Decision Instruments of the Federal Cabinet: Legally Exercising the “War Prerogative”

I. Introduction

Canada’s military forces started participating in international armed conflicts as early as the Boer War of 1899. Since then, Canada’s military has continued to take part in operations around the globe and across the spectrum of conflict, from peacetime military engagement to total war. These expeditionary deployments require a basis in the law. The well-known international legal principles surrounding jus ad bellum are long settled. However, there is also a requirement for domestic legal authority to deploy the Canadian Armed Forces.^[1] That domestic authority is found in the Crown prerogative, which are “the powers and privileges accorded by the common law to the Crown”.^[2] Constitutionally, these powers of the Crown are exercisable by the governor general, acting on the advice of responsible ministers.

However, it has been said that “the nature of the Crown and its powers remain shrouded in uncertainty and continue to generate controversy.”^[3] Discretionary prerogative powers of the Crown are either “an uncertainty engine”^[4] that should be displaced by statute in a liberal democracy; or they are a “care engine”^[5] that compel actors to exercise them with caution in a system whose proper functioning relies on honourable behaviour.^[6] In the latter view, prerogative power affords Cabinet the latitude required to confront unforeseen challenges related to national defence.

Since the early days of Confederation,^[7] mobilizing the militia has been effected through an Order in Council, a Crown instrument that is signed by the governor general and represents “a formal action taken by the Government”.^[8] Through the twentieth century, the Canadian Armed Forces continued to be deployed internationally on the basis of Orders in Council that placed the deployed elements on active service. More recently, that practice^[9] has changed. An Order in Council has not been issued in relation to a deployment since 1992.^[10] Instead, international deployments are now authorized through a record of a decision taken by the executive.^[11] A document of this nature is known as an executive instrument—it does not carry the legal weight or formality of a Crown instrument, and is not signed by the governor general.

When the government decides to deploy the Canadian Armed Forces on international operations, is an executive instrument a valid means of exercising the Crown prerogative at law?^[12] This paper begins by providing an overview of the Crown prerogative, the Cabinet decision-making process, and a review of past and current practice. As the review of past and current practice is not determinative, the paper then presents two competing interpretations of how the Crown prerogative for defence should be exercised. The first is based on “efficiency” and allows for the use of executive instruments. The second is rooted in “formalism” and insists on the use of Orders in Council. Subsequently, a case study from Australia illustrates what can happen under practice different from Canada’s. The discussion section explores the intersection of law with politics, and ultimately finds that executive instruments validly exercise the Crown prerogative for defence. The paper then proposes a theory for how the analysis may apply to other Crown prerogative powers, concluding with suggestions for further research that could be pursued to better understand how the Crown prerogative is exercised.

II. Background

The Crown prerogative

All government actions must be rooted in a legitimate legal authority that grants power to the executive capacity of the Crown. In Westminster systems of government, such as Canada’s, most executive actions are based in statutory authority granted by Parliament.^[13] However, the Crown also benefits from prerogative powers that are independent of statutes—powers that have existed prior to the concept of parliamentary supremacy.^[14] Under Canada’s constitution,^[15] these prerogative powers are recognized under section 9.^[16] Although statutory authorities are more numerous, Crown prerogative power “dominates in a small number of areas that are at times supremely consequential.”^[17]

While jurists readily accept the existence of the Crown prerogative (also referred to as the “Royal prerogative”), historically there have been competing theories about how to define prerogative power.^[18] When considering cases that touch on the Crown prerogative, the Supreme Court of Canada has accepted two different definitions. In Khadr v Canada (Prime Minister), the Court adopted the definition of A.V. Dicey: “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.”^[19] However, in Ross River Dena Council Band v Canada,^[20] LeBel J, writing for the majority, accepted Peter W Hogg’s definition of the Crown prerogative^[21] as “the powers and privileges accorded by the common law to the Crown.”^[22]

Generally speaking, those who embrace Dicey’s definition see the prerogative as a relic that must gradually be displaced by legislation. For example, Forcese warns that the Crown prerogative is “a dangerous concept in a constitutional democracy built on a system in which the Executive is responsible to the legislature.”^[23] Others criticize Dicey’s definition, especially the “value judgements” implied by the use of words such as “residue” and “arbitrary”.^[24] While acknowledging that the legal form of Crown prerogative power is “open to criticism,” Payne defends its utility and practicality, arguing that “it is hardly surprising that an executive will have discretionary powers.”^[25] Finally, Lagassé notes that prerogative powers give governments the flexibility required “to respond to new circumstances.”^[26] These are but some of the reasons that the late Professor Hogg’s definition is preferred when analyzing the Crown prerogative powers for defence.^[27]

There are other differences of opinion regarding the Crown prerogative. In addition to definitional arguments, the literature also shows disagreement about whether it is proper to define the Crown prerogative as part of the common law,^[28] and whether new prerogative powers can be created.^[29] However, there is agreement that “it is the common law that declares what the royal prerogative is”.^[30] While there is also agreement that enumerating all of the Crown prerogatives is incredibly difficult,^[31] Noonan proposes that there are seven categories of Crown prerogatives that exist in Canada.^[32] Under “prerogatives of governance,” Noonan includes the conduct of foreign affairs, the power to declare war, and command of the armed forces.^[33] In the words of Lagassé, “[t]he prerogative thus grants the executive discretionary authority over nearly all decisions and actions of an international character.”^[34]

Cases that shed light on the Crown prerogative are relatively rare.^[35] Jurisprudence in Canada builds upon three important holdings from the United Kingdom’s House of Lords: statutes can limit or displace the Crown prerogative;^[36] courts will determine the existence of (and any limits on) a prerogative power;^[37] and exercises of the prerogative are justiciable if the rights or legitimate expectations of an individual are impacted.^[38]

Over the past forty years, the Supreme Court of Canada has directly considered Crown prerogative issues on four occasions. The Court has twice^[39] attempted to clarify how prerogative powers and immunities are displaced by statute in light of the Interpretation Act^[40] (although uncertainty remains).^[41] The other two decisions relate to the Crown prerogatives for foreign affairs and defence. In Operation Dismantle v The Queen,^[42] the Court held that decisions made under the Crown prerogative are reviewable for compliance with the Canadian Charter of Rights and Freedoms.^[43] Such a decision was reviewed in Khadr v Canada (Prime Minister),^[44] where the Court found that the government had breached Khadr’s section 7 Charter rights. While Khadr was granted declaratory relief, the decision was notable because the Court stopped short of imposing a remedy on the executive, out of respect for the principle of the separation of powers.^[45]

Another important Crown prerogative decision cited frequently at the federal level comes from the Court of Appeal for Ontario. In Black v Canada (Prime Minister),^[46] the Court followed Justice Wilson’s reasons in Operation Dismantle where she concluded that it is the court’s obligation to “decide whether any particular act of the executive violates the rights of the citizens.”^[47] In so doing, the Court in Black adopted the concept of a “spectrum of justiciability” revealed in GCHQ, which distinguishes between Crown prerogative powers that are reviewable, such as those which affect the rights or legitimate expectations of an individual; and matters of “high policy” such as “decisions to sign a treaty or to declare war”, which are non-justiciable.^[48]

The “war prerogative”

There is broad acceptance that “the disposition and armament of the armed forces is a matter of the royal prerogative, exercisable by the Crown.”^[49] Although discussion of this Crown prerogative frequently references the declaration of “war”,^[50] this must be interpreted to include “the power to deploy the [Canadian Armed Forces] on military operations outside of Canada”.^[51] More modern descriptions of the power include “[t]he deployment and use of the armed forces overseas, including involvement in armed conflict, or the declaration of war”;^[52] or “the disposition of units of the armed forces at home or abroad during peace or war, and, in general, the entire conduct of military affairs.”^[53] Statements in Canada’s House of Commons confirm that this is the understanding of ministers of the Crown.^[54]

The National Defence Act^[55] expresses “Parliament’s consent for the Crown’s maintenance of a peacetime military”^[56] and serves to regulate how the Canadian Armed Forces are governed. However, the NDA only regulates “who can do what and under what conditions”^[57]—the power being exercised is still the Crown prerogative, which has not been displaced by the statute, despite stating that the minister of national defence and Cabinet have the power to direct the military.^[58] Specifically, this is also true with regard to the Crown prerogative to deploy the Canadian Armed Forces outside of Canada, which remains “whole and unfettered.”^[59]

Who has the power?

The first question in an analysis of this nature is “to determine who as a constitutional matter has the decision-making power”.^[60] Since the Statute of Westminster in 1931, “this constitutional responsibility has belonged with Canada’s executive, as do the powers that are necessary for the execution of this duty.”^[61]

As discussed above, section 9 of the Constitution Act, 1867 recognizes that the Crown’s prerogative powers are vested in the Queen. Furthermore, section 15 vests in Her Majesty the power of Command-in-Chief of Canada’s armed forces.^[62] Through the Letters Patent Constituting the Office of Governor General of Canada, 1947,^[63] the Sovereign named the governor general “Commander-in-Chief in and over Canada”,^[64] and empowered the governor general “to exercise all powers and authorities lawfully belonging to Us in respect of Canada.”^[65] This includes federal Crown prerogative powers, and the section 15 power of Command-in-Chief.^[66]

In accordance with Article II of the Letters Patent, the governor general exercises those powers on the advice of the Queen’s Privy Council for Canada, established under section 11 of Constitution Act, 1867. However, “only current members of cabinet advise the governor general”^[67] in accordance with the constitutional convention of responsible government.^[68] Therefore, the governor general does not make the decision to deploy the Canadian Armed Forces internationally;^[69] the power is exercised by means of constitutional advice from the Canadian Ministry.^[70]

The Cabinet decision-making process and decision instruments

After identifying who has the power to exercise the Crown prerogative for defence, the next consideration that must be understood is the process leading to that exercise.^[71] In order to advise the Crown, ministers “require a political process whereby proposals can be advanced, compromises discussed and final decisions arrived at. This is the cabinet decision-making process.”^[72]

The prime minister leads the decision-making process.^[73] The prime minister decides who sits in Cabinet,^[74] sets the Cabinet agenda, and selects the chairpersons of Cabinet committees.^[75] Cabinet committees are “an extension of Cabinet itself,” and committee chairs “act for the Prime Minister with his or her authority.”^[76]

The process works through “compromise and consensus building, which culminates in a Cabinet decision.”^[77] A minister initiates the process by presenting an issue to Cabinet. The issue is then discussed at a Cabinet committee, which results in a recommendation.^[78] The committee recommendation is then sent to Cabinet for confirmation.^[79]

When members of Cabinet meet to decide how to advise the governor general, it is “styled a meeting of the Committee of the Privy Council.”^[80] Once a decision has been made by the Committee of the Privy Council, “advice may subsequently be tendered to the Governor General in the form of a recommendation which, after approval by the Governor General, creates the legal fiction of a meeting of the Privy Council and constitutes, in law, the legal action of the Governor General in Council.”^[81]

How a Cabinet decision is made official depends on interpretations regarding who can advise the governor general; whether that advice must be tendered; and how the governor general consents to the advice. However, it is first important to recognize that the federal Crown prerogative “can be exercised through a variety of instruments and means.”^[82] Cabinet decision instruments fall into two categories: Crown instruments, which are defined as “those instruments that are made by or on behalf of the Crown”;^[83] and executive instruments, which are “documents used by and within government for the development and execution of policy initiatives.”^[84]

Crown instruments

Crown instruments capture the performance of a “royal act” by the Sovereign. They can be divided into three broad categories: Orders in Council; sign manual warrants; and instruments that pass under the Great Seal.^[85] Table 1 summarizes the various categories of Crown instruments identified by Keith and Noonan.

An Order in Council (OIC) is passed by a meeting of the Committee of the Privy Council. It is “a legal document which can be used in a court of law”,^[86] and can cover an infinite range of subjects.^[87] In order to authorize the advice contained in an OIC, “the Governor General will sign the face page of a batch of Orders-in-Council that were considered at a meeting of a committee of the Privy Council and it is that signature which will give royal sanction to the issuance of the Order-in-Council.”^[88] Orders in Council are normally published in the Canada Gazette,^[89] however the Clerk of the Privy Council is afforded the discretion to not publish an OIC related to classified defence information if it would be injurious to the national interest.^[90]

The other categories of Crown instruments are not applicable to this analysis. Sign manual warrants enact decisions unrelated to national defence. “Instruments that pass under the Great Seal” includes Royal Proclamations, and although “war and peace are proclaimed”,^[91] this category of Crown instruments is also irrelevant for two reasons. First, since the end of the Second World War, “Canada has participated in a number of international conflicts, but has never declared war.”^[92] Such declarations have become “almost extinct” since 1945,^[93] and do not properly encompass the various forms of international military operations short of war. Second, Royal Proclamations are meant to “secure full publicity”^[94] for a decision taken pursuant to an Order in Council^[95]—they are a form of communication,^[96] not the formal legal decision itself.^[97] Put more succinctly, “the prerogative power is to make war, not to declare it.”^[98] The obsolescence of declarations of war “cannot alter the constitutional procedures by which a sovereign state commits itself to a war as a matter of its own domestic law.”^[99]

Executive instruments

Executive instruments encompass a wider array of Cabinet documents, and include “policy papers, guidelines, letters of understanding, directives, memoranda, reports, written opinions, and letters of agreement.”^[100] Cabinet makes “in the order of 200 to 300 substantive decisions a year,”^[101] therefore it has become necessary to keep detailed records of the policy-making process.^[102] These records are known as the cabinet paper system, and include: “a memorandum from minister outlining a proposed initiative; a cabinet committee agenda, minutes and report on the discussion among ministers; and minutes of the cabinet and a record of the decision agreed to.”^[103] The system that exists today began in the 1940-50s, and took its present form during an “ever-growing bureaucratization of the cabinet process” that started in the 1970s.^[104] These Cabinet documents “are formally styled as confidences of the Queen’s Privy Council for Canada and are accessible under access legislation but are excluded from public access for various periods of time until they are only of historical interest.”^[105]

The main executive instrument in use today is the Memorandum to Cabinet. Ministers submit a Memorandum to Cabinet in order to propose a new government policy (or changes to an existing policy); implement a policy that was set out in a Speech from the Throne, budget, or mandate letter from the Prime Minister; submit a legislative proposal; or to ask Cabinet for a decision on a proposal that implicates other departments, jurisdictions, or may be controversial.^[106] An international deployment of the Canadian Armed Forces would fall into this last category.

The Memorandum to Cabinet contains a recommended course of action from the responsible minister, which will be sent to a Cabinet committee for consideration.^[107] This leads to two other important types of executive instruments. The first is a Committee Recommendation, which is the “committee’s recommendation as to what decisions should be taken by Cabinet or a committee that has been delegated the ability to ratify or approve other committees’ recommendations.”^[108] The second is a Record of Decision, which will be issued once Cabinet (or the ratifying committee) endorses or amends the Committee Recommendation.^[109]

It should be noted that if Cabinet decides to issue a Crown instrument such as an OIC, that decision will be captured in the Record of Decision, but the text of the OIC itself will not be reviewed or approved by Cabinet. According to the Privy Council Office, “most OICs requiring Governor in Council approval are submitted directly by responsible Ministers to the Treasury Board, the committee designated to act as Council.”^[110]

Past practice: OICs and the Crown prerogative for defence

Before analyzing the research question, it is worth examining how the executive authorizes international deployments, both today and in the past. Since 1992, this has been accomplished through the use of executive instruments—either through a Record of Decision from Cabinet, or (since 2001) by means of a strategic objective letter from the prime minister to the minister of national defence.^[111] A strategic objective letter “clearly and unequivocally defines the policy, operational, legal, geographic, and temporal scope of the [Canadian Armed Forces] deployment.”^[112] As will be explained in the following section of the paper, some interpret this practice as a valid exercise of the Crown prerogative, despite the absence of a formal Crown instrument such as an Order in Council.

From 1950 to 1992, Cabinet issued an Order in Council for each international mission.^[113] Those OICs were issued under statutory authority, and placed the deployed element of the Canadian Armed Forces on “active service” in accordance with section 31(3) of the NDA.^[114] Active service is an administrative designation that has “implications for soldiers in terms of: coverage for benefits under the Canadian Forces Superannuation Act; the timing of release from the forces; the application of the Code of Service Discipline to reserve members in certain circumstances; and the applicability or aggravation of certain military offences.”^[115] Additionally, when the Governor in Council places forces on active service, section 32 of the NDA is engaged, requiring Parliament to convene within ten days to debate the deployment.^[116] However, the effectiveness of section 32 has been limited^[117] since 1989, when the Governor in Council issued an OIC^[118] placing the regular component of the Canadian Armed Forces on active service at all times in Canada and abroad.^[119]

It is important to note, therefore, that an active service designation is not the domestic legal authority to deploy.^[120] Indeed, “[t]here is no legal requirement to put Canadian Forces members on active service when they are operationally deployed abroad.”^[121] It is possible for a member of the Canadian Armed Forces to be deployed without being on active service, and vice versa.^[122] The domestic legal authority to deploy the Canadian Armed Forces internationally remains the Crown prerogative,^[123] which is not mentioned in the OICs surveyed for this analysis.^[124] However, through the practice of issuing an active service OIC for individual deployments, “successive governments linked the idea of an active service order with the concept of a Crown prerogative to deploy.”^[125]

The Federal Court has shown a willingness to “read in” an exercise of the Crown prerogative for defence even when an OIC does not explicitly mention it. In Vancouver Island Peace Society v Canada (1993),^[126] the applicants sought judicial review of two Orders in Council^[127] approving visits to Canadian ports of American and British warships that were either capable of carrying nuclear warheads, or were nuclear-propelled.^[128] The applicants argued that the Orders circumvented statutory obligations on the government under various acts and regulations associated with atomic energy, environmental review, shipping, and dangerous goods. While the Orders in Council did not specifically mention the Crown prerogative, the Court dismissed the application, holding that the Orders “were adopted in exercise of the prerogative powers of the Crown in regard to international relations and national defence, powers that have not been withdrawn or regulated in their exercise by statutes enacted by Parliament.”^[129]

However, contrast the Federal Court’s approach in Vancouver Island Peace Society with that of the Ontario Court (General Division) in Scarborough (City) v Ontario (Attorney General).^[130] There, the Province of Ontario appointed trustees to control the municipalities that would soon be amalgamated into the City of Toronto, but did so before the legislation allowing for the amalgamation and appointments had received Royal Assent.^[131] When the City of Scarborough challenged the Orders in Council that effected the appointments, Ontario argued that they had been made pursuant to the Crown prerogative power for appointments, not the amalgamation legislation.^[132] In fact, the province argued that the exercise of prerogative power should be assumed, because the OICs did not explicitly refer to statute.^[133] The Court rejected the province’s arguments and declared that the Orders were of no effect. In arriving at that decision, the Court relied on the fact that the OICs made no mention of the prerogative, and no evidence was presented indicating that the executive council intended to exercise the prerogative at the time the Orders were made.^[134] Indeed, the province did not argue that the OICs were sourced in prerogative power until they were challenged in court.

The Vancouver Island Peace Society decision is likely closer to how the courts would decide on the question of whether it can be assumed that an OIC related to an international deployment of the Canadian Armed Forces exercises the prerogative. However, it is worth exploring whether the Crown prerogative for defence has ever been explicitly invoked through an Order in Council. In order to answer this, a number of historical OICs were retrieved through the Library and Archives Canada OIC database.^[135] Some of the OICs cover domestic deployments in response to the threat of the 1870 Fenian Raids,^[136] and defence of Canada at the outset of the First World War.^[137] Others relate to international deployments such as Canada’s participation in the Boer War,^[138] the First World War,^[139] and the Siberian Expedition.^[140] Interestingly, the OICs are either silent on the question of domestic legal authority, or are active service designations in accordance with statute provisions of the time.^[141] None of the OICs mention the Crown prerogative.

Therefore, it would seem that Canada has never explicitly exercised the Crown prerogative to deploy its military forces through an Order in Council. This revelation forces one to assume that the Crown prerogative for defence must be invoked in an executive instrument. Noonan suggests that such a decision may be recorded in a Minute of Council, a document that captures “a decision of the Committee of the Privy Council that is not grounded in legislation (i.e., an exercise of a Royal Prerogative power).”^[142] However, Noonan also goes on to specify that “a Minute-of-Council does not express the exercise of a positive legal power by the Governor in Council. Where the specific exercise… of a Royal Prerogative power is required, an [O]rder-in-[C]ouncil is normally used for that purpose.”^[143]

A review of the theory, process and past practice leaves the research question unsettled. Therefore, it is necessary to explore the two competing interpretations of how the Crown prerogative for defence is (or should be) exercised at law. One interpretation is based on past practice, and assumes that once a decision has been made by Cabinet, in whatever form that may take, it automatically constitutes “advice” from the Committee of the Privy Council to the Governor General. The other is more formalistic, and holds that in order to be valid at law, a Crown prerogative power must be invoked through an Order in Council.

III. Analysis

Efficiency: a decision constitutes advice

The efficient interpretation rests on the conventions of responsible government, and is most strongly supported by the Court of Appeal for Ontario decision in Black.^[144] The decision is influential due to its analysis of who may exercise Crown prerogative powers and its treatment of justiciability.^[145] In Black, the plaintiff sued the prime minister and government for alleged damages resulting from the prime minister’s advice to the Queen to refrain from granting the plaintiff a peerage in the UK House of Lords. Part of the plaintiff’s argument rested on the assertion that “in Canada, the Prime Minister does not have the power to exercise the Crown prerogative, only the Governor General does.”^[146]

The ONCA rejected this argument, finding “no support for this proposition in theory or in practice.”^[147] In his reasons, Laskin JA noted that “nothing in the Letters Patent or the case law requires that all prerogative powers be exercised exclusively by the Governor General.”^[148] Pointing to the reasons of Wilson J in Operation Dismantle, he held that “[a]s members of the Privy Council, the Prime Minister and other Ministers of the Crown may also exercise the Crown prerogative.”^[149] Therefore, in Black, the Court held that the prime minister had validly exercised the honours prerogative—an exercise that was not reviewable.^[150]

The efficient interpretation relies on the Black decision to demonstrate that a total of four bodies/actors may legally exercise the Crown prerogative for defence. The most obvious is Cabinet, followed by Cabinet committees, which “continue to exercise the Crown prerogative in much the same way as the whole of Cabinet.”^[151] Additionally, the prime minister can exercise the Crown prerogative based on the authority derived from leading the government. However, the prime minister may also exercise the Crown prerogative because of his or her “considerable influence over what is done in the name of Cabinet,”^[152] and because he or she “defines the consensus” on what is discussed around the Cabinet table.^[153] Finally, the courts have affirmed that individual ministers may exercise Crown prerogative powers that fall within their scope of responsibility.^[154]

Since Cabinet, Cabinet committees, the Prime Minister, and individual ministers may all exercise the Crown prerogative, the means used to do so is necessarily flexible, and includes executive instruments. According to this interpretation, “Cabinet must normally approve a committee’s recommendations without too much debate; otherwise, it would end up doing all the committee’s work all over again.”^[155] Therefore, once Cabinet issues a Record of Decision in response to a Committee Recommendation, “it is this [Record of Decision] that stands as the formal exercise of an associated Crown prerogative.”^[156] On a personal level, “[t]he Prime Minister or individual Ministers will exercise the Crown prerogative in writing, often times by way of letter to officials charged with implementing the decision.”^[157]

Executive instruments and past international deployments

The literature reveals that specific exercises of the Crown prerogative to deploy the Canadian Armed Forces abroad have occurred through a variety of Cabinet documents. Past practice has seen Cabinet issue a Record of Decision in response to a Memorandum to Cabinet, verbal briefings, and recommendations from the Foreign Affairs and National Security Committee^[158] (now styled the Cabinet Committee on Global Affairs and Public Security under the Trudeau Ministry).^[159]

As discussed above, the Prime Minister has exercised the prerogative by means of a strategic objective letter authorizing the deployment.^[160] According to Lagassé, “the prime minister has a right to direct [the Department of National Defence] and the Canadian Forces… the prime minister’s directives and policies take precedence over those of the defence minister and… the prime minister can advise cabinet to exercise the Crown’s prerogative for national defence.”^[161] The wording here is interesting, as it implies that even when directing the Canadian Armed Forces on an individual basis, the Prime Minister is doing so through his or her ability to “define the consensus” of Cabinet.

At a ministerial level, the ministers of national defence and foreign affairs can jointly authorize international deployments in certain circumstances, and will formalize the decision through a letter (or individual letters) sent to the prime minister.^[162] Additionally, the minister of national defence may individually authorize international deployments that are small in number, but the literature notes that such decisions are usually communicated to the prime minister.^[163] In instances where a decision to deploy is communicated by the minister of foreign affairs and/or the minister of national defence to the prime minister, his or her concurrence constitutes the true exercise of the prerogative.^[164]

The conventions of responsible government and advice to the Crown

Two related conventions underpin the interpretation that the Crown prerogative for defence can be exercised via an executive instrument. Constitutional conventions are fundamental to Canada’s legal system because they ensure that power is exercised in accordance with the “prevailing constitutional values or principles of the period.”^[165] They cause intolerable constitutional powers to become tolerable,^[166] and when combined with our constitutional laws, form the entirety of Canada’s constitution.^[167] As Lagassé explains:

conventions can impose a degree of political control on executive discretion. In principle, when conventions develop around the exercise of Crown prerogatives, they can limit how government employs these powers. Although they do not affect the status of prerogatives in law, conventions can require that these powers be exercised in accordance with certain norms or procedures.^[168]

The first convention is that executive authority “is normally exercised on the advice of the Crown’s Cabinet ministers who, by convention, are responsible and accountable for the affairs of government.”^[169] This convention of responsible government is incorporated into Canada’s constitution via the preamble,^[170] and means that “the Governor General, an unelected and non-partisan official, is almost always bound to act on the advice of the elected government that commands the confidence of the House of Commons.”^[171] In the case of the Crown prerogative power to deploy the military outside Canada, this means that the convention of responsible government satisfies the democratic principle^[172] so that the Governor General is not commanding the military to deploy absent a decision of the elected government.

The second convention is closely related to the first. Not only is there a positive obligation on the governor general to act only on the advice of responsible ministers, but there is also a negative obligation to not refuse advice that is constitutionally sound.^[173] Governors general are not legally bound to accept the advice tendered to them by Cabinet,^[174] but by convention any element of discretion is removed or severely curtailed so that “the governor has no freedom to select among alternative courses of action.”^[175]

These conventions concerning the exercise of executive power are “firmly established and universally accepted.”^[176] When taken together, Bolt describes their effect sharply: “The ‘advice’ called for by the law becomes, by convention, the decision itself.”^[177] This is the clearest expression of the argument that the Crown prerogative can be exercised by a means other than a Crown instrument. This proposition is supported by Malcolmson et al, who agree that “under the rules of responsible government, ‘advice’ given to the governor general is the equivalent of an order”,^[178] and “cabinet decisions are in legal terms ‘advice’ to the Crown”.^[179]

Under this “efficient” interpretation, the form of exercise is entirely variable. Not only would an executive instrument suffice, such as a Record of Decision, or a strategic objective letter, but even a verbal order from the prime minister or minister of national defence would be a valid exercise of the Crown prerogative for defence. Speaking in regard to section 15 of Constitution Act, 1867, Lagassé states: “[n]o directive to the [Canadian Forces] could be consistent with the Crown’s supreme military authority unless it is understood that the individual issuing the directive has the authority to advise the Crown.”^[180] The efficient interpretation would extend this logic to the “defence of the realm” power under section 9.

Formalism: prerogative acts require a Crown instrument

The Supreme Court of Canada has expressed a formalist view

The counterargument to the “efficient” interpretation stresses the requirement for a Crown instrument to validly exercise a prerogative power. This interpretation still recognizes the convention that the governor general must always accept the advice of Cabinet,^[181] but also places importance on the assertion that prerogative acts are unique to the Crown and have “legal effect”.^[182] There is a belief that when a decision is to be made by the Governor in Council, a Crown instrument must be signed by the governor general.^[183] This interpretation does not recognize that a Cabinet decision automatically constitutes advice, and holds that the participation of the governor general in the process is a “necessary function,” even if it is only a formality given the convention of responsible government.^[184]

The strongest statement of the “formalist” position in the case law comes from the Supreme Court of Canada in Ross River:

By convention and long-standing practice, only the Governor in Council is able to exercise [prerogative] power; its exercise cannot be delegated to ministers of the Crown or other delegates. The exercise of the royal prerogative requires an outward public manifestation through an Order-in-Council; warrants, commissions or orders under the sign manual; or proclamations, writs, letters patent, letters close, charters, grants and other documents under the Great Seal.^[185]

Interestingly, the reasons of LeBel J were delivered thirteen months after those of Laskin JA in Black, yet the decision makes no reference to the ONCA decision and its contradicting view of who may exercise Crown prerogatives.

At issue in Ross River was the Crown prerogative power to create First Nations reserves, and whether it had been displaced by statute. Both parties agreed that “the power to create reserves was originally based on the royal prerogative.”^[186] However, the appellants argued that practice had shifted over time such that the prerogative power had been displaced by statute, and therefore the exercise of the (now) statutory authority to create reserves “requires no formal instrument signifying the exercise of the royal prerogative such as an Order-in-Council or letters patent.”^[187] In response, the Government of Canada argued that the power to create reserves remains a Crown prerogative; a “duly authorized official or body” of the Crown never intended to create a reserve; and even if legislation had displaced the prerogative, the statute in question gave authority to the Governor in Council, who had not acted in this instance.^[188]

In Ross River, whether the power was found in Crown prerogative or statute, it was still the Governor in Council exercising the authority to create the reserve.^[189] In line with a formalist view, LeBel J explained that this means the governor general, acting on the advice of a Committee of the Privy Council.^[190] Despite asserting earlier in his reasons that exercise of the Crown prerogative “cannot be delegated to ministers”, LeBel J proceeded to analyze “whether the powers of the Governor in Council must be exercised personally or if those powers may be delegated to a government official”.^[191] In doing so, he applied the test found in R v Sioui^[192] and held that when negotiating with First Nations, a Crown agent must hold “sufficient authority to bind the Crown.”^[193] In Justice LeBel’s view, “sufficient authority” means an Order in Council or a specific statutory provision.

There may be a way to read these reasons in a manner that reconciles them with the “efficient” interpretation. The prime minister and minister of national defence could be said to have “sufficient authority” to commit the Canadian Armed Forces to international military operations by virtue of section 15 of the Constitution Act, 1867. However, a straight reading of Justice LeBel’s reasons at paragraph 35 seem fairly restrictive in who may exercise the Crown prerogative, and how.

The “legal effect” of the act

Aside from the case law, certain academic sources also point to a formalist view of how the prerogative powers should be exercised. d’Ombrain challenges the interpretation that “the decision is the advice”:

[Cabinet’s] decisions are of course highly ‘efficient,’ but they are not the legal basis for executive action. The latter is to be found in an array of instruments that… include orders-in-council, documents issued under the authority of the governor general (and, rarely, the Queen), and ministerial orders and directives pursuant to statute.^[194]

While d’Ombrain cites both Crown and executive instruments as validly enacting a decision at law, he specifies that the ministerial orders and directives must be pursuant to statute, not prerogative. Certainly, the minister of national defence issues a multitude of orders and directives in accordance with his or her authority to manage and direct the Canadian Armed Forces pursuant to the NDA.^[195] And by virtue of section 33(1) of the NDA, military members are “at all times liable to perform any lawful duty.”^[196] However, “section 33(1) does not provide the legal basis to make a deployment decision, it merely provides that once such a decision is made, all [Canadian Forces] elements are liable to perform any consequent lawful duties.”^[197] Therefore, d’Ombrain’s criticism stands, and implies that a Crown instrument is required to exercise the Crown prerogative in relation to an international military deployment.

Other authors lend weight to this view. Noonan states that “formal acts by the Canadian Ministry which [require] the exercise of the Royal Prerogative… must be submitted to a meeting of a committee of the Privy Council.”^[198] Such a formal prerogative act is documented in an Order in Council^[199] and only becomes a lawful action of the Governor General in Council once the governor general accepts the advice.^[200] This could be interpreted to rebut the idea that “the decision is the advice,” and that an executive instrument would not be sufficient to engage the prerogative absent participation from the governor general. Interestingly, Noonan specifies that a quorum of four Privy Councillors is required to consider and recommend formal acts that exercise the Crown prerogative.^[201] Taken together, this description of the process means not only that a Crown instrument is required, but the quorum requirement contradicts the decision in Black that the prime minister and ministers may exercise the Crown prerogative individually.

Of course, it could be argued that Noonan’s requirement for an OIC depends on whether one considers an international deployment to be a “formal act.” Surely an advocate of the formalist interpretation would insist that a decision to commit the Canadian Armed Forces to an international mission is one of the most important acts of state, and is clearly “formal”.^[202] The outcome of a military operation has strategic consequences for Canada and its alliances, personal consequences for those military members who participate in the conflict, and should not be entered into casually. Therefore, an OIC is required in order “to ensure that responsibility for the public acts of the monarchy can always be ascertained.”^[203]

The formalities of treaty-making

For comparison, it is worth briefly examining the process by which Canada enters into international treaties. Treaty-making is to foreign affairs as war-making is to defence: it is one of the most important international acts of state. The minister of foreign affairs is responsible for the Policy on Tabling of Treaties in Parliament,^[204] which sets out the treaty-making process and allows for the House of Commons to debate and vote on treaties (if they so choose) before Canada is legally bound by them. Although the policy exists, it is important to note that it is discretionary—there is no legal requirement for Cabinet to submit a treaty to the House of Commons for a debate or vote.^[205] Treaty-making remains a prerogative power; the policy merely regulates how that power is exercised.

Generally speaking, in public international law, treaties are subject to a two-step approval process before they can legally bind a state. A state will first become a signatory to a treaty, which expresses an intent to be bound subject to the second step, ratification.^[206] Following signature, the state will take the steps required under domestic law (such as implementing legislation) that allow it to perform the treaty’s obligations once bound.^[207]

According to the Policy on Tabling of Treaties in Parliament, this two-step process is controlled through Crown instruments:

Signature requires that Cabinet provide policy approval of the treaty, as well as the seeking of legal authority through an Order in Council to sign the treaty… The Order in Council will also seek an Instrument of Full Powers authorising the signature.^[208]

The Treaty Section will work with the responsible department/agency/[Global Affairs Canada] division to complete the final process, which will involve a second Order in Council submission to obtain the authorisation to ratify the treaty… Once the Order in Council is granted, the Treaty Section will take the actions necessary to bring the agreement into force.^[209]

The policy recognizes the fact that at international law, the governor general, prime minister, and minister of foreign affairs are not required to produce an instrument of full powers.^[210] However, it should be noted that even if an instrument of full powers is not required to sign a given treaty, the wording of the policy suggests that an OIC would still be required, as it mentions the seeking of legal authority and full powers separately. Therefore, the formalist view is supported by the fact that a comparable prerogative act of an international character, treaty-making, explicitly requires Crown instruments to take legal effect.

Case Study: Australia and the Iraq wars

An examination of past practice has revealed that international deployments of the Canadian Armed Forces have not been authorized through an Order in Council. It seems that Canadian practice is more “efficient” than “formal.” The legal exercise of the Crown prerogative is likely found in an executive instrument rather than a Crown instrument, especially since the adoption of strategic objective letters. Where Orders in Council have been used in relation to overseas missions, they have been issued pursuant to statutory authority and the prerogative exercise was simply assumed—an assumption that some have argued is contrary to the conventions of responsible government.^[211] Therefore, in order to assess whether formalism is the more correct means of exercising the prerogative, looking to another jurisdiction is worthwhile.

Sampford and Palmer^[212] present an excellent Australian case study that allows for consideration of a scenario where the Crown prerogative is exercised through more formal practices. Australia is an appropriate state to use for comparison because like Canada, it is a postcolonial settler society with a similar written constitution and constitutional conventions that derive from those of the UK, including responsible government. However, Australia’s constitution and conventions differ from those of Canada in subtle ways that, over time, have led to Australia adopting a formalist approach to deploying their military forces internationally.

Australian exercises of the prerogative require a Crown instrument

When comparing the constitutions of each state, the first difference to note is that the Commonwealth of Australia Constitution Act 1900^[213] lacks the words “with a Constitution similar in Principle to that of the United Kingdom” found in the preamble to Constitution Act, 1867.^[214] Those words in Constitution Act, 1867 work to ensure that British constitutional principles and conventions are incorporated into Canadian law.^[215] Therefore, it is not automatically assumed that Australia imports British principles and conventions into their constitutional law. With respect to section 61 of the Commonwealth Constitution, which states that executive power “is vested in the Queen and is exercisable by the Governor-General”, the prevailing view is that this section must be interpreted “in light of British colonial practice and history.”^[216] Consequently, the majority of Australian High Court decisions have interpreted section 61 to include the Crown prerogative powers, like section 9 of Constitution Act, 1867.^[217]

As in Canada, the power of defence also falls within the Crown prerogative under Australian constitutional law.^[218] However, an important distinction from Canada is that it is not immediately clear that the Australian power covers international deployments across the entire spectrum of conflict—it is often referred to as strictly the “war power”.^[219] There is also minor disagreement regarding which constitutional provision captures the war-making power. For example, some Australian academics argue that it is encapsulated under the section 68 command in chief provision of the Commonwealth Constitution.^[220] Others assert that the war prerogative is rightly found under the section 61 executive power, while section 68 is merely a “command and control” provision that is triggered once the war prerogative is exercised.^[221] This seems closer to the Canadian interpretation of sections 9 and 15.^[222]

Whether the power is found within sections 9/61, or sections 15/68, the actor who exercises the power remains the same. In Canada, executive powers are vested in the Queen and exercised by the Governor in Council by virtue of the Letters Patent. Sampford & Palmer describe the three constitutional and legal means of executive decision-making in Australia:

individual ministers or civil servants exercising statutory powers conferred by legislation or executive powers delegated by the Governor-General; the Federal Executive Council exercising constitutional powers or statutory powers; and the Governor-General acting on advice to exercise executive powers conferred by section 61 of the Constitution.^[223]

This is where an analysis of Australian practice begins to bear fruit. The Federal Executive Council is established under section 62 of the Commonwealth Constitution, and is analogous to the Queen’s Privy Council for Canada. While the Australian governor general exercises the prerogative powers on advice, and by convention that advice is “expected to be followed”,^[224] Australian constitutional law affords the Australian governor general a much more formal role in consenting to the advice. As Sampford and Palmer explain:

While a Cabinet decision would be expected as part of any process for taking Australia to war, Cabinet is not recognized in the Constitution and does not have legal or constitutional decision-making powers. It is the conventional body where the government makes collective decisions, but the decisions are implemented by other office-holders who ‘do the paperwork’.^[225]

In the case of Crown prerogative powers, the “paperwork” is an Executive Council Minute, which is a Crown instrument analogous to a Minute of Council.^[226] The governor general formally approves the recommendation of Council by signing the minute,^[227] which “operates as the legal authority for the thing to be done.”^[228] Thus, the Australian process of exercising the Crown prerogative to deploy the Australian Defence Force internationally is clearly formal in nature.

Australian governor general was not consulted on Iraq deployments

Despite the formal practices surrounding the exercise of Australia’s Crown prerogative for defence, the Australian government has committed its Defence Force to at least two major conflicts without following them. “Clear statements” have been made about the processes leading to Australia’s involvement in the 1991 and 2003 Iraq wars, and in both instances the governor general was excluded from the process despite having an expectation that consultation would occur.^[229]

With respect to the 1991 Iraq war, the Cabinet met on 4 December 1990 and decided that it would provide forces to participate in the conflict if necessary.^[230] At some point in the process, Governor General Hayden “apparently made it clear that he would have had no trouble signing the relevant instruments”.^[231] However, as Prime Minister Hawke explained to the House of Representatives, he consulted with his senior ministers on 17 January 1991, and “gave effect” to the decision of 4 December by ordering Australia’s naval task force in the Persian Gulf region to join the operations authorized by the United Nations Security Council.^[232] Subsequent to that order, Hawke “notified” the governor general of the actions taken.^[233]

In March 2003, speaking two weeks before the invasion of Iraq commenced, Prime Minister Howard informed the House of Representatives that he had “absolutely no intention of following a course different from that which was followed by the Labor government, quite properly, in 1991.”^[234] However, Governor General Hollingworth saw it as his “duty to ask the government of the day what instruments, if any, were required… to ratify the decisions of government.”^[235] Hollingworth subsequently reached out to the attorney general seeking clarification on jus ad bellum issues surrounding the controversial invasion.^[236] The attorney general referred the governor general to Prime Minister Howard, who informed Hollingworth that his involvement in the decision was not necessary.^[237] This was the second time the governor general had been told by Howard that his involvement in a deployment decision was not necessary, the first being Australia’s deployment to Afghanistan in 2001.^[238]

Based on his experiences, Governor General Hollingworth believed that constitutionally, the governor general is not required to take any formal action with respect to the overseas deployment of Australian troops. His interactions with Prime Minister Howard left him with the impression that “[t]he deployment of troops is entirely a matter for the government of the day and does not require an order from the Governor-General.”^[239] Sampford and Palmer disagree with this assessment, contending that “[t]his would seem to involve a major shift in practice without any apparent debate or public consideration of its desirability, let alone constitutionality.”^[240] In their view, the Iraq and Afghanistan decisions should be seen as outliers.

Ultimately, Sampford and Palmer found that with respect to the invasion of Iraq in 2003, “[t]he Australian Government did not go to war through the use of the prerogative.”^[241] An analysis of the available evidence led them to conclude that the domestic legal authority relied upon for the deployment decision was section 63(f) of Australia’s Defence Act 1903.^[242] Sampford and Palmer argue that “it is difficult to give the Defence Act such a broad interpretation.”^[243] In their view, the Australian war prerogative has not been displaced by the legislation, nor does it delegate the power to the defence minister.^[244]

Sampford and Palmer conclude their case study by acknowledging that certain Crown prerogative powers may be exercised by the prime minister or defence minister.^[245] However, if the prerogative decision to be taken is one that is vested in Australia’s Governor General in Council, then such exercise must occur only if those powers have been conferred expressly, or by necessary implication.^[246] Additionally, they assert that “[a]ny argument that a central (perhaps the central) prerogative power has been vested in the Prime Minister… would need to be a strong one, given that section 61 of the Constitution formally vests prerogative powers in the Governor-General.”^[247]

IV. Discussion

The political nature of convention and practice

Australian practice regarding exercise of the Crown prerogative for defence is much more formal than in Canada. Despite that, on multiple occasions the Australian Defence Force has been committed to combat operations by the prime minister, without the prior consent of the governor general acting on the advice of the Federal Executive Council. This finding has implications that aid in answering the research question.

The Australian case study demonstrates that a government can avoid the requirement for a formal Crown instrument, seemingly without consequence. Even in a jurisdiction that normally uses formal practices, Sampford and Palmer concede that “[w]e do not expect that the High Court would take the drastic step of invalidating [a decision to go to war] after it had been implemented”.^[248] Just as discussed earlier in relation to Canada, “there are questions of standing, justiciability and the orders the court would be prepared to make.”^[249]

Practices do not carry the acceptance, agreement, or precedents of conventions.^[250] However, practices are certainly more closely related to constitutional convention than to constitutional law, and conventions are generally “ineffective in constraining how the executive exercises prerogative powers, a weakness that reflects their inherent ambiguity”.^[251] Therefore, when considering the consequences of a practice that does not follow the written constitution, one should look to the sanctions of convention. In Patriation Reference, the Court held that

[i]t is because the sanctions of convention rest with institutions of government other than courts, such as the Governor-General or the Lieutenant-Governor, or the Houses of Parliament, or with public opinion and, ultimately, with the electorate that it is generally said that they are ‘political’.^[252]

Accordingly, it is critical to note that “the prerogative powers can never be a legal question pure and simple, but also a matter of political theory.”^[253] Historically, constitutional interpretation of prerogative powers has been “as much a political statement as a matter of legal fact”,^[254] and those interpretations often times lead to a “rationalisation of the prevailing political reality.”^[255]

This may be seen as preamble to a disappointing answer for a reader seeking the resolution of a legal question. However, as Carl von Clausewitz famously noted, war is the continuation of politics by other means, not law. The law certainly matters when it comes to international considerations of jus ad bellum and jus in bello, but at a domestic level, politics rules.^[256] Therefore, in answering the research question, it is necessary to do so in a manner that reconciles the political nature of the Crown prerogative for defence with the written words of Canada’s constitution.

An executive instrument validly exercises the Crown prerogative

Yes, an executive instrument validly exercises the Crown prerogative power for defence. In light of the conventions of responsible government, the reasons of Laskin JA in Black,^[257] and supported by the analysis of Australia’s decisions to deploy to Iraq in 1991 and 2003, this can be the only interpretation that best resolves the inconsistencies of past practice with Canada’s constitution. With respect to international deployments of the Canadian Armed Forces, a Cabinet decision constitutes advice to the Crown. The current practice of using letters to exercise the prerogative seems to be supported by Mallory, who states: “[the forms of advice] employed vary with the purpose to be accomplished and the instrument needed to serve that purpose… In cases where all that is required is the formal evidence of political responsibility for the exercise of power, a letter from a minister has become the accepted form”.^[258]

The case for the “efficient” interpretation is bolstered by the discovery that the prerogative has not been explicitly mentioned in any of the Orders in Council reviewed for this study, going back to 1870. To the contrary, almost all deployment OICs examined were exercised under statute authority, and do not constitute the Crown prerogative authority to deploy. As Vancouver Island Peace Society shows, the courts have been willing to infer an exercise of the prerogative in a defence-related OIC that does not advert to it explicitly.^[259] However, even if the Crown prerogative could be “assumed” in an OIC, an OIC has not been issued in relation to an international deployment of the Canadian Armed Forces since 1992.

Importantly, the formalist interpretation is weakened by the decision in Black. On a number of occasions, the courts have followed Black with respect to justiciability when international deployments of the Canadian Armed Forces are at issue.^[260] After applying the “subject matter test” to legal actions challenging decisions to participate in conflicts in Kosovo and Iraq, the courts have affirmed that defence decisions are non-justiciable matters of “high policy.” The one dissenting judicial opinion on the concept of “high policy” comes in Aleksic v Canada (Attorney General)^[261], where deP Wright J states that “the only issue of ‘High Policy’ involved in this case is whether Canada is a nation under Rule of Law”.^[262] deP Wright J argued that the Crown prerogative cannot be used to deploy the Canadian Armed Forces internationally because it has been displaced by the active service provisions of the NDA.^[263] This is a unique interpretation that seems to misinterpret the objective of active service designations and has little support in the literature.^[264]

Therefore, to answer the research question in the negative would lead to one of two awkward implications. Either a Crown instrument that explicitly adverts to the prerogative power is required; or a Crown instrument is required, with the prerogative power being assumed if not mentioned explicitly. If the first were true, analysis of past Orders in Council would reveal that the Crown prerogative for defence has never been legally exercised by the executive, dating back almost to Confederation. If the second were true, then the Crown prerogative for defence has not been legally exercised in almost thirty years. Both of these results border on absurdity.

What does this conclusion reveal? Broadly, it confirms that the nature of Crown prerogative power remains somewhat complicated, as illustrated by other jurists.^[265] Specifically, it raises questions about the uncertainty created when practice is dictated by convention instead of formality. Can the executive power over national defence truly be considered a “Crown” prerogative if the Crown’s representative is excluded from its use? If the political executive can take certain decisions independent of the formal executive, does that create a class of “Cabinet” powers? Since the prime minister defines the consensus of Cabinet, do certain decisions of “high policy” become personal prerogatives of the prime minister?^[266] That is likely a stretch, but the position finds (anecdotal) support in the literature.^[267]

Applicability to other Crown prerogative powers

In reaching this conclusion, a number of cases were analyzed across a wide array of prerogative powers. Those decisions covered Crown prerogative acts ranging from defence to First Nations reserves; honours to treaty-making; persona non grata designations to passport applications. It cannot be said that the conclusion regarding exercises of the Crown prerogative for defence hold for all other prerogative powers. There are certain prerogative acts where it should not be assumed that a Cabinet decision automatically becomes advice that is consented to by the Governor in Council. The following discussion is offered in a brief effort to explain why this might be the case, by comparing the difference in how Crown prerogative powers for defence and treaty-making are exercised, as described above.

In his analysis of the Crown prerogative, Payne considers the two tests proposed by Sir William Wade for identifying a genuine prerogative. Wade suggests that the first question to ask is whether the power produces “a legal effect at common law”; and the second is whether that power is “unique to the Crown and not shared with other persons.”^[268] Wade asserts that anything not meeting those two tests is a “spurious prerogative.”^[269] In rebutting Wade’s proposition, Payne cites a number of arguments. One, from Dicey, highlights a perceived flaw in Wade’s test by implying that “[t]he treaty-making power is surely a non-prerogative since the making of a treaty, by itself, cannot alter the law of the land in any respect.”^[270] Payne later cites Chitty, who “points out that the King cannot, by the war prerogative, change… the law of the land”.^[271]

While Payne uses these points to refute Wade’s definition, the distinction of whether an act “changes the law of the land” may aid in constructing a theory of why some prerogatives are exercised through a Crown instrument while others are not. The subject matter test is used to identify where certain prerogative acts fall on the spectrum of justiciability.^[272] If an action taken pursuant to the Crown prerogative affects the rights or legitimate expectations of an individual, it is reviewable by the courts; otherwise, it is a matter of high policy that is non-justiciable.

Similarly, it could be argued that in matters of high policy, a prerogative act must be effected by a formal, legal Crown instrument if it “changes the law of the land.” Contrary to Dicey’s assertion, treaties should be seen as changing the law of the land. On becoming a signatory to a treaty, there is an obligation to not act in a manner counter to the purpose of the treaty.^[273] Ratification of the treaty then imposes binding international legal obligations on a state. Both of those stages of treaty-making require an Order in Council, and regulate how the Crown may act in exercising the prerogative power for foreign affairs. The Crown prerogative is a source of law in Canada, therefore treaty-making does indeed “change the law of the land.”

By contrast, an international military deployment clearly has no effect on Canadian law—as described above, it is a political act. Unlike treaty-making, deployments and other decisions taken in defence of the realm can also be time sensitive, such as responding to an intrusion into Canadian airspace; or triggered by commitments to allies. Therefore, the Cabinet has more latitude to exercise the Crown prerogative for defence. Conventions come into play, and the requirement for a formal legal instrument disappears.

V. Conclusion

By law, the Crown prerogative power for defence is formally exercisable by the governor general, acting on the advice of the Queen’s Privy Council for Canada. However, a review of past practice shows that when the Canadian Armed Forces have been deployed internationally, the Crown prerogative power for defence has not been explicitly invoked through a Crown instrument. Further, modern practice has been for Cabinet to give domestic legal authorization to international deployments through the use of various executive instruments. Therefore, the best means of reconciling this discrepancy is to recognize that by convention, a decision of Cabinet (led by the prime minister) automatically constitutes advice to the Crown, and validly exercises the prerogative power for defence.

In Thorne’s Hardware Ltd v R,^[274] the Supreme Court of Canada was asked whether the federal Cabinet had made a decision in bad faith.^[275] There, the Court held that “Governments do not publish reasons for their decisions; governments may be moved by any number of political, economic, social or partisan considerations.”^[276] Furthermore, d’Ombrain notes that “[j]udges have not considered whether there is a distinction between the cabinet and the formal executive.” Until the courts do settle that question, a “grey zone” will exist in certain circumstances, such as the one considered in this paper. That grey zone will likely persist, given how the courts have ruled on the spectrum of justiciability. Therefore, as Bolt wisely concludes in his chapter on deployment decisions in a liberal democracy, “[t]he law is not the answer for every grievance… Politics must be allowed to take up its rightful place.”^[277] While his words were directed at the process by which a deployment decision is reached, it is equally applicable to the instrument through which that decision is exercised.

This research points to two possible avenues for future inquiry. First, the review of past practices was based solely on Orders in Council that were publicly accessible through Library and Archives Canada or the Department of Justice. However, having discovered that the Crown prerogative for defence was never exercised through the OICs that were examined, an analysis of executive instruments would allow for an exploration of the variability in the exercise of the prerogative. This would include historical Records of Decision, directives, and letters which would only be available through requests under the Access to Information Act.^[278] It would also include Minutes of Council, which were the traditional instrument used to record Cabinet decisions before the establishment of the modern Cabinet paper system.^[279] This analysis may also shed light on the extent to which the governor general is notified of Cabinet’s decisions around deployments and afforded an opportunity to exercise his or her constitutional rights to advise, encourage, and warn.^[280] Second, an analysis of how other Crown prerogative powers are exercised may lead to a better theory of which powers require a Crown instrument, and which are exercisable through an executive instrument.

Appendix

Crown Instruments

Minister of Militia – Recommending that in view of the threatened Fenian invasion, certain military corps in district no. 5 be called out and that the gunboats RESCUE and PRINCE ALFRED be employed on patrol duty on the St. Lawrence and the lakes, PC 1870-1350, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=12980>.

Minister of Militia – Recommending calling out for active service 5,000 additional militiamen in view of threatened Fenian invasion, PC 1870-1355, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=12985>.

Minister of Militia – Recommending calling out the active militia to resist a threatened Fenian invasion, PC 1870-1509, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=13473>.

Transvaal Crisis – Conditions of service of Canadian Corps in South Africa – Colonial Secretary, PC 1899-1618K, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=172439>.

Militia mobilization in connection with visit Duke of York and at City of Quebec, City of Toronto and City of Halifax, PC 1901-1649, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=72628>.

Naval Service H.M.C.S. “Niobe” and H.M.C.S. “Rainbow” placed at deposal of his majesty – Minister Naval Service, PC 1914-2049, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=312094>.

Military Force for Overseas Service to aid in the Defence and Maintenance of the Empire to be raised and equipped – Minister of Militia and Defence, PC 1914-2067, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=312112>.

Militia Called out on Active Service within Canada – Minister of Militia and Defence, PC 1914-2068, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=312113>.

Mobilization of the Second Overseas contingent 15,000 men and of 30,000 men for service in Canada – Acting Minister of Militia and Defence, PC 1914-2831, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=312876>.

Authorizing mobilization military force service in Siberia – Acting Minister of Militia and Defence, PC 1918-1983, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=325171>.

Order Placing Members of the Canadian Forces on Active Service (Iran-Iraq), SI/88-129 (National Defence Act).

Order Placing Members of the Canadian Forces on Active Service for the Purpose of Fulfilling Canada’s Obligations Under the North Atlantic Treaty, SI/89-103 (National Defence Act).

Order Placing Member of the Canadian Forces on Active Service (UNTAG-Namibia), SI/89-104 (National Defence Act).

Order Placing Members of the Canadian Forces on Active Service (ONUCA – Central America), SI/90-15 (National Defence Act).

Order Placing Members of the Canadian Forces on Active Service (Arabian Peninsula), SI/90-111 (National Defence Act).

Order Placing Members of the Canadian Force[s] on Active Service (Western Sahara), SI/91-146 (National Defence Act).

Order Placing Members of the Canadian Forces on Active Service (Yugoslavia), SI/92-42 (National Defence Act).

Order Placing Members of the Canadian Forces on Active Service (Cambodia), SI/92-43 (National Defence Act).

Order Placing Members of the Canadian Forces on Active Service (Somalia), SI/92-169 (National Defence Act).

Order No. 2 Placing Members of the Canadian Forces on Active Service (Somalia), SI/92-222 (National Defence Act).

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1. See Alexander Bolt, “Law and Political-Military Strategy: The Importance of Legal Advice in the Decision to Deploy the Canadian Forces” in Thomas Juneau, Philippe Lagassé, and Srdjan Vucetic (eds), Canadian Defence Policy in Theory and Practice (Palgrave Macmillan 2020) 295, 298.

2. Peter W Hogg, Constitutional Law of Canada (5th edn, Carswell, 2007) 1.9.

3. Maurice Sunkin and Sebastian Payne, “The Nature of the Crown: An Overview” in Maurice Sunkin and Sebastian Payne (eds), The Nature of the Crown: A Legal and Political Analysis (OUP 1999) 1.

4. “Ep 109 – Her Majesty in Right of Pod Ch 5 – Provocative Prerogative” (26 November 2019) at 00h:17m:46s, online (podcast): A Podcast Called INTREPID <https://www.intrepidpodcast.com/podcast/2019/11/26/ep-109-her-majesty-in-right-of-pod-ch-5-provocative-prerogative>.

5. Ibid at 00h:18m:09s, 00h:22m:50s.

6. See Philippe Lagassé, “The Crown and Government Formation: Conventions, Practices, Customs, and Norms” (2019) 28 Const Forum 1.

7. In the process of researching this paper, it occurred to me that Canada is a pluri-juridicial society, and that questions of war and peace on this land certainly pre-date Confederation. I therefore consulted John Borrows, Canada’s Indigenous Constitution (Toronto 2010) 129-132 in an effort to shed light on Indigenous legal traditions surrounding the decision to resort to conflict. It proved difficult to incorporate into this research about the Crown and constitutional law received from the British, but I note it as a subject of interest for future research.

8. Privy Council Office, Process Guide for Governor in Council Submissions (PCO 2019) 0.

9. Throughout this paper, the term “practice” refers to a constitutional rule that is related to, but distinct from, a constitutional convention. See Lagassé, “Crown and Government Formation” (n 6) (“[practices] are rules [that] may become conventions but are not quite there yet. Practices have a reason, usually grounded in political prudence or democratic ideals, and political actors propose and follow them with these reasons in mind. Yet, actors may not agree that they are bound by them, and there may be disagreement about the scope and application of the rule. As well, the precedents that support a practice tend to be inconsistent”. Ibid 2 (emphasis added)).

10. Office of the Judge Advocate General, The Crown Prerogative as Applied to Military Operations (Strategic Legal Paper) (Department of National Defence 2008) 26.

11. See Alexander Bolt, “Crown Prerogative Decisions to Deploy the Canadian Forces Internationally: A Fitting Mechanism for a Liberal Democracy” in D Michael Jackson and Philippe Lagassé (eds), Canada and the Crown: Essays on Constitutional Monarchy (McGill-Queen’s 2013) 219, 229.

12. This question focuses on international deployments because the Crown prerogative power in relation to domestic operations is regulated by the National Defence Act, RSC 1985, c N-5, ss 273.6 (Public Service), 275 (Aid of the Civil Power).

13. Hogg (n 2) 1.9.

14. For two excellent, contrasting analyses of Crown prerogative powers in a modern Canadian context, the reader is encouraged to consult Craig Forcese, “The Executive, the Royal Prerogative, and the Constitution” in Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (eds), The Oxford Handbook of the Canadian Constitution (OUP 2017) 151, and Philippe Lagassé, “Parliamentary and Judicial Ambivalence Toward Executive Prerogative Powers in Canada” (2012) 55 Can Public Administration 157.

15. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3.

16. Adam Dodek, The Canadian Constitution (2nd edn, Dundurn 2016).

17. Forcese, “Royal Prerogative” (n 14) 151.

18. Payne, “The Royal Prerogative” in (n 3) 77.

19. 2010 SCC 3, [2010] 1 SCR 44 [34].

20. 2002 SCC 54, [2002] 2 SCR 816.

21. Ibid [54].

22. (n 2).

23. Forcese, “Royal Prerogative” (n 14) 154.

24. Bolt, “Crown Prerogative” (n 11) 221; Payne, “Royal Prerogative”(n 18) 94 (“[w]hat seems misleading about Dicey’s account is his reference to the ‘residue of discretionary authority’, which implies that the prerogative is a marginal historical left over, whereas, in reality, it embodies many of the key powers of government.”). See also Lagassé, “Parliamentary and Judicial Ambivalence”(n 14) 161, 170.

25. Payne, “Royal Prerogative” (n 18) 87.

26. Lagassé, “Parliamentary and Judicial Ambivalence”(n 14) 161.

27. (n 10) 1-2.

28. Payne, “Royal Prerogative” (n 18) 87 (“[i]t would be wrong to say that the prerogatives are a creature of the common law”); ibid 106 (“they have their source in political custom” at 106); contra Hogg (n 2) 1.9 (“[t]he prerogative is a branch of the common law, because it is the decisions of the courts which have determined its existence and intent”).

29. Payne, “Royal Prerogative” (n 18) 102 (“the objectives that prerogatives exist to serve may justify generating novel instances by virtue of necessity”). Contra Lagassé, “Parliamentary and Judicial Ambivalence” (n 14) 161 (“new prerogatives cannot be created or claimed by the executive”); Peter W Noonan, The Crown and Constitutional Law in Canada (2nd edn, Magistralis 2017) 145 (“Royal Prerogative powers can no longer be created”).

30. Payne, “Royal Prerogative” (n 18) 79; Hogg (n 2) chap 1.9; Noonan (n 29) 143.

31. Ibid 110; Lagassé, “Parliamentary and Judicial Ambivalence” (n 14); Paul Lordon, Crown Law (Butterworths 1991) 75.

32. Noonan (n 29) 144-45.

33. Ibid 144.

34. Lagassé, “Parliamentary and Judicial Ambivalence” (n 14) 162.

35. Payne, “Royal Prerogative” (n 18) 79.

36. Attorney-General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1, [1920] AC 508.

37. Burmah Oil v Lord Advocate [1965] AC 75, 1964 SC (HL) 117.

38. Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9, [1985] AC 374.

39. Alberta Government Telephones v Canada (Minister of Energy, Mines and Resources) [1989] 2 SCR 49; Ross River (n 20).

40. RSC 1985, c I-21, s17 (“[n]o enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment”.).

41. Forcese, “Royal Prerogative” (n 14) 158.

42. [1985] 1 SCR 441.

43. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

44. (n 19).

45. Ibid 2.

46. 199 DLR (4th) 130, 32 OR (3d) 256.

47. (n 42) at 472.

48. Black (n 46) [51]-[52]. See also Craig Forcese et al, Public Law: Cases, Commentary, and Analysis (3rd edn, Emond 2015) 316. Outside of a Charter challenge, the research question analyzed in this paper would likely fall into the category of “high policy,” with resulting problems of non-justiciability and standing. See CED 4th (online), Administrative Law, “Remedies: Prerogative Remedies: Standing to Apply for Prerogative Remedies” (V.3.(f)) (“those with merely an academic interest or mere busy-bodies do not have standing to apply for a prerogative remedy” at ). For a fulsome analysis of the issues of justiciability, standing, and prerogative powers, see Kent Roach, “‘The Supreme Court at the Bar of Politics’: The Afghan Detainee and Omar Khadr Cases” (2010) 28 NJCL 115.

49. Peter Rowe, “The Crown and Accountability for the Armed Forces” in Sunkin & Payne (n 3) 270, citing China Navigation Company Ltd v Attorney-General [1932] 2 KB 197 (CA) and Chandler v The Director of Public Prosecutions [1964] AC 763 (HL).

50. A Berriedale Keith, The King and the Imperial Crown: The Powers and Duties of His Majesty (Longmans, Green and Co 1936) 68; Forcese, Public Law (n 48) 311; Lordon (n 31) 75; Senate of Canada, Standing Senate Committee on Foreign Affairs, “Parliament and Canada’s External Security Commitments” in The New NATO and the Evolution of Peacekeeping: Implications for Canada (April 2000) ch 7; Sebastian Payne, “War Powers: The War Prerogative and Constitutional Change” (2008) 153 RUSI J 28.

51. Judge Advocate (n 10) 20, citing Chandler (n 49).

52. House of Commons (UK), Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (2003—04, HC 422) 6.

53. Noonan (n 29) 133.

54. House of Commons Debates, 41-2, No 192 (30 March 2015) 12344 (Hon Rob Nicholson, Minister of Foreign Affairs), 12536 (Hon Jason Kenney, Minister of National Defence). See also statements from parliamentary secretaries that reflect the position of the government: “Bill C-513, An Act to amend the National Defence Act (foreign military mission)”, 2nd reading, House of Commons Debates, 39-2, No 85 (30 April 2008) 5301 (Laurie Hawn); “Bill C-513, An Act to amend the National Defence Act (foreign military mission)”, 2nd reading, House of Commons Debates, 39-2, No 111 (12 Jun 2008) 6914 (Deepak Obhrai). Contra House of Commons Debates, 36-1, No 205 (12 April 1999) 12536 (Daniel Turp) (“[t]here has been a Crown prerogative in this area for long enough. This must be done away with, and the elected representatives of the people must be given a deciding voice when it comes to sending troops abroad to impose, build or maintain peace”).

55. (n 12).

56. Philippe Lagassé, “The Crown’s Powers of Command-in-Chief: Interpreting Section 15 of Canada’s Constitution Act, 1867” (2013) 18 Rev Const Stud 189, 211.

57. Ibid 212.

58. Ibid 210; Lagassé, “Parliamentary and Judicial Ambivalence” (n 14) 168. Contra Lordon (n 31) 82 (“[t]he National Defence Act and regulations have, to a large extent, pre-empted the prerogative powers of the Crown in Canada to control and manage its armed forces”).

59. Judge Advocate (n 10) 20 (“[t]he Crown prerogative to deploy the CF internationally has not been limited: the clear legal position is that the historical Crown prerogative to deploy the CF internationally in support of military operations remains whole and unfettered”); Bolt, “Crown Prerogative” (n 11) 222-223 (“[n]o Canadian court has found that the historic Crown prerogative power to deploy the Canadian Forces has been displaced by the NDA or any other statute; instead, court pronouncements have reaffirmed it”).

60. Operation Dismantle (n 42) 471.

61. Lagassé, “Crown’s Powers” (n 56) 206. Although some prime ministers have brought international military deployments to the House of Commons for a vote (and in the case of Afghanistan, extensions of deployments), “Westminster parliaments do not have any legal or constitutional authority to declare war or deploy armed forces.” Norman Hillmer & Philippe Lagassé, “Parliament will decide: An interplay of politics and principle” (2016) 71 Intl J 328, 329. See especially Bolt, “Crown Prerogative” (n 11). While these votes may have political significance, they are beyond the scope of this paper.

62. The Constitution Act, 1867, 30 & 31 Vict, c 3, s 15.

63. C Gaz I, vol 81, 3014.

64. Ibid Art I (note the distinction between the term “Command-in-Chief,” the power vested in the Queen under the Constitution, and “Commander-in-Chief,” the title bestowed upon the governor general).

65. Ibid Art II. See Noonan (n 29) 200 (“The effect of the Letters Patent, 1947, was to make it legally possible for the Governor General to exercise most of the Sovereign’s powers in respect to Canada”).

66. Noonan (n 29) 200.

67. Dodek (n 16) 41; definition of constitutional convention ibid 15.

68. Lagassé, “Crown’s Powers” (n 56) 192-93; Judge Advocate (n 10) 9.

69. Forcese, “Royal Prerogative” (n 14) 161.

70. Noonan (n 29) 206.

71. Judge Advocate (n 10) 8.

72. Nicholas d’Ombrain, “Cabinet Secrecy” (2004) 47 Can Public Admin 332, 335.

73. Privy Council Office, Open and Accountable Government (PCO 2015) 33.

74. Forcese, Public Law (n 48) 324.

75. PCO, Open Government (n 73) 33.

76. Ibid 36-37.

77. Ibid 33.

78. Ibid 35.

79. Ibid 37.

80. Noonan (n 29) 261.

81. Ibid 262.

82. Hupacasath First Nation v Canada (Minister of Foreign Affairs), 2015 FCA 4 [55].

83. Noonan (n 29) 317.

84. Ibid.

85. See Keith (n 50) 68-75.

86. PCO, Process Guide (n 8) 0.

87. Keith (n 50) 70. Keith specifies that “a quorum of three Councillors is requisite.” Cf Noonan (n 29) 261 (“constitutional practice stipulates that the normal quorum for a meeting of the Privy Council… consists of four Privy Councillors”). Contra CED 4th (online), Crown, “The Crown’s Councils in Canada: Ministers: Powers: Queen’s Privy Council for Canada” (V.1) §112 (“[t]here’s no legal requirement for a quorum”).

88. Noonan (n 29) 323; See also Privy Council Office, A Drafter’s Guide to Cabinet Documents (PCO 2013) 2.

89. Statutory Instruments Regulations (2105), CRC, c 1509, s 11(3)(c).

90. Statutory Instruments Act, RSC 1985, c S-22, ss 20(d)(ii), 20(c)(iii)(B); Statutory Instruments Regulations, (n 89) ss 14, 22(2).

91. Keith (n 50) 71.

92. Michael Dewing & Corinne McDonald, International Deployment of Canadian Forces: Parliament’s Role (Parliamentary Information and Research Service 2006) Appendix 1, v.

93. Rowe (n 49) 272.

94. Keith (n 50) 71.

95. Interpretation Act (n 40) s 18(2) (“where the Governor General is authorized to issue a proclamation, the proclamation shall be understood to be… issued under an order of the Governor in Council” (emphasis added)); see also Keith (n 50) 73.

96. Noonan (n 29) 324 (“[a] Proclamation… is a formal announcement of royal action… its purpose is to call to the attention of the Sovereign’s subjects… the existence of a public state of affairs, such as a state of war or peace”).

97. CED 4th (online), Crown, “The Crown’s Councils in Canada: Ministers: Powers: Proclamations” (V.6) §123 (“a proclamation has no legislative, judicial or other legal effect”). The entry goes on to state “except in cases where it is issued under a prerogative power, e.g. a proclamation declaring a state of war.” In light of the analysis above, this statement must be viewed as inaccurate. A declaration of war has no legal effect under international or domestic law. See Charles Sampford and Margaret Palmer, “The Constitutional Power to Make War: Domestic Legal Issues Raised by Australia’s Action in Iraq” (2009) 18 Griffith L Rev 350, 367.

98. Sampford & Palmer (n 98) 367.

99. Ibid 369.

100. Noonan (n 29) 317.

101. d’Ombrain (n 72) 340.

102. Ibid 339.

103. Ibid.

104. Ibid 338-339.

105. Noonan (n 29) 305. See also Access to Information Act, RSC 1985, c A-1, s 69.

106. PCO, Cabinet Documents (n 88) 1-2.

107. Ibid 5.

108. Ibid 20.

109. Ibid.

110. Ibid 2.

111. Judge Advocate (n 10) 26.

112. Ibid.

113. A number of these OICs, from 1988 to 1992, are listed in the bibliography and can be retrieved online from the Consolidated Regulations search engine on the Department of Justice website: <https://laws-lois.justice.gc.ca/eng/regulations/>.

114. Alexander Bolt, “The ‘Convention’ to Consult Parliament on Decisions to Deploy the Military: A Political Mirage?” in Michel Bédard and Philippe Lagassé (eds), The Crown and Parliament (Éditions Yvon Blais 2015) 145, 158; Judge Advocate (n 10) 25.

115. Dewing and McDonald (n 92) 2 n 6; Bolt, “‘Convention’ to Consult” (n 114) 159 n 60.

116. Bolt, “‘Convention’ to Consult” (n 114) 158-59.

117. (n 92) 3.

118. Order Placing Members of the Canadian Forces on Active Service for the Purpose of Fulfilling Canada’s Obligations Under the North Atlantic Treaty, SI/89-103 (National Defence Act).

119. “Bill C-513, An Act to amend the National Defence Act (foreign military mission)”, 2nd reading, House of Commons Debates, 39-2, No 111 (12 Jun 2008) 6914 (Deepak Obhrai).

120. Judge Advocate (n 10) 25 n 158; Bolt, “‘Convention’ to Consult” (n 114) 159; Forcese, “Royal Prerogative” (n 14) 162.

121. “Bill C-513, An Act to amend the National Defence Act (foreign military mission)”, 2nd reading, House of Commons Debates, 39-2, No 85 (30 April 2008) 5301 (Laurie Hawn).

122. Judge Advocate (n 10) 21; Bolt, “‘Convention’ to Consult” (n 114) 159 n 60.

123. Forcese, “Royal Prerogative” (n 14) 161.

124. (n 113).

125. Judge Advocate (n 10) 25 n 158.

126. [1994] 1 FC 102.

127. PC 1991-2083 and PC 1991-2084. The text of PC 1991-2083 is reproduced in ibid 117.

128. Vancouver Island Peace Society (n 126) 108-109.

129. Ibid 152.

130. (1997) 32 OR (3d) 526, 144 DLR (4th) 130 (cited to DLR).

131. Ibid 131-32.

132. Ibid 132-33.

133. Ibid 134.

134. Ibid.

135. For a complete list, see the Crown Instruments found in the Appendix.

136. Minister of Militia – Recommending that in view of the threatened Fenian invasion, certain military corps in district no. 5 be called out and that the gunboats RESCUE and PRINCE ALFRED be employed on patrol duty on the St. Lawrence and the lakes, PC 1870-1350, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=12980>; Minister of Militia – Recommending calling out the active militia to resist a threatened Fenian invasion, PC 1870-1509, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=13473>.

137. Militia Called out on Active Service within Canada – Minister of Militia and Defence, PC 1914-2068, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=312113>.

138. Transvaal Crisis – Conditions of service of Canadian Corps in South Africa – Colonial Secretary, PC 1899-1618K, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=172439>.

139. Naval Service H.M.C.S. “Niobe” and H.M.C.S. “Rainbow” placed at deposal of his majesty – Minister Naval Service, PC 1914-2049, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=312094>; Military Force for Overseas Service to aid in the Defence and Maintenance of the Empire to be raised and equipped – Minister of Militia and Defence, PC 1914-2067, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=312112>.

140. Authorizing mobilization military force service in Siberia – Acting Minister of Militia and Defence, PC 1918-1983, online: Library and Archives Canada <https://www.bac-lac.gc.ca/eng/discover/politics-government/orders-council/Pages/item.aspx?IdNumber=325171>.

141. See eg An Act Respecting the Militia and Defence of the Dominion of Canada, SC 1868, c 40, s 61; Militia Act, SC 1906, c 23, s 69; The Naval Service Act, SC 1910, c 43, s 23.

142. Noonan (n 29) 320.

143. Ibid 321.

144. (n 46).

145. See text accompanying (n 48). The Court’s reasons regarding the issue of jurisdiction to hear cases relating to federal exercises of the Crown prerogative are less influential, and have not been followed by other courts. See Hupacasath First Nation (n 82).

146. Black (n 46) [24].

147. Ibid [31].

148. Ibid [32].

149. Ibid, citing Lordon (n 31) 71. See also “I conclude that the Prime Minister and the Government of Canada can exercise the Crown prerogative”. Black (n 46) [33].

150. Ibid [63] (“the discretion to confer or refuse to confer an honour is the kind of discretion that is not reviewable by the court”.).

151. Judge Advocate (n 10) 13.

152. Forcese, Public Law (n 48) 324.

153. Hogg (n 2) 9.4(c) (“it is important to notice that the Prime Minister calls the meetings of cabinet, settles the agenda, presides over the meetings, and ‘defines the consensus’ on each topic”.). See also PCO, OpenGovernment (n 73) 33.

154. Copello v Canada (Minister of Foreign Affairs), 2001 FC 1350, affm 2003 FCA 295 (Minister of Foreign Affairs validly exercised the Crown prerogative for foreign affairs in declaring an Italian diplomat persona non grata); Khadr v Canada (Attorney General), 2006 FC 727 [96] (“it is evident that the Minister [of Foreign Affairs] is the appropriate Crown minister to exercise [the authority to grant or deny a passport under the Canadian Passport Order]”.); Black (n 46) [32].

155. Patrick Malcolmson, Richard Myers, Gerald Baier, and Thomas M.J. Bateman, The Canadian Regime: An Introduction to Parliamentary Government in Canada, (6th edn, University of Toronto 2016) 113. See also text accompanying (n 76).

156. Judge Advocate (n 10) 14.

157. Ibid 15.

158. Ibid 26.

159. Prime Minister’s Office, “Cabinet committee mandate and membership” (4 March 2020), online: Justin Trudeau, Prime Minister of Canada <https://pm.gc.ca/en/cabinet-committee-mandate-and-membership>.

160. See text accompanying (n 112).

161. Philippe Lagassé, “Accountability for National Defence: Ministerial Responsibility, Military Command and Parliamentary Oversight,” Institute for Research on Public Policy, Study 4 (2010) 41 (emphasis added).

162. Judge Advocate (n 10) 27.

163. Ibid.

164. Ibid.

165. Re: Resolution to amend the Constitution (The Patriation Reference) [1981] 1 SCR 753, 880.

166. Bolt, “‘Convention’ to Consult” (n 114) 156.

167. Patriation Reference (n 165) 883-84.

168. Lagassé, “Parliamentary and Judicial Ambivalence” (n 14) 168.

169. Lagassé, “Crown’s Powers” (n 56) 192-93.

170. Dodek (n 16) 37.

171. PCO, OpenGovernment (n 73) 53 (emphasis added). “Almost always” references the governor general’s two major discretionary prerogatives: granting a dissolution of Parliament, and appointing a prime minister. See JR Mallory, The Structure of Canadian Government (Gage 1984) 65.

172. Reference re Secession of Quebec, [1998] 2 SCR 217 [61]-[69].

173. Lordon (n 31) 70; Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (OUP 1991) 34 (“[t]he development of modern responsible government has given rise to an essential rule binding the governors to abide by all advice that is constitutionally correct”.).

174. Heard (n 173) 34.

175. Ibid 19.

176. Ibid 47.

177. Bolt, “‘Convention’ to Consult” (n 114) 153.

178. Malcolmson (n 155) 110.

179. Ibid at 106. See especially Payne, “War Powers” (n 50) 28 (“[i]n the case of war powers, it is the Prime Minister who takes the relevant decision with regard to deployment – a position determined by convention rather than law”. (emphasis added)).

180. Lagassé, “The Crown’s Powers” (n 56) 213.

181. Hogg (n 2) 9.4(b).

182. Payne “Royal Prerogative” (n 18) 83.

183. Hogg (n 2) 9.4(b). See also PCO, OpenGovernment (n 73) 53-54 (“[f]ormal advice may be submitted by the Cabinet in the form of an Order in Council or Minute of Council. The Governor General’s consent must be obtained, when required, before decisions can take legal effect or be announced”.).

184. Noonan (n 29) 215.

185. Ross River (n 20) [35].

186. Ibid [3] (Bastarache J, concurring).

187. Ibid [31].

188. Ibid [34].

189. [Ibid] [63].

190. Ibid.

191. Ibid [64].

192. [1990] 1 SCR 1025.

193. Ross River (n 20) [67].

194. d’Ombrain (n 72) 350 (emphasis added).

195. (n 12) s 4 (“[t]he Minister… has the management and direction of the Canadian Forces and of all matters relating to national defence”.).

196. Ibid s 33(1).

197. Judge Advocate (n 10) 22.

198. Noonan (n 29) 284.

199. Ibid 321.

200. Ibid 284.

201. Ibid.

202. Keith (n 50) 68; Committee on Foreign Affairs (n 50).

203. Noonan (n 29) 317.

204. “Policy on Tabling of Treaties in Parliament” (3 March 2014), online: Global Affairs Canada <https://www.treaty-accord.gc.ca/procedures.aspx>.

205. Forcese (n 14) 164-65. While outside the scope of this paper, for a treatment of the associated debate regarding the submission of international military deployments to the House of Commons for debate see Bolt, “‘Convention’ to Consult” (n 114).

206. John H Currie, Public International Law (2nd edn, Irwin 2008) 140-41.

207. Ibid.

208. Tabling of Treaties (n 204) Annex A, s 5. See also Open Government (n 73) 41 (“[o]nce a treaty has been negotiated, signature requires that Cabinet provide policy approval of the treaty, and that an Order in Council be issued providing authority to exercise the Crown prerogative to sign it… and, as necessary, providing Ministers and officials with the Instrument of Full Powers to sign it”. (emphasis added)).

209. Tabling Treaties (n 204) Annex A, s 8. See also Open Government (n 73) 41 (“[o]nce the treaty has been tabled and any necessary legislation adopted, the Government will make a decision on whether to proceed to bind Canada to the treaty by way of ratification. The Minister of Foreign Affairs will recommend to the Governor in Council the issuance of a second Order in Council providing authorisation to ratify”.); Hupacasath First Nation (n 20) (distinction between “pure prerogative” and “by or under an order made pursuant to a prerogative of the Crown” as related to the instrument of ratification).

210. Tabling Treaties (n 204) Annex A, s 5; Currie (n 206) 138.

211. Scarborough (City) (n 130) 134 (“[i]t seems to me contrary to fundamental principles of responsible government to invoke the royal prerogative without adverting to it”.).

212. (n 98).

213. (UK), 63 & 64 Vict, c 12 [Commonwealth Constitution].

214. (n 15).

215. Dodek (n 16) 37.

216. Bradley Selway, “All at Sea – Constitutional Assumptions and the Executive Power of the Commonwealth” (2003) 31 Federal L Rev 495, 505.

217. See generally Selway (n 216). See also George Winterton, Parliament, the Executive and the Governor-General (Melbourne University Press 1983) 23-24. Cf, Ruddock v Vadarlis [2001] FCA 1329 (French J) (executive power is distinct from prerogative power, and is derived from the Commonwealth Constitution itself, as opposed to historical British practice).

218. Sampford & Palmer (n 98) 353 (“it is uncontroversial that the power to make war is traditionally part of the royal prerogative”.).

219. But see ibid 379 (“some commentators on British constitutional law hold that the foreign affairs prerogative extends not only to the making of war and peace, but to ‘instituting hostilities that fall short of war (as with the Falkland Islands and the Gulf campaigns)’. There does not seem to be any reason why this approach should not apply in Australia”. (footnote omitted)).

220. Robert Quick and John Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson 1901) 713, cited in Sampford & Palmer (n 98) 354.

221. Sampford & Palmer (n 98) 354 nn 14-15.

222. Judge Advocate (n 10) 9, n 59; Lagassé, “The Crown’s Powers” (n 56) 197 (prerogative powers found in Constitution Act, 1867, s 9); ibid 202-10 (Constitution Act, 1867, s 15 grants executive powers for command and control).

223. Sampford & Palmer (n 98) 351 (emphasis added). The executive power related to defence has not been delegated (“[t]he delegation of the power to make war is not something to be done casually and in the absence of clear words”. Ibid 365-66.

224. Ibid 359.

225. Ibid 351-52 (emphasis added; footnote omitted).

226. See Australia, Department of the Prime Minister and Cabinet, Federal Executive Council Handbook 2019, online: <https://www.pmc.gov.au/sites/default/files/publications/federal-executive-council-handbook-2019.pdf> [30]-[34].

227. Ibid [33].

228. Harold Edward Renfree, The Executive Power of the Commonwealth of Australia (Legal Books 1984) 192-193, cited in Sampford & Palmer (n 98) 351 n 5. (“[t]he Cabinet itself has no legal powers and any executive decisions of the Cabinet require legally to be made by the Governor-General… When the Constitution or a Royal prerogative or a statute authorizes the Governor-General in Council to do something, the approval of the Governor-General to an Executive Council Minute recommending that the thing be done operates as the legal authority for the thing to be done”.)

229. Sampford & Palmer (n 98) 370. Questions are also raised about the Australian government’s domestic legal authority for entering into the Afghanistan conflict in 2001, but in the absence clear records about the process, that conflict is not as prominent in their analysis.

230. Austl, Cth, House of Representatives, Parliamentary Debates (21 January 1991) 3 (Mr Hawke, Prime Minister).

231. Sampford & Palmer (n 98) 371.

232. (n 230) 3.

233. Ibid.

234. Austl, Cth, House of Representatives, Parliamentary Debates (6 March 2003) at 12429 (Mr Howard, Prime Minister).

235. Sampford & Palmer (n 98) 384.

236. Ibid.

237. Ibid.

238. Ibid.

239. Ibid.

240. Ibid 370. See also “Australian practice suggests that no formal procedural steps have been taken to give the Prime Minister and/or Cabinet the power to, in effect, wage war by authorising the deployment of our troops overseas in a hostile action. If Australia’s practice has legally altered the way in which the war power is exercised, this has been done without any public or parliamentary discussion. Unstated convention would be a poor instrument by which to change the way in which the decision to go to war is made”. Ibid 379.

241. Ibid 377.

242. Defence Act 1903 (Cth), 1903/20 (“[t]he Governor-General may: Subject to the provisions of this Act do all matters and things deemed by him or her to be necessary or desirable for the efficient defence and protection of the Commonwealth or of any State” at s 63(1)(f)).

243. Sampford & Palmer (n 98) 378.

244. Sampford & Palmer (n 98) 363-65.

245. Ibid 378.

246. Ibid.

247. Ibid (emphasis in original).

248. Ibid 380.

249. Ibid.

250. Lagassé, “Crown and Government Formation” (n 6) 3.

251. Lagassé, “Parliamentary and Judicial Ambivalence” (n 14) 164.

252. Patriation Reference (n 165) 882-83.

253. Payne, “Royal Prerogative” (n 18) 101.

254. Ibid 80.

255. Ibid 82.

256. Noonan (n 29) 680 (“operational orders… represent political decisions” at 206). But see Lorne Sossin, “The Unfinished Project of Roncarelli v Duplessis: Justiciability, Discretion, and the Limits of the Rule of Law” (2010) 55:3 McGill LJ 661 (“the exercise of public authority is never ‘purely political’. The very fact of it being a public form of authority brings with it the obligation to all of those affected that it be exercised in good faith and for proper purposes. Public authority… does not exist outside the rubric of the rule of law”.).

257. (n 46).

258. Mallory (n 171) 65-66. This answer also accords with British interpretation of how the Crown prerogative for defence is exercised in the United Kingdom. See Payne, “War Powers” (n 50) 28 (“[i]n the case of war powers, it is the Prime Minister who takes the relevant decision with regard to deployment—a position determined by convention rather than law”. (emphasis added)).

259. However, the Vancouver Island Peace Society decision was in the context of an OIC that was challenged on the grounds of statute law. It may be more difficult to argue that an exercise of the Crown prerogative is implied in an OIC that clearly invokes statute as authority, such as an active service designation under s 31(1) of the NDA.

260. Aleksic v Canada (Attorney General) (2002) 215 DLR (4th) 720, 165 OAC 253 (ON Div Ct); Blanco v R 2003 FCT 263; Turp v Canada 2003 FC 301.

261. Ibid.

262. Ibid 723 [3].

263. Ibid 724 [7].

264. But see Sossin (n 256) 679 (“Justice Wright provides a compelling dissent”.).

265. For example, see Lagassé, “The Crown’s Powers” (n 56) (in Canada, certain prerogative powers should rightly be classified as constitutional powers); Ruddock v Vadarlis [2001] FCA 1329 (French J) (Australian executive power under the Commonwealth Constitution should be seen as distinct from prerogative power inherited from Britain).

266. Forcese, Public Law (n 48) 324.

267. Ian Brodie, At the Centre of Government: The Prime Minister and the Limits on Political Power (McGill-Queen’s 2018) 27 (“the head of the Harper transition team, and a senior official of the Privy Council Office were waiting to discuss the transition of power… the official started with a surprising question. ‘Mr. Harper, do you intend to appoint ministers? Is it your intention to have a cabinet?’ There was a moment of silence. Harper was taken aback, and so was I. Of course, he intended to appoint ministers. The official continued. . . ‘PCO’s advice is to appoint ministers. You will find ministers have some uses. . . But they are not strictly necessary. The public service is quite capable of briefing you on every issue before the government and to implement your every decision.’. . . I realized the official. . . was starting at first principles: Harper had to decide how to organize his government”.). While the idea that a prime minister would choose to govern via a one-person ministry is absurd, the fact that the Privy Council Office would offer it as an option is a fascinating example of how much power the prime minister can theoretically exercise.

268. Sir William Wade, “Procedure and Prerogative in Public Law” (1985) 101 LQ R 180, 198.

269. Ibid 193.

270. AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn, MacMillan 1959) 424.

271. Joseph Chitty, Treatise on the Law of the Legal Prerogatives of the Crown (Butterworth 1820), as quoted in Payne, “The Royal Prerogative” (n 18) 92.

272. See text accompanying (n 48).

273. Currie (n 206) 152.

274. [1983] 1 SCR 106.

275. Ibid 108.

276. Ibid 112-13.

277. Bolt, “Crown Prerogative Decisions” (n 11) 231-32.

278. (n 105).

279. Mallory (n 171) 66 n 50.

280. Noonan (n 29) 215 (“The Governor General is entitled to request information from ministers to enable the Governor General to understand actions that they are being advised to take by the Canadian Ministry, and to enable the Governor General to exercise his or her constitutional right to be consulted by the Canadian Ministry, to encourage the Canadian Ministry, and to warn the ministry”.).