After 12 years of waiting, I’m taking my first sabbatical next month. Suffice to say, I’m looking forward to it, particularly since I have a project on prerogative power in Westminster states to kick into high gear.
What’s interesting about prerogative power is how often it’s lurking in the background of the affairs of government. Let’s look at three examples from the news in recent weeks: passports, NORAD, and special forces deployments.
The power to issue passports is sourced in the prerogative. The rules that govern how passports are issued, denied, or revoked are found in the Canadian Passport Order. This is a prerogative instrument, meaning that it flows from the Crown’s own powers rather through a grant of authority by Parliament via statute.
The Canadian Passport Order is an example of what Bolt and I identify as an authority derived from the exercise of a prerogative. These authorities should be differentiated from the prerogative itself, since they provide orders that detail how prerogative authority is to be exercised. So, just as regulations made by Cabinet pursuant to statute are distinct from statute proper, orders made by Cabinet under the prerogative are distinct from the prerogative proper.
The North American Aerospace Defence Command (NORAD) was established by Canada and the United States in 1957, after which it was formalized in a treaty-level agreement in 1958. In 2006, Canada and the United States extended the NORAD agreement in perpetuity. The authority to negotiate and commit to the NORAD agreement flows from the prerogative. The NORAD agreement also establishes a binational command structure that involves allowing each country to exercise operational control over each other’s forces. In the Canadian context, these operational control arrangements engage the prerogative with respect to the command of Canada’s armed forces, as well as the prerogative to ‘defend the realm’.
The NORAD agreement is a good example of how the prerogative underpins foreign affairs, military command, and operational employment as a single source of executive authority recognized by common law.
The prerogative is the legal authority exercised to deploy armed forces internationally. Although Parliament has the authority to fund armed forces, once they are raised and established, the Crown determines how they are used in support of Canada’s foreign affairs or national defence, which can include assistance to allies.
Some might argue that the prerogative only provides for deployments that are authorized by the UN Security Council or article 5 of the NATO agreement, but the historical basis for this claim is weak. One need only look at the 1999 air campaign over Kosovo to see a Canadian military deployment that was not authorized by the UNSC or article 5. Likewise, deployments of the Canadian military to provide humanitarian assistance in various countries and regions are numerous.
Although the courts may one day find otherwise, we have no evidence that the Canadian government lacks the legal authority to deploy the armed forces internationally, either below or above the threshold of armed conflict. Indeed, writing in 1820, Chitty notes the following with regarding the prerogative: “With respect to the regular forces of the kingdom…the King is not by law restrained to any particular limits so as to the services in which they may be employed against his enemies. They may of course be sent to any place, or employed to any extent, which his Majesty may think fit.”
Now, this does not mean that the contemporary Canadian executive is not constrained by any laws in terms of how the military is used. Domestic law applies to the military aboard, as does international law and the law of armed conflict. The point is simply that the absence of a statutory authority to deploy the armed forces internationally does not mean that the government has no authority to do so under Canadian law.
Where does that leaves us regarding the reported deployment of Canadian special operations forces in Ukraine? Well, if they have been deployed there, it’s safe to assume that they are there at the behest of the Ukrainian government; they aren’t there to occupy, but to assist. The reports are saying that they’re providing weapons, training, and intelligence to the Ukrainians. The deployment of these forces, assuming it is happening, is therefore within the authority of the prerogative with respect to foreign affairs and international deployments.