Dancing on the head of a constitutional pin

Is the Veterans Affairs department’s internal review of its handling of the Lionel Desmond murder-suicide relevant to the current Nova Scotia inquiry? Yes. Are there lessons to be learned? Almost certainly. Time for Ottawa to stop playing jurisdictional games and make it public.

Lionel Desmond (far right corner) was part of the 2nd battalion, of the Royal Canadian Regiment, based at CFB Gagetown. Photo: Trevor Bungay/Facebook

Some days you read something, and you just have to shake your head in wonder and disbelief. Some days you just wish you could shake their heads. Consider the recent goings-on — and not going on — at the Lionel Desmond fatality inquiry. Last week, the inquiry, which is looking into the 2017 triple-murder-suicide in which Nova Scotia Afghanistan war veteran Lionel Desmond killed three of his closest family members before turning his weapon on himself, was supposed to hear from his Veterans Affairs department case manager.

Marie-Paule Doucette’s role had been to coordinate the department’s efforts to help Desmond “overcome barriers to his mental and physical wellness” after he left the military in 2015.

She didn’t testify.

On April 14 — more than a year after the inquiry began and just one week before she was scheduled to appear — lawyers for the department told the inquiry it would not provide a crucial internal review of how Veterans Affairs had handled Desmond’s case. That, presumably, would have formed the basis for the inquiry’s questioning of Doucette.

While the federal lawyers explained they understood the Veterans Affairs review “could be of some assistance to the inquiry,” they declared “both the review and results are beyond the terms of reference and will not be provided.”

Let’s stop there and rewind for a moment.

In December 2017, after almost a full year of pressure from the family for a public inquiry into the tragedy, the Nova Scotia government appointed this second-choice provincial inquiry.

It was less than the joint federal-provincial inquiry the family had been demanding — one whose recommendations could have been legally binding — but the then federal Veterans Affairs minister, Seamus O’Regan, pledged Ottawa “will work with Nova Scotia” and offered his government’s “full cooperation” to get to the bottom of all that had gone wrong.

In recommending a provincial inquiry, Dr. Matthew Bowes, Nova Scotia’s chief medical officer, identified much that had gone wrong and suggested the inquiry should examine whether there was a…

… tangible connection between the deaths and the appearance of a failure of policy or practice which, if corrected, is likely to prevent future deaths of this same type… I was very much struck by the fact that there were many government agencies that touched on Mr. Desmond’s life and I would take the view that the interconnection between all of those may well have been better.

Somewhere between then and now, it seems, O’Regan’s full cooperation became a lawyers’ dance on the head of a constitutional pin. As Ed Ratushny, a professor emeritus at the University of Ottawa’s law school, told iPolitics soon after the appointment of the inquiry, “It’s a question of constitutional law, as to what the boundaries are between the province and the federal government … It could be a significant barrier to fully exploring the issue.”

And so it has turned out to be.

Sometime between the federal lawyers’ confidential email and the resumption of the inquiry last week, someone — I presume someone connected with the family, though I don’t know for sure because I haven’t been covering the hearings — leaked its contents to the media.

On the day before Doucette was supposed to testify but didn’t, a Veterans Affairs spokesperson half-backtracked on the lawyers’ email, issuing a statement declaring that — following discussion with Warren Zimmer, the presiding judge, and inquiry counsel — the department had turned its review over to Zimmer for him to determine whether it should be admitted, “despite it not falling within the realm of the inquiry.”

Later, the department issued a bland non-statement to CBC:

The Government of Canada is providing all relevant information, within its jurisdiction, to the Desmond inquiry. In keeping with the Privacy Act, however, we cannot discuss any specifics about that information. Furthermore, with the inquiry ongoing, it would be inappropriate to comment further.

Everyone seemed more eager to complain about the leak to the media than explain the department’s initial decision to withhold the document.

“The email was not expected to be a launching pad for criticism, but rather as a vehicle to inform counsel that there was new information that existed,” Zimmer complained during last Tuesday’s hearing. “I do not want to see that happen again,” he grumped.

Zimmer did not mention that the “new information” almost certainly existed well before the inquiry was even called, or that the existence of such a significant review had never been disclosed to Desmond’s family, let alone the inquiry.

So, here’s a question. If information about the existence of the review had not found its way into the public domain, and if Zimmer had simply accepted the federal lawyers’ “confidential” claim the review was beyond the scope of the inquiry, would we even be having this discussion?

We already know from other testimony last week that the document is critical. We need to better understand what the Veterans Affairs department did — and did not do — to help Lionel Desmond and his family.

By the time he left the military in 2015, Desmond had already received more than four years of treatment for his severe PTSD and major depression.

After his release, Veterans Affairs was supposed to assume responsibility to coordinate and pay for Desmond’s continuing care. Although Desmond did apply for support from the VA rehabilitation program, including asking that a case manager be assigned to help him navigate the system, it took more than six months for the department to do so. A senior manager from the department who did testify last week agreed the time lag was unacceptable.

We don’t know why. There may be answers in the internal review.

There may also be an explanation buried somewhere in that review that will tell us why it took Veterans Affairs more than three months after Desmond was released from an in-patient psychiatric care program in Montreal in mid-2016 to connect him with a social worker in Nova Scotia. By the time the two finally met on Nov. 30, 2016, it was barely a month before the ticking time bomb that was Lionel Desmond exploded in murder and suicide.

That internal review is critical to understanding what Veterans Affairs did and didn’t do in the Lionel Desmond case. It is even more critical to figuring out how to improve the system to prevent such tragedies in the future. And for the department to be accountable for those changes.

Lawrence MacAulay, the current veterans’ affairs minister, needs to make that internal review a matter of public record so the inquiry can consider it — jurisdictional niceties be damned.

Give your head a shake, Minister, and do the right thing. Now.

A version of this column originally appeared in the Halifax Examiner

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