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
What came to mind first was to limit the choices available so that veterans first look to the ombudsman for help. I felt that it would be more effective to direct all veterans' requests to the ombudsman's office.
Bloc
Gilles-A. Perron Bloc Rivière-des-Mille-Îles, QC
If the person opts to seek recourse through the veterans' charter, then he will have to turn to members of Parliament for help and to ask us to defend him under the charter's provisions. If that happens, should we agree to defend this individual or should we recommend that he contact the ombudsman?
That's the flip side of the coin.
Law Clerk and Parliamentary Counsel, House of Commons
Obviously, when all is said and done, if the veteran is dissatisfied with the outcome, he can contact a member of Parliament who in turn will decide whether or not to follow up on the complaint.
Moreover, at the same time as the ombudsman's office is investigating the complaint, the veteran could direct a more detailed inquiry about policies and legislative provisions to the MP. It's impossible for you to distance yourself completely from veterans' issues.
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
Thank you, Mr. Chairman.
Thank you, Mr. Walsh. I'm fascinated by your capability to animate the law.
I just have a couple of things to clarify. I appreciate all the members' questions, because I wanted to zero in on something. The courts are really, in all of our discussions, the last resort in any case. In answering Monsieur Perron, you had just mentioned that as the end of the process. Generally speaking, from the experiences I've had with ombudsmen, when you call them, they usually ask if you have exhausted all routes of appeal. The ombudsman becomes the second-last choice, and then the courts.
What we're trying to do is create something that would be more specific for the courts to be able to use, because, frankly, someone can take civil action on any statement you make in public and say it was a contractual commitment. Am I right in that?
Law Clerk and Parliamentary Counsel, House of Commons
Just on your earlier point, if I may, Mr. Chairman, the ombudsman asking if you have exhausted all your remedies says something to me. I don't know which ombudsman you're referring to in saying that, but that ombudsman may be saying that in the regime under which he or she operates, the party has recourse in the statute. The party can go to court, they have a cause of action, and so on, or maybe they've started that process and it hasn't finished yet.
What I hear in some comments today is the idea that this door doesn't open until after the ombudsman has been involved. In the regimes you're describing, it may be that this doorway to the court is open right from the beginning, and the individual has that choice. Some ombudsman you're referring to is therefore saying he is not going to get involved until you've exhausted all those court things. That's a policy on the part of that ombudsman. On the other hand, it may be set out in legislation for the ombudsman that he intervenes when those remedies have been exhausted.
What you want to do is say you don't want that regime. You want veterans to have their first option with the ombudsman. They go to court after the ombudsman has been unsuccessful or, by the way, the ombudsman goes to court.
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
I would concur with you. And now we have the quasi-judicial process in which they have access to appeals prior to any end result right now. The end result right now is that they would go to the courts after the appeals. The ombudsman would be their specifically identified advocate/defender prior to the court process.
Law Clerk and Parliamentary Counsel, House of Commons
Yes, but some veterans probably won't live long enough to get through all that. That process of boards and courts and all the rest of it, for goodness' sake, can take a long time.
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
Believe me, that's a very big concern of ours.
Law Clerk and Parliamentary Counsel, House of Commons
Yes, not to mention the dollars.
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
We've talked about the backlog.
Which one is easier to modify? You've talked about a regulatory process and you've talked about a legislative process. If in the future we wanted to modify the bill of rights in order to enhance services for veterans, which would be easier to modify, the regulatory process or the legislative process?
Law Clerk and Parliamentary Counsel, House of Commons
You have to remember that the legislative process and the regulatory process are quite separate, so who is “we” here? If it's the government, obviously the government can change its regulations faster than it can change the law, in terms of going through the process in the House and in the Senate. On the other hand, if it's a parliamentary intention that you're talking about, the only option available to parliamentarians is to amend the law.
You have to think about who it is that you have in mind here in terms of who will be seeking a change. Don't forget, if the government changes regulations, those changed regulations come to the House for scrutiny by the Standing Joint Committee on the Scrutiny of Regulations, so it's not as if it can be done by the government without oversight.
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
That's fine.
The fastest way obviously would be regulatory, but we'd be left with the choice of the government responding to this committee if we made a recommendation that, twenty years down the road, we felt there should be some modification that best served that choice. But should the government not be willing, then we'd be out to lunch in that case.
Law Clerk and Parliamentary Counsel, House of Commons
Correct.
I should point out that you don't want your rights as such, in the bill of rights, subject to change by regulation. If those are the sacrosanct Ten Commandments on the tablet, then you want them to be changeable only by the parliamentary initiative. It's the regime that applies under that, for the implementation of it, that might be done by regulation. That could be changed—
Conservative
Law Clerk and Parliamentary Counsel, House of Commons
Correct, along with the commitment to service levels and so on.
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
Very good. Thank you very much.
Thank you, Mr. Chair.
Conservative
The Chair Conservative Rob Anders
You're welcome, sir.
Mr. Cuzner, you were in a great exchange there. I don't know if you fully exhausted all of your questions.
Liberal
Rodger Cuzner Liberal Cape Breton—Canso, NS
If I could, I'd finish it off.
What I was trying to get at was whether there should be what warrants another level of conditions or regulations or whatever, something that warrants a call to the ombudsman. Should we look at something after the statement, maybe at some type of piece that further fleshes out what's intended by each of the statements? When we say “an understandable period of time”, if it has been dealt with in such a period of time and we state that timeline, are we getting too detailed there?
Law Clerk and Parliamentary Counsel, House of Commons
Let me give you an example.
I was briefly a legislative counsel in one of the provinces. We had a situation that became very difficult and a matter of public controversy in the educational domain. We had the act that set standards, then we had the regulations, then we had the ministerial guidelines, and then we had the guidelines used by professional group, for their professionals who were involved. The professionals started with the guidelines for the professional group before they got to the ministerial guidelines, before they got to the regulations, and before they got to the act. You have to ask yourself, then, what the rules were, because the rules were being tweaked somewhat at every level. You can't get into that sort of game.
It seems to me that there are two levels that are enforceable in the making of laws. One is legislation, and the other is by regulation by the government, subject to oversight by Parliament. You want your sacrosanct principles, if you like, enshrined in legislation—actually, there's a third level, and that's the Constitution, but we're not talking about that today—and then you might leave the implementation of the standards and this sort of thing for regulation.
Government, and the department in particular, ostensibly knows best how it can deliver the standards you're articulating by your rights. No doubt they would, regarding those regulations, consult with veterans groups to see that they are doing what they think will work with veterans groups.
They may need to tweak things from time to time as they find that a situation has changed, but the rights don't change, arguably. They may be added to, but they aren't going to be removed, ostensibly, and you want that enshrined in legislation.
So there are only two levels, and there ought not to be a contemplation that the veterans association itself can make some rules that somehow modify the regulations or so on. It then gets to the point of what the rules are, after all. It's the legislation, and it's the regulations made pursuant to that legislation.
Conservative
Liberal
Brent St. Denis Liberal Algoma—Manitoulin—Kapuskasing, ON
Very briefly, Mr. Chair. I'm not sure if we're going to go past 10 o'clock or not, but just to get this on the record, I think we would need an indication from the parliamentary secretary, or the government anyway, of what was the intention behind the commitment to have a bill of rights. Was it to have some legal weight or was it a general statement of principles?
To split it in two, or absent of the government saying what it had intended, the committee is going to have to decide which of the two it prefers so that we can then say to the drafters.... Ultimately it comes back to Mr. Walsh's shop anyway to draft something to respond to the committee and/or the government.
If I understood Ms. Mortensen, let's say it's an amendment to some future ombudsman's act that the government is going to send back to us. Maybe it's the preamble, then, if this ombudsman act has a bill of rights section, and maybe it's the preamble, then, if I understood, that could clarify whether that bill of rights section.... There would be one “whereas”, maybe, and I'm not a lawyer, that determined or said the bill of rights was to be interpreted as a level of service, as a non-litigious—is that the right word?—level of service.
In other words, just to follow up on my colleague's question, does the term “bill of rights” have an unalterable interpretation if a veteran went to a court? Does it have an interpretation that requires that it always be legal? Then maybe the problem is the words, “bill of rights”.
Is that clear as mud?
Law Clerk and Parliamentary Counsel, House of Commons
I'll pass it on, but let me just say this and give Melanie a chance to think about it.
Remember, Prime Minister Diefenbaker brought in his Canadian Bill of Rights, and “bill of rights” as an expression—