Report Accompanying Testimony-A Powerful Independent and Impartial Ombudsman for Veterans Affairs Canada
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Mr. Sean Bruyea (As an Individual):
Good afternoon, Chairman and other committee members. I thank you all for inviting us here today. More importantly, I congratulate all of you on the creation of the Standing Committee on Veterans Affairs.
I am Sean Bruyea, and joining me here today are Perry Gray and Tom Hoppe. Mr. Hoppe presently sits on the advisory committee to the DND/CF ombudsman, as he has done for the past four years. He is also Canada’s most decorated soldier for bravery since Korea. Mr. Hoppe and Mr. Gray are both veterans of the former Yugoslavia conflict, and both are very passionate advocates for the rights of veterans and their families.
Chairman and committee members, I also congratulate Prime Minister Harper for taking the first steps to fulfill his promise to immediately create an ombudsman for Veterans Affairs Canada and a veterans bill of rights. I would also like to thank Minister Thompson for making the ombudsman and the veterans bill of rights his highest priorities.
These initiatives are long overdue. An ombudsman for veterans was first recommended by the Woods committee in 1967. It also follows years after Australia and the United States created similar bodies to ensure the fair, just, and equal treatment of veterans and a confidential recourse for all, should the system fail.
We all recognize that what we are trying to achieve here today, from whatever viewpoint, directly affects the men and women who, as we speak, are putting their lives on the line for us in Afghanistan. We are not talking abstracts. We are talking real flesh and blood.
I will focus on the issue of the ombudsman for VAC, including the role, vision, and mandate, as well as emphasize the reasons for creating the ombudsman sooner rather than later. Indeed, it has never been more urgent to create an independent ombudsman. The first wave of young Afghanistan veterans is coming home to face the yet untested provisions of the new Veterans Charter.
Many of you know that the new Veterans Charter was created in great haste and passed in the House of Commons in only a single day on May 10 of last year, based on the tacit support of groups that primarily represent the veterans of Korea and the Second World War, for whom the new Veterans Charter’s provisions do not apply.
As a result, the current Minister of Veterans Affairs is concerned about the new Veterans Charter. A perfect storm is brewing, and it has seven unlucky, coinciding components:
First is a quarter of a million aging war veterans, plus their families and survivors, who are putting increasing demands on the current health care system;
Second is hastily passed, untested legislation through Bill C-45;
Third are overworked, underresourced VAC front-line staff who are trying to maintain old programs while implementing new ones;
Fourth is an inability or unwillingness to keep previous ministers’ promises to review the new Veterans Charter every four months;
Fifth is VAC bureaucratic opposition to the creation of an ombudsman, especially one with real powers;
Sixth is repeated ministerial and government statements “recognizing the debt owed to all our veterans”; and
Seventh are young, wounded veterans returning from Afghanistan at a time when the federal government is trying to increase recruitment for the Canadian Forces.
I suspect that the Prime Minister’s recognition of the significant possibility for error, with potentially tragic consequences, is one of the reasons he encouraged the creation of this committee and proposed the creation of an ombudsman as one of its first priorities. While I applaud the government’s support for the creation of the ombudsman, it is important that the office be powerful, independent, and impartial. The current process is unlikely to produce that result.
When the DND/CF ombudsman was first created, the process was initially given to a general, who wrote up plans for the most ineffective and weak form of ombudsman–the organizational ombudsman–who had no powers of reporting or investigation and was far from independent. André Marin and his team then spent the next year fighting to create an independent office with true powers of investigation. Currently, an assistant deputy minister from Veterans Affairs has been assigned the task of carrying out consultations and drawing up a plan for the bill of rights and an ombudsman.
Frankly, allowing Veterans Affairs to design the office that will have power over them is like asking railways to redesign the Canadian Transportation Agency, or allowing banks to decide how best to restructure the Office of the Superintendent of Financial Institutions. It is potentially scandalous, and it is certainly neither accountable nor transparent. As the saying goes, justice must not only be done, it must also be seen to be done.
In order for an ombudsman and a bill of rights to be created properly and immediately, either an individual outside the process or an independent and competent committee could be promptly appointed to have 10 weeks or so to prepare the model for an ombudsman.
The VAC ombudsman should be a neutral third party. It should be an independent and impartial office ensuring fairness to all, including VAC employees involved in the process for the care, treatment, or re-establishment to civil life of any veteran or RCMP member, and the care of their families or survivors. The VAC ombudsman must strive to bring positive change to the entire community involved or affected in this process.
Oftentimes there is no reason to reinvent the wheel. André Marin’s 1998 action plan, “The Way Forward”, provides groundwork that applies to a VAC ombudsman as well. An ombudsman for VAC would provide “ongoing opportunity to address complaints and concerns and to foster change when any injustice and unfairness exists”. The VAC ombudsman’s role would be too “work with existing mechanisms in an impartial and independent manner”. The VAC ombudsman will “not only respect the existence and role of available avenues but reinforces them by allowing every reasonable opportunity” for VAC to resolve its own issues before the VAC ombudsman would formally intervene.
There are two basic roles that a VAC ombudsman would need to assume: individual representation and systemic monitoring and reporting. Individual representation could come about if a veteran falls through the cracks. As the website for the Ontario ombudsman states:
“If you feel a provincial government organization has treated you in a way that is unfair, illegal, unreasonable, mistaken, or just plain wrong, you should bring your matter forward to the Ombudsman.”
The feeling of injustice is crucial here. Perhaps the problem can be resolved with information or a quick telephone call to the department, or a referral to an administrative review. The goal is to provide assistance, not to worry about offending the mandate of the bureaucracy. We are often dealing with suffering individuals, not players in a chess tournament.
One of the roles of a VAC ombudsman would be to track the pattern of individual complaints, hence the role of systemic monitoring. If a critical mass is reached in the number of complaints, or seriousness and magnitude of the issue in any particular area, then the ombudsman could initiate a systemic investigation. This is perhaps the greatest value to the stakeholders, as such systemic monitoring and reporting can articulate the problem and recommend timely changes so that no further veterans or other stakeholders drive over the same pothole, let alone fall in.
Those able to access the ombudsman’s office would include, but would not be limited to, veterans, serving CF and RCMP members, the families of all, their practitioners, VAC employees, and contract providers. The scope of the mandate should be relatively simple: all programs, policies, regulations, and legislation related to and/or handled by Veterans Affairs Canada. This is a view that is publicly supported by the Ontario Command of the Royal Canadian Legion:
“While it is true that [Legion] members have access to representation at no cost and that there are multiple levels of redress within the disability pension and award system, [Ontario Command] support[s] an Ombudsman in all [my emphasis] affairs related to veterans.”
Many observers have testified that it is precisely the injustices and inefficiencies in the disability pension decision, review, and appeal process that make this the most problematic of all VAC’s programs. According to one of Canada’s leading experts in veterans legislation, Harold Leduc, who now sits on the Veterans Review and Appeal Board:
“ Veterans Affairs Canada has a tried and tested pension adjudication system, which includes a review and appeal process. Currently this system is broken, as far too many files are being appealed through the Veterans Review and Appeal Board. The current broken system needs to be fixed if it is to be credible and if the programs of the new bill [C-45] are to build on this administrative process. Although [VAC] agree that the status quo is problematic, Veterans Affairs Canada will not fix the problem. Resolving this step in the process will result in fewer files being forwarded to VRAB…and would make the process more efficient, saving money, pain, and suffering. An ombudsman review could motivate Veterans Affairs to repair this broken process.”
You will find in the reference material that we provide the first ever VOICE ombudsman’s report on Veterans Affairs that we released last fall. Its hundreds of contributors agree with both the Ontario Command of the Legion and others that amongst other programs the pension system is indeed broken. Even the Auditor General said:
“We found inconsistencies in the level and nature of the services provided by the Department in counselling applicants. For example, in some offices, we noted that counselling was provided to applicants in identifying service-related disabilities other than those initially put forth by the applicants. In other instances, we found that the focus was limited to the conditions identified by the applicants.”
We have included a list of 14 considerations for a VAC ombudsman to be truly independent, impartial, and effective, most of which are the minimum required to create a real ombudsman rather than an impotent, neutered office with largely illusory powers.
Most notable are the powers of investigation, the power to report publicly on the ombudsman’s own initiative, and the power to initiate investigations on the ombudsman’s own motion. It is the power of accountability to the public that brings about change, as evidenced by recent scandals here in Ottawa and in the corporate world. If the ombudsman cannot rely on the power of moral suasion from the public, then the power to bring about change diminishes greatly.
Another mandatory consideration is protection for persons coming forward. This protection should be similar to the philosophy behind the whistle-blower legislation. Confidentiality is a given, but the resolution of individual cases often requires that names be revealed. Most veterans are reluctant to come forward for fear of losing the benefits from VAC upon which the veteran and the family may be totally dependent. I can personally tell you that the bureaucracy has a myriad of subtle and not so subtle ways of threatening or removing that security for those who have spoken out. Disabled veterans have to know that they will be free from review, audit, or reprisal of any form by VAC should that veteran come forward.
In order for the ombudsman to be truly independent, impartial, and effective, the office must have the necessary resources in both funding and manpower. I’ve included a list of required resources, mostly from an organizational perspective, to make a VAC ombudsman with teeth. A sufficient pool of skilled investigators is crucial here. You’ll also note that an independent office requires a number of integrated sections such as finance, administration, record retrieval, and, one of the more important, an integrated communications cell to coordinate with the media and the public in accessing the necessary power of public opinion to bring about change.
There has been much talk of the ombudsman being an office of last resort. In principle, this would be true. However, considering that the last resort in many cases has not been reached for some World War II veterans and that many veterans of the conflicts in services of the 1990s are still being run through the system, a true last resort in VAC may never come. Therefore, a much more flexible approach must be taken. Should the complainant feel there is an injustice, there is no reason why he or she cannot talk with the ombudsman’s office. The office can make referrals for effective review mechanisms or perhaps a telephone call or a letter to the appropriate directorate, which could save the complainants months, if not years, of review and appeal.
For example, the Ontario ombudsman is also called an office of last resort, but it received more than 23,000 complaints last year. Ninety-nine percent were resolved by referral, provision of information, ombudsman third-party intervention, or even a quick telephone call to the department concerned. Only 78 major investigations occurred, and there were between 100 to 200 field investigations.
There is no doubt that the details in setting up an office of the VAC ombudsman can be complicated; however, as André Marin stated:
“ Access to the office of the ombudsman could be granted simply by the Minister of Veterans Affairs signing a ministerial directive. Or, more appropriately, a Canadian Forces-Veterans Affairs ombudsman’s office having coordinate jurisdiction could be entrenched in statute, with the ombudsman reporting to the Minister of National Defence on DND/CF issues, and to the Minister of Veterans Affairs on issues related to Veterans Affairs Canada.”
The truth is that departmental organization is a technical obstacle, not an impediment to doing the right thing. It is a maxim of good government that technical obstacles never be allowed to impede doing the right thing. Instead, technical obstacles should be managed and overcome.
For the ombudsman, doing it right means letting the right people do it. Giving the process more study than necessary or leaving it in the hands of the very bureaucracy that requires oversight is unjust and wrong. Independent agents can be brought on board with the stroke of a minister’s pen. Timelines can be declared and made public. And the faith of the veterans and their families can be restored.
Election promises for the immediate creation of an ombudsman can be fulfilled. The creation of the ombudsman is an urgent matter, yet we must learn from the missteps of the new Veterans Charter and take the steps to ensure that our new VAC ombudsman is powerful, independent, and impartial. We must ensure that our VAC ombudsman is created right, and created right away.
Thank you, Mr. Chairman and honourable members of the Standing Committee on Veterans Affairs. We look forward to your questions.