Proceedings of the Subcommittee on Veterans Affairs
Issue 7 - Evidence - November 3, 2010
OTTAWA, Wednesday, November 3, 2010
The Subcommittee on Veterans Affairs of the Standing Senate Committee on National Security and Defence met this day at 12:03 p.m. to study the services and benefits provided to members of the Canadian Forces; to veterans; to members and former members of the Royal Canadian Mounted Police, and their families.
Senator Roméo Antonius Dallaire (Chair) in the chair.
[English]
The Chair: Good afternoon, honourable senators, ladies and gentlemen. We are continuing with our work on the review of the New Veterans Charter. Our witness today is the outgoing Veterans Ombudsman, Colonel Pat Stogran.
Colonel Stogran has been here before. He recently appeared as a witness before the House of Commons when they did their study.
We welcome you back. Colonel, do you have an opening statement?
Colonel (Retired) Patrick Stogran, Veterans Ombudsman: Yes, sir.
Mr. Chair, committee members, I would like to thank you for the opportunity to appear before the committee one last time. Throughout my tenure as Veterans Ombudsman, I have grown to appreciate the work of the Subcommittee on Veterans Affairs. I have also found the reports of the committee to be most informative, reflecting what I perceive as a genuine intent to do right by our veterans and their families. I therefore consider it an honour and privilege to have been able to contribute to that process.
Last week, I appeared before the House of Commons Standing Committee on Veterans Affairs. At that time, I offered a list of 11 recommendations that can and, in my opinion, must be implemented as a matter of urgency in order to break the culture of denial and often poor treatment of our veterans and their families that I would submit is firmly entrenched in Veterans Affairs Canada and the Veterans Review and Appeal Board.
Ten of those recommendations can be initiated and implemented relatively easily. However, my number one priority, to legislate the position of the Veterans Ombudsman, will be a true test of how sincere our government is in its commitment to improve the treatment of the veterans who have served them and our country so well. In my humble opinion, this is one way that parliamentarians can, in the near term, demonstrate an enduring and substantive commitment to our veterans and their families, a commitment that is commensurate with that which members of the Canadian Forces and the Royal Canadian Mounted Police are demonstrating to parliamentarians on a daily basis in places like Afghanistan.
Members of the CF and RCMP are sacrificing their lives for the government's agenda, yet veterans have very little influence on the system that looks after them. Relationships with the major associations are superficial at best. Veterans deserve dedicated representation inside the machinery of government. The Office of the Veterans Ombudsman should therefore be legislated so that parliamentarians cannot exert undue influence and bureaucrats cannot manipulate or obstruct it.
I will run through the other recommendations that I submitted. First, the standard of proof that the department and the Veterans Review and Appeal Board expect veterans to meet is interpreted as a balance of probabilities, which is used in civil tort, and this is wrong. Legislation intends a much lower standard than the so-called benefit of the doubt. The Veterans Review and Appeal Board is the only federal tribunal that fails to make its decisions public. They should be directed to start publishing their decisions forthwith and former decisions should be admissible as evidence in the appeals process.
The Veterans Review and Appeal Board currently employs the same staff to conduct both reviews and appeals. This collective approach lends itself to undue influence and potential bias. The board should therefore be compelled to have dedicated and separate review members and appeal members.
Veterans who wish to appeal board decisions before the Federal Court must do so at their own expense. The Bureau of Pensions Advocates should be empowered to represent select cases in the Federal Court when it is felt that there is potential to serve the greater good.
The Veterans Review and Appeal Board has been selective of if and how they will adhere to decisions of the Federal Court. The board should be compelled to conform to those decisions that are advantageous to veterans.
The department's capacity to conduct research is limited and has had little impact on improving the treatment of our veterans. Veterans Affairs Canada should be directed to be more proactive in effecting research that benefits the veterans community by partnering with other organizations and adopting research conducted by allied nations.
The government's commitment to keep veterans programs and services current and relevant is woeful. The department must be mandated to actively and frequently update programs and, when required, to urge the government of the day to make amendments that reflect leading edge knowledge, best practices and lessons learned to advantage veterans and their families. The department's aversion to risk-taking is excessive, and the control measures they employ cause an unacceptably poor standard of service for veterans. Veterans Affairs Canada should be compelled to decentralize decision making to levels and location where it will best advantage veterans and applicants.
Departmental adjudicators will not communicate directly with veterans and applicants to ensure that applications are accurate and complete, which causes unacceptable turnaround times, confusion and wasted effort. Veterans Affairs Canada should be directed to engage directly with veterans and applicants, as is the practice with other service providers of government.
Finally, the inefficiencies of the system can cause adjudication to take literally years, but the retroactivity upon approval is always limited. Governments should mandate that retroactivity be applicable to the date of first application.
These are only a start, but I feel they are positive steps towards destroying the current culture at Veterans Affairs Canada that too often fails to fulfill the obligation of the people and the Government of Canada towards the veterans who have served this country so well and their families. More importantly, however, the mandate of the Veterans Ombudsman must be enshrined in legislation. Therefore, I would ask this committee to exercise all possible influence to make this a reality.
The commitment of our service personnel today is every bit as great as the commitment of our veterans of World War I and World War II when they came in from the mines, the logging camps, off the farms and out of the factories so many years ago and accepted the condition of unlimited liability in the service of our country. Sadly in my three years as Veterans Ombudsman, it has become painfully obvious to me that the commitment of our veterans and their families is nowhere nearly as comprehensive as it once was.
For many years Veterans Affairs Canada and successive federal governments have been increasingly and, I would submit, deliberately stepping away from the obligation towards our veterans and their families that was once recognized as our duty to uphold. Gone are the days when veterans participated in decision making within the corridors of federal power to ensure that the commitment to them remained strong and true. By legislating the position of Veterans Ombudsman, our veterans may once again have some degree of representation in the processes of government that decide the fate of those who sacrifice so much for our country.
I would like to take this opportunity to draw your attention to another alarming issue that has been presented to me: the way in which RCMP veterans perceive the way they are being treated. Many members who sustained injury while serving on so-called peacekeeping duties overseas with the Canadian Forces have reported that they face huge obstacles when claiming for their duty-related injuries after being discharged. They claim that they receive little support during the release process, have no case managers, have no trained OSIS-like peer support counsellors and have no access to programs to assist them to reintegrate into civilian life. From what I have been able to ascertain to date, the way in which we treat RCMP veterans with disabilities lags behind their military counterpart. Much like the regular force's military relationship with their reserve forces, the RCMP have a growing cohort of municipal and provincial police officers who have been deployed on international operations. Unfortunately, if they succumb to service related injuries later in life, they often have to fend for themselves with a less than empathetic provincial or regional system. They, too, are deserving of a Veterans Ombudsman who has the authority to review their issues.
The delivery of veterans' benefits and services should be treated as a national security issue, not as a social program. To effectively recruit, employ and deploy the Canadian Forces and the RCMP, service personnel must have complete faith in the system that looks after them while serving and after service. When the frequency and intensity of operations increase, so does the effect it has on those who serve. Therefore, national security decision makers need to start factoring into their calculations what capacity will be required to respond to veterans' needs.
I would like to acknowledge the steps taken by the Government of Canada in the past months to work towards fairer treatment of our veterans and their families. In particular, I appreciate the Prime Minister's leadership of intervening personally in the Brian Dyck case. To me, the Brian Dyck case characterizes everything that is so very wrong with the current system. Leadership is what the veterans need for the future. I emphasize to you, however, that the steps announced so far are only the beginning of the changes needed if we are to serve the veterans and their families in the way they deserve. Now is the time for action. Our veterans and their families are the responsibility of all of us, and we must not let them down.
Finally, I wish to thank the committee for your work and for the honour to appear today. It has been my distinct pleasure to serve as Canada's first Veterans Ombudsman. I wish also to thank my team who have soldiered on in the face of some very volatile, uncertain and ambiguous times. I would also like to thank the rank and file of Veterans Affairs Canada and those members of the Veterans Review and Appeal Board who work so hard to serve our veterans and their families but have been frustrated by a system that is so broken. I would like to thank all Canadians who have expressed their outrage at the revelations that have taken place since my press conference on August 17, when I demonstrated how truly broken the system is. I submit that a Veterans Ombudsman with a legislated mandate is a keystone requirement to correct this alarming situation.
I look forward to your questions.
[Translation]
The Chair: Thank you very much, colonel. All members have received your presentation in both official languages.
So as to not waste any time, we will proceed directly to the question period.
[English]
Senator Manning: Thank you, Colonel Stogran, for your service over the past three years and for your opening remarks. There is no doubt that we have serious flaws to be addressed in the treatment of our veterans. We have heard announcements from the Minister of Veterans Affairs and the Minister of National Defence in the past couple of weeks. What is your take on those announcements in terms of addressing some the concerns that you raised and that we have heard from veterans across the country?
Col. Stogran: The fact that the Minister of Veterans Affairs appeared with the Minister of Defence is a positive step. There should be a hand-in-glove relationship in all the decisions made regarding the deployment of our troops overseas. I remind the members of the committee that the planning for the reintegration of our World War II veterans started in 1939 at the same time that we were sending our service personnel overseas.
Regarding the steps that have been taken, I applaud the government. However, in terms of short-term fixes to a culture that is so broken, I have no confidence that the $2 billion, a huge amount of money that reflects commitment to the program over the long term, will ever get into the hands of the people who need and deserve it.
I would say that too many conditions have been assigned to it, although I am only privy to the information that comes out in media. I have had no extra guidance from within the department as to how this will follow through. It is my opinion that there is too much latitude between the announcement of the money going towards the troops and the actual money arriving in the hands of the troops. I think that problem manifests itself in the system and, at every level, gets increasingly tighter fisted until the veterans are denied what is rightfully theirs.
I am concerned that it is a piecemeal approach. When I started asking questions three years ago about the lump sum payment and these other programs that appeared to be problematic, I was told that I should not be looking at them in isolation but rather comprehensively. As the Veterans Ombudsman, I would suggest that it has to be addressed as a package and in a transparent fashion because so many people have a vested interest in where this act goes.
Another concern is retroactivity. The government knowingly introduced a piece of flawed legislation. It has been five years, and there is talk about leaving Afghanistan, but there is no retroactivity, as I understand from the announcements made of late. That means the majority of veterans who have already served overseas and made huge sacrifices will not be entitled to some of these upgrades to the program, if and when it makes it through the machinery of government in the next year. It will take time.
Senator Manning: The New Veterans Charter from 2005 is into its fifth year. The issues that have been raised seem to be highlighted at the present time. I have done some work with Veterans Affairs Minister Blackburn on some of those issues. What advice would you, as our first Veterans Ombudsman, pass on to the next ombudsman in terms of his or her opportunity to bring forward the concerns of the veterans?
Col. Stogran: My strongest advice would be to hold the bureaucracy accountable to the minister. I have no confidence right now that many of the issues make it up through the chain of command within the department and are actually presented in an unbiased and objective fashion to the minister so he can make decisions wisely. I have felt it has been my job to oversee the function of the bureaucracy and offer the minister observations in that respect.
Regarding the New Veterans Charter, for the three years of my term, I saw very little activity taking place within the department to address the New Veterans Charter as a whole, outside of the committee that was chaired, convened and which submitted its report, and the report from the Advisory Group on Special Needs.
I would suggest it is not an ombudsman's job to make the recommendations. There is a lot of high-priced help right now engaged in sorting out that piece of it. It is our job to ensure the deputy minister is being proactive and, if necessary, to challenge the elected officials of the day to follow through on this commitment to make it a living charter.
Senator Manning: There was a recent speech to the press gallery. I will paraphrase your words, but they were along lines that, if you had known some of the things the government/minister were going to address, you may not have said some of the things you said. What are those particular things you have brought forward that you believe have been addressed, and where are the main issues today?
Col. Stogran: It is impossible for me to repeat information I do not know on the inside. One of the recommendations I would make in terms of legislating the mandate is that the bureaucracy and the government should be compelled to adopt a less than adversarial relationship with the ombudsman.
I believe very much in speaking the truth. In the two and a half years that I spent working with the department, trying to develop a doctrine that would harmonize and not interfere with the processes of the department, we relied very much on information coming to us as a courtesy. I made it clear that I cannot sugar-coat or spin the truth as I see it when I am inspecting the troops "in the field," if you will — in the long-term care facilities, the homeless shelters and the town halls. However, I encourage the department to offer me their perspective such that I can have a balanced and objective opinion as to whether the best interests of the veterans were being served.
Without an inside look into the imperatives of the minister and the department, all I become is somewhat of an activist parroting the concerns of veterans. The concerns are huge and many. Towards the end of my term, I found my interaction with veterans in town halls to be demoralizing, because I would hear the same things over and over again and the department would simply parrot to me media lines and backgrounders. Therefore, there was no balance in what I was saying.
Senator Manning: I have heard comments in the past with regard to some of your budgetary constraints in your office and how they affected you in your duties as ombudsman. I am not aware of what your budget is. Can you tell us what it is and the constraints that you found? Was all your budget spent each year? Were you still lacking each year?
Col. Stogran: If memory serves me, the budget directly apportioned to the office is in the neighbourhood of $5.3 million a year. I believe $1.2 million goes to the department for the overhead they incur in providing us our corporate services. Therein lies the problem; namely the lack of responsiveness in terms of the corporate services or the human resources services the office would receive.
The outgoing Public Sector Integrity Commissioner of Canada described in her last annual report how small agencies have every one of the encumbrances of the departments in terms of reporting and the processes and such. They very often have minimal staff to execute those services.
Therefore, we were relying on the department to a large degree. As a result, I think turn-around times were the biggest problem from that perspective.
Senator Wallin: I wish to follow up on some points my colleague raised. Our notes from the Library of Parliament say that your annual budget is $5.8 million, $1.2 of which goes to the department. Although they did not mention the latter part, I am prepared to take your word for it.
You have 30 employees, you report directly to the minister and your authority as outlined is influence and capacity to publicize. Again, by way of advice to your successor, what could you have done better, given that this seems to most people to be a pretty reasonable operation here? I know you have argued for legislative authority — it is on the record — but what could you have done better in retrospect?
Col. Stogran: In retrospect, I would not been so trusting of the system. I sincerely believed the rhetoric coming to me about this commitment to veterans — that we were all in it for the veterans and that I could be the squeaky wheel for the department if they needed that extra push to do things for veterans. In retrospect, I would be much more aggressive much earlier on to push some of the big ticket issues that I found six months before the end of my term that the deputy minister was not prepared to have leave the department.
Senator Wallin: The veterans charter was implemented by a previous government, so it has been around and veterans have been expressing their concerns. Are you saying you just discovered some of these issues in the last six months?
Col. Stogran: No, I am not speaking specifically to the New Veterans Charter. As I said, my job is to keep the bureaucracy ticking and hold their feet to the fire to bring the recommendations of the New Veterans Charter Advisory Committee and the Advisory Group on Special Needs to the attention of the minister in a package that will remedy some of the problems veterans are facing.
I am speaking globally.
Senator Wallin: Why could you not do that?
Col. Stogran: First, I receive information from the department as a courtesy. From day one, the deputy minister made it clear that she would control the information flow to the Office of the Veterans Ombudsman in a fashion that would not constrain my ability to comment publicly.
Senator Wallin: You said you actually gleaned most of your information from dealing with veterans, town halls and so forth.
Col. Stogran: Exactly.
Senator Wallin: Were you not allowed to transmit that?
Col. Stogran: I transmitted it. Our town hall meeting transcripts were presented to the government. Two great services the Office of the Veterans Ombudsman offers to senior management are that I could speak with veterans in their own language, and that all of my discussions were made available to senior management.
Therefore, there was a one-way flow of information into the department. As I said, the deputy minister was intent on controlling my messaging by withholding information that she felt would constrain my ability for public commentary.
Senator Wallin: What on earth would motivate somebody to do that? We all have a veteran in our life. We know them in our towns or families. I do not know of anybody I have ever come across who would say we should not help our veterans; we should be mean to our veterans and should reject their claims and ignore their needs.
Is there a particular group of people who somehow do not reflect the rest of the population and who have somehow all managed to work in Veterans Affairs Canada?
Col. Stogran: I not only share your opinion, but those were the feelings I had coming into the office. As I said, I was naive to the realities. I cannot comprehend how anybody would not work in the best interests of our veterans.
Senator Wallin: What would motivate them? Why would people try to make somebody's life hell?
Col. Stogran: I cannot begin to comment on that. What I can say is that I sat with the deputy minister making a case for widows of Second World War veterans, and this is where the shoe dropped for me. I explained to her that, in my opinion, the government is cheating veterans' widows of the Second World War. I used those words. I even used the analogy of the Wild West movies, where the banker throws the widows out in the street and forecloses on them.
The response I got, to my shock and dismay, was I could not go to Treasury Board to ask for more program funding. It became clear to me at that time that the message was not leaving the department.
Senator Wallin: There are realities. I am not sure you can equate people saying "I do not have the funds" or "I do not think I can get the funds" with deliberately wanting to — I am just trying to draw that line. It is one thing to say bureaucracies are unresponsive. You would probably not get much disagreement with that, even in Ottawa. You ascribe motive to them, and I am wondering if there is actual evidence of that.
Col. Stogran: I think I just described evidence of not being prepared to act. In my opinion, in my experience with leadership, leadership starts at the top. It is the obligation of the senior people to challenge the system and to fight for the troops on the ground. Clearly, in my experience, that was not happening.
Senator Wallin: So it is money?
Col. Stogran: You would have to ask the senior members of Veterans Affairs, who know very well that the programs are not satisfying the needs of our veterans. They are the ones who should be answering that question.
The Chair: If I may, just a clarification for the record. The New Veterans Charter was passed under the previous government into law, but it was implemented by the current government a year later. The year was given to be able to interpret it and create the rules. The charter has been in operation three years at best.
You come back to information — not getting it or it being vetted by the deputy minister. It seems to me that as an ombudsman, you are authorized to go to wherever the office of primary interest is on a subject and seek that information directly, and the information is sent to you unfettered by the chain of command. Is that correct or incorrect?
Col. Stogran: One would think so, but that is not the case. The order-in-council describes all the things I can and cannot do as the ombudsman, but it compels the department to do nothing. Information flow from the department to the Office of the Veterans Ombudsman was provided as a professional courtesy only. I think from the first appearance I made before the committee, it was problematic.
The Chair: Just to confirm, there is no set procedure established between the department and the ombudsman in the process of providing information from them in order for you to be able to advise the minister on a possible disconnect or whatever. Is that correct?
Col. Stogran: We tried to establish a process that we referred to, a process of formal observations where, as we were building an understanding of the veterans' problems, we would present a written observation to the department to encourage the release of information that would allow us to balance that perspective we presented to them.
In a memorandum of understanding for information sharing that we initiated with the department, we included that kind of an understanding. When the amendments came back to us, that was taken out of the memorandum of understanding. As it stands right now, we have no formal process for initiating a transfer of information.
The Chair: That means that you provide advice, as your mandate says, to the minister and you are getting advice directly from the veterans, but you cannot counteract that information to the minister by what the department is doing about it formally.
Col. Stogran: Exactly. That is right.
The Chair: Thank you for that clarification.
Senator Plett: I want to continue a little bit along the same vein as Senator Manning with regard to funding. You suggested that you have doubts about whether the $2 billion that Minister Blackburn announced will get down to the veterans. A part of that announcement is that an injured veteran will receive, with these new measures, a minimum of $58,000 a year in benefits, not counting the non-monetary benefits, and a lump sum payment that can go up to $276,000. There are specific guidelines in relation to that $2 billion.
What more can a government do than make an announcement? If you simply say you do not believe the announcement will do any good, we could announce $4 billion and you could be equally suspicious. At what point is it a good announcement? Do you not agree that these changes are a positive step forward for the veterans?
Col. Stogran: Mr. Chair, there is a lot of water to go under the bridge before that $2 billion, as I understand it, comes into law. There could be a change of government or anything else that will displace the timeline on that.
Moreover, I have been saying since my press conference on August 17, that the $2 billion — which actually amounts to $50 million, as I understand it, for the next five years; $2 billion refers to the entire length of the program — is subjected to the bureaucracy. It is not an automatic award going directly into the hands of the veterans who have been wounded. They have to go through an application process and they have to present it to the department. Some of the issues have to go to the Veterans Review and Appeal Board, and that has been problematic.
Senator Plett: Thank you for addressing the chair when I asked the question, but I will continue on with another question.
Throughout your dealings with Minister Blackburn and Minister Thompson, have you ever run into a case where either minister refused to meet with you? You have been suggesting that things have been tied up in the bureaucracy and that deputy ministers are getting in the way of much of what should be happening. Have you requested direct meetings with the ministers to suggest to them that the bureaucracy is tying up good programs, and have they refused these meetings?
Col. Stogran: No, senator, they have never refused me a meeting. However, I will point out that in my first meeting with Minister Blackburn I made the same comments that I made before the committee today. In fact, I used the term that the system is cheating veterans. The system is severely broken to the point of being a scandal, and I suggested to him that this government could be the heroes by giving me the authority and compelling the department and the Veterans Review and Appeal Board to work with me in order to identify the scope and magnitude of the problem. I explained that to the minister in his first official language, and just to make sure that I used the proper verb "cheat" and adjective "scandalous," I phoned his fluently bilingual chief of staff the next day and explained to him that I think it is scandalous the way our veterans are being treated by the bureaucracy.
Senator Plett: What have you done? You have been travelling all over Canada to meet with veterans. Have you taken the time to explain to the veterans the positive programs that our government is trying to implement? You say you have been at many town hall meetings. Have you mostly been listening to their complaints or have you been trying to promote?
I agree with you, Colonel, that, unfortunately, the wheels of government turn slowly. I think we all have to agree with that. However, the announcements are positive. Hopefully what they contain will filter down, and maybe in a year from now you will be able to say "I told you so," and maybe Minister Blackburn will be able to say the same. I hope the latter will be the case.
What have you done to promote some of these positive announcements that have been made?
Col. Stogran: The short answer I would have to say is nothing. We have been very careful to be as neutral and impartial as we can. First, I do not consider myself to be an expert on the mechanisms of all of the programs, but I would bring a member of my staff, as I have members of my staff here now, to the town hall meetings, to respond to some of the technical questions. As an ombudsman, I am really not there to promote or make excuses for some of the shortcomings of the department. My job is to listen to the veterans. We explain where we can without becoming part of the problem and then bring that message back to the department, which should be promoting their programs and fixing them when the ombudsman brings up these problems.
Senator Plett: I do not disagree that you should be neutral, but I am sorry, sir, I have real difficulty seeing where you have been neutral in this. I think you have been everything but neutral. You have been tremendously critical of what has been happening and in your presentation here again this afternoon. I do not see any neutrality in that, but thank you for your candour and your answers.
Col. Stogran: You are welcome.
[Translation]
Senator Pépin: In the document we received, you tell us that the Veterans Review and Appeal Board is made up of the same staff who conduct both reviews and appeals. You add that the board should be required to have, among its members, a group to look after reviews and another group to look after appeals. Can you elaborate a bit on that please?
[English]
Col. Stogran: Previously, in past years prior to the Veterans Review and Appeal Board, there was a separate appeals board and then they were amalgamated. The problem as I perceive it, and it has been presented to us by members of the board who feel there is a conflict, is a member who has handled a review may not handle the appeal of that review, but there is cross-talk and efforts to influence.
From my perspective, it is not just important that justice is done; it is important that it is perceived to be done. There is a definite perception that exists right now that there is undue influence going on within the Veterans Review and Appeal Board. Of course, that is a biased opinion because I have been shut out of the information loop and do not have a clear exchange of information with the board or with the department, so of course, I cannot be impartial and objective. I am representing the concerns of my constituents and my stakeholders.
[Translation]
Senator Pépin: Have you been requesting this for a long time?
[English]
Col. Stogran: Absolutely, yes, ma'am.
Senator Pépin: After that, it is mentioned that veterans have to pay when they go to the tribunal. What do you see as a solution for that procedure?
Col. Stogran: As I suggested in one of my recommendations, the Bureau of Pensions Advocates should be empowered to make representation for select cases where they feel it would serve the greater good, and they identify some of the cases that they would like to bring forward. I think there is also scope within the process for the ombudsman to have a role in terms of alternative dispute resolution, a type of role that the department could actually take advantage of where they feel a veteran is being abusive and not being fair with the system.
Senator Downe: When Prime Minister Stephen Harper launched the New Veterans Charter on April 6, 2006, in Parliament with the then Minister of Veterans Affairs, he indicated in his remarks that day that the government would work to establish a Veterans Ombudsman, but they really did not do that, I would argue. They established a veterans advocate and called it a Veterans Ombudsman because when you compare your independence with, for example, the ombudsman at DND, they are completely different.
You have obviously compared your authority with the DND ombudsman and you would agree he is much more independent?
Col. Stogran: I would not want to comment on the independence of the DND ombudsman. I spoke with the project team that established the Office of the Veterans Ombudsman before I ever joined it. They went through the studies and such, the committee report on the position, and submitted their recommendations to the system, and it did not come out as they would have expected in terms of the direction being a ministerial directive to the department that reflects the DND ombudsman's position. What happened instead was the order-in-council appointment that I work under.
That is one of the factors I considered in, shall I say, accusing the bureaucracy of not being fair with our veterans. When the Prime Minister announced on April 3, 2007, the Office of the Veterans Ombudsman, he announced that it would be operating at arm's length. I have often used that comment by the Prime Minister in preserving our independence.
I was called into the Privy Council Office by the Assistant Deputy Minister of Senior Appointments and told that I work for the deputy minister. I challenged that. I pointed out that I am a special adviser to the minister and the comments of the announcement by the Prime Minister that I would be operating at arm's length, and I was advised that there are various lengths of arms.
My conclusion is that there was honest effort in the early days to try and establish a meaningful Office of the Veterans Ombudsman, but there has been a deliberate attempt by the bureaucracy to subvert that effort and turn the Veterans Ombudsman into a complaints manager for the department.
Senator Downe: That is why your first recommendation is that that problem be rectified for whoever takes over?
Col. Stogran: Yes, senator.
Senator Downe: I hear from a number of veterans that they are pleased with the announcements that have been made over the last number of weeks but they are concerned that, like with previous announcements that have been made, the end result will not be anywhere near the announcement.
One that is often referenced is the announcement with Agent Orange, where the government announced they would compensate all those exposed to the spraying between 1956 and 1984. Then the announcement was for anyone exposed to spraying between 1966 and 1967, and the government announced $96 million.
However, the program has now ended and over $33 million was never even spent, even on that narrow program. This, in my opinion, is the foundation for the concerns about the announcements made over the last few weeks. The high number does not translate into what trickles down.
Do you have any further update on Agent Orange? I continue to hear complaints. Do you know if the department has listened to the representations? Are they planning any additional action that you are aware of?
Col. Stogran: I am not aware, senator. For the last month or so I have not been on top of the Agent Orange case. Suffice it to say that it was certainly a priority of mine, because I think the problem is much more severe than Canadians have been led to believe. We made a request to the minister's office, to the department, to extend the order- in-council for the awards that were being made, because it expired in October, but that date has slipped by. We felt that, for the reasons that you stated, it had been undersubscribed, as so many of the programs are. I do not have any figures with me in that respect.
The Chair: Colonel, you are holding a complex dossier in your responsibilities, and you have staff with you. Do not hesitate to turn to them to provide you with technical information in order to respond to us in a timely fashion.
Col. Stogran: Do you have any information on Agent Orange in terms of the number of complaints that we have been receiving recently?
Charles Cue, Senior Policy Advisor, Office of the Veterans Ombudsman: Not recently. I just know that we fought to try to keep it extended, because of the unfairness in the process for applications, and it did not work out.
Senator Downe: I do not want to raise a privacy issue, so if you do not want to answer, feel free to pass. I understand, from media reports, that you have indicated that you have applied for the position. I know that veterans across Canada have started a petition in support because they give you credit for the sudden action of the government over the last number of weeks.
Has there been any indication on your end whether or not you will be reappointed?
Col. Stogran: No, sir, I have not received any word at all.
The Chair: The New Veterans Charter was, in fact, to be an instrument, not to create a state of dependency for veterans, but a process whereby veterans could progressively acquire their independence within society and fill their roles, whatever they would be, depending on injury. In other words, there would always be a backdrop to that sort of social contract, as was articulated in the recommendations behind the legislation. Is that the impression in the field, that it is a lifelong instrument through which veterans are never left to themselves but can always revert to Veterans Affairs for further support?
Col. Stogran: That is a pretty broad question, sir. My impression, based on the town hall meetings, is that there is no such feeling. Many veterans have a sense of abandonment in regard to the New Veterans Charter. I think a lot of it stems from the inactivity over the preceding three years. It appears outwardly to those of us who do not have an inside picture that the so-called living charter is dead on the floor.
The Chair: I am interested in this change of the appeal board in the definitions of "standard of proof" and "benefit of the doubt." Are those legal terms that have different connotations? If they do, is one more favourable to the veteran than the other?
Col. Stogran: Yes. The "benefit of the doubt" definition is enshrined in legislation. All of the major acts affecting the services and benefits for veterans have a "benefit of the doubt" clause in them. The Federal Court has declared that it is a lower burden of proof than one based on the balance of probabilities, but we have documentation from the Veterans Review and Appeal Board that indicates that the level of proof they expect of veterans is, in fact, based on the balance of probabilities.
There is an interpretation in your packages and, just briefly, there are two very important pieces of the 'benefit of the doubt' legislation. The first piece is the first subparagraph that reads that the adjudicator should draw on all of the circumstances related to a claim and draw all reasonable inferences in order to resolve things in favour of a veteran.
Paragraph 3 describes how any doubt associated with a veteran's claim should be resolved in favour of the veteran.
The Woods commission report of 1968 — unfortunately I did not bring my copy — is a seminal document of some 800 pages, wherein they go through the entire history of the Canadian treatment of our veterans. Chapter 8 is dedicated to the "benefit of the doubt." They make it clear that the intent of the legislation is such that it is possible for the preponderance of evidence to indicate another cause of a disability. An inference is a measure of sound, logic and reasoning, it is not a measure of truthfulness. If it is reasonable to infer that the case presented by a veteran is plausible, then it should be resolved in favour of the veteran.
In other words, a doubt, such as possible alternative causes of the disability, missing information that can be validated by hearsay or circumstantial evidence, those types of doubt, should be resolved in favour of the veteran.
Lastly, and importantly, Woods points out — the legislation came from his recommendations — that it is not a trial. It should not be viewed as one against another. It is very much the approval of an application.
The Chair: Thank you for that clarification.
Senator Manning: I do not believe, colonel, you will get any argument from me in relation to bureaucracy, not only within the department but within government as a whole. It slows the process of a lot of things we are trying to do.
I come back to a comment you made earlier, and I will give you the opportunity, if you can, to elaborate somewhat more on it. In my previous life as a member of Parliament, I was involved with people who were going before the appeal board. There was always concern one way or the other. You made a comment about undue influence within the Veterans Review and Appeal Board, You gave some indication of the frustrations that you have experienced with some people within the department.
I think this is a very serious issue. We have a Veterans Review and Appeal Board, supposedly independent, to make a decision based on the evidence, as presented to them by the veteran or the person representing the veteran. I would like to give you the opportunity to give us an indication of where you think the undue influence is coming from and how it gets down to that level.
Col. Stogran: I have met with the senior members of the board. There is a document that the board maintains that they refer to as the "favourability rates table." This first came to my attention because members of the board came to me confidentially to complain about how that document is used. What they do is track the favourability rate, the number of favourable decisions that each member makes. I asked the chairman of the board and his senior staff what they use that information for. They replied that it was for consistency checks, to ensure they are being consistent. I asked how they do that. I thought the members are supposed to make their decisions based on the merit of the case presented to them, so how would they influence consistency in that fashion?
This is tied to another problem within the board in terms of undue influence in that they keep all the decisions secret. In a normal court, consistency is maintained because of precedential decisions that have been made. I suggested that all the decisions should all be made public so that they can be used in the appeal process. I do not know if that answers your question.
Senator Manning: It certainly does. You put forward your concern about the decision to be made public. I tend to agree that it gives you background. Where did the stumbling block occur with regard to whether to make decisions public? Did you get that from the people involved in the process or from the people in the higher bureaucracy of the department? Where is the stumbling block there?
Col. Stogran: It is within the Veterans Review and Appeal Board. When we made the recommendation that these decisions should be made public, their concerns were threefold. First, it would cost them an extra $4 million a year; second, the requirement to interpret all the decisions would lengthen the process; and third, private information is contained in these decisions. The interesting point with respect to the private information is that if a veteran takes their complaint to the Federal Court of Appeal, the Federal Court publishes their findings and decisions.
I would submit that it is a vicious circle in terms of the culture of denial. Quite rightly, the Veterans Review and Appeal Board has a huge job to do. They have a huge number of complaints that are referred to them from the department. Therein lies the first problem. If the department took time to phone a veteran and confirm that the application is complete, and confirm, before they make their decision, that they truly understand the situation, I would submit that the 60 per cent turnover rate that the Veterans Review and Appeal Board brags about would be much less. That is overly simplistic, but if the department were using more the approach of benefit of the doubt and engaging more with the veterans, the board would have fewer problems.
Senator Manning: I am concerned about the privacy issue you just raised. I am trying to narrow down where the problem is in regard to making the decisions public. One of the concerns is privacy issues with some veterans and how you go about that. In your discussions with them, did they provide any suggestions as to how to address that matter? You said there were three issues. The other two issues I am not overly concerned about with regard to cost. We are dealing with veterans here, and we want to ensure they are treated fair and square.
What do you suggest to get around the privacy issue? If the decisions were to be made public, there has to be consideration of privacy issues.
Col. Stogran: Yes, senator. In the absence of doing a detailed study into the issue, which I believe the Veterans Review and Appeal Board has done, I could not really comment how to get around it. Suffice it to say that the Federal Court of Appeal finds a way to publish enough information without violating the privacy of veterans.
I think I am safe in saying that much of the private information included in the decisions of the Veterans Review and Appeal Board is not essential to the factors that led to the decision.
The Chair: In some courts, I believe they take away the names and places and get around it that way.
Senator Manning: In your testimony you talked about your first meeting with Minister Blackburn and the fact that you used the words "scandalous" and "cheating," in putting forward your concerns. We all know about the announcements that have been made, and hopefully more are forthcoming. The largest expenditure of the government this year has been on the veterans file, from what I understand. I suppose you can take some solace in the fact that in the last number of weeks, some of the concerns you have expressed, even at that first meeting, have been brought to the fore and have been addressed in some way.
Col. Stogran: As I said in my opening remarks, I am greatly appreciative of the leadership of the Prime Minister in personally intervening in the Brian Dyck case. From the perspective of benefit of the doubt, that characterizes everything that is wrong in the way that piece of the legislation is treated.
In terms of the commitment of funds and the funds going to the troops, I applaud the government. There have been considerable ovations. As Veterans Ombudsman, my concern from day one, and the mark I wanted to leave upon leaving the office, is that the culture within the bureaucracy be fixed. Many recommendations have been made to improve the New Veterans Charter. I am confident, with the ovations that have been made recently, that in the fullness of time, the government will be addressing those recommendations. It is the culture that must be changed.
Senator Wallin: I would like to follow up on a couple of points. I have had conversations privately with veterans as well, as I am sure you have, and one of the issues on the privacy front — and it is a law of Canada — is that if a veteran is involved in questions, is appealing or has sought out a lawyer to help them, the government is forbidden from talking to the veteran. Is that your understanding?
Col. Stogran: Definitely not. There is solicitor-client privilege, but I have never heard that because someone has contracted a lawyer —
Senator Wallin: Then the department itself is forbidden from dealing with the individual separately.
Col. Stogran: I could see that situation arising.
Senator Wallin: The privacy issue, as you well know, is a sticky one. I agree with you; I hope that all senators around this table will vote for this legislation when we get the chance, and do so speedily.
You suggested earlier — and this is kind of over and above the benefit of the doubt aspect that you explained — that somehow this money should be just handed out to veterans and that they should not have to apply for benefits or explain their circumstances.
It was kind of a sweeping comment. I am assuming you do not really mean that. I am assuming that everyone would agree that veterans have to make their case somewhere.
Col. Stogran: I did not intend to give that impression. Our system of having to present a prima facie case to support a particular claim, with the benefit of the doubt compensating for the fact that the system is responsible for generating and maintaining the evidence to which veterans do not have access, I think is a tremendous way of doing it. I would not for a second submit that we should be approving every single claim that comes through.
Senator Wallin: Your concern, then, specifically — we will set privacy aside for the moment — is the timing of it. People go through an application process. You have used some strong language today to the effect that people have deliberately attempted to subvert the system. Those are provocative terms, but we are trying to figure out what needs to be different.
You agree that people should and must apply for benefits and that they should be asked to explain and substantiate their claim. You have referred to the benefit of the doubt approach. What is wrong? What is the problem there? Is it this deliberate subversion you talk about or is it paperwork?
Col. Stogran: All of the above. I have not gotten into the bureaucracy and the number of applications and reapplications that veterans have to make.
Senator Wallin: That is what troubles me, because you have said on a couple of occasions that you are not really familiar with all the aspects, either because the information is withheld or you cannot talk to the right people. However, members of the appeal board tell you things in confidence. If you want someone's head to roll, you have to be able to back that up.
Col. Stogran: Absolutely. I have invited the department and the government to challenge me on any of my claims. I have documentary evidence written into decisions of the Veterans Review and Appeal Board that the balance of probabilities was not met.
Senator Wallin: Do you legally have access to that information, then?
Col. Stogran: Yes. It has been provided to us by veterans.
Senator Wallin: It does come to you, then.
Col. Stogran: It comes to us from veterans. When I asked the chairperson of the Veterans Review and Appeal Board for a copy of the favourability rates table, he flatly refused to give me one.
Senator Wallin: Someone went around the system and gave it to you?
Col. Stogran: Yes, indeed, and it happens all the time from the rank and file of veterans.
Senator Wallin: Have you published that?
Col. Stogran: No. I would go to jail before revealing the confidentialities that have been brought to me, virtually illegal.
The Chair: Senator Wallin, I think you are on parallel tracks here. Just to make sure, information that you are giving, which is building your case in regard to the state or atmosphere within Veterans Affairs, is from information you receive from the veterans and their documents and not from within the institution?
Col. Stogran: Yes, Mr. Chair.
Senator Wallin: He also said members of the board came forward and gave you decisions that are held in secret.
Col. Stogran: No, they made complaints to me about things that they face in making the decisions, because they are frustrated with the system.
Senator Wallin: I understand, but was there detail or did they just say "We do not think the system is working right"?
Col. Stogran: There is detail.
Senator Wallin: Here is veteran A; here are his circumstances; what happened.
Col. Stogran: There is detail. The favourability rates table was described to me in detail. In fact, we got a copy of it from a member, who shall remain nameless.
Senator Wallin: I would like to ask if we can see that, too. I do not want to doubt you, but the language you use is very strong, so it would be helpful for us to see what you are basing that language on or why you feel so strongly about this. We need to see that evidence, too.
Col. Stogran: I would be more than happy to produce the evidence. In fact, I think the committee can compel me to do so. I would like to think that the Veterans Review and Appeal Board can be compelled to bring forward some of these issues.
The Chair: This is what we are leading to, that is, if you have done your assessments based on information that you received from veterans, which is fine, that is direct; and you have received indirect information from members or people who work within the department, and you have the documentation, you are compelled to act on it no matter how you get it. The question becomes, is that information available for us to assess whether or not you have substantiated your arguments? That can be a question we could follow up on.
Senator Wallin: Yes. We need some legal advice on that before we implicate ourselves.
The Chair: That is exactly it. Let us make sure we have it right. We are reviewing the New Veterans Charter. We are not here to put the ombudsman in the position of defending his job.
Senator Wallin: I understand, but the comments are about whether the New Veterans Charter is being implemented.
Col. Stogran: If I may, I have been increasingly vocal and I would even say increasingly coercive in the language I have been using. I would be more than happy to be compelled by subpoena to present the evidence to whoever wants to receive it.
The Chair: I am afraid you are in the wrong country. The guys down south can do that, but it is not our procedure.
Col. Stogran: I am saying that I would like this stuff to come out on the table.
The Chair: I think that point has been clearly made.
Senator Plett: You have praised the Prime Minister for his intervention in the Brian Dyck case and I appreciate that.
On October 15, Veterans Affairs Canada announced that Canadian veterans diagnosed with ALS will no longer have to fight for their health and financial benefits. You then state that the minister's announcement on October 15 was self-serving.
Again, you show suspicion of the government's intention; or maybe not suspicion of their intention but you doubt that the money will flow when they announce a money bill. When the minister made an announcement, one, it would seem to me, you would be favourable of, you say it is self-serving. Short of having the minister having made that announcement earlier, what would you think is self-serving about that and what should the minister have done?
Col. Stogran: What is self-serving about that is taking any credit at all for changing the benefits going to ALS victims. The Veterans Review and Appeal Board and the department should have been granting those benefits all along. There have been no substantive actions that I know of within the department to change that particular piece. As far as I am concerned, it is a deception plan. It is slick marketing demonstrating that all sorts of things are changing on behalf of veterans.
What about the PTSD victim? In the United States, the same kind of statistical evidence indicates that they have a higher propensity for early onset dementia, yet we have a 60-year-old infantry officer in Halifax who was an acute sufferer of PTSD while serving, and he is a complete invalid now suffering from dementia. The department refuses to accept that. I would submit, as I have submitted in your document, if the department truly abided by the intent behind the benefit of the doubt, there would be many other maladies that would be treated in the same way that the minister is taking credit for having changed things for ALS.
Senator Plett: As a closing comment, I suspect that many people who are suffering with ALS are happy that the minister made the announcement. They may not have the same feelings you do.
The Chair: What information are you receiving in regard to how the New Veterans Charter is responding to family needs? Are there any particular elements there that have come to the fore that you believe are worthy of our attention?
Col. Stogran: What information has come to us is limited.
The Chair: I am talking from the point of view of veterans.
Col. Stogran: The families are a concern.
The Chair: You are saying that it is either being taken care of or there is nothing being done. What is your position?
Col. Stogran: Family members have been expressing their concerns at these town hall meetings, such as the spouses of traumatic brain injury victims who are left to fend for themselves. I would say that that would be a major issue at town hall meetings.
The Chair: There is more to be done on this issue.
On the research side with Veterans Affairs anticipating injuries and anticipating needs of veterans, particularly now that we have a new generation, do you feel the New Veterans Charter encourages Veterans Affairs Canada in creating research clinics on traumatic stress or other injuries, including physical injuries?
Col. Stogran: I have seen steps in that direction, but I cannot say that it is a direct cause and effect from the New Veterans Charter per se, if I understand your question.
The Chair: I am afraid that I must bring the session to a close. You have been forthright. Thank you for offering information that may be pertinent in going further with the testimony you have provided today. We wish you well in your future endeavours as of November 11, I gather.
Thank you, Colonel Strogan.
(The committee adjourned.)