Veterans Affairs won't voluntarily release its review into former soldier who fatally shot his family, himself

Veterans Affairs conducted an internal review into the day an Afghanistan veteran with post-traumatic stress disorder shot his family and then himself — but the department refused to voluntarily share its findings with the ongoing provincial fatality inquiry.

The inquiry, which seeks to prevent deaths like those of Lionel, Shanna, Brenda and 10-year-old Aaliyah Desmond, only learned of the review last week, more than a year after Judge Warren Zimmer began hearing evidence. 

Veterans Affairs lawyers say it falls outside the inquiry's purview.

That's because the inquiry is a fatality inquiry, not a public one, and it is only provincial in scope. Ottawa rejected the Desmond family's campaign for a joint provincial-federal public inquiry, which would have had legally binding recommendations that could encompass both levels of government. 

The inquiry has the ability to subpoena evidence, but only when it falls within the scope of its mandate — and, in this case, it's unclear whether the review does. 

It is a provincial inquiry, but the mandate does include getting answers as to whether Desmond had access to appropriate mental health services. That's something Veterans Affairs helped co-ordinate and paid for, in Desmond's case.  

In an email to CBC News on Tuesday, a Veterans Affairs spokesperson said a copy of the review has been provided to Zimmer so he can rule on whether the review is within the inquiry's mandate.

Counsel for Veterans Affairs told the judge Tuesday that they're "of the view that [the documents are] covered by inter-jurisdictional immunity," but said it would be up to the judge to make that legal determination.

Desmond family wants review made public: lawyer

The lawyer for Lionel Desmond's estate, however, said that the federal veterans affairs minister pledged full co-operation on the day the provincial inquiry was announced.

"Now we're starting to see the limits of that commitment," Adam Rodgers said. 

Former Veterans Affairs minister Seamus O'Regan even hedged his support at the time, telling CBC News that although he was  "committed to offering the fullest support available," he would need to see the terms of reference of the inquiry before speaking more broadly about it.

The Desmond family was devastated to learn about the internal review, Rodgers said. Cassandra Desmond, Lionel's sister, travelled to Ottawa following the fatal shooting and called for a joint public hearing. She said she wanted to ensure that the upper levels of government would be compelled to fully participate.

A fatality inquiry does not lay blame or hold any person or department liable, which Rodgers said means there's no reason for Veterans Affairs not to release its review.

"We're left to presume that whatever the report reveals persuaded the federal government, at least in part, to reject calls for their own inquiry or a broader inquiry of some kind," he said.

"So I think it's critical that we see what's in there. And if we don't see what's in there, I think we can only presume that there's something damaging to the federal government in there."

Belated disclosure from Veterans Affairs

News of the internal review came to the attention of inquiry counsel Allen Murray after the federal attorney general's office disclosed its existence in advance of testimony from a Veterans Affairs witness that was supposed to testify this week.

Marie-Paule Doucette, Desmond's Veterans Affairs case manager, was involved in the review.

Murray said that it's not unusual to disclose information later in a trial or an inquiry. He said the lawyers for the attorney general have been reliable with disclosure. 

In this instance, he said that those lawyers feel that the internal review falls outside of the scope of the provincial inquiry, given that Veterans Affairs is a federal entity. But he said there's an ongoing discussion about releasing that information. 

"Ultimately there's a process to follow to determine whether [documents] can be disclosed or not," Murray said. "I'm not sure how this will play out, but it may well be that we were able to to look at those documents. We'll just have to kind of see."

On Monday evening Veterans Affairs issued the following statement in response to questions from CBC News: 

"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."

Tara Miller, the lawyer representing Brenda Desmond, Lionel's mother, and Aaliyah Desmond, his daughter, said it would be disappointing not to have the review. It has examined whether Desmond had access to appropriate mental health services, as well as whether his family had access to domestic violence intervention services.

Any information that can provide context as to what led Desmond to shoot his family inside his in-laws home in Guysborough County, N.S., on Jan. 3, 2017, is important, Miller said. Desmond shot his mother, daughter and wife before turning the gun on himself.

"That's the purpose of this inquiry, to shine light, to have a more fundamental understanding of what went wrong so that we can make sure in the future it doesn't happen again," she said.

This week, two Veterans Affairs witnesses will testify before the inquiry, one to provide background on the services available to veterans. 

His case manager will be scheduled to testify at a later date, according to inquiry counsel.