Westray Investigation Was Botched

Westray Investigation Was Botched,
Former Prosecutor Argues in Memo

The complex case was beyond the capability
of the prosecution service

Westray Investigation Was Botched,
Former Prosecutor Argues in Memo

This article appeared in
The Ottawa Citizen
Ottawa, Thursday, December 17, 1998

HALIFAX — Charges were laid after the Westray mine explosion without a thorough investigation, and police and prosecutors were wrong to target two mine managers for blame, internal Crown documents have revealed.

The damning conclusions are contained in a report prepared more than a year ago by Crown attorney Robert Hagell, who asked to be reassigned after concluding the prosecution was unfair and doomed to failure, the Halifax Chronicle-Herald reported yesterday.

"A thorough assessment should have been made of all individuals who had responsibility for safety in relation to the Westray coal mine," Mr. Hagell told Jerry Pitzul, then-director of public prosecutions, in October 1997.

"This assessment should have been made subsequent to a complete investigation and prior to charges being laid. ... Further, this assessment should only have been made after extensive consultation with coal-mining experts, the police and the Crown prosecutors."

Three of Mr. Hagell's reports made public Tuesday under the provincial Freedom of Information Act shed new light on last June's decision to stay criminal charges against Westray's former manager, Gerald Phillips, and former underground manager Roger Parry.

The two were charged in 1993 with manslaughter and criminal negligence causing death after 26 miners died in a May 1992 underground explosion at the Westray colliery in Plymouth, Nova Scotia.

Mr. Hagell identified several shortcomings in the investigation:

Investigators failed to secure the mine's offices, making it impossible to determine if documents had been removed or altered;
Statements taken from miners and other witnesses were "not detailed and precise" and "witnesses were not asked about a number of crucial issues;"
Statements taken by Labour Department investigators, who conducted joint interviews with the RCMP, displayed "a preconceived bias" against Mr. Phillips and Mr. Parry;
The RCMP's lead investigator, Staff Sgt. Ches MacDonald, promised immunity from prosecution to as many as thirteen people, undermining their credibility as Crown witnesses;
The evidence handed over by the RCMP "was poorly organized and not readily usable for trial preparation or presentation;"
There were "substantial gaps" in the evidence and, as of May 1997, the RCMP still had 280 witnesses to interview.

Mr. Hagell argues in the documents it was "fundamentally unfair" and "a distortion of the facts" to prosecute two men when others – miners, foremen, government inspectors – shared responsibility for unsafe working conditions.

Mr. Phillips and Mr. Parry were not at the mine or directly supervising work on the three days prior to the May 1992 explosion, he noted.

Nova Scotia Supreme Court Justice Peter Richard, who presided over a provincial inquiry into the explosion, has been one of Mr. Phillips' harshest critics.

Judge Richard said Mr. Phillips unfairly blamed the accident on miners, a "defensive" tactic to deflect attention from the real factors that led to the explosion.

Those who worked underground at the mine remembered Mr. Phillips as an authoritarian, heedless risk-taker who drove people relentlessly.

However, Mr. Phillips, who entered the mining industry at 15 when he became a coal miner in Staffordshire, England, also has influential allies in the mining community who describe him as hardworking and conscientious.

Former Nova Scotia premier Donald Cameron infuriated the families of the 26 miners who were killed when he blamed the miners and federal bureaucrats for the disaster. In the end, a lawyer for the Nova Scotia government accepted some blame on the part of the province.

Mr. Hagell felt the case had grown so complex by 1997 that it was "beyond the capability of the prosecution service."

A senior prosecutor who handles appeals, Mr. Hagell was one of six prosecutors named to the case in December 1995 after the Court of Appeal ordered a second trial.

The charges of manslaughter and criminal negligence were stayed this summer.

Go To: Westray Scrapbook Fifty clippings about the Westray coal mine disaster
/westrayclippings/clipping00.html
Go to: Main Westray Coal Mine Disaster page
http://alts.net/ns1625/wraymenu.html
Go to: Westray Public Inquiry online transcript of testimony
http://alts.net/ns1625/950013index.html
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First uploaded to the WWW: 1998 December 17

Westray Investigation Was Botched, Former Prosecutor Argues in Memo

The complex case was beyond the capability of the prosecution service

Westray Investigation Was Botched,
Former Prosecutor Argues in Memo

The complex case was beyond the capability
of the prosecution service