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Oma Khadr Again
By Perry Gray, Chief Editor VVi
VVi 30 Sep 2017 db
The prime minister says he wants Canadians
to stay outraged about his government's controversial settlement
with former Guantanamo Bay inmate Omar Khadr. I agree and I remain
outraged, particularly given the unfair "justice system" employed by
your department. When will Veteans get a fair deal?
Doiron Assistant Deputy Minister of Service Delivery stated to the
House committee in March 2017 the following:
in the last three years, giving the benefit of the doubt to the
veteran now. We've changed that. When I arrived a little bit more
than three years ago, you had to prove it was caused by service. You
had to give us your CF 98 that said you had been injured. We've now
moved on that. Do we always get it right? No, but I think we've gone
a long way, so that now, if you're in certain trades, if your knees
are gone and you're an infantry person and you've served 25 years
and you come to us, it would be a yes. You may not have blown your
knee in one jump, but over 25 years of humping who knows how many
miles, the joints are gone.
We're working on that, but there
are still some “no” letters that go out, and they're traumatic for
In my opinion, every assessment should be
reviewed because your department has not acted in good faith. The
benefit of the doubt is always supposed to be given, not some of the
time. When will YOU ensure that your policies are fair and just?
No Day in Court Part 4
Democracy is two wolves and a lamb
voting on what to have for dinner. Liberty is a well armed lamb
contesting the vote.
Omar Khadr had his day in court. This
is a right denied to many Veterans based on the unfair operations of
Veterans Affairs and the Veterans Review and Appeal Board (VRAB). In
fact the methodology of appeals is generally biased in favour of
The overall VAC attitude is summarised well in the words
of a former deputy minister, Jack Stagg:
“What we found in
the pension system was it was a kind of perverse system, in effect,
because we had quite a large number.... We took a number of files
between 1998 and 2002 and looked to see how many people were coming
back to us for additional pensions. People were making this their
life's work. We had people coming back anywhere from 9 to 17 or 18
times, looking to boost a pension...We try, of course, in Veterans
Affairs, to be fair and to judge rationally how sick or how disabled
someone is from the services they rendered for Canada. They will
tell us they are sicker than what we believe or what they can prove,
and it becomes a kind of adversarial battle.”
What Mr Stagg
failed to mention is the laughably low starting point for
disabilities assessments made by VAC adjudicators. These are often
below 20% regardless of the nature and severity of the Veterans’
disabilities. Even worse Veterans have to continually prove that
they should continue to receive VAC support for the rest of their
It is worth remembering that his statement was made
before the New Veterans Charter was enacted. The situation has
deteriorated since 2006 when the NVC joined older legislation that
must be navigated when dealing with VAC.
decides the extent of disabilities and what benefits will provided.
The assessment is based on a VAC adjudicator’s interpretation of the
pertinent medical conditions. Much of this decision making is
influenced by information provided by medical practitioners and
related specialists. None of the people involved are using
universally recognised standards in terms of definitions or even
terminology. For example, common words like acute, chronic and
severe are not characterised by the same definition and as most
words have two or more definitions, there is a lot of diversity.
Regardless, VAC is supposed to give the benefit of doubt to the
Veteran. This is a crucial detail that is often not apparent to
Veterans and rarely fully rationalised by VAC.
is not provided to the Veteran or explained in detail in terms of
the exact process used to make the final decision. The Veteran and
family members are often excluded when it comes to proving the
veracity of the assessment. Basically, the VAC adjudicator has no
contact with the Veteran.
Another important fact often not
considered is that there is a lack of standardisation in making
assessments. VAC should be reviewing all assessments so that every
assessment is the same in terms of calculations when disability and
severity are comparable.
In other words, there should be an
obvious and predictable trend in how calculations are made. The
reality is that this is not true. Veteran A will be treated
differently from Veteran B even if they share similar conditions and
levels of disability. Their assessments are based on the practices
employed by different adjudicators and not some properly managed
One systemic problem that VAC seems unable to
solve is the time required to process a claim. For example, in 1993,
an average of 542 days was needed for a positive process and an
average of 385 days for a negative one. At times, VAC has rejected
up to 80% of first time applications.
VAC was more likely to
show a preference for dealing with war-time Veterans than serving
the needs of the CAF. This perception was reflected in the
widespread opinion of CAF applicants, who believed that they had to
provide proof beyond a reasonable doubt.
Among CAF personnel
this was known as deflect, defer, delay, deny…and ultimately die.
The next step in the process requires the Veteran to accept or
reject the assessment. If it is the second option, then VAC begins
the adversarial battle mentioned above.
There is a major
difference between the theoretical appeal system and its practical
application. The starting point is supposedly a departmental review.
If the departmental phase is unsatisfactory, then the Veteran can
appeal to VRAB.
During this process, a Veteran can use the
services of the lawyers employed by the Bureau of Pension Advocates
(BPA). The service is free (except to taxpayers, who must pay the
VAC budget), but hardly impartial. At the end of the day the lawyers
are employed by VAC.
“If you seek assistance from BPA, you
will be treated the same as if you were hiring a private lawyer to
represent you. The solicitor-client relationship between you and
your lawyer ensures that your confidentiality will be fully
This statement is more propaganda spouted by VAC.
VAC continues to reduce the operations of BPA such as
assisting Veterans in completing the multitude of VAC forms. One
reason for the many changes was that there were not enough lawyers
to handle the workload. This is obvious from the fact that of the 14
BPA offices some had only one lawyer (information from VAC website).
The actual process does not follow the theory. VAC will often
omit departmental reviews forcing Veterans to deal with VRAB. The
board is not like a typical legal court in that Veterans have a
limited role. The first and the only opportunity that most
applicants have to communicate with VRAB is a review hearing. “It is
the only time in the process when applicants may appear before the
decision-makers to provide oral evidence and tell their story.” An
applicant may appear at their own expense for the second type of
hearing, an appeal, but they may not address the board. "The
legislation does not permit oral testimony at this level". The legal
right to appear may exist, but the right to appear is essentially
Like the VAC adjudicators, VRAB “…members
examine, interpret and evaluate medical evidence presented by
applicants. Members are also required to assess the credibility of
Again the fate of the Veteran is in the
hands of people, who often lack any reasonable qualifications for
making such life changing decisions.
VRAB likes to portray
itself as a responsible body by providing a fair and effective
appeal process, but it will only change a VAC decision if the
evidence supports it.
The evidence must be collected by the
Veteran. VAC may claim that BPA will provide support throughout this
process, but the onus is still on the Veteran to prove that a change
is warranted…and then hope that the BPA lawyer can persuade the
Fun fact, in 2016-17, VRAB ruled favourably in 42% of
Review decisions and 26% of Appeal decisions. These are statistics
that should not be publicised as positive achievements. They are
more like warnings to Veterans - do not bring us your complaints!
If the Veteran remains dissatisfied, then the final phase is taking
the appeal to a federal court. This may cost $25,000 or more.
How many Veterans have gone to court? The answer is very few.
Another fun fact, in 2016-17, 17 Veterans requested a
judicial review. The courts issued nine decisions (pending from
applications made in previous years). Of these, seven upheld VRAB's
decision, while the other two returned the Veterans to the VRAB for
a new hearing.
Between the trauma experienced dealing with
VAC and VRAB, many Veterans cannot go on and the potential financial
burden is more than many are willing to consider. It may take
decades before even the most stubborn Veteran is too exhausted or
depressed to continue.
The government has to recognise that
many Veterans have to cope with physical and mental pain related to
their medical conditions. It is not surprising that they do not
desire to increase their pain and suffering, after all most people
are not masochists.
Ironically, departmental reviews and VRAB
were established to reduce expenses. Given that the government
forecast that the Omar Khadr case could cost as much as $40 million,
it seems reasonable that finding a cheaper solution is a good idea.
But is it fair to Veterans? No because the current system
marginalises the person with the greatest stake, the Veteran, who is
not a participant for much of the experience.
What no one
considers in the bigger picture is why both VAC and VRAB deny the
majority of claims.
Most Veterans apply to VAC because they
expect to be released from the CAF for medical reasons. Thus it
seems logical that applying to VAC is a good option. Therefore many
are shocked and then angered by VAC’s rejection of their
Should the Veteran be held accountable?
In my opinion, no.
The government has repeatedly failed to
support Veterans despite having two departments supposedly concerned
with their welfare. DND would wash its hands of Veterans much like
Pontius Pilate did while condemning Jesus. VAC in the role of the
Jewish priests then judges Veterans based on documentation provided
DND claims that injured Veterans will not fall
through the cracks by retaining them longer. It is unclear how
effective this policy will be. There are about 5,000 releases per
year and many are because of medical conditions. The big challenge
is ensuring that Veterans are stable and secure once the transition
is complete. Given that it may take years for Veterans to adapt to a
new life, how long can DND afford to retain them?
challenge is even more daunting given the problems arising from VAC
and VRAB appeals. Jack Stagg was correct that many cases last for
Perry Gray is a Regular Force veteran, serving as
the Chief Editor of VVi. Perry has been with VVi for 16 years.
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