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Veterans ask Supreme Court if Canada has a special obligation to those disabled in service

Retired Maj. Mark Campbell, who is part of the Equitas lawsuit, is photographed outside his attorney’s offices in Vancouver on Dec. 4, 2017.

Rafal Gerszak/The Globe and Mail

Six disabled Afghanistan veterans are asking the Supreme Court to determine the nature of the relationship between Canada and its military personnel and to define what the government owes to those who are injured in the line of duty.

The members of the Equitas group, who have been fighting their legal battle against Ottawa for nearly seven years, have filed an application for leave to appeal a ruling of the British Columbia Court of Appeal. It asks the Supreme Court to decide whether the inadequate compensation of disabled vets would breach Canada's "solemn obligation" to those who have served their country.

"There is a need for those who give their life and limb for Canada to know that they have this obligation [on the part of the government], that is not a matter of discretion, not a matter of something that can be changed, that they can count on it when they go into battle for their country," Don Sorochan, the lawyer who has been fighting the case for free, said this week in a telephone interview.

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The application, which was filed in the top court on Wednesday, also asks the judges to rule whether the concept of the "Honour of the Crown" applies only to Canada's relationship with Indigenous people or whether it can be expanded to cover the way the government deals with groups such as veterans and members of the military.

The request for the Supreme Court to consider the case comes after the B.C. appeal court struck down arguments that the New Veterans Charter, which took effect in 2006 and changed with way vets with disabilities are compensated, is discriminatory because it pays less than what was offered previously. Specifically, the Equitas vets said, it is wrong that military personnel who retired with a disability before 2006 are entitled to lifetime pensions but the same is not true of all vets with disabilities who retired under the Charter.

The Liberal government says it kept an election promise in December when it offered lifetime pensions to Canada's most severely disabled veterans. But the Equitas plaintiffs say most vets – those who are not approaching total impairment – will get only small amounts under that pension plan, which means there is still no parity with what is given to those who fall under the old Pension Act.

Mark Campbell, a retired infantry major who was left permanently disabled after he walked over an improvised explosive device in Afghanistan in June, 2008, is one of the six Equitas veterans. The case, he said, goes to the heart of why Canadians enlist in the military.

"You don't put your life on the line without some sort of reciprocal agreement that you're going to be looked after should things go sideways," said Mr. Campbell. "To find out, as we did though the B.C. Court of Appeal, that there is no basis law for any sort of a social covenant or any sort of special arrangement between the government of Canada and those who serve was quite shocking."

In their arguments, which were found in 2014 by the B.C. Supreme Court to have enough merit to proceed to trial, the veterans pointed to statements made by Canadian politicians such as former prime minister Robert Borden, who recognized there is a "social covenant" requiring the government of Canada to look after those who fight on behalf of the country.

But the appeal court, which overturned the B.C. Supreme Court's ruling, said "the idea that inspirational statements by a prime minister containing vague assurances could bind the government of Canada to a specific legislative regime in perpetuity does not, in any way, conform with the country's constitutional norms."

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The appeal court also rejected the veterans arguments that Honour of the Crown holds the government to historical promises it has made to members of the Armed Forces. The court found that the Honour of the Crown is a distinct concept related to obligations that the Crown has to First Nations as a result of taking their lands.

If there is no social covenant and the Honour of the Crown does not apply to those who have served in the military, "let it be said by the Supreme Court of Canada," said Mr. Sorochan.

Letters to family members from soldiers who fought in the First and Second World Wars and in Korea contain "promises that were made to them to induce them to go and fight for their country,'" he said. "So I don't know how the B.C. Court of Appeal can sit there and say 'this is just a statement from a politician, it's of no never mind, they can change their mind.' I don't they should be able to change their mind."

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