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Structuring Federal Inquiries after the Westray Decision: Choices Made in the Dark?

Until the Supreme Court of Canada decision in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) (1995), 124 D.L.R.(4th) 129 (hereafter "Westray"), it was beginning to look as though governments in Canada had two choices when faced with a suspicious tragedy or evidence of wrongdoing - either there could be a complete public inquiry or a criminal investigation, but not both. In Starr v. Houlden [1990] 1 S.C.R. 1366 we were told that a public inquiry could not be made into alleged wrongdoing by named people, at least where the wrongdoing referred to in the terms of reference amounted to a criminal offence. In Nelles v. Grange (1984), 46 O.R. (2d) 210 we were told that, even where investigation of criminal matters was expressly withheld from the Commissioner's jurisdiction, he still could not "name names" in connection with any of the wrongdoing he uncovered. And in the Nova Scotia Court of Appeal's decision in Westray the issues were sufficiently tangled that we were told the inquiry could not proceed at all until the criminal trials, if any, had been concluded. 
 
After the Supreme Court of Canada's decision in Westray, those cases still, technically, represent the state of the law. The majority of the Court dismissed the appeal on the basis that the negative publicity issue was moot (since the accused had elected trial by judge alone) and the compellability issue was premature. 
 
However, Cory J., writing for a minority of three judges, went on at some length in Westray to set out new principles and provide new guidance for Commissioners who preside over public inquiries and the executive governments which convene them. The bottom line for these judges is that the choice to hold an inquiry, and the nature of that inquiry, belongs to the convening authority. In other words, it is up to the government to choose between a series of options: not to hold an inquiry at all and proceed with criminal prosecutions; hold an inquiry and not bother trying to prosecute anyone; or try to do both by structuring the inquiry so as to attempt to preserve the rights of the accused and the success of the prosecution. 
 
On what criteria should these decisions be made? The intent of this paper is to highlight some of the questions left open by the Westray decision and other caselaw in this area and to provide a partial catalogue of issues which the government must now consider when the traditional executive option of a public inquiry presents itself.