Crown lacked staff, expertise in Westray case - review
Tim Krochak / Herald Photo
Chris Hansen, communications director for the
Public Prosecution Service, studies a page on an
overhead projector as Martin Herschorn, deputy
director of public prosecutions, reads some of
the details Wednesday of a report on the
service's handling of the Westray mine disaster.
Andrew Vaughan / The Canadian Press
Martin Herschorn fields questions during a news
By Steve Maich / Staff Reporter
Disorganized notes, ineffective leadership and a lack of technical expertise
plagued the Westray prosecution from the start, says an independent review of
the case, released Wednesday.
The report on the Public Prosecution Service's case against the managers of the
Westray coal mine paints a picture of a department struggling under the weight
of an extremely complex case, without the resources needed to successfully
carry it off.
"The (prosecution service) suffers from a systemic problem in having few staff
members with the experience or training to handle a prosecution such as
Westray," says the report, penned by lawyers Duncan Beveridge and Patrick
"Even though our conclusions and comments indicate that the . . . prosecution
efforts could have and, in some cases, perhaps should have been handled
differently, they should not be taken as a general indictment of the
The report identified eight key failures that led to the withdrawal of
manslaughter and negligence charges against mine managers Gerald Phillips,
Roger Parry and Curragh Inc. in 1998.
Key issues included an "appalling lack of resources" dedicated to the
prosecution prior to March 1993 and "systemic deficiencies in securing,
cataloguing, and producing relevant documents."
The report places some responsibility on the police for failing to secure the
mine as a crime scene until days after the fact, and the "premature" decision
to lay charges in the first place.
For the families of the 26 miners killed when the mine exploded on May 9, 1992,
the report provided little comfort.
Allen Martin, whose brother Glenn is one of 11 men entombed in the mine 350
metres below ground, said the report shows the prosecution effort was woefully
"I don't care what the reasons were," Mr. Martin said.
"We were entitled to justice and we didn't get any. This report just confirms
that justice was not served in this case."
The report is the final part of the Public Prosecution Service review, ordered
by the province in 1998 and led by retired Quebec judge Fred Kaufman.
Acting prosecution service director Martin Herschorn said although mistakes were
made throughout the case, he felt vindicated by the report's conclusion that
prosecutors broke no ethical rules and pursued the case to the best of their
"This review should assure Nova Scotians that (prosecutors) acted responsibly
and made decisions based on facts of the case and applicable law," he said.
"We accept the criticisms contained in the report. . . . We have to learn from
The report said there is "absolutely no evidence" to support allegations
prosecutors intentionally withheld information from the defence and sought to
cover it up after the fact.
The prosecution service spent more than $3.4 million over five years wading
through 300,000 pages of documents, trying to build a case against the Westray
managers. The terminal blow to the prosecution came in March 1998 when a key
expert witness, Andrew Liney, changed his opinion of the case, the report says.
Mr. Beveridge and Mr. Duncan made 16 recommendations to improve the Crown's
ability to prosecute complex cases like Westray in the future.
Mr. Herschorn said the department has already enacted several of the
recommendations, including a move to improve computer skills and to identify
lawyers willing and able to contribute to high-profile and difficult cases.
Other changes will depend on money from the province, he said.
Although the service's budget was cut by about two per cent in the recent Tory
budget, Justice Minister Michael Baker said a lack of money should never again
stand in the way of a prosecution.
Mr. Martin said he's skeptical about how much impact the report will have. He
believes problems in the service will likely continue as long as government
squeezes its budget.