The Strategic Constitution in Action: Canada's Afghan War as a Case Study

Irvin Studin

doi:10.1017/S2071832200020575

¹ Constitution Act, 1867, 30 & 31 Vict., c.3 (U.K.).Google Scholar

² See Granatstein, Jack, Canada's Army: Waging War And Keeping The Peace 10 (2002): Strategy was the province of the imperial masters, not the Canadians, whether French- or English-speaking. […] Strategy was not for Canadians to decide; tactics, perhaps, but strategy, never.”Google Scholar

³ Constitution Act, 1982, enacted as Schedule B to the Canada Act, 1982, c. 11 (U.K.).Google Scholar

⁴ See Howard, Michael, Preface, in Philip Bobbitt, The shield of Achilles: war, peace and the course of history at xvi (2002).Google Scholar

⁵ If one be pedantic, it is more precise to offer that the relative influence of each factor or element of strategic power on the state's aggregate strategic power is, in constitutional terms, a function both of the potential raw magnitude or scope of the factor or element and, just as importantly, the extent to which all or part of that factor or element can be mobilized to inform one or both of the state's diplomatic and military instruments. It should also be noted that we are here interested in the case law for each of the strategic sections of the Constitution (falling under a given category or factor of strategic power), and not, strictly speaking, case law relating to the specific categories or factors or elements (per se, taken as a whole) of power, mindful as we are of the warning of Justice Beetz in the Anti-Inflation Reference, 1975, [1976] 2 S.C.R. 373, that excessively diffuse subject matters should not be seen as a legitimate basis for exclusive legislative power for either the federal or provincial government.Google Scholar

⁶ The Charter provisions that make up Canada's Strategic Constitution are those that are most likely to come into play against (or indeed, suffuse) exercises of government power based on the common law or legislative heads of powers cited in the 1867 and 1982 Acts. In this sense, they cannot easily be separated into discrete categories along the lines of the various elements or factors of power listed in the second column.Google Scholar

⁷ One might think it a misnomer to call this factor of power ‘executive strength [or potency] of central government,’ given that, apart from the royal prerogative and section 9 of the 1867 Act, all the various sections underpinning this factor of power refer to Parliament's (legislative) powers, and not the powers of the federal executive. However, we assume quite firmly in this paper that executive power follows the grant of legislative power, in the context of both majority and minority government, even if this dynamic is mitigated or complicated somewhat in minority government situations. This is affirmed in cases like Liquidators of the Maritime Bank v. Receiver General of New Brunswick, [1892] A.C. 437, as well as Mowat v. Casgrain (1897), 6 Que. Q.B. 12. For its part, Parliament, strictly speaking, constrains or conditions this executive power. Naturally, we should concede that the effective identification of federal legislative powers with executive powers is often weakened, although certainly not emasculated (indeed, far from it, electoral mandate and control of the machinery of government by the executive oblige), in the context of minority government.Google Scholar

⁸ Scott, F.R., Expanding Concepts of Human Rights, in Essays on the Constitution 358 (1977). As mentioned, the only provision of the 1867 Act that explicitly references foreign affairs is section 132, although it speaks to the implementation by Canada (legislative and executive branches) of imperial or British Empire treaty obligations. In the famous and controversial Labour Conventions case of 1937 (A.G. Can v. A.G. Ont. et al., [1937] 1 D.L.R. 673), the Privy Council interpreted this imperial treaty implementation provision in section 132 of the 1867 Act by conceiving of the division of powers between the federal and provincial governments as “watertight compartments,” thereby distributing treaty implementation power between the federal and provincial legislatures and governments (depending on whether a treaty subject matter falls under federal, provincial or joint jurisdiction).Google Scholar

⁹ Laskin, Bora, Canadian Constitutional Law 199 (4^th ed., 1975).Google Scholar

¹⁰ See, for instance, the unqualified wording of Lord Reid in Chandler v. Director of Public Prosecutions, [1964] 1 A.C. 763: “It is in my opinion clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised. I need only refer to the numerous authorities gathered together in China Navigation Co. Ltd. v. Attorney-General [(1932) 2 K.B. 197]. Anyone is entitled, in or out of Parliament, to urge that policy regarding the armed forces should be changed; but until it is changed, on a change of Government or otherwise, no one is entitled to challenge it in court.”Google Scholar

¹¹ Aleksic v. Canada (2002), 215 D.L.R. (4th) 720.Google Scholar

¹² Even if the issue were justiciable, the Crown would be immune in tort by virtue of the fact that the bombing decision was one of so-called pure policy, as well as by virtue of section 8 of the Crown Liability and Proceedings Act, which strategically immunizes the Crown from tortious liability “in respect of anything done or omitted in the exercise of any power or authority exercisable for the Crown, whether in time of peace or war, for the purpose of the defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces.”Google Scholar

¹³ Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441.Google Scholar

¹⁴ Supra note 13. This citation is taken from the summary of the case.Google Scholar

¹⁵ We should add that, in the hypothetical event that military activity of the Canadian government under the prerogative should be found to be in violation of a Charter right, there is evidence to suggest that this violation would likely be saved under section 1 of the Charter, which reads that the rights and freedoms in the Charter are “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In obiter, in the Operation Dismantle case, Justice Wilson mused that, were the government to impose conscription for overseas service in wartime, this would seem to be in violation of section 7 of the Charter, but would meet the reasonable limitation in section 1. Contrariwise, she supposed, a government decision to seize citizens for military service without enabling legislation would unequivocally violate the Charter, under both sections 7 and 1.Google Scholar

¹⁶ R. v. Cook, [1998] 2 S.C.R. 957. The Supreme Court held that a Canadian citizen questioned abroad is still entitled to Charter protection as long as the application of the Charter does not interfere with the sovereign authority of the foreign state in question; more precisely, as long as there is no objectionable interference with the exercise of the foreign state's jurisdiction.Google Scholar

¹⁷ R. v. Hape (2007), 280 D.L.R. (4th) 385.Google Scholar

¹⁸ Section 32(1) specifies that the Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament … and (b) to the legislature of each province in respect of all matters within the authority of the legislature of the province. Section 32(1) does not provide for an explicit territorial limit on the application of the Charter. Google Scholar

¹⁹ Canada v. Khadr, [2008] S.C.J. No. 28. The Supreme Court found that section 7 of the Charter, relating to “fundamental justice,” was engaged in this case, thereby imposing “a duty on Canada to provide disclosure of materials in its possession arising from its participation in the foreign process [i.e. the questioning of Omar Khadr at Guantanamo Bay] that is contrary to international law and jeopardizes the liberty of a Canadian citizen.” This important determination was in fact somewhat anticipated by Justice LeBel's reasons for the plurality in Hape, supra note 14, where he noted at paragraph 101: “I would leave open the possibility that, in a future case, participation by Canadian [state actors] in activities in another country that would violate Canada's international human rights obligations might justify a remedy under s. 24(1) of the Charter […].”Google Scholar

²⁰ Khadr v. Canada, 2009 FCA 246.Google Scholar

²¹ Khadr v. Canada, [2009] F.C.J. 462.Google Scholar

²² The Canadian courts deferred to U.S. jurisprudence in a Rasul v. Bush, [542 U.S. 466 (2004)], in respect of the determination of illegality of the said interrogation process at international law.Google Scholar

²³ At paragraph 63, Justices Evans and Sharlow, writing for the majority and citing Hogg, Constitutional Law of Canada 38–46 (5^th ed., 2007), note that the Supreme Court has already stated that a breach of section 7 could only be validated under section 1 in exceptional circumstances, such as “natural disasters, the outbreak of war, epidemics and the like.”Google Scholar

²⁴ Canada v. Khadr, [2010] S.C.J. No. 3.Google Scholar

²⁵ Amnesty International v. Canada, 2008 F.C. 336.Google Scholar

²⁶ In Amnesty International, [2008 F.C. 336], Justice Mactavish, in obiter, suggested that there remains some uncertainty in respect of the possibility that the military, because of its coercive character, might require a sui generis test for extraterritorial application of the Charter. In this respect, Mactavish tracks the important British holding in Al-Skeini et al. v. Secretary of State for Defence, [2007] UKHL 26, in which it was determined that the UK Human Rights Act, 1998, which effectively implemented into British domestic law the European Convention on Human Rights, did apply to British public authorities – in the event, the British military – to the narrow extent that they exercised effective control on foreign territory through military detention facilities, as with embassies and consulates, operating on the consent of the Iraqi government. Strangely, Al-Skeini is not at all referenced in Amnesty International or in the cognate Canadian jurisprudence in Cook, Hape or the Khadr line of cases.Google Scholar

²⁷ Amnesty International v. Canada, [2008] F.C.J. No. 1700.Google Scholar

²⁸ Amnesty International v. Canada, [2009] S.C.C.A. No. 63.Google Scholar

²⁹ Craig Forcese, National Security Law 154 (2008). See, however, the dissent in Aleksic, supra note 11, by Justice Wright, suggesting that the active service provision in the National Defence Act should now be seen as having replaced the royal prerogative for military deployments.Google Scholar

³⁰ Some might have argued that the first (2006) Harper government's formal and public commitment to hold Parliamentary votes on military deployments might have been the start of a ‘convention-in-the-making’ in Canada on legislative control of the Canadian Forces. The Parliamentary vote to end the military mission in Afghanistan in 2011, for instance, might have been further evidence of such a convention-in-the-making. However, the 2010 decision of the (second) Harper government to continue Canada's military role in Afghanistan for the purpose of training Afghan forces (rather than for strict combat) was taken sans Parliamentary vote. It therefore comfortably reasserted what had already been true theretofore – even if one had argued that a convention had until then been in the making: that the matters of troop deployment and of the purposes or objectives or aims of such deployment fall strictly under the aegis of the royal prerogative.Google Scholar

³¹ Id. Google Scholar

³² Forcese, Craig, supra note 30, at 168–170, observes that two federal orders-in-council were issued in the 1990s, pursuant to the royal prerogative, in relation to domestic deployment of the Canadian Forces solely on the initiative or approval of the federal government: the first, the Canadian Forces Assistance to Provincial Police Forces Directions (P.C. 1996-833), addresses federal military assistance to provincial law enforcement agencies; the second, the Canadian Forces Armed Assistance Directions (P.C. 1993-624), addresses the deployment of Canadian special forces assets. Both orders-in-council address disturbances of the peace, likely or actual, deemed of national interest. Notes Forcese, at 170: “Out of an abundance of caution, […], the preferable approach is to treat the order-in-council provisions as procedures governing the application of the [National Defence Act] public service powers to the particular circumstances to which they relate.”Google Scholar

³³ Indeed, it is notable that, of the four emergencies treated in the Emergencies Act – public order, welfare, international and war – the statute is most laconic in respect of the war emergency. Surely, this is because it is near impossible for legislation to restrict or condition the entirety of executive behaviour in the context of the most serious national emergencies or situations. The gap between what may be necessary for the executive in such situations and what is explicitly permitted or conditioned in the statute is therefore equivalent to the state's emergency (royal) prerogative.Google Scholar

³⁴ Human Rights Institute of Canada v. Canada, [2000] 1 F.C. 475.Google Scholar

³⁵ This is affirmed by the author in Gerard La Forest, Natural Resources and Public Property Under the Constitution 155 (1969), on the strength of the 1874 holding in L'Union St. Jacques de Montreal v. Belisle (1874), 6 P.C. 31. The age of the case likely speaks less to the import of the ruling itself than to the aforementioned patent penury of cases on the strategically important militia power.Google Scholar

³⁶ This means that we do not, strictly speaking, define war, for purposes of this article, as solely a function of a declaration of war by the federal government or Parliament (itself not a constitutional or even yet conventional requirement in Canada); that is, analytically, in strategic terms, war may be understood as that strategic end or scenario that maximally (and certainly more than any other scenario) engages the various factors of power of the state, or that engages these factors of power over and above a de minimis threshold.Google Scholar

³⁷ The goals for the Afghan mission arguably morphed over the years since the start of the war in 2001, with the most pronounced inflection point surely coming when the Canadian military mission moved to the more dangerous theatre of Kandahar province from Kabul in 2005. The priorities cited in this paper reflect the last comprehensive statement of the goals for the war by the Canadian government. See The Government of Canada, Canada's Engagement in Afghanistan, available at: http://www.afghanistan.gc.ca/canada-afghanistan/priorities-priorites/index.aspx?lang=eng (last accessed: 24 April 2012). See also Janice Gross Stein & Eugene Lang, The Unexpected War: Canada in Afghanistan 14 (2007), where the authors suggest that, to the extent that any strategic coherence could be found in Canadian motives in their participation in the 2001 to 2005 International Security Assistance Force (ISAF) Kabul mission, it consisted primarily in an “early in, early out” imperative – high symbolism, low casualties and high ‘linkage'; that is, material, positive strategic spillover into the overall bilateral relationship with the U.S. – all readily within the realm of the federal executive's royal prerogative. For a description of Canada's broader state-building activities in Kandahar, see also Rowswell, Ben, Kandahar and Grassroots State Building, Global Brief (Winter 2011), available at: http://globalbrief.ca/blog/2011/02/18/grassroots-statebuilding-lessons-from-kandahar/ (last accessed: 24 April 2012).Google Scholar

³⁸ Supra note 30.Google Scholar

³⁹ Note the sporadically mooted, exotic – yet strategically non-negligible - possibility of Canada annexing the Caribbean island of Turks and Caicos, currently a British Overseas Territory. While such annexation has historically been mooted by Canadians for apparently ‘touristic’ reasons, one could clearly imagine strategic use of such a territory for strategic purposes, such as the basing of Canadian military (including naval) and intelligence assets. (The relevance of Canadian geography – land and nautical – as a factor of strategic power again becomes more plain.) On the Canadian side, the simplest and strategically most ‘elegant’ form of the annexation ‘transaction’ would be for the federal Parliament (through initiation of the federal executive, of course) to pass an act of Parliament to make the Turks and Caicos a federal territory, as with the Yukon, the Northwest Territories and Nunavut. Prima facie, it would seem to make little strategic sense to attempt to make T&C a bona fide Canadian province, as this form of annexation would require a large degree of deference to the provinces (sub-strategic actors) via the constitutional amending formula required for the granting of such provincial status – to wit, seven provinces representing at least 50 percent of the Canadian population – as per sections 38(1) and 42(1)(f) of the 1982 Act. Moreover, even once past the process of becoming a province, Turks and Caicos as a province would acquire a host of strategic or quasi-strategic constitutional powers – principally in section 92 of the 1867 Act, but also, as discussed the ‘quasi-strategic’ education competence – that would arguably dilute the potency of the federal executive's capacity to use it for deliberate strategic ends.Google Scholar

⁴⁰ Human Rights Institute of Canada v. Canada, [2000] 1 F.C. 475.Google Scholar

⁴¹ Again, see note 37 above regarding possible federal purchase of Turks and Caicos for purposes of a potential military base.Google Scholar

⁴² Section 36 of the National Defence Act states: “The materiel supplied to or used by the Canadian Forces shall be of such type, pattern and design and shall be issued on such scales and in such manner as the Minister, or such authorities of the Canadian Forces as are designated by the Minister for that purpose, may approve.” While provinces do not typically engage in pure military procurement – legally and constitutionally – their spending power allows them to purchase a very wide variety of assets – so-called ‘dual-purpose’ assets – that would certainly have military utility in both war preparation and military operations (specifically, defensive military operations on Canadian soil). First and foremost, these would include local and provincial police and emergency assets. To be sure, there is a strategic coherence issue generated by the great flexibility of the federal and provincial spending powers.Google Scholar

⁴³ Evidently, the larger the economic capacity of the country, other things being equal, the greater its ability to support the military campaign and related industries and production in the actual event of war, and to deter a potential enemy in the event of threatened war, given that the enemy – including an enemy like the Taliban – would to some extent infer the war-fighting capability of the country from its economic mass. Conversely, the smaller a country's economic capacity, other things being equal, the less its capacity to discourage strategic confrontation or, in extremis, military attack by another country. Naturally, the aggregate capacity of the Canadian economy is a function of an extremely complicated cocktail of variables. The same is true of the economy's capacity for strategic mobilization. These include: the macroeconomic capacity to resist strategic shocks; the general strength of the national economic union; the capacity to protect or lever strategic industries or sectors in international trade and investment agreements; the constitutional character of the national strategic transportation infrastructure; as well as the constitutional character of national strategic communications.Google Scholar

⁴⁴ Galbraith, John Kenneth, The New Industrial State 71 (1967): “With the rise of the modern corporation, the emergence of the organization required by modern technology and planning and the divorce of the owner of the capital from control of the enterprise, the entrepreneur no longer exists as an individual person in the mature industrial enterprise. Everyday discourse, except in the economics textbooks, recognizes this change. It replaces the entrepreneur, as the directing force of the enterprise, with management. This is a collective and imperfectly defined entity; in the large corporation it embraces chairman, president, those vice presidents with important staff or departmental responsibility, occupants of other major staff positions and, perhaps, division or department heads not included above. It includes, however, only a small proportion of those who, as participants, contribute information to group decisions. This latter group is very large; it extends from the most senior officials of the corporation to where it meets, at the outer perimeter, the white and blue collar workers whose function is to conform more or less mechanistically to instruction or routine. It embraces all who bring specialized knowledge, talent or experience to group decision-making. This, not the management, is the guiding intelligence – the brain – of the enterprise. There is no name for all who participate in the group decision-making of the organization that they form. I propose to call this organization the Technostructure.”Google Scholar

⁴⁵ Galbraith, supra note 45, at 30.Google Scholar

⁴⁶ Parliament enjoys expansive taxation and spending (i.e. fiscal) powers under sections 91(1A) and 91(3) of the 1867 Act, relating respectively to public debt and property and the raising of money by any mode or system of taxation. Section 91(1A), in particular, allows Parliament to borrow very significant amounts of money – both from Canadian and international sources – in order to drive national economic goals, bearing in mind policy-political considerations. Other sections likely (arguably) relevant to the constitutional existence of a muscular federal spending power include sections 102 and 106 of the 1867 Act, both dealing with federal appropriations. Section 102 states: “All Duties and Revenues over which the respective Legislatures of Canada, Nova Scotia, and New Brunswick before and at the Union had and have Power of Appropriation, except such Portions thereof as are by this Act reserved to the respective Legislatures of the Provinces, or are raised by them in accordance with the special Powers conferred on them by this Act, shall form One Consolidated Revenue Fund, to be appropriated for the Public Service of Canada in the Manner and subject to the Charges in this Act provided.” Section 106 states: “Subject to the several Payments by this Act charged on the Consolidated Revenue Fund of Canada, the same shall be appropriated by the Parliament of Canada for the Public Service.” Of course, for both sections, “Public Service” of Canada is to be understood broadly – that is, something approximating the general welfare of the country (and certainly not as referring the federal civil service proper!).Google Scholar

⁴⁷ Note that the Canadian Security Intelligence Service (CSIS)'s enabling statute, the CSIS Act, may be partly rooted in section 91(7) of the 1867 Act, based on the holding in Attorney-General (Quebec) v. Keable v. Attorney-General (Canada), [1979] 1 S.C.R. 218. Much, if not most, of the basis for the Act would likely come from the residual branch of the general power, or POGG (Peace, Order and Good Government), in the 1867 Act.Google Scholar

⁴⁸ Federal purchases under the spending power that are not intentionally for military use, but which otherwise end up having a so-called ‘dual-use’ cannot, strictly speaking, be considered as part of national strategic economic capacity; that is, strategic capacity must link capacity with express – not accidental or incidental – ends.Google Scholar

⁴⁹ See the North American Free Trade Agreement art. 605, Jan. 1, 1994 (NAFTA), known as the ‘proportionality clause, which repeats the prohibition in the Canada-U.S. Free Trade Agreement on Canadian restrictions of energy exports to the United States (in the NAFTA case, to Mexico also) for reasons of national conservation, supply shortages and price stabilization provided the share of total energy supply available for export purchase by the U.S. (or Mexico) from Canada falls below the average level of the previous 36 months. Indeed, the Article 605 proportionality clause tracks an almost identical proportionality clause in Article 315 in respect of all goods subject to the NAFTA. For a strategic petroleum reserve, the federal government could arguably use its spending power to purchase exported oil from the provinces on the free market, within the terms of the NAFTA. This would effectively require the federal government to effectively outbid potential American and Mexican buyers; that is, on volumes of oil over and above those which would have to be made available to them, based on historic sales over a representative period.Google Scholar

⁵⁰ This declaratory power has been used nearly five hundred times since Confederation, in particular in the transportation industry, and especially in respect of the once highly strategic (and still arguably somewhat strategic) rail sector – but also in respect of telecommunications and labor strikes of national significance. A declaration by Parliament is dispositive, meaning that the courts will not enquire into whether the ‘work’ – say, a uranium mine – in question, provided it relates to something physical, material or tangible, is actually for the general advantage of Canada. Signally, when the federal Parliament declared atomic energy for the general advantage of Canada in 1946, it also enacted the Atomic Energy Control Act. As this legislation was contested, because of traditional provincial dominance in the area of natural resources, the immediate use of the declaratory power by the federal Parliament effectively eliminated any uncertainty as to the legitimacy of the legislation and federal jurisdiction until such time as the Supreme Court, many years later, in the 1993 Ontario Hydro case (infra note 51), could confirm the statute on the basis of the national concern branch of the POGG power.Google Scholar

⁵¹ See, for instance, the observation of Chief Justice Lamer in the judgement in Ontario Hydro v. Ontario, [1993] 3 S.C.R. 327, at para. 69: “There is no authority supporting the view that the declaratory power should be narrowly construed. Quite the contrary. It might, I suppose, have been possible to interpret s. 92(10)(c) so as to confine it to works related to communications and transportation such as those specifically listed in s. 92(10)(a) and (b) but the courts, including this Court, have never shown any disposition to so limit its operation, and a wide variety of works – railways, bridges, telephone facilities, grain elevators, feed mills, atomic energy and munitions factories – have been held to have been validly declared to be for the general advantage of Canada.”Google Scholar

⁵² The Emergencies Act coexists with the predecessor Energy Supplies Emergency Act, also rooted in the federal emergency power, which states at section 15(1), specifically in relation to petroleum resources, that when the “the Governor in Council is of the opinion that a national emergency exists by reason of actual or anticipated shortages of petroleum or disturbances in the petroleum markets that affect or will affect the national security and welfare and the economic stability of Canada, and that it is necessary in the national interest to conserve the supplies of petroleum products within Canada, the Governor in Council may, by order, so declare and by that order authorize the establishment of a program for the mandatory allocation of petroleum products within Canada in accordance with this Act.” Note also that the Emergencies Act states, quite laconically, in section 40(1), only that, in the event of a declared war emergency, “the Governor in Council may make such orders or regulations as the Governor in Council believes, on reasonable grounds, are necessary or advisable for dealing with the emergency.” This is the total extent of what is written in the “Orders and regulations” part for this type of emergency, as compared with more extensive descriptions of “Orders and regulations” for the other three types of emergency – public welfare, public order and international. This would suggest that the Act intends for there to be very expansive marge de manoeuvre for the executive to do whatever is “necessary or advisable” to address the war emergency. Naturally, such de maximis marge de manoeuvre does not eclipse or exhaust the overarching emergency or national security prerogative that is availed to the executive – over and above the Act. Moreover, to the extent that the government wishes to resort to, or cite, the specific “orders and regulations” made explicit under the other three types of emergency, there is nothing in the Act to stop it from declaring more than one type of emergency. Indeed, it would seem quite natural that a war emergency might also beget an international emergency, which would then entail, according to section 30 of the Act, orders and regulation relating to, inter alia, control or regulation or “any specified industry or service, including the use of equipment, facilities and inventory” and “the appropriation, control, forfeiture, use and disposition of property or services.”Google Scholar

** As an aside, it is interesting to observe that the expansive marge de manoeuvre given the executive for orders and regulation in the context of a war emergency is prefigured in the old War Measures Act of 1914, in which parliamentary oversight or control was considerably less robust and in which the delegation of legislative power from Parliament to the executive was at issue in the famous holding in Re. Gray, 57 S.C.R. 150. In that holding, Chief Justice Sir Charles Fitzpatrick notes, at para. 12, in respect of section 6 of the War Measures Act: “It seems to me obvious that parliament intended, as the language used implies, to clothe the executive with the widest powers in time of danger. Taken literally, the language of the section contains unlimited powers. Parliament expressly enacted that, when need arises, the executive may for the common defence make such orders and regulations as they may deem necessary or advisable for the security, peace, order and welfare of Canada. The enlightened men who framed that section, and the members of parliament who adopted it, were providing for a very great emergency, and they must be understood to have employed words in their natural sense, and to have intended what they have said. There is no doubt, in my opinion, that the regulation in question was passed to provide for the security and welfare of Canada and it is therefore intra vires of the statute under which it purports to be made.”Google Scholar

⁵³ Note, however, that the Canadian government could not rely on the Emergencies Act for purposes of conscription, which means that Parliament would have to pass an explicit law on conscription. Section 40(2) of the Emergencies Act states: “The power […] to make order and regulations [under the war emergency] may not be exercised for the purpose of requiring persons to serve in the Canadian Forces.”Google Scholar

⁵⁴ See note 30 in respect of the possible constitutional convention in respect of such a Parliamentary vote requirement that might have been argued to have been developing in the early years of the first Harper government.Google Scholar

⁵⁵ Formal declarations of war by Congress are also not strictly required in American constitutional law in order for the executive to commence military operations.Google Scholar

⁵⁶ Laskin J.A. writes in Black v. Chrétien [(2000), 47 O.R. (3d) 532], at paras. 52 and 53:Google Scholar

** '[…] I will briefly discuss prerogative powers that lie at the opposite ends of the spectrum of judicial reviewability. At one end of the spectrum lie executive decisions to sign a treaty or to declare war. These are matters of “high policy.” R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett, [1989] 1 All E.R. 655 at 660, per Taylor L.J. Where matters of high policy are concerned, public policy and public interest considerations far outweigh the rights of individuals or their legitimate expectations [Laskin is here referring to the standard from Council of Civil Service Unions v. Minister for the Civil Service, supra note 40]. At the other end of the spectrum lie decisions like the refusal of a passport or the exercise or mercy. […]” Indeed, in Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374, Lord Roskill, at p. 148, famously invokes the broad category of “the defence of the realm” as one of the select few prerogative powers that are not “susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process” – noting that the courts are not (institutionally) best placed to determine whether the “armed forces [should be] disposed in a particular manner […].” We may presume, in the Canadian context, that this is so to the extent that the said defence of the realm does not engage Charter rights – but that if it did, upon judicial review, the Charter claim would have little chance of success.Google Scholar

⁵⁷ The second extension vote came with several conditions, one of which was that other NATO allies must send at least 1,000 troops to southern Afghanistan. However, as this vote did not override the royal prerogative, this condition cannot be regarded as constitutionally (or legally, or indeed, for our purposes, strategically) binding.Google Scholar

⁵⁸ Independent Panel on Canada's Future Role in Afghanistan, Independent Panel on Canada's Future Role in Afghanistan, Minister of Public Works and Government Services 34 (2008). Compare this ad hoc war cabinet with the standing national security committee of cabinet employed in the Australian government, which makes decision on everything ranging from declaration of war (and conclusions of peace) to military procurement.Google Scholar

⁵⁹ Hamilton, Alexander, Madison, James & Jay, John, The Federalist Papers 109 (2003). In Canada, evidently, certain provinces – often Quebec – will likely have strong views in respect of the strategic or policy-political wisdom of the federal state engaging in hostilities with one or more other states. These provincial views may carry moral or political weight, but their significance, in strict constitutional terms, is nugatory.Google Scholar

⁶⁰ Quite manifestly, there would be intelligence, logistical and transportation activities involving Canadian military assets outside of Afghanistan – all in order to advance Canadian interests and performance in the Afghan theatre.Google Scholar

⁶¹ Amnesty International v. Canada, supra note 24.Google Scholar

⁶² See Bull, Hedley, The Anarchical Society: A Study of Order in World Politics (1977) for the concept and vernacular.Google Scholar

⁶³ Consider, for instance, a federal decision to initiate or participate in a war that is illegal at international law. This could arguably have been the case in Kosovo 1999, or in Iraq in 2003 (had Canada decided to participate), or in the prospective event of, say, a federal intervention in a foreign country, sans Security Council mandate, to, say, staunch a genocide or humanitarian disaster.Google Scholar

⁶⁴ Smith v. Canada, [2009] F.C.J. No. 234.Google Scholar

⁶⁵ For a treatment of the doctrine of necessity in Canadian constitutional law, consider Re: Manitoba Language Rights, [1985] 1 S.C.R. 721. The Court, in the unanimous judgment said: “Necessity in the context of governmental action provides a justification for otherwise illegal conduct of a government during a public emergency. In order to ensure rule of law, the Courts will recognize as valid the constitutionally invalid Acts of the [Manitoba] Legislature.” In the event, these constitutionally invalid laws were ones that had not been translated into French. Strictly speaking, the ruling in the Manitoba Language Rights Reference affirms the doctrine of necessity not as a proper principle of the Canadian Constitution, but rather as subservient to the constitutional principle of the rule of law. The ruling, just as fundamentally, confirms that the Canadian Constitution cannot be a ‘suicide pact’ – the implication being that, again, in extremis, it is for Parliament and the federal government to do all that is necessary (the doctrine of constitutional necessity), in an emergency situation, to preserve the state and the rule of law.Google Scholar

⁶⁶ It goes without saying – and it may even be somewhat uninteresting to observe – that the provinces, given the ‘dual-purpose’ assets at their disposal and their massive legislative jurisdiction in a number of annex areas (e.g. microeconomically), would have to be coordinated to play an important supporting role in domestic military defense. (Compare note 46, supra.) Recall, en passant, that the Emergencies Act states that federal orders and regulations made under its auspices may not “unduly impair the ability of any province to take measures […] for dealing with an emergency in the province” or, in respect of command and control, that nothing in the Act should be construed or applied “so as to derogate from […] the control or direction of the government of a province or municipality over any police force over which it normally has control or direction.”Google Scholar

⁶⁷ A majority government evidently makes successful invocation of section 4(2) of the Charter easier.Google Scholar

⁶⁸ Sections 3 (that every citizen has the right to vote in an election) and 4(1) (that no House of Commons will continue for more than five years) would become moot upon the invocation of section 4(2).Google Scholar

⁶⁹ An agreement could be signed with the Taliban, but not a ‘treaty’ under international law. And while our interest is this article is not international law, but rather constitutional law, it stands to reason that Canada would not, at Canadian law, sign a ‘treaty’ (vernacular oblige) with a non-state actor; an agreement, however, yes. But the point made in this piece still stands – to wit, that consultation with, or assent from, Parliament in respect of the signature of, and also the pre-signature content of, the agreement would not be necessary under Canadian constitutional law.Google Scholar

⁷⁰ Note the dicta from Chief Justice Laskin – for all intents and purposes, about the principle of constitutional necessity in times of war, in the Anti-Inflation Reference, supra note 5, referring to the Fort Frances case (Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co., [1923] A.C. 695), which was perhaps the first Canadian case to make use of the word ‘emergency': “The Fort Frances case is curious in an important respect because the reasons appear to suggest that in time of war there is a power implicit in the Constitution which, irrespective of what is in ss. 91 and 92, endows the Parliament of Canada with extraordinary authority to protect the general interest.”Google Scholar

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The Strategic Constitution in Action: Canada's Afghan War as a Case Study

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Article contents

The Strategic Constitution in Action: Canada's Afghan War as a Case Study

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