'There is no justice in Canada' say ex-soldiers as Supreme Court declines benefits lawsuit

An attempt to sue the federal government by a group of disgruntled Afghan veterans has been dealt a final, fatal blow with the Supreme Court of Canada’s refusal on Thursday to hear an appeal of their case.

Expert says legal relationship between the federal government and soldiers needs to be clearly defined

Retired Maj. Mark Campbell is one of the plaintiffs in the case that challenged the federal government over pensions for injured veterans. Campbell lost both legs to an improvised explosive device attack in 2008. (CBC)

An attempt to sue the federal government by a group of disaffected Afghan war veterans has been dealt a final, fatal blow with the Supreme Court of Canada's refusal on Thursday to hear an appeal of their case.

The high court was asked to consider hearing an appeal of a British Columbia Court of Appeal ruling last December which stated there was no obligation or "social covenant" in Canada to those who have served in the military.

In declining to hear the case, the Supreme Court — in keeping with past practise — did not give reasons for its decision.

"Unfortunately, we find out today there is no justice in Canada for our new generation of disabled veterans, and that is troubling indeed," said retired Maj. Mark Campbell, one of the plaintiffs in the case who lost both legs to an improvised explosive device attack in 2008.

The B.C. court, in its decision, noted that, unlike aboriginal groups, there is no overarching legislation that puts a duty of care on the federal government when it comes to those who have served.

Campbell described that as "atrocious" and considers it a political call to action.

"The people of Canada should be outraged that we have this legislative gap in responsibility to care for disabled veterans in this nation," said Campbell.

Lawyers involved in the case and other plaintiffs urged the public to lobby MPs and demand the federal government spell out clearly — in legislation — what its obligations are to veterans.

'Hold your head up'

Brian McKenna, a former warrant officer, who was also part of the proposed lawsuit, said he found it "tough" to be dismissed by the high court with just one line, but urged fellow veterans to rally and continue with the fight on the political battlefield.

"To the vets out there: Hold your head up. We are going to keep moving forward," he said.

Veterans Affairs Minister Seamus O'Regan issued a statement Thursday which noted the lawsuit had already brought about political change with the Liberal government's injection of billions of extra dollars into the benefits system.

He also suggested the federal government had no choice but to defend itself.

"Their claims raised complex and far-reaching issues and when a legal action broadly impacts the government of Canada, as in this case, the government is obligated to defend itself against claims that appear to be unfounded in Canadian law," O'Regan's statement said.

The social covenant

He went on to emphasize that it was not the government that took ex-soldiers to court, but the other way around. 

That is a touchy subject in the veteran's community.

As it tried to navigate its way out of the lawsuit, the former Conservative government called a time-out. Once the Liberals were in power, they allowed the abeyance to end and resumed the court action. 

The Conservative Opposition said Thursday that the gap in the law must be rectified. Phil McColeman, the veterans critic, said the party has already committed, at its recent convention, to ending the ambiguity over the question of what obligation the federal government has toward the wounded.

The social covenant "would essentially be established in legislation so that all veterans would know, and could trust that no matter the government of the day, they would be cared for," said McColeman. 

Impacts to military recruiting

Rory Fowler, a former military lawyer, said he is not surprised the high court declined to hear the case and suggested attempts to enshrine the social obligation are easier said than done.

That's because, Fowler said, the overall legal relationship the federal government has with all of its soldiers, not just veterans and the wounded, is "poorly defined" in law. 

"While the financial benefits and other obligations to various members of the Armed Forces are fairly well articulated under various statutory regimes, what we still struggle with is: What is the nature of the Crown-soldier relationship?" Fowler said.

Do soldiers, because they are prepared to die for the country, need special legal status? It is a question successive governments have avoided.

Why are we still fighting certain veterans groups in court? Because they're asking for more than we are able to give right now- Prime Minister Justin Trudeau

"What the Canadian government needs to do, first and foremost, is to articulate to people what its roles and responsibilities are to soldiers and what its roles and responsibilities are to veterans," he said. 

Campbell said the absence of guarantees will eventually affect military recruiting because no one will want their child to join knowing they will be treated unfairly.

The case of these ex-soldiers has been grinding its way through the court system for over five years and, at one point, featured prominently in the last federal election campaign.

Justice Department lawyers who were trying to quash the lawsuit set off a political firestorm in the veteran's community in 2013 by claiming the federal government had no special obligation to wounded ex-soldiers and their families.

They argued promises of care, dating back to the First World War, were political and not binding on successive governments.

No 'social covenant' to vets

The case was one of the factors which swung the vote among veterans towards the governing Liberals who promised to inject fresh cash into the system and treat those who served with more respect.

The former Conservative government, stung by the political backlash, called a time-out on the lawsuit and embarked on a series of reforms, which the Liberals picked up and expanded once they were in power.

Since 2015, the federal government has set aside $10 billion for improved benefits, but the Liberal government resumed the court case with the aim of getting it thrown out.

At the heart of the case is the claim the new system of benefits, introduced in 2006, is not as generous as the one it replaced and that modern soldiers are being discriminated against when compared to those who fought in the world wars and Korea.

Prime Minister Justin Trudeau added fuel to fire in January when questioned by a veteran at a town hall about the case.

"Why are we still fighting certain veterans groups in court? Because they're asking for more than we are able to give right now," Trudeau said. The person asking the question in Edmonton was a veteran, who said he lost his leg to an improvised explosive device in Afghanistan.
Some people booed the answer.

Disagreements about how well served veterans may be have been fought on multiple legal fronts. Most recently outspoken advocate Sean Bruyea sued Veterans Affairs Minister Seamus O'Regan for libel in a public dispute over the benefit numbers.

About the Author

Murray Brewster

Defence and security

Murray Brewster is senior defence writer for CBC News, based in Ottawa. He has covered the Canadian military and foreign policy from Parliament Hill for over a decade. Among other assignments, he spent a total of 15 months on the ground covering the Afghan war for The Canadian Press. Prior to that, he covered defence issues and politics for CP in Nova Scotia for 11 years and was bureau chief for Standard Broadcast News in Ottawa.