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Quick thread on who directs, and could direct, the Canadian military in times of constitutional crisis.
Normally, the military is under the management and direction of the Minister of National Defence, as per section 4 of the National Defence Act.
Cabinet can also issue directions to the military, through a combination of constitutional convention, prerogative, and statute.
Cabinet can also issue directions to the military, through a combination of constitutional convention, prerogative, and statute.
I use the word 'directions' purposefully here, since neither the MND, nor Cabinet normally issues orders under the chain of command.
As per 18(1) and 18(2) of the National Defence Act, the control and administration of the CAF is exercised via the Chief of the Defence Act.
As per 18(1) and 18(2) of the National Defence Act, the control and administration of the CAF is exercised via the Chief of the Defence Act.
Interestingly, though, 18(2) allows Cabinet to issue directions to the CAF through another officer than the CDS, if need be.
Lastly for the normal side of things, the PM can issue directions as head of govt and under prerogative.
Lastly for the normal side of things, the PM can issue directions as head of govt and under prerogative.
It's this last bit about the PM exercising prerogative that makes things interesting.
In a very formal sense, the PM is advising the Crown when exercising prerogative (though realistically, it's really the PM or the GiC/Cabinet.)
In a very formal sense, the PM is advising the Crown when exercising prerogative (though realistically, it's really the PM or the GiC/Cabinet.)
Which prerogative are we talking about here? Well, it might be the prerogative to deploy the armed forces. That's pretty well understood.
But there's also a concept that's been hiding in the background here so far: command.
But there's also a concept that's been hiding in the background here so far: command.
As mentioned above, neither the Minister nor the GiC exercise command under the National Defence Act.
Also, and this is contentious, the National Defence Act doesn't bestow *command authority* on the CDS under section 18, but control and administration.
So what gives?
Also, and this is contentious, the National Defence Act doesn't bestow *command authority* on the CDS under section 18, but control and administration.
So what gives?
To find command authority, we need to go to the Constitution Act, 1867 which continues to vest the power of command in chief in the Queen.
This was orginally a colonial provision. It allowed British officers to command the Canadian armed forces under a unified imperial Crown.
This was orginally a colonial provision. It allowed British officers to command the Canadian armed forces under a unified imperial Crown.
Today, the command in chief provision of section 15 tells us that command authority in vested in the Crown.
It flows down to the CAF via commissions and orders and regulations.
Those commissions, orders, and regulations make the CDS the overall commanding officer, too.
It flows down to the CAF via commissions and orders and regulations.
Those commissions, orders, and regulations make the CDS the overall commanding officer, too.
This implies a few things.
First, when ministers issue directions to the CDS, they're not in the chain of command as the American or French presidents would be. They directing the chain, not at the top of the chain.
First, when ministers issue directions to the CDS, they're not in the chain of command as the American or French presidents would be. They directing the chain, not at the top of the chain.
Second, however, this opens the possibility that the PM can exercise the prerogative of command, either in advising the GG as the Queen's representative or as the Queen's first minister.
Suffice to say, this is one of those things that we don't talk about since it gets messy.
Suffice to say, this is one of those things that we don't talk about since it gets messy.
Thirdly, though, it does tell us that formal military command authority lies with the GG as the Queen's representative and as per the Letters Patent 1947.
(The GG as Commander-in-Chief, it should be noted, it a symbolic office.)
(The GG as Commander-in-Chief, it should be noted, it a symbolic office.)
Fourthly, then, this means that there is a civilian at the top of the chain of command: the GG.
Day to day, however, command authority is flowing down through the CDS who acts under ministerial management and direction, or perhaps indirect PM prerogative command.
Day to day, however, command authority is flowing down through the CDS who acts under ministerial management and direction, or perhaps indirect PM prerogative command.
What about Parliament, you ask?
Sorry, legislative superfans, but Parliament isn't in the loop here.
The individual houses couldn't control, direct, or command the CAF via a motion. That could only be used to compel the govt to act.
Sorry, legislative superfans, but Parliament isn't in the loop here.
The individual houses couldn't control, direct, or command the CAF via a motion. That could only be used to compel the govt to act.
Parliament could of course legislate to make the CAF do something, but that wouldn't really be command, either. That would be legal direction or regulation.
Parliament can't 'command' owning to section 15 CA1867.
Parliament can't 'command' owning to section 15 CA1867.
Quick pause here for the British followers: yes, I know your Parliament could command.
So, what safeguards do we have in our system?
A rogue Minister of National Defence would be easily checked by Cabinet, the PM, or the DM or CDS going to the Clerk/PM.
No problems there.
A rogue Minister of National Defence would be easily checked by Cabinet, the PM, or the DM or CDS going to the Clerk/PM.
No problems there.
Ok, what about a rogue PM?
That would be tougher, but you could fall back on section 4 of the National Defence Act (ministerial management and direction) until the PM is dealt with, but that would be tough in our system.
That would be tougher, but you could fall back on section 4 of the National Defence Act (ministerial management and direction) until the PM is dealt with, but that would be tough in our system.
Could the CDS declare that a rogue PM isn't in the chain of command and refuse to follow a direction or prerogative-based order?
Not a good look or principle for civilian command of the military.
Not a good look or principle for civilian command of the military.
A far better option would be for the CDS to call up the GG.
The GG is in the chain of command, formally speaking, and the GG is a civilian, hence relying on them to intervene would preserve civilian control.
The GG is in the chain of command, formally speaking, and the GG is a civilian, hence relying on them to intervene would preserve civilian control.
Am I suggesting that the GG would take over the command of the CAF or prevent the PM/government from issuing directions?
No, not really. If the crisis was that bad, the better option is to warn the PM to stop whatever they're doing, remind them that they could be dimissed.
No, not really. If the crisis was that bad, the better option is to warn the PM to stop whatever they're doing, remind them that they could be dimissed.
If the PM persist in trying to direct the CAF to do something unconstitutional or otherwise, then it would be wiser for the GG to dismiss them rather than exercise authority over the CAF themselves.
Still, if time is of the essence or there's another reason that a dismissal is impractical, we could have a GG stepping in to avoid a situation where the CDS has to either refuse to follow govt direction or undermine civilian control.
