Nova Scotia

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

The judge who was dismissed as commissioner of the Desmond inquiry is accusing the Nova Scotia government of spreading misinformation.

Warren Zimmer says government's suggestion that he delayed the inquiry process is offensive

Judge wearing robes is seen presiding over an inquiry.
Judge Warren Zimmer is pictured presiding over the Desmond inquiry in Guysborough, N.S. (Nova Scotia Courts)

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 Zimmer's final report was taking too long to complete, and the premier said "it wasn't clear that 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 allow him 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 the rules in the provincial Fatality Investigations Act.

In a letter sent to inquiry lawyers on July 6, Zimmer challenged Johns's decision.

"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."

Johns's decision was based on "misinformation and incomplete information," Zimmer wrote.

New judge appointed

The letter includes an excerpt from a previous letter he sent to the government, stating that as of June 30, he had informed the government that 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 on Zimmer's previous responsibilities.

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 said 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."

Churchill suggested Houston was wrong to suggest the report was taking too long when the government apparently knew that it would be finished within a month.

"I think the public needs to be very concerned about what the Houston government is up to when it comes to our justice system," he said. "The allegations from the former judge are serious."

In his July 6 letter, Zimmer said he had already written 200 pages for the final report, and he drew attention to the large volume of material he had to review.

The inquiry held 56 days of evidentiary hearings, which generated 10,447 pages of transcripts from more than 300 hours of hearings, and the inquiry's database contains 58,699 documents totalling 128,605 pages. In all, the inquiry heard from 70 witnesses.

Hearings concluded in April 2022

Zimmer compared his task with that of the Mass Casualty Commission, the federal-provincial public inquiry that investigated how a lone gunman murdered 22 people across Nova Scotia over a 13-hour period on April 18-19, 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. It's been five years since Zimmer was appointed as the Desmond inquiry's commissioner.

In his recent letter, Zimmer said, "Unlike the MCC, I do not have a professional staff of writers to expedite this production process."

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 find and prepare a suitable hearing room in Guysborough, N.S., and a two-month delay caused by a participating family member who 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 to complete.

The inquiry's hearings concluded in April 2022. That means Zimmer spent the following 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.

Zimmer also said his work was delayed by the provincial government's failure to respond to the MCC's recommendation to change Nova Scotia's mandatory arrest and charging policies for intimate partner violence offences.

"The potential dilemma that this change could create is profound and I have not heard the minister address the issue directly in public," Zimmer wrote, adding that any change could impact his work, which included determining whether the Desmond family had access to appropriate domestic violence intervention services.

PTSD, depression diagnosis

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.

The inquiry heard that Nova Scotia health-care professionals did not have access to meaningful federal records. As well, the Health Association of African Canadians told the inquiry that African Nova Scotians, like Desmond, face challenges accessing mental health care because of systemic racism.

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

The inquiry was told that 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 rural Upper Big Tracadie, N.S.

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Corrections

  • A previous version of this story incorrectly said the Desmond inquiry hearings ended in April 2021. The hearings in fact ended in April 2022.
    Jul 11, 2023 12:49 PM AT