BCCA Rejects a Constitutional Duty to Compensate Military Veterans

M1A2_Abrams,_August_14,_2014

Does the federal government have a constitutional duty to provide adequate compensation to Canadian Forces veterans who are injured in the line of duty? According to the B.C. Court of Appeals, there is no reasonable legal basis to say so.

In Scott v Canada, the BCCA considered a claim by several injured veterans that the compensation they are given under federal legislation is insufficient. This was a preliminary decision, where the court had to decide whether the facts they argued, if true, had a reasonable chance of showing a legal wrong. The plaintiffs used a wide range of legal arguments, a few of which engage novel or interesting constitutional issues:

The plaintiffs attempted to apply the “Honour of the Crown,” – the broad principle that the Crown has a duty to act in a fair and honest way when dealing with Aboriginal peoples – outside of an Aboriginal law concept.  They argued that this ideal also applied to the relationship between veterans and the Crown. In their view, Canada had entered a kind of “social covenant” with veterans, in which they would be provided for if injured on the battlefield.The BCCA rejected this, confirming that the Honour of the Crown is only applicable to Aboriginal law because it is based on the Crown assuming sovereignty over Aboriginal-held lands (at paras 68-70).

Using the Charter, they claimed that their Section 7 rights to life, liberty and security were infringed because of the harm and suffering they experience from their injuries. The court instead found that Section 7 covers deprivation of these things by the government, not a failure to ensure people have them (at paras 89-90).

Interestingly, the plaintiffs also used a Section 15 equality rights argument – that veterans are treated worse than civilian employees who get workers-compensation benefits. The court asked whether there is any chance that Canadian Forces members could be considered a protected group under the Charter in situations like this one. In keeping with a previous case on the issue, the BCCA found that soldiers are generally not a systemically disadvantaged group, and do not fall under Section 15’s protection (at paras 76-78).

Scott leaves the ultimate issue of whether the government fulfills its promises to veterans for the political arena instead of the courts. In doing so, this case illustrates where the boundaries of some of our most important constitutional rights and principles are currently drawn.

This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.