Lawyer for Desmond family says inquiry limits 'stifling access to justice'

Nova Scotia's Justice Department is trying to muzzle the inquiry into the death of an Afghan war veteran who killed his family and himself more than two years ago, a senior lawyer says.

Adam Rodgers, who represents the family of former soldier Lionel Desmond and his estate, said the department has imposed unrealistic restrictions on legal fees and preparation time.

"Unfairly stifling access to justice by imposing limited preparation time at junior counsel rates ... is tantamount to impeding access to justice," Rodgers said in a legal brief presented to the commissioner of the pending fatality inquiry, provincial court Judge Warren Zimmer.

Rodgers said he wants assurances from Zimmer the inquiry will have enough judicial independence to ensure its investigation "is not bureaucratically or financially constrained by those who may be in a conflict of interest."

The provincial government promised an inquiry in December 2017, almost a year after Desmond fatally shot his mother Brenda, wife Shanna and 10-year-old daughter Aaliyah, before turning the gun on himself in the family's rural home in Upper Big Tracadie, N.S.

The 33-year-old former soldier was diagnosed with PTSD after two harrowing tours in Afghanistan in 2007, which transformed him into a broken shell of who he used to be, his family says.

Desmond's twin sisters, Cassandra and Chantel, spent more than a year pressing the government for answers and demanding a judicial fatality inquiry.

They say the former infantryman did not get the help he needed to deal with his mental illness and a post-concussion disorder after he was medically released from the military in 2015.

That allegation will be at the centre of the inquiry, which is supposed to start in September — more than 18 months after the province promised it.

Inquiry momentum being lost, says Rodgers

"Given the province's sustained reticence to convene this inquiry, and the degree of silence since [Zimmer's] appointment, the Desmond family has grown increasingly concerned about the assignment of resources to support [the] inquiry," Rodgers said in his legal brief.

"They are increasingly concerned that the original public momentum for accountability that led to the creation of [the] public inquiry is dissipating with the passage of time."

More importantly, Rodgers has asked Zimmer to protect his clients from Justice Department restrictions that Rodgers said "attempt to muzzle and constrain the effectiveness of our legal services."

In February, the department said legal counsel appearing before the inquiry would be limited to eight hours per day for preparation time at a rate of $175 per hour, for a maximum of 100 hours.

Rodgers said those limits represented a poorly camouflaged attempt "to stifle the legal voice and representation to which our clients are entitled."

Legal fees

The department increased the limits in April and again last week, settling on nine hours per day at $220 per hour, for a maximum of 150 hours of preparation time.

The Nova Scotia Justice Department issued a statement Tuesday, saying the funding limit represents a $70-per-hour increase over the eight-hour daily rate used in 2010, when the province held its most recent fatality inquiry.

"We believe the terms of funding are both fair and reasonable," department spokesperson Heather Fairbairn said in an email.

In a letter dated May 1, provincial lawyer Glenn Anderson argued the limits were in line with inquiry rules in Ontario and Manitoba. As well, he pointed to another fatality inquiry in 2005, which specifically stated that Nova Scotia taxpayers "have the right to expect a principled approach to the spending of their money."

However, Rodgers argued the 2005 inquiry also determined that lawyers representing the deceased were entitled to full compensation for their legal costs at prevailing hourly rates for experienced counsel hired by the province.

In his application to the commissioner, Rodgers has asked Zimmer to increase the limits to 10 hours a day at $250 an hour, with no restriction on total preparation time.

In his regular practice in New Glasgow, N.S., Rodgers typically earns $350 an hour.

His application to the commissioner will be heard May 23.

Rodgers has been working with Desmond family since March 2017. He said he has devoted 80 hours to the case this year.

The inquiry requires enough resources to look beyond the deaths of one former soldier and his family, he said.

"If this public inquiry is to fulfil the mandate the public demanded, it must be far-reaching," his legal brief said.

"It is the mandate and responsibility of [this] inquiry to understand what happened to Lionel Desmond and others like him and to recommend what can be done to reduce the chances of history repeating itself."