Democracy in the 21st Century: Canada Needs a War Powers Act

By Dunn, Christopher | Canadian Parliamentary Review, Autumn 2007 | Go to article overview

Democracy in the 21st Century: Canada Needs a War Powers Act


Dunn, Christopher, Canadian Parliamentary Review


In Canada the declaration of war, or its functional equivalent, is still a prerogative power. It should not be.

A.V. Dicey, in his Law of the Constitution described the prerogative power as the residue of discretionary authority which at any given time is left in the hands of the Crown. This means in effect that whatever ancient power the monarch once uniquely possessed, and was not taken away by Parliament, is still intact.

As a government power, the prerogative is both substantial and inconsequential. The large and sprawling field of foreign policy, which involves matters like making treaties, declaring war, deploying the armed services in international conflicts, appointing ambassadors, recognizing states, accrediting diplomats and so forth, is largely governed by the prerogative power. Then there are more mundane areas like issuing passports, granting honours, appointing Queen's Counsel, and clemency.

There are discretionary prerogative powers which rest with the monarch, such as appointing the Prime Minister and his or her ministers, royal assent, dissolution of Parliament, and the emergency power--and then there are those which have devolved from the monarch to ministers of the Crown, who act in the name of the Crown--such as those foreign policy powers described above. Ministers enjoy the exercise of the power without necessarily having to involve Parliament. In fact, throughout history, Parliament was bypassed in the decisions to allocate this ministerial prerogative power.

It is the latter use of the prerogative--that devolved one--that Canadians must watch, especially as concerns commitment of our armed services. Parliament has been consulted but it has never expressly claimed the right to declare war (or its equivalent), or to say when it has ended, or how it shall be conducted. It should.

Canada has not declared war for close to seventy years. However, war has clear functional equivalents. Involvement in armed conflicts, collective police actions, and actions undertaken under instruments for collective defence: all of these have placed the Canadian Forces on active service and in harm's way.

For the most part Canada has entered international wars and conflicts on the basis of the domestic prerogative power. One exception in the 20th century was World War I. Canada was at war on August 4, 1914 because the Imperial Government had declared war and, as such, according to the practice of the day, "the Dominions, Colonies and Dependencies of the Empire" were automatically at war. However, there were a number of Canadian Orders in Council that implemented Canada's going to war.

In 1939 Britain declared war on September 3, but Canada waited, to emphasize its autonomy. Parliamentary debate (September 9) preceded the order in council declaring war (September 10). A similar procedure was followed when Canada declared war on Italy in 1940. The point is that only an order in council made the declaration of war formal. This was brought into stark relief in 1942 when war was declared on Japan, Romania, Hungary and Finland by simple proclamation, and no parliamentary debate or approval of an Address.

At the beginning of the Korean conflict, Parliament did not issue a resolution authorizing the sending of troops to Korea. A newly amended National Defence Act provided that Parliament be recalled within 10 days after a proclamation placing the forces on active service, but Prime Minister St. Laurent on September 8, 1950 noted that: "My understanding of the constitutional position is that there is no specific action required by parliament in the form of an affirmative decision."

And so it continued with NATO and UN missions (Suez, 1956, Congo, 1960, Cyprus, 1964, Namibia, 1989, Persian Gulf, 1990): Parliament had to convene within 10 days, but what it had to do was unspecified. Parliament simply reviewed the Government's decision. Canada's recent mission in Afghanistan has seen similar procedures, with the exception that the involvement of Parliament has been styled a take notice debate. …

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