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Replacement of Desmond Inquiry judge raises concerns

Final report was expected soon

  • July 12 2023
  • By Helen Murphy    

GUYSBOROUGH – The announcement on July 4 that Desmond Inquiry Judge Warren Zimmer would be replaced, when his final report was expected later this summer or early fall, has been met with surprise and disappointment.

A justice department release said Minister Brad Johns had requested that the chief judge of the provincial court assign a new judge to finish the work started by Zimmer, whose term ended June 30.

“The request is being made under Section 38 of the Fatality Investigations Act, which allows for the chief judge to appoint a new judge when the presiding judge retires or is no longer able to complete the inquiry,” the release said. “Four separate extensions have been made over the last 18 months to extend his term in office and allow him time to complete his report. The final extension expired on June 30.”

Lawyer Adam Rodgers, counsel for Lionel Desmond’s sister Cassandra Desmond, said his client is “very disappointed” by the move.

“We thought that the report was likely going to be ready in the next few months,” Rodgers told The Journal Monday (July 10). “And so now with this change, it’s completely uncertain how long it might take, and then what the quality of that report might be once it’s ready, coming from a judge who wasn’t around during the hearings themselves.”

Rodgers said Judge Zimmer had “earned the trust of everybody involved” during the inquiry proceedings.

Zimmer responded to the change in a July 6 email message to lawyers participating in the inquiry. He said, “Context is important, so I am providing you with the following information to assist you and your clients in appreciating the status of the inquiry report process as of June 30, 2023. This information was also provided, most recently, to the Minister…”

Referring to the government’s decision not to permit an additional extension for him to complete his report, he said, “That is their prerogative, however, misinformation and incomplete information does not deserve deference, particularly when it comes from a public department.”

In addition to delays due to COVID-19, Judge Zimmer said he had explained to the minister of justice, “that the impact of the [Mass Casualty Commission] report had to be considered in light of their recommendations relating to, at least, the replacement of the mandatory arrest and charging policies for intimate partner violence offences in Nova Scotia.”

He said he felt this matter “deserved attention as it could reflect on the recommendations coming from the terms of reference” of the Desmond Inquiry, including “whether Lionel Desmond and family had access to appropriate domestic violence intervention services.”

Zimmer said the minister had “been advised that, unlike a public inquiry that can hire staff to read, review and write a report, the Desmond Inquiry is conducted by a judge of the Provincial Court who writes and files their report with the Court. Further, he was aware that approximately 200 pages have been written and gone through a proofreading process but there is more to be reviewed and written and my goal for a final draft was August.

“Suggesting that I have delayed the Inquiry process, including the filing of a report, is offensive. It displays the Minister’s ignorance of the complexity of the process and the need for completeness and accuracy. Ignoring the resources presented by the MCC report is a failure of responsibility. This fatality inquiry report is not a news article to be read on the radio.”

Rodgers also emphasized the significance of the report, noting that it will have an impact across Canada. “It’s an important report that is going to reverberate across the country,” he said. “And so now to have basically a substitute judge come in and try to write it, that’s going to undermine all of those things. So, hopefully, the government will take another look at this [decision].

On July 10, the department announced that Judge Paul Scovil will “take over all responsibilities related to the Desmond Fatality 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,” said Chief Judge Williams in the July 10 news release. “I want to thank Judge Zimmer for his close and considerate attention to this important task.

“I am confident that Judge Scovil will pay the same attention to this work, keeping in mind the urgency of the task at hand. The families involved have been waiting patiently for answers and recommendations on how to improve the options and supports available for people affected by mental illness and intimate partner and family violence.”

On July 11, the opposition Liberals accused the Tory government of interfering in the inquiry.

“With over 10,000 pages of transcript and more than 120,000 pages of documents produced by the hearings, it should have been clear to the Houston government that Judge Zimmer must receive whatever resources he needed to complete this important work,” the Liberal news release said.

“The actions of this government contradict their own words of less than a year ago that maintaining consistent jurisdiction over this inquiry is important to the public,” said Opposition Leader Zach Churchill in the release. “There are many questions and concerns now being raised about how this matter has been handled and whether or not this entire process in now in jeopardy because of the interference of this Minister and this government.

“The Attorney General needs to explain why he is doing this about face and explain if it was his or the Premier’s decision to pull Judge Zimmer from this important work at the 11th hour, which is now further impacting the family and the people of the province,” said Churchill.

Judge Zimmer is a retired part-time judge appointed in July 2018 to preside over the fatality inquiry into the tragic deaths of Lionel Desmond and members of his family in January 2017.