis that, absent a stay, the trial would continue, this Court must decide whether a stay is the only appropriate remedy having regard for the fact that a new trial will otherwise be held.  Consequently, it is impossible to say what, if any, prejudice has been caused by the non‑disclosure, or whether full disclosure will have been made prior to the commencement of the new trial.  The order directing a new trial should be affirmed.

 


Per McLachlin and Major JJ. (dissenting):  While as a general rule a judge should not discuss a case with one party outside the other party’s presence, much less suggest to one party in the other’s absence who counsel on the case should be, a conclusion of bias does not flow automatically from breach of this rule.  The question is whether the content of the discussion in all the surrounding circumstances supports an inference that the trial judge favoured one party over the other.  In this case Crown counsel’s conduct was prejudicing a fair trial and might ultimately have caused the trial to be aborted.  While the trial judge should not have stipulated that he be removed, it is questionable whether his doing so indicated partiality to either the Crown or the defence. Moreover, even if the inference could be drawn that the trial judge was biased against the Crown, it does not follow that he automatically lost jurisdiction.  Judicial conduct giving rise to a reasonable apprehension of bias does not automatically deprive the judge of jurisdiction and render all proceedings thereafter void.  The proper course for a party affected by the bias is to move promptly for recusal of the judge.  Absent an order disqualifying the judge, the judge retains jurisdiction and the proceedings continue as before.  While the issue has not often arisen in criminal proceedings, the authorities support the view that bias or apprehension of bias does not automatically render the trial a nullity.  This flows from the general principle that a court order must be obeyed until there is an order to the contrary.  It follows that the trial judge in the present case retained jurisdiction after the telephone call alleged to give rise to an apprehension of bias against the Crown.  This jurisdiction continued through the recusal motion and after its dismissal.  The subsequent decisions of the judge were voidable, not void.  Moreover, even if the trial judge lost jurisdiction by not recusing himself from the trial, it is open to this Court, in the interest of justice, to examine the circumstances of the proceedings and to enter a stay if that is the result required.

 

What occurred in this case was an abuse of process.  While the trial judge believed that the non‑disclosed evidence was material to the ability of the accused to make full answer and defence, the entire conduct of the trial has brought the administration of justice into disrepute and in the process violated s. 7  of the Canadian Charter of Rights and Freedoms .  Throughout the proceedings the Crown bent and broke rules, and attempted to cover up when it was caught.  The Crown actively misled the court on a number of occasions, and ignored or failed to obey court orders.  The conduct of Crown counsel at the trial violates the fundamental principles that underlie the community’s sense of fair play and decency and constitutes an abuse of the court’s process.

 

The trial judge was correct in determining that the only remedy for the conduct of the Crown in this case was a stay of proceedings.  While a stay of proceedings is a last resort, only to be entered in the clearest of cases, the trial judge directed himself to consider other remedies, including the exclusion of evidence, an adjournment, or a mistrial.  Throughout the pre‑trial process and the trial itself, the trial judge utilized numerous remedies to ensure that the Crown was complying with its obligations, but none was effective.  The trial judge granted a stay as a remedy for the prejudicial effect of the Crown’s non‑disclosures on the right of the accused to make full answer and defence.  A stay should also be granted as a remedy for Crown conduct that was an abuse of process bringing the administration of justice into disrepute.

 


Cases Cited

 

By La Forest and Cory JJ.

 

Referred to:  Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623.

 

By McLachlin and Major JJ. (dissenting)

 

R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Livingstone (1990), 57 C.C.C. (3d) 449; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Egger, [1993] 2 S.C.R. 451; R. v. Chaplin, [1995] 1 S.C.R. 727; Canada (Canadian Human Rights Commission) v. Taylor, [1987] 3 F.C. 593, aff’d [1990] 3 S.C.R. 892; Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585; Cloutier v. The Queen, [1979] 2 S.C.R. 709; R. v. Pastro (1988), 66 Sask. R. 241; R. v. Smith (1995), 31 Alta. L.R. (3d) 227; United States v. Daley, 564 F.2d 645 (1977), certiorari denied 435 U.S. 933 (1979); Smith v. Danyo, 441 F.Supp. 171 (1977), aff’d 585 F.2d 83 (1978); In re Martin‑Trigona, 573 F.Supp. 1237 (1983), aff’d 770 F.2d 157 (1985); R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Young (1984), 46 O.R. (2d) 520.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 7 , 11 (b), (d), 24(1) .

 

Coal Mines Regulation Act, R.S.N.S. 1989, c. 73.

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 220 , 236 , 587(1) (f), (g).

 

Occupational Health and Safety Act, R.S.N.S. 1989, c. 320.

 

Public Inquiries Act, R.S.N.S. 1989, c. 372.


Authors Cited

 

McWilliams, Peter K.  Canadian Criminal Evidence, 3rd ed. Aurora, Ont.:  Canada Law Book, 1988 (loose‑leaf updated October 1996, release 17).

 

Stuesser, Lee.  “Abuse of Process:  The Need to Reconsider” (1994), 29 C.R. (4th) 92.

 

APPEAL from a judgment of the Nova Scotia Court of Appeal (1995), 146 N.S.R. (2d) 161, 422 A.P.R. 161, 44 C.R. (4th) 274, allowing the Crown’s appeal from an order of Anderson J. (1995), 146 N.S.R. (2d) 163, 422 A.P.R. 163, granting a stay of proceedings, and ordering a new trial.  Appeal dismissed, McLachlin and Major JJ. dissenting.

 

Gordon R. Kelly and N. Kent Clarke, for the appellant Phillips.

 

Frank E. DeMont and John A. McKinlay, for the appellant Parry.

 

Craig M. Garson, G. Arthur Theuerkauf and Andrew S. Macdonald, for the respondent.

 

//La Forest and Cory JJ.//

 

The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was delivered by

 


1                                   La Forest and Cory JJ. -- On June 9, 1995, the trial judge ordered that the manslaughter charges brought against the appellants be stayed.  He based his decision upon the failure of the Crown in some instances to disclose relevant material and in others its tardiness in disclosing material:  (1995), 146 N.S.R. (2d) 163, 422 A.P.R. 163.  The Court of Appeal for Nova Scotia set aside the stay and directed a new trial:  (1995), 146 N.S.R. (2d) 161, 422 A.P.R. 161, 44 C.R. (4th) 274.  The appellants have appealed that decision.

 

2                                   The respondent Crown alleges that prior to making the order staying the proceedings, the actions and words of the trial judge revealed actual bias.  Although that may be correct, it is not necessary to consider the issue since it is clear that they certainly created a reasonable apprehension of bias.

 

3                                   In July 1994, before the trial commenced, the trial judge made a phone call to a senior member of the staff of the Attorney General.  Disturbing as it was the call in itself did not create an apprehension of bias.  However, on March 2, 1995, when the trial was well under way, the judge again called the senior member of staff.  To make such a call during the trial was, to say the least, unfortunate if not ill advised.  It was sufficient in itself to raise the issue of apprehension of bias.  Further, the words of the trial judge during this conversation confirmed that there was a reasonable apprehension of bias.  He expressed his displeasure with the manner in which the Crown attorney was conducting the case.  The trial judge recommended that he be removed from the case and if he were not he would take steps “to secure that end”.  He thereby interfered with the Crown’s conduct of its case, and so became inappropriately involved in the fray.

 


4                                   The Crown, supported by one of the appellants, brought a motion for recusal.  The trial judge should have recused himself, but he denied the motion.  It is sufficient to observe that the Crown sought unsuccessfully to appeal this interlocutory decision.  The Crown did not waive its rights to raise the issue later and quite properly did so in its appeal of the order of the trial judge staying the action.  The Court of Appeal unanimously found that there was a reasonable apprehension of bias and ordered a new trial.  We agree with this conclusion.

 

5                                   The properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead inexorably to the decision that a new trial must be held.  In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction in the proceedings and there is no alternative to a new trial.

 

6                                   The significance of a reasonable apprehension of bias was considered by this Court in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at p. 645:

 

As I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established.  If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal’s subsequent decision.  A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal.  Procedural fairness is an essential aspect of any hearing before a tribunal.  The damage created by apprehension of bias cannot be remedied.  The hearing, and any subsequent order resulting from it, is void.  [Emphasis added.]

 

If that be true of a proceeding before an administrative tribunal it must apply with even greater force to a criminal trial.

 

7                                   The right to a trial before an impartial judge is of fundamental importance to our system of justice.  Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias then a basic right has been breached and the exhibited bias renders the trial unfair.  Generally the decision reached and the orders made in the course of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable.


 

8                                   Certainly, every order of a trial court is enforceable and must be obeyed until it is declared void by an appellate court. In this sense the order may be viewed as voidable.  However, when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding retroactively renders all the decisions and orders made during the trial void and without effect.

 

9                                   In the case at bar,  the court of appeal correctly found the trial to be unfair as a result of the demonstrated apprehension of bias.  The order of the trial judge staying the charges was void.  It was made in the course of the trial after the impugned telephone call which clearly rendered the trial unfair.  The order of the trial judge was enforceable until the court of appeal dealt with it.  However there can be no doubt that once the court of appeal ruled that the trial judge had demonstrated a reasonable apprehension of bias it retroactively rendered void and without effect the order staying the charges.

 

10                               The Court of Appeal properly found that the trial judge ought to have recused himself when the motion was brought before him.  Whether he might have had authority to grant a stay after the unfortunate phone call was made is not in issue.  Whatever authority he may have had was retroactively removed by the finding that he had exhibited a reasonable apprehension of bias.  The only appropriate remedy in this case is to order a new trial.

 


11                               Our colleagues contend that allegations of bias should be made in a timely fashion and cite American cases for this proposition.  We accept that in order to maintain the integrity of the court’s authority such allegations must, as a general rule, be brought forward as soon as it is reasonably possible to do so.  However, in this case, the Crown took the courageous position of moving to have the trial judge recuse himself within five days of his demonstration of bias or at least the reasonable apprehension of bias.  Thus it moved in a timely, appropriate and reasonable manner.  The Crown certainly cannot be faulted on that score.

 

12                               It is important that a new trial be held, and as a result as little as possible should be said regarding the issues that may arise or the evidence.  Like our colleagues Justices McLachlin and Major, we have carefully considered the facts.  We refrain from commenting upon them.  We do this so that the judge presiding at the new trial is not inhibited in any way in dealing with any of the issues that may arise.  Particularly the trial judge should not be inhibited either by our colleagues’ views of the evidence and issues or by ours, which could well be different.  At the new trial, both the Crown and the defence can take whatever steps and raise whatever issues they consider appropriate.  The trial of these accused like all who face criminal charges should be fair and be perceived to be fair.  To achieve this goal the issues raised at the new trial and the facts upon which they rest must be determined by a judge who is not only impartial but is seen by all to be impartial.  This is clearly in the best interests of the accused and the community.

 


13                               It only remains to resolve the issue as to costs.  The proceedings in the first trial were complex and lengthy.  The new trial will be equally difficult.  The appellants have suffered and will continue to suffer from the grievous financial burden of legal costs.  Ordinarily this is something which must be accepted by those charged with criminal offences.  Yet, in this case the delays and much of the legal costs incurred arise from systemic problems that were beyond the control of the appellants.  They were to a large extent occasioned by the words and actions of the trial judge which gave rise to an apprehension of bias.  This was followed by his refusal to grant the motion for recusal.  In these unique circumstances the appellants should recover their reasonable legal costs of the proceedings to date.  As well they should be paid the reasonable legal costs incurred in the new trial for which they cannot in any way be held responsible.

 

 

14                               In the result, subject to the direction regarding costs, the appeal is dismissed and the order directing the new trial is confirmed.

 

//Sopinka J.//

 

The following are the reasons delivered by

 

15                               Sopinka J. -- I have read the reasons of La Forest and Cory JJ. and of McLachlin and Major JJ. and agree with the disposition of this appeal proposed by La Forest and Cory JJ.  Although I agree with McLachlin and Major JJ. that the breach of the crown’s obligation to disclose was egregious, I cannot say that in the circumstances a stay is the only appropriate remedy. 

 


16                               Assuming that McLachlin and Major JJ. are right that the trial judge was not functus, one of the circumstances that the trial judge did not take into account that must be considered is the fact that, independently of the issue of a stay for non-disclosure, there must be a new trial by reason of the apprehension of bias occasioned by the conduct of the trial judge.  In view of this fact, I cannot say what prejudice has been caused by the non-disclosure.  Certainly, the situation would be different if the original trial were to proceed.  Witnesses would have been called and cross-examined by the appellants without the benefit of full disclosure.  If these witnesses are called at the new trial, the appellants will have the benefit of not only the matters disclosed to date but any additional material that may be disclosed prior to the commencement of the new trial.  Indeed, it may transpire that before that time, the trial judge will be satisfied that full disclosure has been made.

 

17                               Quite apart from whether the trial judge was functus, I do not see how we can uphold the decision of the trial judge who granted the stay, given the fact that in considering the crucial issue of whether a stay was the only remedy, he proceeded on the basis that, absent a stay, the trial would continue.  We cannot do so.  We must decide whether a stay is the only appropriate remedy having regard for the fact that a new trial will otherwise be held.  While this Court has the jurisdiction to make the order  that was appropriate and we could impose a stay, by reason of the circumstances referred to above we are not in a position to say what, if any, prejudice has been caused nor whether full disclosure will have been made prior to the commencement of the new trial.

 

18                               I would dispose of the appeal as proposed by La Forest and Cory JJ.

 

//McLachlin and Major JJ.//

 

The following are the reasons delivered by

 

19                               McLachlin and Major JJ. (dissenting) -- On May 9, 1992 an explosion at the Westray Coal Mine in Plymouth, Nova Scotia caused the deaths of 26 miners.  Immediately, a search began for the cause of this tragedy.

 


20                               Charges were brought in the present case against Messrs. Phillips and Parry, two of the mine’s managerial staff, in an attempt to affix blame on them for the explosion and deaths.  The trial, however, was halted in mid‑course by a decision of the trial judge to stay the proceedings.  This decision flowed from his finding that the prosecution had conducted the proceedings in such a way as to deny the accused their right to a fair trial.

 

21                               While society demands to know the cause of the events at Westray, it does not demand the sacrifice of the standard of fairness our society accords to a person accused of committing a crime.  The history of the proceedings against Roger James Parry and Gerald James Phillips creates the impression of a prosecution seemingly prepared to obtain a conviction at all costs.  A detailed examination of the facts is necessary to ensure this impression is supported by evidence.

 

Factual and Procedural Background

 

22                               To appreciate the complicated background and procedural activity that occurred throughout the course of this case it is helpful to follow a time line.  Everything in the sequence has relevance to the trial judge’s final decision to enter a stay of proceedings.

 

23                               May 9, 1992 -‑ the fatal explosion at the Westray Coal Mine occurred.

 

24                               May 11, 1992 -‑ the Department of Labour of Nova Scotia took control of the mine and initiated the first of three separate governmental investigations.  Harry Murphy, an ex‑RCMP officer, led the investigation for the Department of Labour.

 

25                               May 15, 1992 -‑ the Westray Mine Public Inquiry was initiated.  Justice K. Peter Richard was appointed Commissioner under the Public Inquiries Act, R.S.N.S. 1989, c. 372, and Special Examiner under the Coal Mines Regulation Act, R.S.N.S. 1989, c. 73.


 

26                               May 21, 1992 -‑ the Royal Canadian Mounted Police (the “RCMP”) began their investigation.  In the course of the investigation, the RCMP made application for, and obtained, 18 search warrants, including warrants for the offices of Westray Coal at the mine site, the underground mine site, the offices of the Westray Mine Public Inquiry, and the offices of Curragh Inc. in Toronto.  Staff Sergeant Ches MacDonald was named officer in charge of the RCMP investigation.

 

27                               The existence of three separate inquiries initiated into this matter was a cause, but not the only cause, of the problems which took place in the criminal trial.  It was difficult enough that the case ultimately required the introduction into evidence of an estimated half million pages of documents.  Added to the bulk of the documents was the movement of them between multiple places and the numerous reproductions this entailed.

 

28                               May 25, 1992 -‑ the Commissioner of the Public Inquiry issued an order requiring Curragh Resources Inc., the Government of Nova Scotia and the Government of Canada to deliver to the Commission of Inquiry all documents, records and files that might have relevance.

 

29                               Almost a year later, on April 2, 1993, the Commissioner ordered that all documents, records, files, statements, and other information or evidence obtained by the Commission was to be held in confidence by the Commission staff and that such evidence could not be released or made available to any person other than Commission staff, except upon a further order of the Commissioner.  This may have been helpful for the Commission’s purposes, but it hampered the document management in the criminal prosecutions.


 

30                               October 5, 1992 -‑ the appellants and others were charged with 52 offences under the Occupational Health and Safety Act, R.S.N.S. 1989, c. 320 (the “OHSA”), a provincial statute.  These charges arose out of the Department of Labour investigation and were laid by the Attorney General and prosecuted by the Public Prosecution Service.

 

31                               October 21, 1992 -‑ defence counsel for Mr. Phillips made his first request for full and complete disclosure.  A letter was sent to John Pearson, Director of Public Prosecutions, the lead prosecutor for the offences under the OHSA, extensively detailing all the types of disclosure required.  This was the first in a series of requests for full disclosure made by defence counsel.  These requests continued throughout the course of this case and were never fully complied with.

 

32                               November 23, 1992 -‑ counsel for Mr. Phillips objected to the limited form of disclosure provided in response to the first request and sent another letter reiterating the request for full and complete disclosure.

 

33                               November 30, 1992 ‑- Mr. Pearson made an application for an  adjournment of the arraignment of the appellants on the charges under the OHSA and the taking of a plea which had been set for December 10, 1992.  In his application, he indicated that both the Department of Labour and the RCMP were conducting investigations, the RCMP investigation being of offences under the Criminal Code .  Pearson indicated that the investigation by the RCMP and the basis for the charges under the OHSA were basically the same.  He stated, in written material filed supporting his application, that:

 


. . . the defendants are entitled to disclosure prior to plea.  The defendants have requested disclosure of all information gathered by the R.C.M.P. during the criminal investigation.  Adjourning the taking of a plea until after the criminal investigation is complete will avoid the possibility that disclosure at this time might prejudice the police investigation and will ensure that the defendants receive full disclosure prior to entering their plea.

 

What we take from Mr. Pearson’s submission is that since the appellants were entitled to full disclosure before making a plea in response to the charges under the OHSA, he wanted to delay the taking of that plea until all of the evidence had been gathered with respect to the criminal investigation.  We fail to understand Mr. Pearson’s concern.  The police were investigating the same events that formed the basis of the charges under the OHSA.  How could disclosure of information they gathered possibly “prejudice” that police investigation?  If Mr. Pearson was concerned that not all of the information had been gathered in relation to the charges, it raises the question of why the charges were laid at the time.

 

34                               On the same day in November of 1992, the appellants and their co‑accused requested disclosure of all information gathered by the RCMP during their criminal investigation.  As well, they requested disclosure of all documents pertaining to the Westray Coal Mine, and files of the provincial Department of Labour, Natural Resources and Economic Development.  Mr. Pearson replied to them by letter on November 30, 1992, stating  that all documents from all provincial departments were now in the hands of the Westray Public Inquiry.  Counsel for Mr. Phillips continued in his attempt to obtain disclosure, writing again on December 10, 1992 and January 21, 1993.

 


35                               February 11, 1993 ‑- the application by the Crown to adjourn the arraignment and take a plea for the charges under the OHSA was denied, and 34 of the 52 charges were stayed by order of Judge Clyde F. MacDonald of the Provincial Court.  The Crown was ordered to provide particulars of  how the offences were alleged to have been committed in relation to several of the remaining charges to which not guilty pleas had been entered.  With respect to disclosure, Judge MacDonald stated:

 

Failure by the Crown to comply with full disclosure (where lack of proper disclosure denies the accused of [sic] the ability to have a fair trial) may lead to the trial judge entering a stay of proceedings of the charge, which is tantamount to an acquittal.

 

36                               March 3, 1993 ‑- Mr. Pearson advised Judge MacDonald that the Crown was staying the remaining charges under the OHSA, this being some 10 months after the explosion.  He expressed concern that proceeding with the provincial charges might jeopardize the Crown’s ability to bring charges under the Criminal Code .

 

37                               April 20, 1993 -‑ eleven and a half months after the fatal explosion, the appellants were charged with the offence of manslaughter contrary to s. 236  of the Criminal Code, R.S.C., 1985, c. C‑46 , and of criminal negligence causing death, contrary to s. 220  of the Criminal Code .  Senior Crown Attorney Herman C. Felderhof was the lead prosecutor for these charges.

 

38                               Counsel for Mr. Phillips made an application to quash the charges on the ground of insufficient particulars on the same day.

 

39                               July 20, 1993 ‑- the appellant Phillips’ application was granted by the Honourable Judge Patrick H. Curran of the Provincial Court and both charges were quashed.  The judge held:

 

The information, and for that matter the crown’s brief, implies that various things happened (or didn’t happen) over an eight month period which, taken together, constituted the offence.  The information altogether fails to give any indication what any of those things might be.


 

 

The crown’s brief implies that the prosecution already knows the bases on which the counts allegedly rest.  One would hope that  would be the case.  The brief goes on to imply that the accused and the court will come to know those bases all in good time, whether as a result of disclosure, particulars or evidence on a preliminary inquiry or trial.  That is simply not good enough.  The accused are entitled to know those bases before being put to their election.

 

40                               July 23, 1993 ‑- fourteen and a half months after the fatal explosion, new charges were laid against the appellants, charging violations of the same sections of the Criminal Code .  The appellants made an application to Judge Curran to quash the new charges and his decision was reserved.

 

41                               October 26, 1993 -‑ Judge Curran dismissed the application to quash.   The appellants pled not guilty to the charges and a preliminary inquiry was set for March 1994.

 

42                               November 12, 1993 -‑ counsel for Mr. Phillips wrote to the Senior Crown Attorney, Mr. Felderhof, requesting full and complete disclosure with respect to these newest charges against the appellant.  The letter contained the following paragraph:

 

We hereby request on behalf of Mr. Phillips full and complete disclosure by the Crown in accordance with the principles laid down by the Supreme Court of Canada in Stinchcombe v. The Queen and the Policy Directive on Disclosure issued by the Attorney General of the Province of Nova Scotia.

 

43                               December 10, 1993 ‑- the response to the November 12 letter did not satisfy the defence and counsel for Mr. Phillips wrote to Mr. Felderhof again requesting full disclosure.  The letter contained the following paragraph:

 


As it appears the Crown’s position is that the Preliminary Inquiry should proceed as scheduled we must insist on behalf of Mr. Phillips that we now have full and complete disclosure by the Crown in accordance with the principals [sic] laid down by the Supreme Court of Canada in the Stinchcombe v. The Queen and the Policy Directive on Disclosure issued by the Attorney General of the Province of Nova Scotia.  We have approximately three (3) months to prepare for the Preliminary Inquiry which the Crown estimates will take three to four (3‑4) months.  Anything less than full disclosure at this time will prejudice Mr. Phillips’ defence.

 

44                               May 18, 1994 ‑- the Crown, two years after the explosion, made the important decision to proceed by preferred indictment, thereby avoiding a preliminary inquiry.  It is apparent that proceeding by preferred indictment and denying the accused the benefit of a preliminary inquiry increases the need for disclosure.  This increased need for disclosure appeared to have little effect on the Crown.

 

45                               June 16, 1994 ‑- the appellants in response to the direct indictment entered a plea of not guilty to all charges, and elected to proceed to trial before a judge alone.  At the election appearance, counsel for Mr. Phillips again raised the issue of disclosure with Senior Crown Counsel Mr. Felderhof.

 

46                               July 5, 1994 ‑- a pre‑trial conference was held by the Honourable Justice A. David MacAdam (not the trial judge) in the presence of counsel for each party.  The use of case management techniques for the conduct of the trial was discussed.  Justice MacAdam recommended that, separate from the actual trial, there be conducted “a series of case management type meetings for the purpose of dealing with the volumes of potential documentary evidence, including proof of authenticity, and with the number of possible expert witnesses”.  These meetings would have been held by a judge other than the trial judge, in order to facilitate the production of evidence and hopefully prevent the actual trial from becoming bogged down with disputes over evidence.

 


47                               July 6, 1994 ‑- Mr. Felderhof rejected case management and wrote to Justice MacAdam:

 

Upon considerable reflection, it is my opinion, with the greatest respect, that this approach could impinge on prosecutorial discretion as to the mode of presenting its case.

 

                                                                   . . .

 

There is a great deal of public interest in this proceeding; in particular by the Westray Family Group.  Given this situation, it is the Crown’s preference that all conferences be recorded.  Public perception is of major concern to the Crown.

 

48                               July 8, 1994 -‑ Justice MacAdam replied to Mr. Felderhof and copied the letter to counsel for the defence.  He explained that, given the Crown’s position, he had recommended to Chief Justice Glube that the use of case management techniques would not be practical.

 

49                               July 13, 1994 -‑ Chief Justice Glube wrote to Mr. Felderhof’s superior, Mr. Martin E. Hersc [traduction horn, Q.C., Deputy Director of Public Prosecutions.  This letter was disclosed at trial but had not been copied to the defence at the time of its writing.  The letter stated, in part:

 

It is most unfortunate that Mr. Felderhof feels that case management in a six month trial with a judge other than a trial judge is not appropriate.  The Court is not looking to try to resolve this matter, but they are trying to make sure that the case proceeds in an orderly fashion.  I really have difficulty with Mr. Felderhof’s position on this, since what was being attempted was to ensure that the case proceeds with all due dispatch.  I do not know about the prosecution and the defence, but certainly from the administration of justice and the efficient use of judges’ time, it is important that trials progress in an orderly fashion as quickly as possible.

 

                                                                   . . .

 


I doubt that we will see any reversal of Mr. Felderhof’s position considering his letter of July 6th, but I did feel it important to let you know that we are certainly very disappointed in the outcome.

 

50                               Chief Justice Glube’s disappointment with the prosecution’s position was prophetic.  The trial became an endless dispute over the Crown’s obligation to disclose.  The prosecution, always reluctant, seemed to be trying to disclose as little as possible to the defence.

 

51                               September 6, 1994 -‑ as the Crown had rejected case management, the first of a series of pre‑trial conferences with the trial judge Mr. Justice Anderson began.  There were eight conferences, during which the Crown refused written defence requests for certain disclosures on the basis that they would “fetter Crown discretion”.  Crown Prosecutor Felderhof took the position in a brief that “[i]t is the Crown position that it has provided all disclosure it is legally obligated to provide”.  This was a position the Crown would return to frequently.

 

52                               As a result of the Crown’s reluctance to disclose, it was necessary for the trial judge to specifically order disclosure of:

 

(1)               the Crown’s intended witnesses (ordered September 2, 1994),

 

(2)               the order in which these witnesses (exceeding 200 in number) would be called (ordered December 2, 1994),

 

(3)               a list of all the exhibits to be tendered by the Crown (ordered September 27, 1994), and

 


(4)               all Crown expert reports by November 15, 1994 (ordered October 18, 1994).

 

53                               January 18, 1995 ‑- counsel for  Mr. Phillips wrote to G. Arthur Theuerkauf, Assistant Crown Prosecutor and a member of the prosecution team, with respect to Crown disclosure.  The letter stated:

 

As you know throughout the pre‑trial period of this case, we, on behalf of Mr. Phillips, have on numerous occasions asked for full disclosure of all relevant material in the possession of the Crown.  You have on file previous requests in writing from us asking for same.  This is consistent, as well, with the position that we have taken in pre‑trial conferences.

 

We are greatly concerned that there is still a large volume of relevant material in the Crown’s possession which has still not been disclosed to the defence.  As you know, tomorrow we intend to meet with Sgt. MacDonald in Truro to review the material being stored at the Truro Detachment in an attempt to discover if such material has been deposited there.

 

Particularly, we are concerned that the Crown has still not disclosed material compiled by the Department of Labour concerning the mine and the May 9th explosion.  We take the position that the Crown is singular and as part of the Crown’s obligation to disclose, any information in the Department’s possession must also be disclosed.

 

54                               January 30, 1995 ‑- for the first time, defence counsel received notice from the team of Crown Attorneys that they did not agree “that the Crown is singular” and accordingly that the files of the Department of Labour were not, for the purposes of disclosure, in the possession of the Public Prosecution Service.

 

55                               February 1, 1995 ‑- the Crown disclosed 17 new files of documents which they represented had been in their possession for at least two years and about which they had unilaterally made a decision that there would be no disclosure.  These files were later subject to an order by the trial judge on February 27, 1995.

 

56                               February 6, 1995 ‑- the trial commenced before Anderson J.


 

57                               February 13, 1995 -‑ the trial judge ordered the Crown to disclose police officers’ notes that had been in the possession of investigating officers and not previously disclosed.  A banker’s box of files was delivered to defence counsel shortly thereafter.

 

58                               February 27, 1995 ‑- the trial judge directed the Crown to give five days’ notice of the specific exhibits to be referred to each witness, excluding some obvious physical exhibits, photographs and diagrams.  Counsel for the appellants had been seeking this disclosure for six months, having written for it on July 26, 1994.  Despite the Court’s order, the prosecution was slow in giving notice and this behaviour continued until the day the trial was halted.

 

59                               Also on February 27, 1995, the trial judge ordered that the 17 files disclosed to the defence on February 1, 1995, which contained material deliberately withheld by the Crown for two years, be excluded from use by the Crown.  He further ordered that any other material not disclosed by February 10, 1995 was excluded for use by the Crown without leave.  The trial judge’s order contained the following:

 

IT IS ORDERED that pursuant to Section 24(1)  of the Charter of Rights  and Freedoms all material disclosed by the Crown to counsel for the Defendants on February 1, 1995, being, Q&A [document index] files 13‑042 to and including 13‑057, shall be and are hereby excluded from use by the Crown in this proceeding.

 

IT IS FURTHER ORDERED that any information, materials or documents not disclosed to the Defendants as of February 10, 1995, shall be and is hereby excluded from use by the Crown in this proceeding, unless otherwise ordered by the Court.

 

IT IS FURTHER ORDERED that the Defendant, Gerald J. Phillips shall be and is hereby awarded costs in the amount of Five Hundred Dollars ($500.00) against Her Majesty the Queen which costs shall be paid forthwith by Her Majesty the Queen to Gerald J. Phillips.


60                               March 9, 1995 ‑- the trial was interrupted for a period of several weeks as a result of a motion made by the prosecution requesting recusal of the trial judge.  We conclude later in these reasons that a wrong decision on recusal does not necessarily go to jurisdiction and that any subsequent decisions of the trial judge are voidable, but not void.  If the trial judge retained jurisdiction, then it is necessary to consider whether the stay of proceedings subsequently ordered by him was a proper exercise of his discretion.  The exhibition of a reasonable apprehension of bias by a trial judge does not, in and of itself, bar appellate review of his subsequent decision.

 

61                               The facts surrounding the recusal motion also have relevance to the stay proceeding in that they provide another example of unusual conduct on the part of the Crown.  On March 2, 1995 the trial judge called Mr. Martin Herschorn, Q.C., then Acting Director of the Public Prosecution Service, and complained about the manner in which the lead Crown prosecutor, Mr. Felderhof, was conducting the trial.  The trial judge advised Herschorn that if he did not remove Felderhof from the case, the trial judge would take steps to attain that end.  Herschorn recorded the details of the conversation in a memo‑to‑file and advised Felderhof of the conversation as soon as he could reach him that day.

 

62                               Five days later, on March 7, 1995, the Crown disclosed the phone call to the defence.  During those five days completion of cross‑examination of one Crown witness and the direct and cross‑examination of another Crown witness took place.  It was not until March 9, 1995 that Mr. Marc Chisholm, Chief Crown Attorney, appeared in court and made an application requesting the disqualification of the trial judge, the declaration of a mistrial, and ultimately the setting of a new trial date.

 


63                               The application was denied by Anderson J.  It is significant, with respect to the Crown’s delay in bringing its application, that during the elapse of the five days, the Attorney General and the police witnesses were told about the phone call. Only the defence team were left in the dark.

 

64                               The appellants have submitted that the testimony heard by the trial judge in those two days was critical to the Crown’s case.  They further submit that the recusal motion was, in fact, a tactical ploy on the part of the Crown, as the Crown witnesses giving the critical evidence performed poorly and weakened the Crown’s case.  The appellant’s position is that the recusal motion was not motivated by the Crown’s belief that the trial judge was biased as much as simple trial tactics.  If the trial judge was disqualified the Crown would have a fresh start on that portion of the trial.  The Crown made no submission in rebuttal on these points.

 

65                               April 18, 1995 -‑ the trial,  now almost three years after the explosion,  had resumed when counsel for the appellants were provided with a copy of a letter of that date from Mr. Claude White, of the Department of Labour, to Staff Sergeant Ches MacDonald of the RCMP with respect to Department of Labour documentation relating to the Westray Mine.  In the letter Mr. White stated:

 

As far as can be determined, all Department of Labour original documents relating to the Westray Mine, including all inspection reports and orders, in existence prior to the May 9, 1992 explosion, were sent to the Commission of Inquiry.

 


66                               April 20, 1995 ‑- the trial judge granted an adjournment and made an order to allow  counsel for the appellants to examine the files of the Nova Scotia Department of Labour.  The defence discovered files in the possession of the Department of Labour which had not been disclosed by the Crown or anyone else to the accused.

 

67                               April 24, 1995 ‑- the trial judge made a number of orders with respect to duplicated documents.  The judge directed the Crown to identify original and duplicate documents listed in three separate exhibit indices maintained by the Crown.  The trial judge further ordered the Crown not to introduce copies of documents for the truth of their contents.  This order stemmed from continuing problems in that regard, but particularly from the following incident.

 

68                               There was an issue at trial as to whether the operators of the mine had complied with the occupational health and safety legislation of the Province of Nova Scotia.  This legislation requires the creation of safety committees, a combination of union and management safety officers, that, from time to time, perform underground safety walks.  The purpose of these committees is to discover and document potentially unsafe practices and potentially hazardous areas.

 


69                               At trial, the Crown introduced into evidence a document which it offered as a safety walk report from the Westray Coal Mine.  The document contained only the name “Roger Parry, mine superintendent” as safety officer, prompting the trial judge to comment that “this is a committee of one”.  It eventually was discovered, from defence searches of the Crown files, that this document had been altered from the original.  The original document, in the possession of the Crown the entire time, also contained the names of the miner representative safety officers.  These names had been edited out of the document that the Crown had attempted to introduce both for the truth of its contents and to draw a negative inference against the accused.  In ordering the Crown from that point on to introduce only original documents, the trial judge emphasized that this was a matter of fundamental trial fairness.

 

70                               May 7, 1995 -‑ the Court raised the issue of a possible agreement between counsel relating to Department of Labour approvals for equipment.  It was unclear exactly what theories were being advanced by the Crown to prove criminal negligence in relation to the operation of the mining equipment.  The trial was adjourned and the matter was left for discussion among counsel.  However, the Crown would not advise the court or defence whether the issue of approvals for equipment did or did not form part of the allegations against the applicants.  Counsel for the appellants made an application for particulars pursuant to s. 587(1) (f) and (g) of the Criminal Code   and s. 7 , 11 (b), (d) and 24(1)  of the Canadian Charter of Rights and Freedoms .

 

71                               May 9, 1995 ‑- the trial judge granted the defence application for particulars, the order providing, inter alia:

 

IT IS ORDERED that the Crown shall forthwith furnish to Counsel for the Defendants full particulars of the equipment and materials alleged to have been used in an unsafe manner, as set out in the Indictment dated the 18th day of May, 1994.

 

72                               May 9, 1995 -‑ the Crown responded to the order for particulars by naming all possible equipment and materials.  The particulars provided by the Crown read, in their entirety, as follows:

 

PURSUANT to the Order of the Honourable Justice N.R. Anderson, dated the 9th day of May 1995, at Pictou, Nova Scotia, and further to paragraph (e) of the first count of the Bill of Indictment herein, a copy of which is attached hereto, the Crown provides the following particulars:

 

A. Equipment


1.    Bulldozers

 

2.    Tractors

 

3.    Boom Trucks

 

4.    Scoop Trams

 

5.    Continuous Miners

 

7.    Shuttle Cars

 

8.    Roof Bolters

 

9.    Conveyor Belt Drives

 

10.  Auxiliary Fans

 

11.  Generators

 

12.  Electric Arc Welders

 

13.  Acetylene Torches

 

14.  Gasoline Powered Water Pump

 

B. Materials

 

15.  Gasoline

 

16.  Diesel Fuel

 

It is obvious these particulars are a cynical response by the Crown and of no help in informing the accused how it was alleged that they were negligent in relation to the operation of the mining equipment.

 

73                               Counsel for the appellants brought a motion the next day, May 10, 1995, for a determination of the sufficiency of the particulars provided by the Crown.  The trial judge found that the particulars provided were insufficient, and ordered the Crown to specify the nature of the unsafe use for each piece of equipment or material.  To the date of this appeal the appellants state they have not received the particulars Anderson J. ordered.  However, this issue paled as other important disclosure matters arose.


 

74                               On May 10, 1995, the trial judge had also ordered the RCMP to go to the offices of the Department of Labour and the Westray Mine Public Inquiry and obtain original documents.  This order resulted in the disclosure by Crown counsel of previously undisclosed Department of Labour Inspection and Assessment Reports relating to the Westray Mine, and original reports that differed from copies previously disclosed.  Counsel for the appellants then made an application to the trial judge for a stay of proceedings pursuant to a violation of their Charter  rights.  The trial judge requested briefs to be filed before May 18 for a hearing to commence on May 23.

 

75                               May 11, 1995 -‑ during the noon hour, Crown and defence counsel spoke by teleconference with Marian Tyson, Q.C., a solicitor with the Nova Scotia Department of Justice.  In this call, Tyson admitted that more undisclosed documents had been found at the Department of Labour relating to the Westray Mine.

 

76                               That afternoon, another Department of Justice solicitor, William Lahey, appeared at the trial and made submissions respecting the Department of Labour materials discussed in the noon teleconference.  Original documents had been discovered by the Director of Mine Safety, Claude White, in his Department of Labour office desk.  Lahey emphasized that at that time, he could not assure the Court that further material would not be located.

 

77                               Between May 11 and the hearing of the stay application on May 23 many more documents not previously disclosed were made available to defence counsel.  The additional material included:

 


(1)               A box of documents that was in the Westray document room on April 21, 1995 and in which privilege was at that time claimed;

 

(2)               Five computer disks containing the Westray “backup” computer file;

 

(3)               Correspondence from Bruce McIntosh;

 

(4)               Files of the Minister pertaining to Westray, minus privileged documents;

 

(5)               Materials relating to various aspects of Westray, its aftermath, and to persons or events connected to Westray;

 

(6)               Police officer notes;

 

(7)               A statement from a police officer concerning the location of original documents;

 

(8)               A statement from a Department of Labour employee concerning the recent discovery of Department of Labour documentation not previously disclosed; and

 

(9)               Original Westray documentation found in a locked filing cabinet within the Department of Labour, Former Mine Rescue Centre, located at Stellarton, Nova Scotia.

 


78                               This “mountain” of disclosure was made after the trial judge had determined to hold a hearing on the defendants’ motion for a stay of proceedings.  The saga of the police officer’s notes is telling.  Defence counsel had, both before and after the commencement of trial, requested copies of the notes of all RCMP officers involved in the investigation.  On April 7, 1995, in a letter dealing with other disclosure matters, Assistant Crown Prosecutor Arthur Theuerkauf wrote to counsel for Mr. Phillips: “[f]urthermore,  you have been provided with a copy of police officers’ notes listed on the Appendix attached to this letter”.  The Appendix included the names Sgt. K. W. Baird, Cst. W. Conrad and Cst. K. Gotell.  Counsel for Mr. Phillips reviewed the files and found that copies of these officers’ notes had not been provided.

 

79                               Another letter was written to Mr. Theuerkauf requesting copies of these notes.  On May 4, 1995, Theuerkauf again responded that the prosecution had already provided these notes.  However, on May 18, a letter dated May 16 arrived at the offices of counsel for Phillips enclosing 235 pages of notes prepared by Cst. Kevin Gotell.  These notes had not been previously provided.  Theuerkauf’s letter did not explain why the Crown had not previously disclosed these notes in a timely manner, notwithstanding counsel’s constant and repetitive requests.

 

80                               May 23, 1995 -‑ the stay proceeding hearing commenced before Anderson J.

 

81                               Counsel for the appellant Phillips cited the 25 letters written to lawyers on the prosecution team between the start of the trial on February 6, 1995 and the commencement of the stay proceeding on May 23, 1995.  All of these letters sought more or improved disclosure from the Crown.  Sometimes pages were missing from documents that had been disclosed, in other cases entire files were absent.

 


82                               At the stay proceeding hearing Marian Tyson, Q.C., a solicitor with the Nova Scotia Department of Justice, testified that copious handwritten notes of former Department of Labour Mine Rescue Training Co‑ordinator Fred Doucette had been secured from a locked filing cabinet in Doucette’s office in Stellarton, Nova Scotia on May 16, 1995.  The file folder containing these notes read:  “Original Westray Documents -‑ Do Not Alter or Destroy”.  Fred Doucette had been a member of a three‑investigator team established by the Department of Labour to obtain the evidence on which charges against the appellant were initially brought, under the OHSA.

 

83                               Ms. Tyson also confirmed that the Department of Public Prosecutions had provided advice to the Department of Labour investigation.  She also testified to the fact that the government of the day (Cabinet) had instructed all government departments to cooperate with the RCMP investigation, and further that the Department of Labour complied with this instruction.

 

84                               The prosecution throughout these proceedings maintained that “[t]he Crown has not had and does not have access to the Department of Labour files concerning the Westray explosion matters”.  This cannot be correct in light of Ms. Tyson’s testimony at the stay proceeding:

 

Q. You would also agree with me that there was coordination and cooperation between the Department of Labour investigation and the RCMP investigation?

 

A.  I can say that there was cooperation from the Department of Justice and from the Department of Labour.  And I understand, from other government departments, with the RCMP and that was on instructions of the government of the day.  So I can say, yes, to the cooperation.

 

                                                                   . . .

 

Q.  Anything the RCMP asked for, they got as quickly as possible?

 

A.  Yes, in the same way that the Inquiry people were dealt with.

 

Q.  And ‑‑

 


A.  Full cooperation to the extent that it could be given.

 

                                                                   . . .

 

Q.  Open invitation, if you want more, come get it.  Correct?

 

A.  Yes.  As I said, if there was information that was available, could be provided.  If it was requested, it was provided

 

85                               In the course of his examination during the stay proceeding, Staff Sergeant MacDonald confirmed the close cooperation between himself and Harry Murphy, Chief Investigator for the Department of Labour, and the fact that the Department of Public Prosecutions was advising both the provincial and criminal investigations.  Staff Sergeant MacDonald was also presented with the statement of Stewart Sampson, an employee of the Department of Labour who was in charge of document collection and distribution:

 

Q.  And in his statement, Mr. Sampson says with respect to documents in this ‑‑ that “I believe that I provided a full set of copies to the RCMP.  That would have been four boxes.”  Now the date which is given is on/or about June 30th, 1992, when these boxes were prepared.

 

Now that, in fact, is correct, is it not, that Mr. Stewart Sampson provided you with approximately four boxes of material which were identical to the boxes which were provided to the Commission?

 

A. That is correct. . . .

 

Staff Sergeant MacDonald confirmed several times in his testimony that the RCMP did have access to the Department of Labour files.  These files never found their way onto the exhibit list or the Q&A index.  There was additional testimony from Ms. Tyson during the stay hearing that these files were relevant to the defence in this case.

 


86                               Staff Sergeant MacDonald’s evidence also revealed that he was one of the main decision‑makers of what was and was not to be disclosed.  His evidence confirmed that:

 

(1)               in screening materials for possible disclosure he considered the application of the hearsay rule;

 

(2)               his test for disclosure was “all relevant evidence” rather than “all relevant information”;

 

(3)               the Crown Attorneys relied on his assessment of the relevance of his 444 “administrative” files for the purposes of disclosure and made no independent assessment of these files;

 

(4)               some documents were not disclosed because they contained information that, solely in Staff Sergeant MacDonald’s opinion, was known to defence counsel by other means; and

 

(5)               his assessment of the Crown position on issue of disclosure was to downplay those issues because he believed the Crown was diligent in its disclosure.

 

87                               The Crown’s conduct with respect to the 444 “administrative” files is demonstrative of their behaviour throughout the course of this trial.  On February 21, 1995, the trial judge ordered the Crown to move the primary Westray files from Truro, where they had been kept during the course of the trial, to Pictou, where the trial was being held. The trial judge was growing impatient with the delays occasioned by prosecution witnesses needing something from the file.  The trial judge commented:


 

There should be somewhere where it’s accessible and get things coordinated here so that we’re not all the time xeroxing and waiting for things that counsel haven’t had and don’t know exist and things you don’t know exist.

 

Crown counsel Theuerkauf responded as follows:

 

. . . we’ve undertaken amongst ourselves to ask Staff Sergeant MacDonald to bring over the full RCMP file.  We still understand there’s some administrative things in there that we’ve deemed all along are not relevant . . .

 

This was the first time the existence of the so‑called “administrative” files was disclosed to counsel for the defence.  These files do not appear on the exhibit list or the Q&A index.

 

88                               Eventually, these “administrative” files were all disclosed to the defence.  The fact of their non‑disclosure demonstrates a serious failure to comply with the duty resting on the Crown.  However, the Crown’s attitude about and response to this obligation is disclosed in Mr. Felderhof’s memo of April 13, 1995 to Mr. Theuerkauf.  It states:

 

. . . I feel it is extremely important to downplay any possible significance of this disclosure.  I feel it should be made clear to them that the materials were initially deemed irrelevant by Staff Sgt. MacDonald and placed in his administrative files.  Further that the Crown deemed the administrative files not to be relevant and that we did not peruse same.  Subsequent to those files being made available, that Staff Sgt. MacDonald had an opportunity to review same and discovered these materials which he brought to our attention; we reviewed these and felt that they should be disclosed in accordance with the provisions of Stinchcombe, which calls for continuing disclosure. . . .

 


I feel it is extremely important that this issue be downplayed as much as possible and that it is nothing more than continuing disclosure, and that we do not in any way, shape or form acknowledge or admit any failure or error on the part of the RCMP or our office.

 

                                                                   . . .

 

This is very important, not only with respect to the presentation before the Judge, but also as it may appear to the media.  We must be seen as presenting something of little or no significance.  My contact with the media subsequent to that will confirm this position.  [Emphasis in original.]

 

This memorandum was written in contemplation of a motion for a stay of proceedings being made by the defence.  It should be read in light of Crown counsel’s submission in open court on February 21, 1995, that the prosecution had looked at these files and deemed them irrelevant.  No member of the prosecution team had ever looked at these files until after their existence was disclosed to the defence.  Only then did the Crown look at these 444 files and belatedly discover that they should have been disclosed pursuant to R. v. Stinchcombe, [1991] 3 S.C.R. 326.  This memorandum demonstrates an unusual attitude on behalf of Crown counsel that is not compatible with their responsibilities and critical role in our justice system.  This evidence eventually was before the trial judge in the stay proceeding.

 

89                               In summary, the Crown had access to the Department of Labour file, yet they maintained that they did not.  The Crown had in its possession relevant “administrative” files, yet it chose not to read them, deemed them irrelevant, and advised the court accordingly.  When they were found to be relevant,  Crown counsel attempted to downplay the significance of their non‑disclosure, and blame a subordinate for a poor evaluation of relevance.  This remarkable attitude permeated  the entire trial proceedings.

 

Decision of Anderson J. on the Stay (1995), 146 N.S.R. (2d) 163

 


90                               Anderson J. emphasized that the incidents he described, some of which we have alluded to above, were only examples of what he viewed as a pattern of Crown misconduct.  He commented (at para. 53) that:

 

These are but a few of the incidents leading up to this application and are more fully set forth in the materials tendered on this motion by the Crown and the applicants.  The trial was a daily stop and go situation, which tended to worsen with time.

 

He then turned to an application of the case law on abuse of process and the trial judge’s discretion to enter a stay of proceedings.

 

91                               Anderson J. cited Wong J. in R. v. Livingstone (1990), 57 C.C.C. (3d) 449 (B.C.S.C.), at p. 469:

 

The Law:

 

A trial judge has a discretion to stay proceedings as abuse of process.  The general test to be applied in determining whether or not to exercise that discretion is:

 

. . . there is a residual discretion in the trial judge to stay proceedings where compelling [the] accused to stand trial would violate those fundamental principles of justice which underlay the community sense of fair play and decency and to prevent the abuse of the court’s process through oppressive or vexatious proceedings.  It is power, however, of special application which can only be exercised in the clearest of cases. [Emphasis added by Wong J.]

 


Anderson J. considered the leading authorities on the subject of abuse of process and the possible remedies for it.  He recognized that the doctrine of common law abuse of process and jurisprudence under s. 7  of the Charter  were growing into a single theory.  In so doing, Anderson J. anticipated this Court’s decision in R. v. O’Connor, [1995] 4 S.C.R. 411.  He quoted  an article by Lee Stuesser titled “Abuse of Process:  The Need to Reconsider” found at (1994), 29 C.R. (4th) 92, in which the author, at p. 103, stated that “[i]n my view, there is a place for common law abuse of process and for Charter  relief to co‑exist resting upon the same concerns and principles”.  Anderson J. appeared to adopt this, at para. 71 of his reasons:

 

If one accepts the principled approach outlined in this article, the process for determining an abuse of process and providing a remedy will be the same under the common law or under the Charter .  Step one: under the Charter , the accused must prove a breach of the Charter  on a balance of probabilities; under the common law, the accused must prove the abuse on a balance of probabilities.  Step two: under the Charter , once a breach is shown, the court turns to a remedy that is “appropriate and just” in the circumstances; under the common law, once the abuse is shown, the court will look for appropriate remedies.  Under both the common law and under the Charter , a stay of proceedings will only be appropriate when no other remedy can properly cleanse the prejudice.  In other words, in both instances, a stay of proceedings is a last resort.

 

92                               Anderson J. correctly recognized that both the common law and the Charter  have as their goal the protection of two separate policies.  These are (1) to ensure that accused persons are given a fair trial, and (2) to preserve the reputation of the administration of justice.  A trial which violates either principle may be an abuse of process or violative of the Charter .

 

93                               The trial judge considered the leading authorities on the Crown’s obligation to disclose.  He quoted extensively from Stinchcombe, supra, R. v. Egger, [1993] 2 S.C.R. 451, and R. v. Chaplin, [1995] 1 S.C.R. 727.

 

94                               Having considered the authorities and the principles contained therein the trial judge arrived at the following conclusion with respect to the Crown disclosure in this case (at paras. 73‑78):

 


Having considered these authorities, the law seems clear.  I am at a loss to understand why the situation in this case has reached the stage it has; such a state of disarray.

 

The Crown does not seem to make a clear distinction between what is Crown discretion and what is disclosure.  Undoubtedly the Crown has discretion as to the conduct of their case.  But it seems that the very principles of fundamental justice would dictate that before charges are laid, the Crown is aware of the evidence it has in hand or has available to it to substantiate those charges.

 

When they come to trial, it seems logical that the Crown would have the evidence which it needs for the prosecution of the charges, marshalled and ready for presentation to the court, and thus, available to the defence.  The authorities not only speak of evidence, but any material.  Many times the court has heard about the multitude of documents, mountain of evidence, and the complexity of the evidence.  Now whether this has created a perception which has paralyzed the Crown in organizing the proper evidence for the court, I cannot say.

 

Another fundamental principle of our criminal justice system is that the defence does not have to do anything.  The obligation is on the Crown to prove beyond a reasonable doubt the allegations in the Indictment.  However, in this case, as none before in my experience, defence has gone to great length to seek out documents which they thought must exist in order to make a full answer and defence.  There is a particular attitude on behalf of the Crown evidenced by a letter filed by the Crown inadvertently in this application and marked Exhibit 1764.  Although part of it was not allowed to be used in cross‑examination of Staff Sergeant MacDonald, there is another part which states, as written by Mr. Felderhof to Mr. Theuerkauf:

 

“I feel it extremely important that this issue be downplayed as much as possible and that it is nothing more than continuing disclosure and that we do not in any way, shape, or form acknowledge or admit any failure or error on the part of the R.C.M.P. or our office. . . This is very important not only with respect to the presentation before the Judge, but as it may appear to the media.  We must be seen as presenting something of little or no significance.  My contact to the media subsequent to that will confirm this position.”

 

I have now grave concern that this trial as a criminal trial has been lost sight of.  The court has heard from a number of sources suggesting that this is the most important criminal trial in Nova Scotia, that it is a very high profile trial, however, it is not prosecuted as such.

 

The perceived importance of this trial over other trials in the criminal justice systems [sic] was such that even in the pretrial hearings, I was prompted to remind counsel that the Crown did not win or lose.  The reply was to the effect “well, that’s not what the public believes”.

 


95                               Anderson J. cited the general observations of Professor McWilliams in Canadian Criminal Evidence (3rd ed. 1988 (loose‑leaf)), at ch. 1:10100:

 

. . . it is especially where the end is righteous that the pursuit of truth alone can be purchased at too dear a price.  For that reason, the fundamental values of fairness and justice protected by due process are especially important.  In the current climate, there is a growing concern that these values are being sacrificed.

 

He then commented (at para. 81) that:

 

I quoted the above because I have grave concerns that in this case the fundamental values of fairness and justice protected by due process are being sacrificed on the altar of public and political pressure.

 

96                               Anderson J. noted six examples of documents which had not been previously disclosed by the Crown, documents clearly relevant to the proceedings.  He expressly referred throughout to these documents as merely “examples”, and found that the documents not disclosed “would have assisted the applicants and would have undoubtedly affected a full answer and defence” (at paras. 86-92):

 

Some examples that I find of nondisclosure or late amounting to nondisclosure was the Richmond Report, Exhibit 1728, an expert report.  It discloses a possible defence dealing with spontaneous combustion of coal dust, August the 10th, 1992.  Both the RCMP and the Crown knew of its existence.  This report specifically says that it may be a possible defence.

 

Exhibit 1729, a report of August 17, 1992, deals with the manner in which the RCMP should conduct their investigation of dust samples and particularly the disruption of dust layers so that you would not be able to determine the conditions after the explosion.  This report came to light by the efforts of the applicants.

 


There is General Monitor’s Report which deals with the methanometer on the continuous miner.  There is evidence that this monitor was adjusted by one of the miners with the knowledge of another and that the adjustment would alter the reading of the methane levels at the sensor head.  The methane levels could be at explosive range.  There is evidence of the continuous miner creating sparks.  The report of General Monitor indicates the effect of altering was not disclosed.  It may have represented a complete defence for the applicants and certainly goes to the right of the applicants to make full answer and defence.

 

The facsimile communication from Sergeant MacDonald to General Monitors, Exhibit 1759, of March 21, 1994, and also Exhibit 1740, a Department of Labour memorandum from Sampson to Staff Sergeant MacDonald dealing with pre‑explosion dust samples.  The result which indicate [sic] that there was an error in the method in the analysis and the result would understate the ash content.  This would give a reading suggesting higher combustibility than actual.

 

Staff Sergeant Bishop’s notes with respect to [the] conversation he had with Ms. Tyson of the Department of Labour, July the 7th, 1992, where she advised the RCMP that samples taken in June were useless.  This was not disclosed to the defence.

 

The above‑noted are examples not of late disclosure but of nondisclosure, matters which would have assisted the applicants and would have undoubtedly affected a full answer and defence.

 

On late disclosure documents, that of the Consent Agreement of the Receiver Peat Marwick, signed December 16, 1993, and disclosed December 13, 1994.  The principal subject matter of the agreement is the retention by the prosecution of certain samples of material obtained under a search warrant at the Westray Mine.

 

97                               After he described the events of the trial, analysed the authorities and enumerated the above examples of late and non‑disclosure, the trial judge concluded (at paras. 94‑97):

 

I find that the lack of disclosure or nondisclosure, the timing of disclosure and the nature of the disclosure amounts to an infringement of the s. 7  right to make full answer and defence and infringes on the right of a fair trial.  Such a breach demands a remedy under s. 24(1)  of the Charter .

 

As I indicated earlier, from the authorities, there are a number of options and remedies available to the court at this juncture.  There could be an exclusion of evidence, there could be a mistrial, adjournment, stay of judicial proceedings which the court sees as a last resort.

 

Having considered all the options and the ramifications of each as outlined by counsel, I am satisfied that the breach is of such a nature that the only remedy which can properly address the prejudice already suffered by the applicants and to preserve the integrity of the criminal justice system, is a stay of proceedings.


Although it appears that there was a common law abuse of process in this case, I did not take that option.

 

Court of Appeal (1995), 146 N.S.R. (2d) 161

 

98                               The Court of Appeal delivered its ruling orally, two hours after the close of argument.  The pertinent part of the ruling on the stay issue is as follows (at paras. 5‑8):

 

We are of the opinion the appeal should be allowed for the following reasons: . . . (ii) the learned trial judge failed to make an inquiry and a proper determination whether evidence that had not been disclosed or was disclosed late was material to the respondents’ ability to make full answer and defence as the trial judge was required to do.  (R. v. O’Connor (H.P.) (1994), 42 B.C.A.C. 105; 67 W.A.C. 105; 89 C.C.C. (3d) 109 (C.A.)). In fact, the learned trial judge outrightly refused to consider evidence the Crown wished to tender on this issue.  Without having decided if the evidence was material, the learned trial judge failed to exercise his power to grant a stay in a judicial manner;  (iii) stays of proceedings are only granted in the clearest of cases.  (R. v. Power (E.), [1994] 1 S.C.R. 601; . . . R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206 . . . This was not such a case.

 

There was substantial disclosure by the Crown; the instance of non or late disclosure related to evidence that was not shown by the respondents to be material to the respondents’ ability to make full answer and defence.  Rather than staying the proceedings, the learned trial judge ought to have either declared a mistrial or granted an adjournment of sufficient duration to allow the defence to peruse the newly discovered or previously undisclosed evidence, including the so‑called administrative files, the Claude White notebooks, the envelope found in Fred Doucette’s office at Stellarton and other relevant Department of Labour files and ought to have ordered that any witnesses who had already testified be recalled if defence counsel wished to further cross‑examine them on issues arising out of the perusal of the new evidence.

 

We are also of the opinion the Crown’s conduct of this case was not an abuse of the court’s process.

 

Accordingly, the appeal is allowed, the order of the trial judge staying the proceedings is set aside, including the order for costs.  There will be no costs on the appeal.  A new trial is ordered.

 


Review of the Court of Appeal’s Reasons

 

99                               The Court of Appeal within two hours of the close of argument held that the trial judge “failed to make an inquiry and a proper determination whether evidence that had not been disclosed or was disclosed late was material to the respondents’ ability to make full answer and defence” as he was required to do.  It is impossible to determine upon what basis the Court of Appeal reached that conclusion.  The trial judge’s reasons are detailed and clear.  He looked at several examples of late and non‑disclosure and found that they may have disclosed possible defences to the accused.  He obviously made both an inquiry and a proper determination.  We reiterate the findings made by the trial judge (at paras. 91 and 94):

 

The above‑noted are examples not of late disclosure but of nondisclosure, matters which would have assisted the applicants and would have undoubtedly affected a full answer and defence.

 

                                                                   . . .

 

I find that the lack of disclosure or nondisclosure, the timing of disclosure and the nature of the disclosure amounts to an infringement of the s. 7  right to make full answer and defence and infringes on the right of a fair trial.  Such a breach demands a remedy under s. 24(1)  of the Charter .

 

To the extent the Court of Appeal thought otherwise, we respectfully disagree.

 

100                           Within the brief period of its deliberation it is unlikely the Court of Appeal had time to assess the materiality of the mountain of evidence that was not disclosed.  The Court of Appeal assumed the trial judge had to have been mistaken.  In doing so, the Court of Appeal disregarded the principle of deference to the trial judge.  There was so much that was not disclosed or disclosed late that it defies credibility to think there was no material information involved.


 

101                           The facts of what occurred during the trial including what evidence was material or not go directly to the heart of the trial judge’s expertise.  In a case as complex as the one before us, it is difficult if not impossible for any appellate court to determine from the record whether what was not disclosed was material.  The only person who knew enough about the theories of the Crown and the possible defences available to the accused was the trial judge.  He made clear findings that the non‑disclosure was material.  That said, we prefer to treat the issues in this case as an abuse of process rather than a simple failure to disclose.

 

Analysis

 

Was the Trial Judge’s Order for a Stay of Proceedings a Nullity?

 

102                           La Forest and Cory JJ. hold that the trial judge’s telephone call to a senior officer in the Crown Attorney’s office establishes that the trial judge was biased and partial.  They go on to assert that any bias in the trial judge renders the proceedings void and automatically deprives the judge of jurisdiction.  Applying this proposition of law to the finding of bias, they conclude that the trial judge lost jurisdiction over the trial as of the date of the telephone call and that all the proceedings thereafter were a nullity.  Consequently, they do not find it necessary to consider whether the trial judge wrongly exercised his discretion in entering the stay of proceedings which is the subject of this appeal.   With respect, we disagree.

 


103                           The facts giving rise to the allegation of apprehension of bias have been discussed earlier.  Briefly, on March 2, 1995 the trial judge made a call to the superior of the lead counsel for the prosecution in which he complained about the way counsel, and, in particular, Mr. Felderhof,  were conducting the prosecution and suggested that Mr. Felderhof be removed from the case.  The call was disclosed to the defence on March 7, 1995.   Two days later, the Crown applied for an order that the judge be disqualified, a mistrial declared, and a new trial date set.  The appellant Parry supported the Crown in its application.  The order was refused and eventually, after an application for leave to appeal the recusal decision to this Court was quashed ([1995] 1 S.C.R. 900), the trial continued.  On May 23, 1995, the defence applied for a stay of proceedings on grounds that the continuing conduct of the prosecution, particularly delay and misrepresentation regarding disclosure to the defence of documents in the prosecution’s possession, amounted to abuse of process, justifying a stay.

 


104                           Before considering the specific circumstances surrounding the stay of proceedings, the first issue is whether the telephone call demonstrated that the trial judge was biased or alternatively raised a reasonable apprehension that he might be biased.   As a general rule, a judge should not discuss a case with one party outside the presence of the other party.   Much less should a judge suggest to one party in the absence of the other who counsel on the case should be.  However, a conclusion of bias does not flow automatically from breach of this rule.  The question is whether the content of the discussion in all the surrounding circumstances supports an inference that the trial judge favoured one party over the other.  In the case at bar, the trial judge had good reason to conclude that Mr. Felderhof’s conduct was prejudicing a fair trial and, indeed, might ultimately have caused the trial to be aborted.  While the trial judge should not have stipulated that Mr. Felderhof be removed, it is questionable whether his doing so indicated partiality to either the Crown or the defence.  One might argue that the comment indicated partiality for the defence, since the trial judge was critical of Crown counsel.  But one might equally argue that the trial judge was partial, if anything, to the Crown, since he seemed concerned that the Crown case be conducted effectively. Perhaps the most natural inference from the trial judge’s conduct is simply that he was concerned that the trial proceed fairly.

 

105                           However, even if the inference could be drawn that the trial judge was biased against the Crown, it does not follow that the trial judge automatically lost jurisdiction.  In our view, bias or apprehension of bias does not automatically deprive the judge of jurisdiction and render all proceedings thereafter void.  Rather, it renders the proceedings voidable.  The judge retains jurisdiction. An application may be made to the judge (or other appropriate judicial officer) for the judge’s removal or for such other remedy as may seem just on the basis of the bias or apprehension of bias. If an order is made for removal of the judge, then the judge loses jurisdiction.  But absent such an order, the judge continues to exercise jurisdiction over the proceedings.

 

106                           While the issue has not often arisen in criminal proceedings, the authorities support the view that bias or apprehension of bias does not automatically render the trial a nullity.  This flows from the general principle that a court order must be obeyed until there is an order to the contrary.   This principle is of fundamental importance to the rule of law and public order.  As Mahoney J.A. stated in Canada (Canadian Human Rights Commission) v. Taylor, [1987] 3 F.C. 593 (aff’d [1990] 3 S.C.R. 892), at p. 601, adopting the rationale of O’Leary J. in Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585 (H.C.), at p. 613:

 

The duty of a person bound by an order of a court is to obey that order while it remains in force regardless of how flawed he may consider it or how flawed it may, in fact, be.  Public order demands that it be negated by due process of the law, not by disobedience.

 

 


The contrary view runs counter to the rule of law and the practical functioning of our judicial system.  For example, if this view were to hold, parties perceiving bias could lie in the weeds and long after the trial judge rules against them, have the entire proceeding invalidated ab initio.   A party who was not prejudiced by the bias could move to have the proceedings and verdict set aside on the ground of nullity.   Persons affected by a court order would look to see whether there is some basis on which the judge’s jurisdiction could be impugned and decide accordingly whether to obey the order or not.  Absent verification that the judge in fact was not biased, no one could know for certain whether a court order was worth the paper it was recorded on.  Verdicts, including acquittals, and sentences long since imposed could be overturned on the discovery, perhaps years later, of conduct by the trial judge capable of supporting a reasonable apprehension of bias.  Finally, if the jurisdiction of the trial judge ended with the event giving rise to an apprehension of bias, it would not be possible to make a motion to the trial judge for recusal since he or she would lack jurisdiction to hear it; the established procedure for remedying bias would be rendered invalid.

 

107                           This Court affirmed that criminal trials are not vitiated ab initio by errors which may affect jurisdiction in Cloutier v. The Queen, [1979] 2 S.C.R. 709.  The trial judge had denied the accused the right to peremptorily challenge a juror.  The prosecution contended that this vitiated the proceeding and deprived the court of jurisdiction.   The majority of this Court, per Pratte J., rejected this argument (at p. 715):

 

Respondent argued that either one or the other of these two decisions of the trial judge was necessarily in error, with the result that the jury was improperly impanelled and the verdict should be regarded as null.  This submission of respondent is too general.  A trial is not necessarily vitiated by any erroneous decision of a judge; the consequences that follow from an illegality depend on the nature of the rule that is violated and the importance of the right which such rule is designed to safeguard.

 


After discussing  the consequences of denial of a peremptory challenge, Pratte J. asked (at p. 724):

 

Is it a relative nullity which may only be pleaded by the accused, or an absolute nullity that is not capable of ratification and may also be relied on by the prosecution?

 

He concluded that the right of peremptory challenge could be exercised (and/or waived) by the accused independently of the Crown and that the prosecution could not argue that the proceedings had been nullified by the procedural error.

 

108                           The same, in our opinion, is true of bias.  A judge may make a comment or decision in the course of a trial which leads to a reasonable apprehension of bias.  The party against whom the bias is directed may wish to overlook the comment and continue with the trial.  He is entitled to do so without fear that, at a later date,  the other party, dissatisfied with the verdict, will challenge it on the ground that the entire proceeding thereafter is a nullity.  Nor, in fairness, should the party against whom the bias is directed be permitted to leave the bias unchallenged and continue with the trial, secure in the knowledge that he can apply to have the verdict nullified should it go against him.

 

109                           The issue of whether error that may affect jurisdiction nullifies criminal proceedings was more recently considered in R. v. Pastro (1988), 66 Sask. R. 241 (C.A.).  A justice of the peace issued a search warrant which, after the police had acted on it, was shown not to be based on reasonable grounds.  It was argued that the warrant was void ab initio and that the search therefore violated the accused’s protection against unreasonable search and seizure under s. 8  of the Charter  on the basis that it was carried out without legal authorization.  Bayda C.J.S., the only justice of appeal to consider this issue, rejected the argument (at para. 16):


 

A close examination of the material reveals only a search warrant that is regular on its face, from the standpoint of form and jurisdiction, but one which was issued because the justice who authorized its issue was wrong in law or wrong in the exercise of his discretion.  It reveals a search warrant that I, in my discretion, would not have issued had I been the justice before whom the information was presented; that I, as an appellate judge, would have no difficulty in setting aside had the justice’s order been appealed to me; that I, as a superior court judge, exercising supervisory powers would have seriously entertained quashing on the ground that the justice had no jurisdiction. . . . In short, the material reveals a search warrant that . . . should now be set aside.  It does not, however, reveal a search warrant that was a nullity, that is, one void from its inception (on the ground of fraud, deliberate deceptive conduct, or no jurisdiction in the sense that a justice had no general power to issue search warrants) and thus not valid at the time of the impugned search.  [Emphasis in original.]

 

110                           This passage distinguishes between orders which on their face appear to be valid despite underlying jurisdictional faults, and orders which do not even have the appearance of validity because they are made without statutory authority, or as a consequence of fraud or duress.  The former are voidable, while the latter may be void ab initio.  Bias falls into the first category.  The judge’s orders bear the same trappings of validity before the events leading to the apprehension of bias as afterward.  On their face, the proceedings are regular.  While they may at a later date be set aside on account of bias, they are not absolute nullities.

 

111                           Fraser C.J.A. (dissenting but not on this ground) of the Alberta Court of Appeal applied similar reasoning in R. v. Smith (1995), 31 Alta. L.R. (3d) 227.  The trial judge had adjourned the trial during the Crown’s presentation of evidence in order to speak to counsel in chambers.  The accused claimed that the judge’s comments in chambers gave rise to a reasonable apprehension of bias.  Fraser C.J.A. expressed the view that this did not nullify the proceedings and opined that the concept of automatic nullity developed in administrative law cases “should not apply with equal force in criminal proceedings: cf. R. v. Hall (1988), 69 Sask. R. 245 (Q.B.)” (p. 237).


 

112                           La Forest and Cory JJ. cite an administrative law case in support of the proposition that bias renders the proceedings of a tribunal void ab initio.  In our view, this authority does not apply in the criminal law context.   Courts dealing with appeals from tribunals often find themselves confronted by statutory privative clauses immunizing the tribunal decision from review on all but jurisdictional grounds.  In order to correct orders made by biased tribunals, courts have been forced to categorize bias in the administrative law context as depriving the tribunal of jurisdiction ab initio.  This problem does not exist in the criminal context, where Courts of Appeal have full powers to remedy all deficiencies of procedure and substance.

 

113                           Our research reveals no common law country which holds that apprehension of bias automatically nullifies a criminal trial.  In the United States the problem has frequently fallen for consideration.  Post‑hearing disqualification for bias is controlled by the concept of “seasonality”.  A judge will not be disqualified by reason of bias unless the application for disqualification is made in a timely and seasonable fashion.  Unless objection is taken promptly upon discovery of the alleged bias, the right to have or to have had an unbiased adjudicator is lost:  United States v. Daley, 564 F.2d 645 (2d Cir. 1977), certiorari denied 435 U.S. 933 (1979); Smith v. Danyo, 441 F.Supp. 171 (M.D. Penn. 1977), aff’d 585 F.2d 83 (1978); In re Martin‑Trigona, 573 F.Supp. 1237 (D. Conn. 1983), aff’d 770 F.2d 157 (2d Cir. 1985).  Thus,  in the United States bias or apprehension of bias does not nullify the trial or the verdict that follows.  If a party acts promptly, or “seasonably”, it may succeed in having the judge disqualified for bias.  Otherwise, the proceedings and their conclusion remain on foot and no complaint can be made.


114                           We conclude that judicial conduct giving rise to a reasonable apprehension of bias does not automatically deprive the judge of jurisdiction and nullify criminal proceedings.  The proper course for a party affected by the bias is to move promptly for recusal of the judge.  Absent an order disqualifying the judge, the judge retains jurisdiction and the proceedings continue as before.  On review, an appellate court may, depending on circumstances, overturn the judge’s decision on the motion for recusal.  However, until overturned by higher authority, the judge retains jurisdiction, and all orders he or she makes or has made are valid.

 

115                           It follows that the trial judge in the case at bar retained jurisdiction after the telephone call alleged to give rise to an apprehension of bias against the Crown.  This jurisdiction continued through the recusal motion and after its dismissal.  The subsequent decisions of the judge were voidable, not void.  It thus becomes necessary to consider whether the trial judge’s order entering a stay of proceedings was in error and should be set aside.

 

116                           We add that even if we agreed with the reasons of La Forest and Cory JJ. that the trial judge lost jurisdiction by not recusing himself from the trial, it is open to this Court, in the interest of justice, to examine the circumstances of the proceedings and to enter a stay if that is the result required.

 

Abuse of Process

 

117                           An examination of the facts upon which the trial judge based his decision leads to the conclusion that what occurred in this case was an abuse of process.  While the trial judge believed that the non‑disclosed evidence was material to the accused’s ability to make full answer and defence, it is our opinion that the entire conduct of this trial has brought the administration of justice into disrepute and in the process violated s. 7  of the Charter .


 

118                           This Court recognized in O’Connor, supra, that the common law of abuse of process has been subsumed into s. 7  of the Charter .   An abuse of process can take many forms, but every finding of an abuse of process must contemplate either society’s interest in preserving the integrity of the judicial system or the individual’s interest in having a fair trial.  As is pointed out by L’Heureux‑Dubé J. in O’Connor, at p. 457, “the latter is essentially a subset of the former”.  In R. v. Jewitt, [1985] 2 S.C.R. 128, at pp. 136‑37, Dickson C.J. adopted the proposition that an abuse of process exists where there is a violation of “those fundamental principles of justice which underlie the community’s sense of fair play and decency” or where there is an “abuse of a court’s process through oppressive or vexatious proceedings”.  This test existed at common law and remains under the Charter .  While this Court’s decision in O’Connor recognized that the finding of an abuse of process will not necessarily result in a stay of proceedings, the determination of what constitutes abuse of process remains unchanged.

 

119                           The trial judge indicated his willingness to find a common law abuse of process as an alternative ground of his ruling.  In our view, this case falls squarely within that concept.  The victims of the mine disaster are anxious to determine the causes of the explosion and the loss of life at Westray.  They are entitled to justice but as has been previously stated that can only be achieved by convicting the right people.  Under either the common law or the Charter , the conduct of this case amounts to an abuse of process.

 


120                           To paraphrase Professor McWilliams in his text Canadian Criminal Evidence, supra, at ch. 1:10100, it is especially where pursuit of truth is righteous that we must guard against overreaching on the part of those charged with the authority to investigate and prosecute crimes.  We cannot be tolerant of abusive conduct and dispose of due process, however serious the crimes charged.  High profile trials, by their nature, attract strong public emotions.  In our society the Crown is charged with the duty to ensure that every accused person is treated with fairness.  It is especially in high profile cases, where the justice system will be on display, that counsel must do their utmost to ensure that any resultant convictions are based on facts and not on emotions.  When the Crown allows its actions to be influenced by public pressure the essential fairness and legitimacy of our system is lost.  We sink to the level of a mob looking for a tree.

 

121                           The present case is not simply about Crown non‑disclosure.  This case is about the appearance of justice.  Throughout the proceedings the Crown bent and broke rules, and attempted to cover up when it was caught.  The Crown actively misled the court, on a number of occasions.  The Crown ignored or failed to obey court orders.  It is unnecessary to repeat the litany of abuses that have already been described.  The entire proceedings were tainted by prosecutors who were playing to an enraged public, and playing to win.  That this is apparent can be seen from the internal memo that passed between prosecutors referred to by the trial judge and in these reasons.  To win is not the role of the prosecutor; to win at all costs is an affront to the Canadian justice system.  Courts should not tolerate activities which demonstrate this attitude.  The conduct of Crown counsel at the trial violates the fundamental principles that underlie the community’s sense of fair play and decency and constitutes an abuse of the court’s process.

 

Remedy

 


122                           A stay of proceedings is a last resort, only to be entered in the “clearest of cases”: R. v. Young (1984), 46 O.R. (2d) 520; Jewitt, supra.  The trial judge recognized the seriousness of entering a stay of proceedings, and in making his final decision he directed himself to consider other remedies, including the exclusion of evidence, an adjournment, or a mistrial.

 

123                           In certain cases, a stay will be the only possible remedy, while in others it will be only one of several possible remedies.  See Stuesser, supra, at p. 99:

 

Abuse of process, however, takes many forms.  A stay of proceeding[s] simply is not necessary or desirable in all cases where abuse is found.  This is particularly true for abuses that affect the fairness of the trial, such as caused by delay or non‑disclosure.  In terms of ensuring a fair trial judges are well equipped to respond to alleged abuses  short of staying the proceedings.  They have an arsenal of remedies: adjourning the proceedings, recalling of witnesses, calling witnesses on behalf of the court, ordering disclosure, or exclusion of evidence.  Judges in the United Kingdom and in Australia are admonished to look to these lesser remedies before entering a stay of proceedings.  These authorities recognize that under common law a stay of proceeding[s] is not the “only” recourse.

 

124                           In O’Connor, supra, the majority adopted the guidelines of Professor Paciocco for determining when a stay of proceedings is an appropriate remedy for an abuse of process, at p. 465:

 

(1)   the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

 

(2)   no other remedy is reasonably capable of removing that prejudice.

 


The learned trial judge was clear about his findings on these matters, as illustrated by the reasons for judgment and the quotations from them used in these reasons.  Throughout the pre‑trial process and the trial itself, the trial judge utilized numerous remedies to ensure that the Crown was complying with its obligations.  Adjournments were granted.  Directions were given.  Various orders were made, including an order for particulars.  Costs were awarded against the Crown in favour of the appellant  Phillips.  All of these remedies failed to provide an effective remedy and did not result in an improvement in the Crown’s disclosure deficiencies.

 

125                           We have come to the conclusion that the trial judge was correct in determining that the only remedy for the conduct of the Crown in this case was a stay of proceedings.  The trial judge granted a stay as a remedy for the prejudicial effect of the Crown’s non‑disclosures on the appellants’ right to make full answer and defence.  Additionally, we would grant a stay as a remedy for Crown conduct that was an abuse of process bringing the administration of justice into disrepute.

 

126                           The Crown has neither acknowledged its errors during the first trial, nor provided any assurance that a second trial will be conducted any differently.  Instead, the Crown spent a great deal of its submissions attacking the materiality of the six examples of nondisclosure cited by the trial judge.  The Crown says nothing about the rest of the “mountain” of nondisclosures.  Further, the Crown submitted that:

 

. . . there is a positive duty on defence counsel to bring any disclosure problems to the attention of the trial Judge at the earliest possible opportunity.  Failure to do so may, in certain instances, deprive the accused of a remedy for non‑disclosure.

 

In our view, counsel for the appellants in this case went above and beyond the call of duty in searching out evidence that had not been disclosed.  On several occasions, it was only through defence searches of the Crown’s own files that material information was uncovered.  Rather than simply admitting the errors it made during the trial, the Crown has consistently attempted to place blame on others.  The Crown gives us no hint that its attitude will change in the future.

 


127                           How else could this Court express its disapproval of the Crown’s conduct in this case other than by endorsing the stay of proceedings?  The appellants have been charged and prosecuted for almost five years.  There is no certainty that the full disclosure the appellants were entitled to before plea has even now been made or, indeed, can ever be made.  The Crown decided as is its right to proceed by direct indictment on these serious charges and deprived the appellants of a preliminary hearing.  The Crown ignored its duty to disclose and to act in a manner consistent with the presumption of innocence that belongs to all accused.  This has, on the findings of the trial judge, impaired the conduct of the defence and derogated from the right to a fair trial.  Ordering a new trial would itself bring the administration of justice into disrepute.  If this is not the clearest of cases, it is hard to imagine what would qualify.  We would restore the order of Anderson J., and award the appellants solicitor/client costs throughout.

 

Appeal dismissed with costs to the appellants, McLachlin and Major JJ. dissenting.

 

Solicitors for the appellant Phillips:  Blois, Nickerson & Bryson, Halifax.

 

Solicitor for the appellant Parry:  Nova Scotia Legal Aid ‑- Westray Office, Halifax.

 

Solicitors for the respondent:  Garson, Knox & MacDonald, Halifax.

 

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