Desmond Inquiry reopens under shadow of N.S. government interference

When Tim Houston’s government cut loose ex-judge Warren Zimmer just weeks before he was to file his Desmond Inquiry report, it showed two things.

The first, says top administrative law expert Ed Ratushny, is bad judgment.

The second is a willingness to interfere in an independent process and cast doubt on whatever recommendations may come from it.

It compromises the credibility of the inquiry, Ratushny, an emeritus professor of law at the University of Ottawa, said in an interview.

It’s been just over two months since retired judge Zimmer was removed from the Desmond Inquiry at the behest of the province. Premier Houston told reporters at the time Zimmer was taking too long to finish the final report. What the premier didn’t say was that days before, Zimmer had sent a letter to Justice Minister Brad Johns telling him that the final report was almost done.

In the letter, Zimmer said he’d written hundreds of pages and that the report would be completed in August.

Ratushny says the premier and the province had no business interfering in an administrative tribunal which is supposed to be completely independent. Zimmer has since been replaced with Judge Paul Scovil.

On Tuesday, the inquiry will reconvene for at least one more day of hearings and the new judge has given no indication when the final report will be filed.

There will be questions

A shadow has been cast over the entire process, said Ratushny.

“To me it looks like it was a matter of very bad judgment on the part of the government,” said the professor. “There will be questions on whether the facts and recommendations coming from the report are properly made. There’s a new judge who might be pushed by the government. We don’t know that, but there is a possibility.”

The Desmond Inquiry falls under the province’s Fatality Investigations Act. Under the legislation, the chief judge of the Provincial Court of Nova Scotia is responsible to appoint a judge to conduct an inquiry. That person is supposed to be accountable to the chief judge alone.

The courts named Judge Zimmer to preside over the inquiry and the province temporarily exempted him from the normal rules requiring judges retire at age 75.

Lionel Desmond, a war veteran with PTSD, fatally shot his mother, wife and child at their home in Guysborough County before killing himself.

Should not have been replaced

Ratushny isn’t the only one concerned about the province interfering in the inquiry. Adam Rodgers, a lawyer representing Desmond’s sister, said Zimmer had been doing a good job and should not have been replaced. That he was removed at the province’s request “undermines the entire report,” he said.

Rodgers also accused the minister and premier of political interference in a judicial process that’s supposed to be independent of government and that neither of them has the background to understand why that’s a big problem. Opposition members also condemned the province’s move.

Opposition Leader Zach Churchill released a statement shortly after Zimmer was replaced saying “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.”

Wayne MacKay, a Dalhousie University law professor, goes further.

“This appears to be a case of interference with an independent inquiry that raises important questions about keeping the judicial branch and the executive branch of government distinct. If we fail to do that then we compromise the extent to which courts can make government accountable for their actions.”

This is particularly important here, said MacKay, because this inquiry is probing the province’s possible role in the tragedy.

‘He’s working hard on this’

SaltWire questioned Justice Minister Johns about concerns that government interference could undermine the inquiry, but Johns did not address the question directly. He said “it was taking more time than it should have.”

He also said “Judge Scovil is a very capable judge and he’s working hard on this.”

The inquiry had been delayed for more than a year because provincial COVID restrictions made holding hearings impossible. Public testimony wrapped up this spring.

Johns said that the department had offered help to Zimmer, but that he had turned it down.

It was inappropriate for the province to offer Zimmer help in the first place, says MacKay.

“It’s a further illustration of the government’s lack of proper appreciation for the principles of judicial independence,” said MacKay.

“It also indicates a lack of full understanding of the legal structure in which Judge Zimmer was accountable to the chief judge of the provincial court for how he performs his duties — not the government.”