After several extensions, it was time to dismiss investigating judge Desmond: NS government

The Nova Scotia government says the legal shuffle in the Desmond death inquiry is justified.

“The government has not taken this decision lightly,” Andrew Preeper, director of communications at the Justice Department, said in a statement Wednesday.

“The family and all residents of Nova Scotia have waited far too long for answers. The research started five years ago. It has been almost 15 months since the parties made their final statements.

“The presiding retired judge has applied for and been granted multiple extensions to his statutory term to allow him to complete the investigation.”

Judge Warren Zimmer, now retired, was appointed five years ago to lead the provincial fatality inquiry into why Afghan war veteran Lionel Desmond killed his wife, mother and 13-year-old daughter before committing suicide at his in-laws’ home in Upper Big Tracadie on January 3, 2017.

After several delays, including an 11-month hiatus directly attributable to COVID-19 and provincial pandemic restrictions, the inquiry’s hearings concluded in April 2022.

Zimmer was tasked with delivering a comprehensive and detailed investigative report, but last week Prime Minister Tim Houston said the government had decided to fire the judge because his report was taking too long.

Because of the independence of the judiciary and the investigation, the administration could not impose a deadline on Zimmer to deliver the report, Preeper said.

However, the county’s Fatal Victims Investigation Act allows the appointment of a new judge when a judge presiding over an investigation retires.

On June 30, the provincial government decided not to extend Zimmer’s term on the provincial court, effecting his retirement.

Pamela Williams, Chief Justice of the Provincial Court, announced earlier this week the appointment of Provincial Court Judge Paul Scovil to take over the helm of the investigation.

In a letter to investigative lawyers following the prime minister’s comments, Zimmer said he had told the government he intended to submit his report in August. He said the decision to fire him was based on misinformation and ignorance.

“Suggestion that I delayed the investigative process, including the filing of a report, is abusive,” Zimmer wrote in the letter. “It shows the minister’s ignorance of the complexity of the process.”

Zimmer said in the letter that he had already written 200 pages of the final report, pointing to the voluminous amount of material he had to review. During 56 days of hearings, the investigation heard 70 witnesses who generated more than 10,000 pages of transcripts.

“The period from the date of last counsel’s comments at the end of April 2022 to June 30, 2023 is approximately 14 months,” said Zimmer’s letter. “The aforementioned amount of material before the examination is huge and cannot be shortened because the minister believes it should be an easy task to complete.”

Preeper’s statement said it is important to note that no judge, not even a part-time judge, can sit over the age of 75 in Nova Scotia.

“Four exceptions have been made to allow Judge Zimmer to sit after age 75,” he said. “Judge Zimmer was also offered additional resources to support him, which were rejected.”

Preeper said Zimmer’s original request for an extension suggested that the final report be released in September 2022.

“There have been three more extensions with suggestions that the report was coming, but no report has been issued,” Preeper said.

“The department was not given the same assurances that the report would be finalized in August as has been publicly stated this week. Since previous extension requests have not resulted in a full report, the government had no reason to expect that this most recent request would have produced a final report.”

Opposition leaders said the government’s actions amounted to political interference.

“According to Judge Zimmer, he was just weeks away from completing his report, and I think if you look at what he said and what the family has said, he probably should have been given a chance to complete this report.” said liberal leader Zach. Churchill said on Wednesday.

“The family has communicated through their lawyer that they had built a relationship with Judge Zimmer, they had confidence in him. He was only weeks away from completing this thing, and at the 11th hour, the rug was pulled out from under him by political interference.

Churchill said the change of judges will either result in a further delay before the report is completed or in a swiftly delivered report that “does not necessarily go into the issues so deeply that they should be looked at”.

It is concerning because “this is not the first time Houston and his administration have interfered with the judiciary,” Churchill said, adding that the administration’s decision warrants an independent investigation.

NDP leader Claudia Chender said “based on what we heard from independent legal experts, what we heard from the judge himself, and of course the fact that there were all sorts of unforeseen delays in this time frame, mainly COVID and the restrictions that the I think people are rightly concerned that this feels like there’s an element of political interference to it.

Chender said it is “highly likely that this change will add time to the process.”

“I don’t know why the government would do this except that over the past two years we have seen a pattern or a desire to control everything within and beyond the scope of the Prime Minister’s office and the executive council from the Prime Minister’s office …and we’ve seen an invasion of the other government powers, we’ve seen interference in the judiciary on more than one occasion, and we’ve seen the collapse of once-independent crown companies in this county,” the new Democrat said.

“This is a government that essentially wants to remove independent oversight of everything it touches.”

Preeper said the last extension that would allow Zimmer to sit as a judge ended on June 30.

“The Law on the Investigation of Fatal Victims allows the appointment of a new judge when an investigating judge retires,” he said. “A decision not to change the law for one person is not political interference.”