Evidence of meeting #33 for Veterans Affairs in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was ombudsman.
A recording is available from Parliament.
Law Clerk and Parliamentary Counsel, House of Commons
You're right in that the two could be combined. It should be remembered that Mr. Trudeau's charter is a constitutional charter. It's critically important to understand that this charter takes precedence over all other acts, including this one.
Bloc
Gilles-A. Perron Bloc Rivière-des-Mille-Îles, QC
Would the veterans' charter not become a priority for all veterans in terms of their dealings with the government?
Law Clerk and Parliamentary Counsel, House of Commons
Yes, in so far as relations between veterans and the government are concerned. However, the Canadian Charter of Rights and Freedoms is not affected in any way by it.
Bloc
Gilles-A. Perron Bloc Rivière-des-Mille-Îles, QC
I understand. I don't want to tinker with the Canadian Charter of Rights and Freedoms. I was merely giving you an example.
Law Clerk and Parliamentary Counsel, House of Commons
If we include in the act a declaration of veterans rights, the act will be like all the others. It will not be considered constitutional or quasi-constitutional in scope. It will simply be a piece of legislation.
Bloc
Gilles-A. Perron Bloc Rivière-des-Mille-Îles, QC
This declaration could be incorporated into the existing veterans' charter.
Law Clerk and Parliamentary Counsel, House of Commons
Possibly, it could. It's really up to the committee to decide.
Conservative
Peter Stoffer NDP Sackville—Eastern Shore, NS
Thank you very much, Mr. Chairman.
Thank you both for coming today.
If you've had a chance to look at the bottom sample here, if I were working for Veterans Affairs Canada, the word “accountable” would always make me nervous.
You're saying this could be an amendment or an addition to the Veterans Charter, but is it at all possible to design a bill of rights that not necessarily has legal standing but has sort of a complementary standing? It would basically say, “Here's what we would like to see happen for all veterans when they approach DVA on various issues. This is what we hope happens, but it doesn't necessarily need to have legal standing.”
What exactly does the word “accountable” mean in legal language? Should something like that be in something of this nature?
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, certainly the English word “accountable” has become a word of much contention des finances énormes, ces jours-ci. What are the options to have something? First of all, any drafter would look very closely at this language, more closely than perhaps the author of this document has had an opportunity to. Yes, there are problematic words in here, for sure. There may be a need for greater precision with regard to the meaning of some of these words. Don't forget the Charter of Rights and Freedoms itself has language that is elastic, and there are some people who object to the elasticity of some of this language in terms of how it has been stretched over the years.
One of the risks you take when you use large language is that it's given large interpretations that the authors may not have intended. Having said that, Mr. Chairman, I think one of the things you could do if you wanted to soften this down considerably in terms of being a legal instrument is in the context of accountability under the new Accountability Act, where the House of Commons declares this to be a legal bill of rights for veterans and the standard by which the House of Commons will hold the department accountable to it.
Now, that relationship is between the department and the House of Commons. The veteran may still be standing out in the cold wondering when his or her needs get addressed. It's all very nice for the department to be accountable to the House of Commons by this, and perhaps some veterans would take comfort in that kind of regime, but it doesn't give them the mechanism they as individuals might want to go to assert their rights vis-à-vis the government.
NDP
Peter Stoffer NDP Sackville—Eastern Shore, NS
Is it possible to have something similar to this in nature that doesn't have legal standing but gives comfort to a veteran? The intent is for all of us here to work together to assure the veterans and their families that when they have concerns that need to be met, these are more or less the principles that would be abided by without having legal standing. Or does it have to have legal standing?
Law Clerk and Parliamentary Counsel, House of Commons
I don't know how you could have something that could give genuine assurance that didn't have legal standing, because at the end of the day you need to have the ability to go somewhere to a third-party adjudicator and insist on your rights and have your rights respected and enforced. There is no middle ground, apart from the one I just suggested, which is more of a public debate. Maybe that could be done in addition to the legislation. These aren't mutually exclusive. There could be two regimes that are available, so that the government is accountable to the House in terms of this bill of rights and the department is accountable to the individual veteran by virtue of this act of Parliament affirming these rights and providing a regime for a third party, like an ombudsman or a board or a court, to intervene on behalf of the veteran to enforce those rights where they're not being respected.
Conservative
Betty Hinton Conservative Kamloops—Thompson—Cariboo, BC
Thank you, Mr. Chairman. I'm going to share my time with Mr. Shipley.
Your last statement was very interesting. I would offer you an opportunity to go into that in a bit more detail if you want. I think it merits more time and maybe a more thorough explanation from you. In terms of tying the bill of rights to anything, the bill of rights is the softer part of the actual ombudsman position. So I think if you were going to tie them, those might be the two sensible things to tie them to. I would be really interested in hearing if you'd like to elaborate at all on your previous statement.
Law Clerk and Parliamentary Counsel, House of Commons
Thank you.
Mr. Chairman, I don't know what I can say by way of elaboration at such an early stage on this project. As I said earlier, the devil is in the details. One needs to move further down the road on this project to see with some precision what is contemplated in order to make a useful comment beyond what I have done.
For the moment, as the drafter I would ask this committee, as the instructing officer to me the drafter, what you are really trying to achieve here. As the bottom line, what are you trying to achieve here? Is your objective accountability of a department of government? Or Is your objective assurance to veterans that their rights will be respected? Or is it both?
Law Clerk and Parliamentary Counsel, House of Commons
I'm sure it is both, but to some extent one has to have that very clearly in mind to look at the architecture of this bill. Is it an ombudsman who is going to enforce these rights by simply making a public comment that they're not being respected and that's the end of the matter? Or are there some further steps possible?
The Ethics Commissioner, when he is looking at a complaint raised by a member about another member because of parliamentary privilege, reports to the House, and it is anticipated that the House then might do something. It might not, but there is certainly an element of embarrassment to the members involved by virtue of that process. Is that where you want to go with this, or do you want to go to a court of law and enable the court to make an order, not against the particular official but against the government, that certain actions be taken or not taken?
You have the whole question of costs. You might say it's the cost of independence. It is contemplated here to have free legal services of the Bureau of Pensions Advocates. I have nothing but respect for that bureau. I don't mean to suggest anything unprofessional here, but it is a government bureau. It would not be unreasonable for a given veteran to have reservations about how much the lawyer in that office is working for him or her, as opposed to working for him or her within the context of some bureau or bureaucratic policy that puts limits on what can be done for veterans. It's just the nature of things.
In the Soviet Union everybody's lawyer was an employee of the state. That's all very nice; I'm sure many of them did their best. But the reality is they probably had some overriding policies that put constraints on what they could do for their client, whereas we have a tradition in our country, and other countries as well, that your bar—your lawyers—are utterly and completely independent, so that the only interests they have in mind are the interests of the client, and they advance those as far as the law enables them to be advanced.
Again, I don't mean to make any criticism of the Bureau of Pensions Advocates. I understand they do their jobs very professionally and very diligently, but in the minds of the veterans, some veterans might—
Law Clerk and Parliamentary Counsel, House of Commons
Or perhaps the members of Parliament might not be sure that veteran is getting the full representation that he or she deserves.
Do you then say, “All right, we're going to have a regime where you can hire a lawyer of your choice, and we'll provide some compensation for your costs by a prescribed tariff to a certain degree?” Do you know what I mean? There are all those kinds of mechanisms that come into play.
How equitable is this system if you can say, yes, you can fight the system, you have these rights, but the veteran responds, “Yes, but I haven't got a nickel to hire a lawyer, I don't really like the lawyers you're giving me, and the bureaucrats are so smart they know everything, and I don't know what's going on”? Pretty soon the rubber hits the road, and the test of the pudding is in the tasting, and all of a sudden the rights are very nice on the page and the veteran is very moved by them, but these and a dime will get a cup of coffee, as we used to say.
That's the challenge, isn't it?
Conservative
Betty Hinton Conservative Kamloops—Thompson—Cariboo, BC
That's an interesting comment.
From my own perspective, all I can say is that as a committee we put forward a unanimous report on the ombudsman, which is a rarity at any level of government, but it is also a real rarity in a minority government situation.
I think I'm safe in saying that the intent was not to have another legalese hoop for a veteran to jump through. The intent was to make certain that the ombudsman position and the bill of rights actually saved veterans from having to go that court route again. We want them respected. We want their needs met in a timely fashion, and we want an ombudsman there to protect them.
That is just a statement, and I'll pass to Mr. Shipley.
Law Clerk and Parliamentary Counsel, House of Commons
If I could just comment, as I said earlier, you could have a regime where the ombudsman simply has to find a prima facie case of a lack of adequate service, and then the onus is on the department to show that they have done it. Now the burden and the complication of legal hoops, if you like, are on the government side of things to show to the ombudsman, or whoever it is they are required to show it to, that they did everything within their power in accordance with the bill of rights, etc., and if they don't show that, they lose. I agree that obviously veterans aren't in a position to hire high-priced lawyers and go through a very complicated process that takes forever.
I read this report. It's a very good report, Mr. Chairman, and it addresses those issues.
Conservative
Betty Hinton Conservative Kamloops—Thompson—Cariboo, BC
The intent is actually to stop that from having to happen to a veteran.
Mr. Shipley.
Conservative
Bev Shipley Conservative Lambton—Kent—Middlesex, ON
Thanks, Mr. Walsh. I appreciate it.
I'm just going to make the same sort of statement. I think the message needs to be really clear.
I would say this is not about an adversarial committee, about developing an adversarial regime that veterans have to go through. We're actually trying to seek what I would say is a way to articulate the intent of respect for veterans.
Quite honestly, I want to stay away from courts and judiciary, or ineffective boards, where the client's interest is secondary to that of the government. We've put in these seven things, and they are the general intent, I would say, of what the committee wants to see in some way put into documentation for how we would like to see our veterans respected.
Obviously, there are going to be some legal issues in it, but quite honestly, the first objective, from my point of view, is the veterans' respect and care. If that is done properly, then the accountability is there. Let's not get muddled up in the words of accountability. Let's put it in some way so that we have the legislation that says the objective of the veterans' respect and care is there.
The ombudsman can deal only with recommendations at this stage. Whether we do that through an amendment to the Veterans Charter, I believe, Mr. Chair, we as a committee.... At the end, you're going to hear our comments. We're going to compile those and we're going to say, “This is our objective. How can you do it for us to most effectively represent the veterans?”
We've gone through a lot of discussion around the Veterans Appeal Board. I can tell you that is not a route we want to see the veterans having to travel down.
