This was sent to Defence Watch by Sean Casey's office:
November 23, 2012
Mr. Greg Kerr, Chair,
House of Commons Standing Committee on Veterans Affairs
Sixth Floor, 131 Queen Street
House of Commons
Ottawa ON K1A 0A6
Dear Mr. Chair;
As you are aware, it is my view that the Standing Committee should consider recommending to government an amendment to legislation that would lower the burden of proof so veterans could avail themselves of the benefit of the doubt more often in more cases.
Specifically, I refer to S.39 of the Veterans Review and Appeal Board Act. This section has been interpreted as imposing on a veteran a civil standard of proof, i.e. the balance of probabilities. The benefit of the doubt is only applied where the evidence for, and against, the veterans position is equal.
This is the same standard that applies to person suing insurance companies in court (and other civil disputes).
The Supreme Court of Canada applied and approved a lower standard applicable in Immigration cases in Mugesera v Canada (Minister of Citizenship and Immigration) 2005 SCC 40, : 2 SCR 100 at para.114.
S.19 (1) (j) of the Immigration Act precludes admission to Canada of persons for whom there are reasonable grounds to believe they have committed an act or omission outside Canada that constituted a war crime or a crime against humanity.
So, the burden of proof on the Crown in this case was to show reasonable grounds to believe Mr. Mugesera had committed a war crime. The Crown did not have to prove it beyond a reasonable doubt, nor did it have to prove it was more likely than not.
The societal reasons for applying this standard are clear. Suspected non-Canadian war criminals should be deported if there is some credible objective evidence; a more detailed weighing of evidence is therefore not required. 2
I submit that the same standard should be applied to veterans seeking benefits as that imposed upon the Canadian government to deport a suspected war criminal. In other words: it should be no more difficult for a veteran to prove he is eligible for benefits than it is for the Government to deport a suspected war criminal.
The following is the Supreme Court of Canada commentary on this concept (para 114-115):
114 The first issue raised by s. 19(1)(j) of the Immigration Act is the meaning of the evidentiary standard that there be "reasonable grounds to believe" that a person has committed a crime against humanity. The FCA has found, and we agree, that the "reasonable grounds to believe" standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minister of Employment and Immigration), 1993 CanLII 3012 (FCA),  1 F.C. 433 (C.A.), at p. 445; Chiau v. Canada (Minister of Citizenship and Immigration),2000 CanLII 16793 (FCA),  2 F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: Sabour v. Canada (Minister of Citizenship & Immigration) (2000), 9 Imm L.R. (3d) 61 (F.C.T.D.).
115 In imposing this standard in the Immigration Act in respect of war crimes and crimes against humanity, Parliament has made clear that these most serious crimes deserve extraordinary condemnation. As a result, no person will be admissible to Canada if there are reasonable grounds to believe that he or she has committed a crime against humanity, even if the crime is not made out on a higher standard of proof. (Emphasis added)
Accordingly, I am requesting the Committee recommend to government an amendment(s) to applicable legislation to adopt this standard of proof for veterans. The wording would be similar or identical to that contained in S.19 of the Immigration Act.
Veterans should be treated better than litigants suing insurance companies. This lowered burden would enable that.
Sean Casey QC, MP
cc: Cynara Corbin, Clerk, ACVA
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