By Dean Jobb / Staff Reporter

Taking two former Westray mine managers to trial on criminal charges in the deaths of 26 men would have cost Nova Scotia taxpayers some $10 million, prosecutors told their superiors last March.

The estimate is contained in a report, made public Friday, which assessed whether it was in the public interest to continue prosecuting Gerald Phillips and Roger Parry for alleged manslaughter and criminal negligence in the 1992 underground explosion at the Pictou County coal mine.

Cost is one of more than a dozen factors weighed in the March 24, 1998, report, filed three months before the Public Prosecution Service stayed the charges.

By the time the 52-page report was completed, the Nova Scotia government had sunk about $3 million into the case, according to a breakdown contained in the document.

Prosecutors had spent about $2 million over four years preparing for trial. Another $1 million had been spent reimbursing the defendants' legal costs under a court order arising from an aborted 1995 trial.

Crown and defence costs for a second trial, expected to begin in January 1999 and last up to two years, were estimated at $2 million for each side. All the costs would have been paid by government.

Another $1 million was budgeted to hire private lawyers to act for the Crown on pretrial defence motions expected to attack prosecutors' conduct and alleged failure to disclose evidence.

Travel costs for witnesses were pegged at $300,000, and holding the trial in Pictou would cost an extra $200,000, presumably for travel and relocation of offices.

The figures do not include the cost of expected appeals or the $1.5 million the RCMP spent investigating the Westray disaster.

Given the seriousness of the charges and the number of people killed, "the public perception of administering justice with an eye on the pocketbook makes no sense in a case of this type," the report says.

In the report, released to this newspaper in response to a request under the Freedom of Information and Protection of Privacy Act, three of the Crown attorneys handling the case were divided on whether they should proceed.

They asked for a meeting with then-prosecutions director Jerry Pitzul and other managers of the Public Prosecution Service to discuss their options.

Five months earlier, Crown attorney Robert Hagell quit the case after concluding it was a lost cause. He cited a botched RCMP investigation and failure to properly review the evidence before charges were laid in 1993.

He also argued it was "fundamentally unfair" to prosecute only two people when many others - miners, other mine officials and government inspectors - failed to live up to their safety duties.

Mr. Hagell's criticisms are echoed in the March 1998 report, written by Crown attorneys Marc Chisholm, Rob Fetterly and Bob McCarroll.

Other highlights of their report:

After an inquiry found Department of Labour officials derelict in their duty to enforce safety laws, the RCMP re-examined its decision not to charge mine inspectors with crimes.

"They have concluded that criminal charges are not warranted," the report says.

The Crown retained an expert on coal-mine inspection to assess how the inspectors conducted themselves. A summary of his findings was edited from the report, apparently to protect the privacy of those named.

The report is one a series commissioned by Mr. Pitzul after a March 1997 ruling in which two judges of the Supreme Court of Canada condemned the Crown's handling of the case.