November 14, 2021

A Brief History of Inquiries in Nova Scotia

The Mass Casualty Commission will be the seventh Inquiry held in Nova Scotia, including the ongoing Desmond Fatality Inquiry. There are some interesting commonalities and distinctions among these seven, with the flexible legal structure of inquiries also being on display. The list includes a wrongful conviction inquiry, three fatality inquiries, an investigative inquiry, and a restorative inquiry.

Perhaps the most well known is the first Nova Scotia inquiry, the Donald Marshall Inquiry, which was called October 28, 1986 and reported three years later in December, 1989. Volumes have rightly been written about Mr. Marshall’s impact and personal heroism, and it would be fair to say he has been one of the most impactful individuals in terms of making changes to Canadian law and legal structures, both through this Inquiry and also through his Supreme Court of Canada fisheries rights cases.

The Marshall Inquiry changed the way cases are prosecuted in Nova Scotia, emphasizing the importance of full disclosure to defense, and ensuring that prosecutors aim at truth and justice rather than court “victories”. It also exposed the systemic and institutional racism throughout the justice system, particularly with respect to accused persons of aboriginal heritage.

Newfoundland and Labrador Chief Justice Alexander Hickman was the Chairman of the Marshall Inquiry, with two other Commissioners being involved. Future Inquiry Commissioner, and now NS Court of Appeal Justice, Anne Derrick was counsel to Mr. Marshall.

The Westray Inquiry was called by the NS government days after the tragic mine explosion of May 9, 1992. This was an investigative inquiry, looking into safety regulations and other issues related to mining in Nova Scotia, and at the Plymouth mine specifically.

The 800-page final report from Justice Peter Richard was not released until five years later, in 1997. Much of this delay was due to a legal argument that went to the Supreme Court of Canada relating to whether the Inquiry could proceed while related criminal cases were still ongoing. The Court emphasized the importance of the public interest in an Inquiry, and this decision may take on relevance with the Mass Casualty Commission if any roadblocks related to the ongoing criminal case against the gunman’s partner, Ms. Banfield, are contemplated.

The next inquiry held in Nova Scotia was a fatality inquiry, the Nunn Commission of Inquiry, named for the Commissioner, Justice Merlin Nunn. This inquiry arose from the tragic death of teaching assistant Theresa McEvoy by a recently released youth offender on October 14, 2004, and addressed issues related to youth criminal justice in Nova Scotia. The final report was issued two years later, in December, 2006.

Current Desmond Inquiry Commissioner, NS Provincial Court Judge Warren Zimmer, was involved in the Nunn Commission, representing the youth who was responsible for Ms. McEvoy’s death. Other notable counsel involved include current Associate Chief Justice Pat Duncan, who was representing the Halifax Police, and Danny Graham, who was part of the team representing the McEvoy family.

On November 30, 2010, then Provincial Court Judge Anne Derrick released her report into the fatality of Howard Hyde, who died three years earlier, on November 22, 2007 while in Sheriff custody. He had chronic schizophrenia, and the inquiry looked at the interactions among the courts, hospitals, police, and other justice system participants when it comes to dealing with mental health considerations in accused persons.

Inquiry Counsel in the Hyde Inquiry was current Provincial Court Judge Dan MacRury. Also involved were current Provincial Court Judge Elizabeth Buckle, representing the Halifax Police, and the current Chief Justice of Nova Scotia, Michael Wood, who was representing Dr. Stephen Curry.

Unique among the inquiries in this list is the Nova Scotia Home for Coloured Children (SNHCC) Restorative Inquiry. This arose out of a lengthy litigation background related to systemic and institutional racism in Nova Scotia, and the circumstances surrounding which young African Nova Scotians were involved in the NSHCC, and abuse suffered there. The Premier of Nova Scotia issued an apology in October, 2014, and the final report was released in 2019.

A unique feature in this inquiry is the lack of a judicial presence in the role of Commissioner. In this case, it was Dalhousie Law Professor, Jennifer Llewellyn, an internationally-recognized expert in restorative justice, who lead the effort, along with leaders from within the African Nova Scotian community and those most affected by the NSHCC.

The next inquiry held in Nova Scotia is the ongoing Desmond Fatality Inquiry, which is being lead by Commissioner Judge Warren Zimmer, with Provincial Crown Prosecutors Allen Murray Q.C. and Shane Russell as Inquiry Counsel, and I am representing the Personal Representative to the late Cpl. Lionel Desmond, a Canadian Armed Forces veteran who served in Afghanistan and who tragically killed his wife, mother, and daughter before committing suicide on January 3, 2017.

The report from this Inquiry is expected to be released in early 2022, which will be five years after the tragic events, the same as was the case in the Westray Inquiry. It may be noteworthy to observe that taking even a relatively discreet legal issue to the Supreme Court of Canada, as was done in Westray, entails roughly the same time delay as may be engendered by a global pandemic, which has been the genesis of a significant portion of the delay in the Desmond Inquiry.

That brings us to the present, and the Nova Scotia Mass Casualty Commission. The Mass Casualty Commission has three Commissioners, like the Marshall Inquiry, and is something of a hybrid case in terms of how we might characterize the nature of the inquiry. There were 22 fatality victims, so like the Hyde Inquiry in particular, it will have some of the features of a fatality inquiry in that it will look for underlying causes of what happened, such as intergenerational and domestic violence.

It is also an investigative inquiry, like Westray, as there are factual issues to determine and also questions to be answered in terms of whether mistakes were made or police planning and emergency measures need to be improved when reacting to active shooter situations.

Being a relatively recement phenomena in relation to the legal history of Nova Scotia, the legal frameworks of inquiries in Nova Scotia are still developing, as we gain experience with different formats, and as the nuances of each new scenario are taken into account.

This procedural flexibility is a strength of the inquiry structure, and so even as more take place and lessons are learned as to what kinds of things work best, that core flexibility should remain, so that the structure can adapt to whatever future situation might call for the in-depth rigour of an inquiry process.