Hudson on the Hill

Red-button issue:

Social Covenant Under Fire
HUDSON ON THE HILL  |  Feb 15, 2018

Prime Minister Justin Trudeau recently stated that the pending federal budget, now scheduled for Feb 27th, will include more details on how his Liberal government will tackle an arguably red-button issue: the “justifiable frustration and anger” veterans and their families have been handled by his own administration and its Conservative forerunner under Stephen Harper.

Trudeau’s latest commitment came during a recent town hall meeting in Edmonton, where he was confronted by Brock Blaszczyk, a former member of the First Battalion of the Princess Patricia’s Canadian Light Infantry who had been grievously injured during a deployment to Afghanistan in 2009.

“I was prepared to be injured in the line of duty when I joined the military,” the former corporal and seven-year PPCLI veteran told Trudeau, explaining how a roadside improvised explosive device (IED) had not only ripped off his left leg but also cost him 58% of the soft tissue and 88% of his nerve function in his right leg. “Nobody forced me to join the military,” he continued. “I was prepared to be killed in action. What I wasn’t prepared for, Mr. Prime Minister, is Canada turning its back on me.”

Quoting the PM’s August 2015 election campaign promise that “no veteran will be forced to fight their own government for the support and compensation they have earned,” Blaszczyk pointed out that the government, in fact, is still challenging veterans’ claims in court.

“They are asking for more than we are able to give right now,” Trudeau replied, waiting out some heckling before explaining that the New Veterans Charter – a 2006 attempt by the year-old Conservative government to deal with the latest generation of vets – had offered little more than lump sum payments and “very little” in the way of badly-needed services.

“We have significantly invested in services, rehabilitation, support, investments in training, in support for caregivers and families that have gone a long way towards improving the quality of life and outcomes for veterans,” Trudeau said before stating that, in calculating the latest benefits, the Liberals “cannot return to the amount of money that was given before” without taking into account the other benefits they have put in place.

Before the Conservatives eliminated traditional lifetime pensions in favour of a lump sum payment, veterans were eligible for up to $2,700 a month for pain and suffering. The latest Liberal initiative restored the pension approach but capped it at $1,150 a month.

“Nobody wants, after having served their country with valour and honour and sacrifice, to have their government say ‘here’s your cheque; now, don’t bother us any more’,” Trudeau said, gesturing toward Blaszczyk, who had remained standing throughout. “We need to support you through the course of your life with the things that you need, with the things that your family needs – for that is at the heart of the new veterans approach that we have that you will see more details in the budget coming forward.”

So, what’s that likely to be? Traditional budget secrecy being what it is, that remains to be seen. In the hope of providing context and a baseline for what’s to come, the department of Veterans Affairs Canada (VAC) spent $3,781,044,030 or 1.5% of total federal spending in the 2016-2017 fiscal year.

According to the Public Accounts of Canada, some $2,108,339,210 went to disability and death compensation ($604,998,193 of which went unspent), $1,115,509,888 was for health care and re-establishment services; $365,983,197 was for financial support programs; $80,792,453 for “internal services” such as the bureaucracy; $55,553,811 for the Canada Remembers program (for all sorts of memorial initiatives); $10,325,289 for the Veterans Review and Appeal Board; and $4,630,182 for the Office of the Veterans Ombudsman.

Possibly more important than the dollar amounts, however, will be how Finance Minister Bill Morneau and the rest of cabinet apportion the VAC envelope for 2017-2018 and subsequent years. For example, can those “internal services” be streamlined going forward? It’s been suggested before, to no avail, but it may be time to reexamine the practicability.

Meanwhile, in the weeks leading up to the budget, the Equitas Society is seeking leave from the Supreme Court of Canada to challenge a B.C. Court of Appeal ruling on what they feel is the federal government’s derogation of their fundamental rights. When the high court might agree to hear the case is uncertain, but an examination of its approach would suggest that it could be mid-May.

The nine Supreme Court justices would then have to find time on their crowded and increasingly constitutional-and-charter-focused agenda to actually hear arguments before they take the necessary time to adjudicate. I’d guess any final decision on the nature of the “solemn obligation” the Crown has to Canada’s military wouldn’t come until 2019.

Banded together under a banner called the Equitas Society, the vets put their case to the B.C. Supreme Court in 2012. In September 2013, Justice Gordon Weatherill ruled that current and former military personnel injured in Afghanistan could continue their class action against the federal government, which asked that the case be tossed on grounds that it had no chance of succeeding and it was not an appropriate way for vets to express their concerns.

“This action is about promises the Canadian government made to men and women injured in service to their country and whether it is obliged to fulfil those promises.” Weatherill said.

It’s worth noting that in early 2015, in the dying days of the Harper administration, it was disclosed that Justice Canada had spent nearly $695,000 in legal fees fighting disabled Afghanistan vets who felt cheated by Veterans Affairs Canada.

Don Sorochan, senior litigation partner in the Vancouver offices of Miller Thomson LLP – who has been representing the Equitas Society on a pro bono basis, and whose advocacy has resulted in several landmark rulings – knows the system inside and out, also having prosecuted provincially and federally.

“There is a need for those who give their life and limb for Canada to know that they have this obligation (by government), that is not a matter of discretion, not a matter of something that can be changed, that they can count on it when they go into battle for their country," Sorochan said in a published interview after the Supreme Court application was filed.

Among other things, the Equitas vets cite statements made by Canadian politicians such as Robert Borden, Canada’s prime minister between 1911 and 1920. His term encompassed Canadian participation in World War I, and one of Borden’s biggest challenges was the collapse of Canada’s hitherto voluntary recruitment system. By early 1917, recruitment was failing to make up for battlefield losses, so Borden brought in a controversial Military Service Act which provided for, among other things, the draft, which saw the Canadian Expeditionary Force in Europe grow from a single division into a full corps.

Borden had acknowledged that the price would be a “social covenant” through which the federal government would look after its military in a postwar world, but the B.C. Court of Appeal has rebuffed that argument in overturning the B.C. Supreme Court’s agreement that the Equitas vets had sufficient merit to go to trial.

The appeal court ruled, among other things, that “the idea that inspirational statements by a prime minister containing vague assurances could bind the government of Canada to a specific legislative regime in perpetuity does not, in any way, conform with the country's constitutional norms.”

Arguments that the “Honour of the Crown” concept (which sets out obligations to First Nations whose lands had been taken) should hold the government to any historical promises made to members of the Armed Forces, were also rejected.

Sorochan said if there is no social covenant and the Honour of the Crown does not apply to those who have served, that should be determined by the Supreme Court of Canada. He said letters to families from soldiers who fought in the World Wars and Korea referenced “promises that were made to them to induce them to go and fight for their country […] so I don't know how the B.C. Court of Appeal can sit there and say 'this is just a statement from a politician, it’s of no never mind.”

The Liberals have continued to insist that they are fulfilling Trudeau’s election campaign promise by offering lifetime pensions to the most severely disabled veterans. On the other hand, the Equitas vets contend that it is fundamentally wrong that military personnel who retired with a disability before 2006 are entitled to lifetime pensions but the same is not true of all vets with disabilities who retired earlier; those who are not approaching total impairment would be eligible for relatively minuscule pensions under that scheme and there is simply no parity with vets eligible for the previous pension arrangements.

On the day the request for leave to appeal was filed with the Supreme Court, Mark Campbell, a retired infantry major, put a personal face on the issue during a news conference a couple of blocks away in a media room on Parliament Hill.

Permanently disabled by an IED in Afghanistan in June 2006, Campbell said the case goes to the heart of why Canadians choose a military career. “You don't put your life on the line without some sort of reciprocal agreement that you’re going to be looked after should things go sideways,” he said, echoing Brock Blaszczyk. “To find out, as we did though the B.C. Court of Appeal, that there is no basis law for any sort of a social covenant or any sort of special arrangement between the government of Canada and those who serve was quite shocking.”

Dismissing the New Veterans Charter as “widely despised,” Campbell said that “the social covenant has formed the basis of Canada’s relationship with its all-volunteer Armed Forces for 100 years.” Without one, “why would members of our Armed Forces continue to put their lives on the line for a country which promises them no reciprocal care if they’re injured or ill in the line of duty. I would never allow my children to join such an organization nor, given the choice again, would I join.”

He also noted that the issue is coming to a head as the Canadian Armed Forces is coping with a recruitment and retention “crisis” in all operations. “You could not ask for worse timing for a bad legal decision which has tossed a 100-year-old national relationship […] on the trash bin.”

Later in the day, Charlie Angus, the New Democratic Party ethics critic, suggested Canada would be “a better country” if Trudeau treated its vets better.

The prime minister replied that, in contrast to his Conservative predecessors who had “wrapped themselves in the flag” for a decade while cutting frontline services and “nickel-and-dimed” vets, the Liberals are “delivering on a lifetime pension commitment which includes benefits and generous programs designed to help veterans live a full and productive life.”

When Conservative Leader Andrew Scheer jumped in with an assertion that it is “shameful” that “the Liberals are […] telling those who gave their country all they have that they are asking for too much,” Trudeau replied that he would “take no lessons from members opposite on dealing with veterans.”

When Scheer countered that the Conservatives had increased financial support by 35%,” Veterans Affairs Minister Seamus O’Regan said that “as a Newfoundlander, I have seen a lot of fog, but the pea soup fog of amnesia over on that side of the House is so thick.”

As already indicated, this bickering is not only far from over (a protest is being planned for Parliament Hill even as I write), but also far from new. Nearly eight years ago, Sean Bruyea, a retired military intelligence officer who was diagnosed with post-traumatic stress disorder after the Gulf War, decried the fact that disabled veterans and their families were “on the chopping block” as the Harper administration rushed to reduce the overall cost of government.

Bruyea, who successfully fought a personal legal battle with the government over how his personal files were mishandled, commented that “front-line workers in Veterans Affairs, such as case managers, have an average of 1,200 to 1,500 disabled clients each, without any significant programs to assist the majority of the large CF veteran population.” He notes that private-sector case managers would agree that case loads greater than 100 jeopardizes quality of care. “And the government is considering cuts to employee numbers at this time?”

The greater issue, he said, is Canada’s lack of political will “to make fiscal sacrifices to care for those injured soldiers or veterans who have already sacrificed so much in Canada’s name.” He noted that Canada’s veterans have run out of answers as to why their sacrifices are treated with such neglect or even cavalier disregard. “The government can save money by not funding programs or [not] keeping employees to care for and assist so many veterans who have been forgotten for far too long. Understandably, most veterans are too proud to protest the government for which they were willing to die.”

Significantly, Brock Blaszczyk, Mark Campbell and the rest of the Equitas group have chosen to stand proud even as they protest, which is their inalienable right.

If the concept of a “social covenant” is eventually struck down by the Supreme Court of Canada and the vacuum is not remedied by the government, what will that say about our moral or ethical covenant with the military community?

Judges are essentially appointed for life by, in most cases, the prime minister, ostensibly on the advice of other governments and the legal community. But they don’t have to live with the consequences of their rulings – unlike our vets.

Hudson on the Hill
The role of Hudson is being filled by contributing editor Ken Pole.