Form, Substance, and Prerogative Power

I have a new article out in Canadian Public Administration about defence intelligence and the Crown prerogative. The article is a response to two reports on defence intelligence produced by the National Security and Intelligence Committee of Parliamentarians (NSICOP), and a wider reflection on how prerogative power fits within Canadian modern government.

One issue that’s operating in the background of my analysis, but which I didn’t have room to explore in detail, is how debates about the Crown prerogative are caught up with form over substance.

What do I mean here? Essentially, critiques of the prerogative often focus on the legal form that an executive authority has (common law or statute), rather than what that authority substantially empowers the executive to do.

I’m skeptical there is an inherent benefit to replacing the form of an authority while leaving the substance of that authority unchanged. To my mind, it’s not evident why the form of the authority should change if we aren’t planning on altering the capabilities or activities that are authorized. In the case of defence intelligence and the prerogative, there doesn’t seem to be any substantive concerns with the fact that DND/CAF have intelligence capabilities or that the intelligence activities they’re currently undertaking. Instead, the worry is simply that some of these capabilities and activities are sourced in prerogative rather than statute.

As a rejoinder, my colleague Craig Forcese has argued that form and substance are intimately connected when it comes to prerogative. Specifically, Craig has posited that prerogative is an “uncertainty engine”; because the authority granted by prerogative isn’t codified, we aren’t sure what it does and doesn’t authorize. Replacing prerogative authority with statute would address this uncertainty.

As I allude to in the article, though, this gives legislation too much credit. Statutory authority is often broad and unclear about what it might and might not allow. Indeed, the courts would have a lot more time on their hands if statute had a significant effect on legal uncertainty. As discussed in the article with respect to intelligence matters, for example, there have been important interpretative disagreements about the CSIS Act. Statute doesn’t necessarily remove uncertainty, unless you’re trying to explicitly forbid certain things. And even then, the language used to forbid can be contested and subject to varying interpretations.

Are the interpretive questions that surround prerogative worse, though? I don’t see any real evidence of that. Most of the landmark cases we have about the prerogative have been about whether something the Crown/executive did fell under the authority provided by the prerogative. But it’s hard to see how this is any different than other interpretative disputes related to statutes or the common law generally.

So, when the argument is made that all defence intelligence activities should be placed on a statutory basis, this leads me to ask: what will this change, substantively?

Will it protect defence intelligence from infringing on the rights of Canadians? The Charter, Privacy Act, and Criminal Code already prevent that, since prerogative is limited by the wider statutory environment. Will it provide greater certainty about what defence intelligence can and can’t do? If the statute is crafted in a way that limits defence intelligence to specific types of activities it might, though given the significant risks this would pose to the CAF’s ability to quickly adapt to new threats and operational circumstances, I suspect the statute would be broadly worded to allow for a wide degree of flexibility.

Statute could, of course, provide DND/CAF with more authority than prerogative currently provides, as NSICOP recommended with respect to empowering the military to gather intelligence about Canadian foreign fighters, but that’s not really a certainty question. As NSICOP argued in its second defence intelligence report, statute would be needed to grant DND/CAF this authority precisely because the military’s lawyers don’t think that prerogative allows them to gather intelligence that violates the rights of Canadians, even if they are foreign fighters.

Interestingly, though, looking at the United Kingdom, we see that additional authorities can be granted to defence intelligence (in the British case, the Chief of Defence Intelligence under the Investigatory Power Act 2016) without displacing the prerogative as the underlying authority to conduct defence intelligence. This suggests that we could fulfill NSICOP’s recommendations with respect to foreign fighters without displacing the prerogative. We could simply layer a statutory authority on top of the prerogative. In fact, this wouldn’t be all that different from how we handle pardons, although in that case the relevant statute doesn’t further empower the executive, but adds a process alongside the Governor General’s prerogative authority.

Anyhow, you can now see why I couldn’t include this line of argumentation in the journal article itself (word limits and such). As much as I get why prerogative rubs people the wrong way because it’s tied to the historical powers of the monarch and the great confrontations between the Crown and Parliament, the form-focused argument that prerogative is bad simply because it’s a power recognized at common law rather than one granted by Parliament isn’t very persuasive. As I concluded in the article, the real issue here is the substantive things we want or don’t want defence intelligence to do.

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