This article was originally published in Maclean's Magazine on July 13, 1998
Westray Charges Stayed
As other Canadians prepared last week to celebrate the country's 131st birthday, families of the 26 men who died in the May, 1992, Westray mine explosion girded themselves for a more sombre undertaking. During the afternoon of June 30, they had been contacted by the Nova Scotia public prosecutions service and informed that long-standing criminal charges against two former Westray managers, Gerald Phillips and Roger Parry, had just been stayed. They were then invited to a 6 p.m. private meeting with Crown attorneys at the Plymouth, N.S., fire hall - the very spot where many of them had spent an agonizing week six years ago, waiting to hear the fate of loved ones trapped in the exploded mine shaft. Following a stormy 45-minute session, the family members trooped over to a nearby news conference. There, lead Crown attorney Marc Chisholm told reporters that, five years after charges were first laid, there was simply not enough evidence to proceed to trial. It all proved too much for Pearl Bell, whose son Larry, died in the explosion. "My son burned down there," a tearful Bell shouted at the prosecutors. "And you let them get away with it. How can you just sit there?"
Last week's dramatic announcement marked the latest wrenching chapter in the the Westray saga. Allen Martin, whose brother, Glenn, died at Westray, describes the years of watching the authorities try - and fail - to hold anyone to account for the death of 26 miners as "emotional torture." It began just five months after the explosion when the Nova Scotia department of labor laid 52 non-criminal charges of unsafe practices against Westray's owner, Curragh Inc., and four officials. By March, 1993, those charges had been dropped - ostensibly to protect the integrity of an ongoing criminal investigation. The following month, the RCMP laid charges of manslaughter and criminal negligence causing death against Phillips and Parry. Their trial began in February, 1995, but was stayed four months later on the grounds that the prosecution had failed to disclose key evidence to the defence. That ruling was twice appealed, and in March, 1997, the Supreme Court of Canada ordered a new trial for Phillips and Parry.
As the legal case ground on, a public inquiry proved another source of frustration for relatives. The inquiry heard from company officials, provincial mine inspectors and many of the politicians who had lobbied so hard to establish Westray in depressed Pictou County, 150 km northeast of Halifax. Again and again, the witnesses denied responsibility, blamed others, or simply failed to recollect what they had said or done with regard to the mine. In the end, though, the Westray families were heartened last December by Nova Scotia Supreme Court Justice Peter Richard's hard-hitting final report. Richard concluded that the initial source of the blast was sparks struck by a mining machine that ignited a cloud of methane - a gas that seeps naturally from coal. Those sparks would have faded harmlessly, he said, if Westray officials had not flouted provincial safety standards by, among other things, allowing coal dust to accumulate. Richard blamed the tragedy on "incompetence, apathy, cynicism, stupidity and neglect."
But the Crown's reassessment of its own criminal case, which included consulting some of the experts who testified at the inquiry, proved more equivocal. Chisholm said the experts could not agree on several key issues, including the exact cause of the explosion. As a result, he adds, there was no reasonable chance of securing a conviction. But some legal observers found the timing of the Crown's decision curious. "In the normal course of events, this kind of judgment would be made far earlier in the case," says Dalhousie law professor Archie Kaiser.
After so many setbacks, the Westray families feel embittered. "You fight for six years, you lose and then you lose again," says Martin. "Where is the justice?"
The Pursuit of Nancy Morrison
The situation was rife with irony. Just two days after Nova Scotia stayed criminal charges against two former Westray mine managers - a decision that drew much public ire - provincial Justice Minister Jim Smith gave prosecutors the green light to pursue a manslaughter conviction against Dr. Nancy Morrison, a Halifax respirologist who received massive public support after being charged in connection with the death of a terminally ill cancer patient. The director of prosecutions, Martin Herschorn, knew the optics were bad. "Crown attorneys," he told reporters, "must make decisions, not based on public opinion, but upon the assessment of the available evidence."
In February, provincial court Judge Hughes Randall threw out a first-degree murder charge against Morrison, saying there was not enough evidence to convict her. When the Crown announced it would appeal, Morrison's lawyer, Joel Pink, asked Smith to drop the case in what he called "the public interest." But after consulting legal and ethical experts, Smith refused, saying the public interest was best served by letting the courts decide. Pink said neither he nor his client were surprised by the decision. "You always hope for the best," he said, "but you always expect disappointment."
Maclean's July 13, 1998