Legal and Procedural Requirements(1)
As a matter of Canadian constitutional law, the situation is clear. The federal Cabinet can, without parliamentary approval or consultation, commit Canadian Forces to action abroad, whether in the form of a specific current operation or future contingencies resulting from international treaty obligations.
Under the Canadian Constitution (Constitution Act, 1867, sections 15 and 19), command of the armed forces – like other traditional executive powers – is vested in the Queen and exercised in her name by the federal Cabinet acting under the leadership of the Prime Minister. As far as the Constitution is concerned, Parliament has little direct role in such matters.
Of course, Parliament, especially the House of Commons, plays an indispensable though indirect role by voting or withholding funds and by retaining or withdrawing confidence in the government of the day. Moreover, short of an actual vote, there are other mechanisms that enable parliamentarians to hold the government accountable for its decisions and to register their own views. These include questions to ministers, debates on the Estimates, and take‑note debates.(2)(3)
Although Parliament has a specific statutory role in some national emergencies under the Emergencies Act and with respect to the active status of the Canadian Forces under the National Defence Act, Cabinet is required to seek parliamentary approval only in the event of conscription or specific states of emergency. Without consulting Parliament, Cabinet can deploy troops by an order in council.(4) Section 32 of the National Defence Act only “requires that Parliament (unless it is dissolved at the time) be sitting whenever any element of the Canadian Forces is placed on ‘active service’ by the Governor in Council, or within ten days thereafter.(5) Although the Act does not specifically give Parliament any say in the matter,(6) the requirement may reinforce Cabinet’s accountability to Parliament at such times by ensuring that parliamentarians are on hand to question and challenge the government.”(7)
The effectiveness of section 32 in this regard can be limited, however, when Cabinet simply issues “blanket” active service orders. For example, the Canadian Forces have been on active service continuously since 1950 in furtherance of Canada’s NATO commitments. Nonetheless, Cabinet has adopted the practice of issuing specific active service orders for major UN deployments.(8 )
Of course, Cabinet is accountable to Parliament and ultimately to the electorate for its decisions. But given the potentially far-reaching and irrevocable nature of those decisions, it seems reasonable to consider whether the generally ex post facto scrutiny of executive policy in this area is sufficient. After all, legislatures of other countries (for example, the United States and Denmark) appear to have a greater role in foreign policy decision-making than does the Parliament of Canada. Moreover, past Canadian practice also seems to have allowed for more regular involvement of Parliament in foreign policy matters.
