Judge who led Desmond inquiry accuses N.S. government of spreading misinformation

A Desmond Fatality Inquiry sign pictured November 18, 2019 at the Guysborough Municipal building. Lionel Desmond, a 33-year-old former infantryman from rural Nova Scotia, killed his mother, wife and 10-year-old daughter before turning a military-style rifle on himself in January 2017. (THE CANADIAN PRESS/Andrew Vaughan)

HALIFAX -

The Nova Scotia government is facing accusations from a former judge who says misinformation and ignorance were behind the attorney general's decision last week to dismiss him as the commissioner leading a high-profile inquiry.

Warren Zimmer was a provincial court judge when he was appointed in July 2018 to lead the fatality inquiry that investigated why Afghanistan war veteran Lionel Desmond killed three family members and himself in their rural Nova Scotia home in 2017.

Last Tuesday, Premier Tim Houston said his government decided to replace the judge because his final report was taking too long to complete, and the premier said "it wasn't clear a report was forthcoming."

Zimmer was set to retire as a judge in March 2022, a month before the inquiry's hearings concluded. But his term as a sitting judge was extended four times over the past 18 months to give him time to complete his report. On July 4, Attorney General Brad Johns confirmed he had decided not to extend Zimmer's term as a judge. That meant Zimmer had to step down as commissioner, according to rules in the provincial Fatality Investigations Act.

"The family and loved ones of the Desmond family, their community, as well as all Nova Scotians, have been waiting more than five years for answers," Johns said at the time, neglecting to mention lengthy delays that had nothing to do with Zimmer's work.

In a letter sent to inquiry lawyers on July 6, Zimmer challenged the government decision, saying it was based on "misinformation and incomplete information."

"Suggesting that I have delayed the inquiry process, including the filing of a report, is offensive," Zimmer wrote in the letter, obtained by The Canadian Press. "It displays the minister's ignorance of the complexity of the process. This fatality inquiry report is not a news article to be read on the radio."

The letter includes an excerpt from a previous letter stating that as of June 30, he had informed the government he planned to have his report finished in August. That pledge was not mentioned by Houston or Johns last week.

A spokesman for the provincial Justice Department said Monday the government was preparing a response. Later in the day, the chief judge of the provincial court, Pamela Williams, announced she had appointed provincial court Judge Paul Scovil to take over responsibility for the inquiry.

"From the beginning, Judge Zimmer has been committed to thoroughly investigating the circumstances under which these tragic deaths occurred, so it is unfortunate that he will not be the one to see the inquiry through to its end," Williams said in a statement.

Opposition Liberal Leader Zach Churchill said there should be an investigation into government interference in an independent judicial process. "Why did the premier and the attorney general interfere with this very delicate judicial issue?" Churchill asked in an interview Monday.

"The public really needs to know why this happened in the 11th hour of this report, after all this work has been done and dozens of family members are waiting."

Suzy Hansen, the Nova Scotia NDP's justice critic, said the justice minister should have allowed Zimmer to finish his work, given the fact that Johns had been told the report would be completed in about a month.

In his July 6 letter, Zimmer said he had already written 200 pages of the final report, and he drew attention to the large volume of material he had to review. The inquiry held 56 days of hearings, which generated 10,447 pages of transcripts. In all, the inquiry heard from 70 witnesses.

Zimmer compared his task with that of the Mass Casualty Commission, the federal-provincial public inquiry that investigated how and why a gunman murdered 22 people across Nova Scotia in April 2020.

That inquiry, led by three commissioners, released its final report on March 30, just under three years after the worst mass shooting in modern Canadian history. "Unlike the MCC, I do not have a professional staff of writers to expedite this production process," Zimmer wrote in his letter.

As well, he said the inquiry he led was beset by delays that were beyond his control, including the 15 months it took the government to set up a hearing room in Guysborough, N.S., and a two-month delay when a family member had to find a new lawyer just as hearings were to start in November 2019.

And when the COVID-19 pandemic was declared in March 2020, the search for a new, larger venue that would comply with health restrictions took another 11 months.

The inquiry's hearings concluded in April 2021. That means Zimmer has spent 14 months writing his report.

"The aforementioned volume of material before the inquiry is enormous and cannot be abbreviated simply because the minister is of the view that it should be an easy task to complete," Zimmer wrote.

The inquiry heard that Desmond served in Afghanistan as a rifleman in 2007 and was diagnosed with post-traumatic stress disorder and major depression in 2011. Despite four years of treatment while he was still in the military, the inquiry heard he required more help when he was medically discharged in 2015. He took part in a residential treatment program in Montreal in 2016. A discharge summary concluded Desmond was still a desperately ill man.

During the last four months of his life, Desmond received no therapeutic treatment.

On Jan. 3, 2017, Desmond legally purchased a semi-automatic rifle and used it later that day to kill his 31-year-old wife, Shanna; their 10-year-old daughter, Aaliyah; and his 52-year-old mother, Brenda. Their bodies were found the next day in the family's home in Upper Big Tracadie, N.S.

This report by The Canadian Press was first published July 10, 2023.

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