Desmond inquiry: Nova Scotia inquest into shooting tragedy facing complex challenges

Shanna and Lionel Desmond hold their daughter Aaliyah in a photo from the Facebook page of Shanna Desmond. (THE CANADIAN PRESS / HO - Facebook)

Almost five years after Afghanistan war veteran Lionel Desmond killed three family members and himself, an inquiry is expected to draw to a close next month in Nova Scotia with questions still lingering about what it can accomplish.

Before the provincial fatality inquiry was approved by the province on Dec. 28, 2017, Nova Scotia's chief medical examiner, Matt Bowes, told then-justice minister Mark Furey it wasn't a good idea.

"Many of the issues surrounding these fatalities are within the sole jurisdiction of the federal government or are interconnected with areas of provincial jurisdiction," Bowes told Furey in a Dec. 1, 2017, letter submitted as evidence at the inquiry. "A (provincial) inquiry cannot make recommendations about matters under federal jurisdiction."

At the time, Bowes recommended a joint federal-provincial inquiry, saying Ottawa's stated willingness to co-operate with a provincial inquiry could prove to be an empty promise. A Nova Scotia government spokeswoman later confirmed Furey had requested a joint inquiry but was turned down by Ottawa.

That left Bowes with little choice but to call for a provincial inquiry and hope for the best.

Among other things, the provincial inquiry has investigated the circumstances leading to killings in Upper Big Tracadie, N.S., on Jan. 3, 2017. On that day, Desmond entered his family's home dressed in camouflaged clothing and shot his wife, Shanna, 31, their 10-year-daughter, Aaliyah, and his 52-year-old mother, Brenda, before turning the gun on himself.

The 33-year-old retired infantryman had been diagnosed with post-traumatic stress disorder in 2011 after completing a particularly violent tour in Afghanistan in 2007. He had also been diagnosed with major depression, and later tests indicated he may have had a traumatic brain injury.

Immediately after the triple murder-suicide, friends and family said Desmond did not get the help he needed from two federal entities -- the Canadian Armed Forces and Veterans Affairs Canada -- as he tried to transition to civilian life in 2015-16.

On the first day of the inquiry's public hearings on Jan. 27, 2020, Bowes testified he was still worried about the limited scope of the inquiry and its "potentially limited role" in getting information from Ottawa. Six months later, with the inquiry on hold because of the COVID-19 pandemic, then-Nova Scotia premier Stephen McNeil said the inquiry was flawed because "it does not have the federal government there as an equal partner."

But as the inquiry pressed on, something remarkable happened.

Every federal witness asked to testify did so. And every federal document sought by inquiry counsel was turned over without protest, except one -- and even that report from Veterans Affairs was eventually scrutinized and made public.

Allen Murray, lead counsel for the inquiry, says the inquiry had the power to subpoena witnesses and order the release of documents, but that never happened.

"The federal government has been very forthcoming," Murray said in a recent interview. "We learned a lot about (Desmond's) interaction with federal entities."

In all, the inquiry heard testimony from 70 witnesses during 45 days of hearings that were sidetracked by the pandemic for almost a year.

Aside from investigating the circumstances of the four deaths and Desmond's interactions with provincial health and firearms officials, the inquiry was tasked with determining whether he had access to mental health and domestic violence services. The inquiry also investigated whether health-care and social services providers were trained to recognize the symptoms of domestic violence.

To be sure, the inquiry can't make any recommendations for change within areas of exclusive federal jurisdiction, which include the policies and procedures of the Canadian Armed Forces, Veterans Affairs and the RCMP. Still, Murray said the inquiry will have some degree of latitude when it comes to dealing with the federal government's role in the tragedy.

Some of the inquiry's terms of reference speak to the interaction between the two levels of government, including provincial administration of the federal firearms program and provincial access to federal health records.

"The two levels of government are not watertight compartments," Murray said. "They interact."

That interaction is at the heart of the inquiry.

The man presiding over the hearings, provincial court Judge Warren Zimmer, has on several occasions cited testimony indicating Desmond "fell through the cracks" after he left a treatment program for veterans at a Montreal hospital in August 2016 and returned home to Nova Scotia.

The inquiry has heard that during the next four months, a case manager from Veterans Affairs, Marie-Paule Doucette, was responsible for helping Desmond find provincial mental health services to help him cope. But that process was beset by delays and bureaucratic snafus, leaving Desmond with no actual therapeutic treatment as his mental health declined.

During that crucial period, Desmond sought help from two local hospitals in eastern Nova Scotia, but the doctors he met were unable to get his federal health records, which clearly spelled out just how ill he was.

Lawyer Adam Rodgers, who represents Desmond's estate, said this key finding should result in recommendations for change, despite the inquiry's jurisdictional limitations.

"With joint federal-provincial issues, like ensuring the transfer of medical records from the military to the provincial health authority, we can stay within provincial jurisdiction by recommending the health authority work with the military to develop a protocol for transfers," he said in a recent email.

And even if the inner workings of Veterans Affairs and the other federal entities are off limits to the inquiry's final recommendations, there's nothing stopping Zimmer from making observations about what he learned from the hearings, Rodgers said.

"For more purely federal issues, like what appear to be unreasonably bureaucratic constraints placed on Veterans Affairs case managers, we may not be able to frame them as recommendations," he said.

"But we definitely need to talk about Veterans Affairs. In his final report, Judge Zimmer is entitled to make comments on these factors, and perhaps note them as contributing factors in this tragedy."

The inquiry has been adjourned until Jan. 10, when time has been set aside to hear from other witnesses, but it's not clear if that will happen. Final submissions from the participating lawyers are expected in late January or early February.

This report by The Canadian Press was first published Dec. 29, 2021.