Who has the authority to deploy the Canadian Forces abroad? Only a few years ago, the answer was clear: Prime Ministers and cabinets do. Under common law, the power to deploy the military resides with the Crown, the formal executive that acts on the advice of the Prime Minister and cabinet, the political executive.
One of a few "prerogative powers" that has yet to be supplanted by parliamentary statute, this discretionary authority was regularly exercised by the last two Liberal prime ministers, Jean Chrétien and Paul Martin. Indeed, in some cases, they did so without holding a debate in the House of Commons or consulting the opposition parties. Nor was there any doubt that they could use this prerogative power to send the military on a combat mission, as Mr. Chrétien did in 2002 and Mr. Martin in 2005.
When the government's right to exercise this power was challenged before the courts in Blanco v. Chrétien (2003) and Turp v. Chrétien (2003), moreover, judges upheld the legality of the prerogative and cabinet's right to exercise it without the approval of the Commons. The famous line "Parliament will decide" was a long discarded political cover, not a point of law.
Over the past five years, however, views about the use of this power have changed. In 2006, Prime Minister Stephen Harper declared that the approval of the Commons would henceforth be sought before the government deployed the Forces.
Two votes were subsequently held to extend Canada's military mission in Afghanistan. In announcing the military's new training mission in that country, the Prime Minister reasserted part of his discretionary authority. Only combat missions, he declared, require the backing of the Commons, because they now need an aura of democratic legitimacy. Although Liberal Leader Michael Ignatieff initially sided with the Prime Minister, the opposition parties are poised to force a Commons vote on the government.
A consensus, it seems, is forming around the idea that the Commons should hold votes on military deployments, whether they involve combat or not, and whether the government believes it is necessary or not. Whatever the merits of this emerging convention, it leaves many unanswered questions.
Before this norm of Commons consultation is entrenched, an effort should be made to examine some of its potentially problematic constitutional consequences.
Would military deployment votes count as matters of confidence, for instance? Following the democratizing logic of holding these votes, a strong case can be made that they should. After all, how could the Commons continue to express confidence in a government that wants to send the military on a mission that a majority of MPs oppose?
And if such votes do not involve an expression of confidence, what purpose would they serve, besides rubber-stamping cabinet policy if a mission is approved or embarrassing the government if support is withheld?
The only plausible answer is that the votes would either give the Commons a veto on a critical aspect of executive power or transfer this power to one of Parliament's two legislative houses. This would then raise a constitutional conundrum, since Section 15 of the Constitution Act 1867 vests the command of the Forces in the executive.
Next, assuming the votes are not matters of confidence, what should the commander-in-chief and chief of the defence staff do if a prime minister tries to deploy the military overseas without the support of the Commons? Michael Biehels recently argued that in such cases the governor-general would be obliged to countermand the prime minister.
This would be contrary to one of the central pillars of Canada's system of responsible government, namely that the Crown's representative acts on the advice of those holding the confidence of the Commons. Were the governor-general to refuse to countermand the order, furthermore, would we expect the defence chief to ignore the prime minister and follow the will of the Commons? Those who answer yes are implying that the military's ultimate loyalty is to the Commons rather than the Crown, meaning that Section 15 of the Constitution Act 1867 no longer holds.
Beyond these constitutional issues, there are a host of practical problems associated with making the approval of the Commons mandatory before the government deploys the military. After thoroughly studying the question, in fact, the United Kingdom opted to keep this prerogative power intact owing to these practical considerations. Arguably, the prudent, and truly liberal democratic, course would be to evaluate and discuss the wider implications of holding these deployment votes.
Philippe Lagassé is an assistant professor at the Graduate School of Public and International Affairs, University of Ottawa.