Introduction and The Law of the Crown Prerogative

1. Introduction

The Crown prerogative is a source of executive power and privilege. It is a well-established part of Canada's constitution, and fits comfortably into Canada's system of responsible government. The Crown prerogative plays a vital role in Canada's system of government, enabling the executive to perform its important duties in furtherance of Canadian political interests. The powers and privileges found in the Crown prerogative give the government the necessary flexibility to react quickly to complex situations. The purpose of this paper is to outline the law of the Crown prerogative as it applies to the activities of the Department of National Defence and the Canadian Forces (CF). It addresses two separate but related topics. First, the paper sets out, in a general fashion, the Canadian law of the Crown prerogative. Given the overall purpose of the paper, the emphasis is on the federal, as opposed to provincial, Crown prerogative. The examples given to illustrate points are taken from the military context where possible. Second, the paper discusses the application of the general law of the Crown prerogative to the deployment of the CF on military operations outside of Canada.

2. The Law of the Crown Prerogative

2.1 Crown Prerogative: "The Powers and Privileges Accorded by the Common Law to the Crown"

There is no widely accepted single definition for the term "Crown prerogative."1 In Black v. Chrétien et al.,2 the Ontario Court of Appeal accepted Professor Peter Hogg's definition of "Crown prerogative" as:

the powers and privileges accorded by the common law to the Crown.3

It is this definition of Crown prerogative that is used in this paper.

Another commonly used definition for the term "Crown prerogative" is provided by Professor Dicey, who states that the term refers to:

the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown.4

In addition to citing Professor Hogg's definition as noted above, the Court in the Black case5 adopted Professor Dicey's definition.6 Academics, however, have criticized the Dicey definition on the ground that it is too narrow: while the definition captures the idea that the Crown has a certain authority ahead of other entities, it makes no mention of the Crown's special privileges and immunities that are properly classed with that authority.7 It can be argued that Professor Hogg's definition of Crown prerogative is preferable to that of Professor Dicey since it captures those special privileges and immunities discussed above.

As is made clear in Professor Hogg's definition, it is the common law, or judge-made law, that determines the extent of the Crown prerogative. As will be discussed below, the courts may find a basis for a particular power or privilege in legislation, and such a finding may have the effect of limiting or displacing the Crown prerogative in that area. Ultimately, and importantly, the content of the Crown prerogative is not static, nor absolutely defined.

2.2 History of the Crown Prerogative in Canada

As noted, the law of the Crown prerogative is judge-made. A brief review of the history of the Crown prerogative in Canada is helpful in understanding the Crown prerogative law's starting point in this country and its early development. Such a review helps situate later developments of the law of the Crown prerogative and can assist in the identification of the initial applicable principles.

Canada inherited its legal systems from its former imperial powers, namely the United Kingdom, and, to a certain extent, France.8 As the English King acquired territory in what is now Canada, he acquired the right to use the Crown prerogative in respect of that territory. At that time, the British common law had already begun to define and shape the Crown prerogative. Due to the Prohibition del Roy9 case of 1607, the King lost the right to administer justice, this power being reserved by the courts to themselves. The Bill of Rights of 1688 resulted in the King losing his right to suspend or dispense with a law, and to tax.10 According to Professor Hogg, these developments and others “confined the prerogative to executive governmental powers.11 Finally,  “the prerogative was further limited by the doctrine that most executive action which infringed the liberty of the subject required the authority of a statute.12

The laws of the United Kingdom allowed for a conquered colony to be subject to legislation adopted by the imperial Parliament. It was also subject to the prerogative right of the King to legislate until such time as the colony was granted its own legislative assembly.13 This broad prerogative power was used several times in what would become Canada. For example, Great Britain obtained New France (now Ontario and Quebec) by conquest in the Seven Years' War.14 By the Royal Proclamation of 1763,15 a prerogative act, the King, amongst other things, established an assembly in Quebec.16 Further, the constitutions of Nova Scotia, New Brunswick and Prince Edward Island are creatures of prerogative instruments, as is the office of the Governor General.17

With the British North America Act, 1867, now the Constitution Act, 1867,18 and the union of Canada (after confederation, the provinces of Ontario and Quebec), Nova Scotia, and New Brunswick as the Dominion of Canada, the constitution was born.19 The British North America Act, 1867 did not displace the Crown prerogative. Section 9 of the Constitution Act, 1867, reads:

The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.20

The Crown prerogative thus survived Confederation but the entity with the power to exercise or take advantage of the Crown prerogative has changed. At the time of Confederation, the Crown prerogative was exercised from England. As a result of Canada's evolution to statehood,21 the Crown prerogative now rests with the Canadian government.22

2.3 Determination of the Contents of the Crown Prerogative in Common Law

The courts actually determine the contents of the Crown prerogative through decisions in cases interpreting legislation. The issues of when a statute acts to bind the Crown, and the effect of a statute on the Crown's authority, are the subjects of common law and legislative rules.

The Crown is, generally speaking, subject to the laws of Parliament and the legislatures: the Crown is a legal person, and benefits from no constitutional rule that would provide a shield to the application of valid statute law.23 This rule applies to the Crown in right of Canada, as well as in right of a province. Furthermore, and of direct interest to the subject matter of this paper, a Crown prerogative can, in certain circumstances, be limited or even displaced by legislation.24

In a given inquiry into whether or not a particular Crown prerogative has been limited or displaced by a particular statute, the court will engage in a two-step process. First, an investigation will be made into whether or not the statute at issue in fact binds the Crown. This investigation yields a "yes" or "no" answer: either the statute is binding on the relevant authority of the Crown, or it isn't. Second, if the statute is binding on the Crown, an inquiry will be made into whether the statute acts to limit or displace the Crown prerogative at issue.25

With respect to the first step, i.e. whether a statute binds the Crown, the Crown benefits from an associated immunity, the effect of which is to create a presumption against applicability of the statute to the Crown.26 The Interpretation Act27 confirms this immunity federally.28 It reads:

No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment.29

While there is an exception to this immunity, it is limited. In the federal Interpretation Act, cited above, the exception is phrased “except as mentioned or referred to in the enactment.” The common law provides guidance on the scope of the immunity. It is clear that express words in the statute will compromise the immunity.30 What is less clear is whether the doctrine of necessary implication is law in Canada. Briefly put, this doctrine states that if a statute does not expressly bind the Crown, but as a matter of fact such intention to bind the Crown is necessarily implied, the statute will be held binding on the Crown. Lordon has the following to say on the status of the doctrine:

Whether the prerogative may be affected by a statute by necessary implication is not clear, since judicial pronouncements on the applicability of the necessary implication doctrine are inconsistent.31

In summary, the Crown benefits from a prerogative immunity against the application of legislation. This immunity is subject to exception. It is clear that the scope of the exception includes statutes that expressly bind the Crown on their terms. What is less clear is whether the courts will apply the doctrine of necessary implication to an analysis of whether or not a statute binds the Crown.

There are two other matters related to the issue of whether a statute binds the Crown. First, the finding of a mere express reference in the statute to the Crown may not end the inquiry: it may be the case that the reference was meant to include the Crown in right of the legislating government only. For example, it may be possible for the federal Crown to argue that an express reference to the Crown in an Ontario statute includes only the Crown in right of Ontario.32 Second, this inquiry necessarily involves federalism concerns. In addition to the often difficult issue of whether the statute deals with matters in the class of subjects properly within the legislating body's powers, there is some general uncertainty in the law as to whether a provincial legislature can bind the federal Crown; whether Parliament can bind the Crown in right of a province; and whether the legislature of one province can bind the Crown in right of another.33 For example, it is by no means certain that the province of Alberta can bind the federal Crown by statute, even if the statute concerns a matter in the class of subjects listed at section 92 of the Constitution Act, 1867.34

Only in the event that a statute is held to bind the Crown will it be necessary to inquire as to whether that statute has the effect of limiting or displacing a Crown prerogative. This issue concerns what has been referred to as the “interplay of royal prerogative and statute.35

A statute can limit a prerogative. As was stated in Attorney-General v. De Keyser's Royal Hotel, Ltd.:36

...when the Act deals with something which before the Act would be effected by the prerogative and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed.37

De Keyser's Hotel concerned a situation in which, during the First World War, the Army Council commandeered a hotel as a location for the Royal Flying Corps headquarters. The authority for seizing the hotel was based in a statute and in the Crown prerogative to take property in times of danger for defence of the realm. The court accepted this legal basis, and had that been the end of the matter, no compensation would be legally payable. However, in this case, the court found that the Defence Act, 1842, which provided for compensation in the event of property seizures, applied to the Crown. The statute acted to abridge the existing the Crown prerogative and extended it to include legally payable compensation.

The Supreme Court of Canada was divided on a similar issue in the Ross River case. The Crown prerogative at issue was the power to create a reserve for aboriginal peoples. The majority held that this power was limited by the Indian Act and the Territorial Lands Act.38 The minority judgment, of three dissented on this point, adopted the position that the Crown prerogative power was not constrained by either statute.39

In Vancouver Island Peace Society v. Canada40, the applicants sought to quash two Orders in Council approving visits of nuclear-powered and nuclear-armed vessels to Canadian ports. One argument presented by the applicants was that certain statutes41 had the effect of displacing the Crown prerogative used by the government as a basis to the Orders. The court rejected this argument and held that the relevant Crown prerogative remained whole. That conclusion was based on a finding that the purposes of the statutes did not include the regulation of the actions at issue, nor did Parliament intended to do so.42 Nothing in the provisions of the statutes “and nothing in the historic conditions of mischief they were enacted to deal with” persuaded the court that Parliament “intended to withdraw or to fetter the prerogative of the Crown to provide for the visit” of the ships at issue to Canadian ports.43

While a statute might limit a Crown prerogative, it might also, in certain very limited circumstances, act to displace such a prerogative wholly. From De Keyser's Royal Hotel:

if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules.44

Perhaps the clearest example of where a statute has completely displaced a prerogative in Canada is in relation to the traditional Crown prerogative rule exempting the Crown from vicarious liability in tort. Under the federal Crown Liability and Proceedings Act,45 the federal Crown “is liable for the damages for which, if it were a person, it would be liable,” in certain cases including that of “a tort committed by a servant of the Crown.46

Accordingly, only if a statute, as a matter of law, binds the Crown, does it become necessary to examine the interplay of the statute and the Crown's prerogatives. A statute binding on the Crown can, in certain instances, have the effect of limiting or displacing the Crown's prerogatives. While the issue has been examined from the negative side, it can also be looked at from the positive side. There are many instances in which the courts have held that a Crown prerogative remains whole and unfettered. For example, and as will be discussed in Section 3.3 of this paper, neither the National Defence Act47 (NDA) nor any other statute, works to limit or displace the Crown prerogative to deploy the CF on international operations. The Crown prerogative remains the source of authority for these deployments.48

2.4 Contents of the Crown Prerogative

So far, this paper has discussed the concept of the Crown prerogative and the process by which its content has been and is developed. It is appropriate at this stage to survey modern law on the subject with an objective to define the contents of the Crown prerogative by subject area.

The common law has determined the contents of the Crown prerogative. It is now possible to propose a current non-exhaustive contents list:49

  1. Foreign affairs,
  2. War and peace,
  3. Treaty-making,
  4. Other acts of state in matters of foreign affairs, and
  5. Defence and the armed forces.50

Other powers and privileges considered Crown prerogatives include those respecting passports, power of mercy, diplomatic appointments, public inquires, hiring and dismissal of public servants, administration and disposal of public lands, copyright, armorial bearings, and honours and titles.51

It should be noted that the above list does not include reference to the prerogatives styled personal prerogatives of the Governor General. Such personal prerogatives relate to matters such as the appointment or dismissal of the Prime Minister or the dissolution of Parliament. These powers are theoretically exercised upon the Governor General's own discretion, but in practice follow directly from election results, parliamentary votes, or as directed by the Prime Minister.

2.5 Federalism and the Crown Prerogative

With the Crown prerogative's ambit developed, this paper will now explore the important area related to the identification of the user of a Crown prerogative. At the outset of this discussion, it is imperative that the concept of the Crown prerogative be well defined in relation to Canada's federal system.

The Queen's representative federally is the Governor General. In the provinces, a Lieutenant Governor assumes this role. Under section 58 of the Constitution Act, 1867,52 each Lieutenant Governor is appointed by the Governor General in Council, i.e. the Queen's federal executive appoints the Queen's provincial representatives. Even so, it has been consistently held that the Lieutenant Governors are not subordinate to the federal executive, and therefore that they have all Crown prerogatives properly apportioned to the provinces. Accordingly, the Crown in Canada can in fact be considered to consist of two parts, or orders, each of which can exercise prerogatives in their respective spheres.

As to the issue of which classes of subjects each order of the Crown may properly exercise prerogatives in relation to, the system of apportionment of Crown prerogatives between the federal and provincial governments has been held to mirror the division of legislative powers contained at sections 91 and 92 of the Constitution Act, 1867.53 As a result, any subject over which the provincial legislatures have constitutional legislative authority is a subject over which the Crown in right of the provinces may also exercise the Crown prerogative, and the same concept holds true for Parliament and the federal Crown. For example, and of great importance to the CF, under section 91(7) of the Constitution Act, 186754, the Parliament of Canada has legislative authority over matters related to the subject of Militia, Military and Naval Service, and Defence. Accordingly, those prerogative powers and privileges concerning matters within the subject of Militia, Military and Naval Service, and Defence belong, ultimately, to the Crown in right of Canada.

2.6 Exercise of the Federal Crown Prerogative in Canada

The Crown, in both its federal and provincial capacities, exercises the Crown prerogative. This is a complex issue in itself and can be described as a two-step issue, namely: the identification of which particular player exercises a given Crown prerogative, and the process leading to the decision to exercise a Crown prerogative.55 In keeping with the emphasis of this paper on the federal level of government, these issues will be addressed from the federal Crown perspective.

2.6.1 Cabinet Ultimately Exercises Executive Authority

The Crown prerogative in Canada belongs to the executive.56 By law and convention however, executive power in Canada does not rest with the head of state.57 As will be discussed in this section, it is the political executive that actually exercises executive authority, including the Crown prerogative.58

Constitutionally, the Queen exercises executive authority in Canada,59 and has, through Letters Patent,60 authorized the Governor General to exercise this authority federally.61 The Privy Council exists to “aid and advise in the Government of Canada,62 and under the Letters Patent, the Governor General is to exercise executive authority with the advice of the Privy Council.63

Considering the written constitutional law out of context, then, it might be suggested that the Governor General, as the Queen's federal representative, should exercise the Crown prerogative alone, and consult with the Privy Council as necessary. This does not reflect the way the Canadian government operates: it is Canada's system of responsible government that provides the context for executive decision-making. When the written constitution is placed in the responsible government context, the executive decisions are made by the government through the Cabinet, and the Cabinet will endure only as long as the government retains the confidence of the elected, lower House. The Queen and the Governor General stand as legally necessary figureheads in this process.64

The method by which the law and convention work together to reach this result is that the Cabinet, a body with no status in the Constitution Act, 1867,65 is by convention the only operating part of the constitutionally mandated Privy Council.66 While the constitution states that the Privy Council (and therefore its active component, the Cabinet) provides advice to the formal head of state, it provides in reality the authority for the Cabinet to take decisions on its own.67

Accordingly, executive authority ultimately rests with the Cabinet: “the cabinet formulates and carries out all executive policies, and it is responsible for the administration of all the departments of government.68 Executive authority in the hands of Cabinet includes the authority granted under the Crown prerogative.

Cabinet exercise of Crown authority was examined in the Crown prerogative context in the Black 69 case. In coming to its conclusion that the Crown prerogative could be exercised by the Cabinet (and, as will be examined, infra, individual ministers,) the court stated:

…nothing in the Letters Patent or the case law requires that all prerogative powers be exercised exclusively by the Governor General.70

The court went on to point out that the impugned exercise of the Crown prerogative in the Operation Dismantle71 case was done by Cabinet, and therefore that an argument that the Crown prerogative could be exercised only by the Governor General must fail.72

In summary, the Crown prerogative is, as a matter of law and convention, exercised at the federal level by the Cabinet.

While Cabinet has the ultimate authority to implement executive will, including implementation through the exercise of the Crown prerogative, it does not mean that Cabinet must sit as a whole body to do this. Cabinet committees may take associated decisions, and, importantly, individual members of Cabinet may also exercise the Crown prerogative. This point is developed in the two following sections.

2.6.2 The Principles of Delegatus non Potest Delegare and Carltona

The exercise of the Crown prerogative by levels of the executive below whole of Cabinet may properly be considered a delegation of prerogative authority. In other words, when ministers of Cabinet exercise the Crown prerogative, they do so with reference to the authority granted to Cabinet. It is helpful at this point of the discussion to situate what may be called the Crown prerogative delegation concept in the context of two other legal norms relating to delegation: the delegatus non potest delegare rule, and the Carltona principle. By analyzing the interaction of these norms and the Crown prerogative delegation idea, it can be seen that while neither norm is directly or legally applicable to the idea, the rationale for the Carltona principle provides guidance on defining the idea's scope.

The first norm, “a delegate may not re-delegate,73 has been referred to by the Supreme Court of Canada as a “general rule of construction in law.74 [Emphasis added] Lordon describes the maxim as follows:

It is a general principle of administrative law that a statutory power should be exercised by the authority on whom it is conferred and not delegated to another person or body.75 [Emphasis added]

This norm is inapplicable in the context of the Crown prerogative, as is its rationale.76 The rule is confined in ambit to statutory powers, which confinement makes sense given the purpose of the rule: to assist in the interpretation of words conveying delegation. Essentially, the rule provides that if words conveying a delegation refer to a particular person or body as the holder of a power, that person or body cannot sub-delegate, it being assumed that the words of delegation were meant to be specific. Crown prerogatives are not, by definition, provided by statute. Further, there is no wording to interpret with the aid of legal norms of construction. As a final note, the exercise of the Crown prerogative, as an essential executive function, is by its essence necessarily delegated. As has been described, the "Crown" prerogative is very rarely actually used by the Crown in Her person but is rather used by the Crown in Her public capacity. In this capacity, the Crown is represented almost entirely by delegates.

The Carltona principle has been described by the Supreme Court of Canada as follows:

Where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department.77

It should be noted that the rule is stated to apply to “the exercise of a discretionary power (…) entrusted to a minister of the Crown.” Notwithstanding the broad ambit of the rule suggested by this wording, it comes from a case that considered a discretionary power that flowed from a statute.78 To the extent that the wording suggests possible application of the principle to the exercise of a Crown prerogative, it is certainly obiter. The Carltona79 case itself concerned a statutory power. Legislation that could be considered to capture the principle in statute law confines it to a principle of interpretation.80 Further, the principle is often cited in opposition to the delegatus non potest delegare rule, a rule, as has been mentioned, that concerns itself with construction of statutes.81 Finally, the rule is often confined in the explanation to statutory powers.82 All of this to say that the common law has probably not at this stage adapted the Carltona principle to the Crown prerogative context.83

The rationale behind the Carltona principle can contribute to this analysis and is relevant to this paper in terms of the delegation of the Crown prerogative from the Crown to the operative arm of the Crown. The often cited basis for the principle is as follows:

The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible.84

A submission can be made that this basis consists of two interlinking parts. First, it is inconceivable to imagine a state of affairs in which all executive decisions are made only by those in the highest office of the executive: there is simply too much public business. Second, through the system of responsible government, all executive decisions, regardless by whom made, are subject to the ultimate scrutiny of elected officials. A decision made by the government is subject to the will of the elected officials in that they may bring down the government. A decision taken by officials in a department is subject to a similar scrutiny by that department's head: the responsible minister. In summary, while the Carltona principle does not apply to delegation of the Crown prerogative as a matter of common law, it would appear arguable that the rationale for the principle does, and this rationale makes up a sound first principle upon which to examine the issue of delegation of the prerogative in any given case.

2.6.3 Exercise of the Crown Prerogative by Levels of the Executive Below Whole of Cabinet

While the rationale for the Carltona principle, and the inapplicability of the delegatus non potest delegare, would suggest that Cabinet may delegate authority to exercise the Crown prerogative to ministers, the academics and courts have made their position clear on this matter. Lordon has stated that:

In Canada, prerogatives are exercised by the Governor General at the federal level and by the Lieutenant-Governor in each province. As members of the Privy Council, the Prime Minister and other Ministers also have some powers of the nature of prerogatives.85

Delegation of the Crown prerogative from the whole of Cabinet was discussed in the Black case.86 In that case, the Queen nominated Conrad Black for appointment as a peer, and the Prime Minister of Canada intervened to block the conferral of the honour. Black sued the Prime Minister for abuse of power, misfeasance in public office, and negligence. In answer to the Prime Minister's argument that his actions constituted an exercise of the Crown prerogative and therefore that the claims were not justiciable, Black countered in part that a Canadian Prime Minister could not exercise the Crown prerogative, and that this power rested with the Governor General alone. The court rejected this claim stating:

I find no support for this proposition in theory or in practice (…). By convention, the Governor General exercises her powers on the advice of the Prime Minister or Cabinet. Although the Governor General retains discretion to refuse to follow this advice, in Canada that discretion has been exercised only in the most exceptional circumstances. See [Lordon at 70] (…). Still, nothing in the Letters Patent or the case law requires that all prerogative powers be exercised exclusively by the Governor General. As members of the Privy Council, the Prime Minister and other Ministers of the Crown may also exercise the Crown prerogative: see [Lordon at 71].87

Accordingly, it is clear that not only may Cabinet exercise the Crown prerogative, but so may its individual members in certain circumstances. This paper now proposes a brief discussion on the legal basis for an exercise of the Crown prerogative by the following levels of the executive: Cabinet committee, the Prime Minister, and individual ministers.

It should be noted that this paper has set out the proper authorities to exercise the Crown prerogative by stating to whom such authority is not limited, i.e. not only Cabinet may exercise the Crown prerogative. The issue, however, can also be approached from the opposite angle: the interpretation that the right to exercise the Crown prerogative is limited to certain levels of the executive. It is not entirely necessary to address this issue for the purpose of this paper, since the paper goes no farther than to establish that ministers may exercise the prerogative and addresses only issues related to the exercise of the prerogative at that level. It should be added, however, that limits on the exercise of the Crown prerogative have not been fully explored by the courts. While there is support for the proposition that Ministers may exercise the Crown prerogative, there does not appear to be any case law or academic analysis suggesting that the prerogative may be exercised by lower levels of the executive.

Cabinet Committee

Cabinet business is frequently conducted by committee.88 A Cabinet committee's authority to exercise Crown prerogatives possessed by Cabinet can be considered to have two sources. First, the committee may be considered to be the Cabinet at the time that it meets, even though not all Cabinet members are present, nor invited or expected to attend. Second, a Cabinet committee draws authority from the implied delegation to it of decisions in the area over which that committee has expertise. For example, and as will be discussed in Section 3.6.3, the Foreign Affairs and National Security Committee is the Cabinet committee having subject matter expertise over Cabinet business including the deployment of the CF internationally. Cabinet Committees have exercised and continue to exercise the Crown prerogative in much the same way as the whole of Cabinet.

Prime Minister

The Prime Minister is the head of government, and is, ex officio, entitled to exercise the Crown prerogative.89 In addition, the Prime Minister plays a central role in Cabinet, exercising great power over that body by convention. In Professor Hogg's words:

The Prime Minister calls the meetings of cabinet, settles the agenda, presides over the meetings, and "defines the consensus" on each topic.90

Accordingly, the Prime Minister has a two-pronged legal basis for the use of the Crown prerogative. First, the legal authority that is derived from his or her position as head of government, and, second, the authority derived from the right to define the consensus of Cabinet. As has been discussed, it was the Prime Minister who made the Crown prerogative decision in the Black case.

It remains important to note that not all governments function alike, and whether the Prime Minister will actually run the government in a manner that permits personal exercise of the Crown prerogative depends very much on the personalities involved and the political landscape of the day. Professor Hogg states:

In some governments a Prime Minister, who chooses to take on his own initiative, or on the advice of a few ministers, decisions which would traditionally be the preserve of the cabinet, is politically able to do so; and the extent to which the full cabinet plays a role in important decision-making may depend in large measure upon the discretion of the Prime Minister.91

In summary, the Prime Minister has a legal basis to exercise the Crown prerogative in certain cases, and may or may not actually do so depending on a variety of factors.

Individual Ministers

As discussed above, ministers are members of the Privy Council, and of the Cabinet, and thus have, in Lordon's words, “some powers of the nature of prerogatives.92 In the Black case the court stated in obiter, citing Lordon, “other Ministers of the Crown may also exercise the Crown prerogative.93 Accordingly, there is support for the legal position that individual ministers can exercise the Crown prerogative in certain contexts, and, in fact, individual ministers have exercised and continue to exercise the Crown prerogative. As will be discussed in Section 3.6, this ministerial power to exercise the Crown prerogative includes the right of the Minister of National Defence with the Minister of Foreign Affairs, as well as the MND acting alone in certain cases, to use the Crown prerogative to deploy the CF internationally.

As with the exercise of the Crown prerogative by the Prime Minister, however, merely because individual ministers have the legal authority to exercise the Crown prerogative does not necessarily mean that in the government of the day it will be politically acceptable for them to do so.

2.6.4 How the Crown Prerogative Is Exercised

In the beginning of section 2.6, it was mentioned that the exercise of the Crown prerogative is a two-step process: which executive authority may exercise the Crown prerogative, and the means by which a Crown prerogative decision is actually made. This second aspect shall now be addressed. The exact manner in which the Crown prerogative is exercised depends on which of the two levels of the executive is involved: Cabinet or Cabinet committee; or Prime Minister or individual minister.

Cabinet or Cabinet Committee

When the Cabinet as a whole body or a Cabinet Committee takes a decision drawing its authority from a Crown prerogative, such decision is formalized. Practices have developed regarding how business is brought to Cabinet or one of its committees, and how resulting decisions are taken. A department may, alone or in conjunction with another or other departments, submit a draft Order in Council (OIC) to Cabinet or Cabinet committee,94 along with supporting documentation including an explanatory note.95 If Cabinet or committee agrees with the recommendation to sign the OIC, it may do so. A report of a signed Memorandum to Cabinet (MC) is regularly placed before the Governor General for “final approval.96 Cabinet or one of its committees may also consider business brought to it through by an MC, “the key instrument of written policy advice to Cabinet.97 If an MC is referred to Cabinet Committee in the first instance, the decision of the Committee is issued as a Committee Report and referred to whole of Cabinet for ratification.98 In respect of all requests for decision brought before it, Cabinet will issue a Record of Decision (RD) to the relevant department for implementation.99 It is this RD that stands as the formal exercise of an associated Crown prerogative.100 Finally, Cabinet and Cabinet committee may also consider requests for decision presented through means less formal than MC's including a presentation by audio-visual format. All associated decisions are made by the same process as if the matter was presented formally through a MC.101

Prime Minister or Individual Ministers

The Prime Minister or individual Ministers will exercise the Crown prerogative in writing, often times by way of letter to officials charged with implementing the decision.102 Such letters are usually in response to letters requesting authority, but can conceivably be issued on their own. When a letter taking a decision under the Crown prerogative is issued in response to another letter requesting such a decision, it normally refers to the requesting letter and its contents, and both letters are required for the decision to be fully understood. Individual Ministers exercise the Crown prerogative in this manner through letters normally issued in response to letters from their Deputy Ministers. A minister who asked for a Crown prerogative decision has, in theory, three options in terms of process. First, the Minister can write to the Prime Minister asking for concurrence with a proposed decision. Second, the Minister can inform the Prime Minister of a decision that has been made. Third, the Minister can take the decision without corresponding with the Prime Minister.

Although several levels of the executive may be empowered to take a certain Crown prerogative decision, and through different processes, only one formal exercise of the Crown prerogative should be used in any given circumstance for a particular Crown prerogative decision. The reason for this is that the appropriate executive authority rarely makes a Crown prerogative decision simpliciter but rather makes the decision in a way that delivers strategic guidance on how the decision is to be carried out. In the event that two processes are used to take one decision, the resulting strategic direction will in the least be confusing, and may in fact be inconsistent.103 Two concurrent processes will not lead to confusion, however, they may do so if they deal with the same general subject matter but result in decisions emanating from different sectors. An example of this might be a strategic objective letter containing strategic guidance on how an international operation should be conducted, combined with a related MC requesting additional funding for the same operation.

2.6.5 Parliament Does Not Play Any Formal Role in the Exercise of a Crown Prerogative

It is clear that Parliament does not play any role mandated by law in the exercise of the Crown prerogative. The Crown prerogative is vested in the executive government, not the legislature.104 In the realm of executive government, Parliament's responsibility is to oversee government generally, through the system of responsible government. As is stated in Phillips & Jackson:

The government does not have to consult, or even inform, Parliament before exercising prerogative powers. This is convenient, for many matters falling within the prerogative are not suitable for public discussion before the decision is made or the action performed.105

This does not mean the executive will not consult Parliament in relation to a particular exercise of the Crown prerogative, it merely means that, as a matter of law, it need not to. As Phillips & Jackson goes on to say:

on the other hand, the government must feel assured of parliamentary support [after a Crown prerogative decision is made], especially in a matter like war or where money will be required.106

Accordingly, the executive will normally consult with Parliament in some way before making certain decisions under the Crown prerogative, to ensure that implementation of the decision, frequently a matter before the legislature, will take place. Practices have developed in this regard across the spectrum of Crown prerogative decisions. Section 3.6.2 of this paper will briefly touch upon developed practices to involve Parliament in decisions to deploy the CF internationally in significant numbers.

In conclusion, on the exercise of the Crown prerogative, the issue consists of who may exercise the prerogative and how it is exercised. Firstly, the Crown prerogative belongs to the executive, and may be exercised by Cabinet and its committees, and, in some forms, by the Prime Minister and individual ministers. Secondly, the form of its exercise depends on who is taking the decision. Cabinet and Cabinet committees exercise Crown prerogatives through RD's, for example OIC's or decisions in response to MC's. The Prime Minister and individual ministers take such decisions through letters, usually written in response to a letter requesting a course of action. Parliament has no legally mandated role in the formal exercise of the Crown prerogative, but may be consulted by the executive in certain circumstances.

2.7 Review by the Courts of an Exercise of a Crown Prerogative

It is important to examine the role the courts play in a particular exercise of the Crown prerogative. It has been held that an action taken by an authority based in a Crown prerogative does not, in itself, shield it from a review by the courts. In the Black case, the court stated “I agree with Mr. Black that the source of power – statute or prerogative – should not determine whether the action complained of is reviewable.107

Accordingly, a court may in theory review a decision made by Crown prerogative in response to a challenge brought before it. Broadly speaking, the exercise of the Crown prerogative in Canada has been challenged108 in the courts through two legal mechanisms: judicial review and review for Charter compliance.

2.7.1 Judicial Review

Whether or not a particular exercise of the Crown prerogative is subject to judicial review depends on an application of the doctrine of justiciability.109 This doctrine is not dependant on the ability of the court to make a decision, but rather on the appropriateness of the forum of the court to make the decision. As was stated in Operation Dismantle110 in reference to a series of British cases, “the real issue there, and perhaps also in the case at bar, is not the ability of judicial tribunals to make a decision on the questions presented, but the appropriateness of the use of judicial techniques for such purposes.111

If a matter presented for judicial review is not justiciable, the court's inquiry is ended. In the Black case, for example, the court stated: “however, in my view, the action complained of in this case – giving advice to the Queen or communicating to her Canada's policy on the conferral of an honour on a Canadian citizen – is not justiciable. Even if the advice was wrong or given carelessly or negligently, it is not reviewable in the courts.112 The court went on to say that “only those exercises of the prerogative that are justiciable are reviewable.113

The seminal Crown prerogative case on the issue of judicial review and the doctrine of justiciability in the U.K. is Council of Civil Service Unions v. Minister for the Civil Service114 ("GCHQ"). The subject matter test developed in GCHQ was adopted by the court in Black:

Under the test set out by the House of Lords, the exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual. Where the rights or legitimate expectations of an individual are affected, the court is both competent and qualified to judicially review the exercise of the prerogative.115

The question in Black was whether the Crown prerogative decision at issue passed the subject matter test and was thus amenable to judicial review. “To put this question in context” the court went on to discuss a “spectrum of judicial reviewability”:

At one end of the spectrum lie executive decisions to sign a treaty or to declare war. These are matters of "high policy": R. v. Secretary of State for Foreign & Commonwealth Affairs, Ex p. Everett (… )Where matters of high policy are concerned, public policy and public interest considerations far outweigh the rights of individuals or their legitimate expectations. In my view, apart from Charter claims, these decisions are not judicially reviewable.

At the other end of the spectrum lie decisions like the refusal of a passport or the exercise of mercy…common sense dictates that a refusal to issue a passport for improper reasons or without affording the applicant procedural fairness should be judicially reviewable.116

The court held that the Prime Minister's actions which resulted in Mr. Black being refused an honour were not reviewable.

It should be noted that the discussion in Black on the spectrum of justiciability was certainly obiter inasmuch as it declared certain executive functions as matters of high policy. Further, the judgment used in support of the concept of high policy was English: R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett.117 Finally, only one Lord Justice in the ex parte Everett case, Taylor L.J., made any mention of an executive function being classified as a matter of high policy.118 Nonetheless, the Black obiter on this point has been followed by other courts. In the Aleksic case, citing Black, the court stated “it is, in my view, beyond doubt that an executive decision to participate in the bombing of Yugoslavia is a matter of 'high policy'. It is closely analogous to a declaration of war (… ) It was a pure policy decision made at the highest levels of government, dictated by purely political factors.119 In the Blanco case, the court stated, citing Black and Everett the thrust of the Plaintiff's Statement of Claim relates to a potential assumption of arms by Canada. Such a decision would fall under the heading of 'high policy.'120 In Turp (Federal Court), citing Blanco, the court stated “a decision to deploy the Canadian Armed Forces is one of 'high policy'”.121

In summary, on the issue of judicial reviewability of a decision made by Crown prerogative, the courts will not even consider the challenge if the impugned decision is found to be non-justiciable. Under the subject matter test, a decision will be justiciable if it affects the rights or legitimate expectations of an individual. The subject matter test has developed further in Canada by the addition of the spectrum of judicial reviewability which provides that decisions of high policy are never judicially reviewable. Decisions of high policy include decisions relating to the deployment of the CF internationally.122

2.7.2 Review of an Exercise of a Crown Prerogative for Charter Compliance

The previously cited 1985 Supreme Court of Canada decision in Operation Dismantle123 is the seminal case on the issue of the reviewability of a Crown prerogative decision for Charter124 compliance. That case concerned a challenge to the decision of the Canadian government to permit the testing of an air-launched cruise missile in Canadian airspace. The challenge was framed on the basis that the decision would violate the rights guaranteed to them and other Canadians by section 7 of the Charter.125

Section 32(1)(a) of the Charter deals with its applicability. It reads:

This Charter applies

  1. to the Parliament and government of Canada in respect of all matters within the authority of Parliament (…)

The argument that the Charter does not apply to an exercise of executive power on the Charter's own terms was rejected by Wilson J. in Operation Dismantle in the following terms: “those words of limitation [from clause 32(1)(a)] (…) are merely a reference to the division of powers in ss. 91 and 92 of the Constitution Act, 1867 (…) The royal prerogative is 'within the authority of Parliament' in the sense that Parliament is competent to legislate with respect to matters falling within its scope.126 The rest of the court agreed in the result on this discrete point, without analysis, Dickson J. stating “I agree with Madame Justice Wilson that Cabinet decisions fall under s. 32(1)(a) of the Charter and are therefore reviewable in the courts and subject to judicial scrutiny for compatibility with the Constitution.127

While the Supreme Court of Canada clearly said that an exercise of the Crown prerogative is in theory subject to a review for Charter compliance, it emphasized that the review must be limited to an analysis of the Charter argument, stating: “the question before us is not whether the government's defence policy is sound but whether or not it violates the appellants' rights under s. 7 of the Canadian Charter of Rights and Freedoms. This is a totally different question.128

In summary, decisions made under the Crown prerogative are reviewable for compliance with the Charter, but such reviews are strictly limited to a determination of whether a Charter right has been limited or not.

An underlying assumption in Wilson J.'s decision in Operation Dismantle is that the doctrine of justiciability could apply not only to a case framed in tort or a judicial review application, but also to a court review based on an issue of Charter compliance. What this would mean is that the courts would not entertain a Charter challenge to a Crown prerogative decision involving issues of high policy. This point of law appears unsettled. From the majority judgment:

The approach I have taken is not based on the concept of justiciability. I agree in substance with Madame Justice Wilson's discussion of justiciability and her conclusion that the doctrine is founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes. I have no doubt that disputes of a political or foreign policy nature may be properly cognizable by the courts.129

It is unclear whether or not the courts will apply the doctrine of justiciability in a judgment on a review of an exercise of the Crown prerogative for Charter compliance. Justiciability would seem a valid area of inquiry where the review concerns whether a decision was made correctly (the concern being that the court is not the appropriate place for seeking an answer to this question). However, the validity of a justiciability concern could be argued to disappear with a Charter challenge: if the court is not the appropriate place to decide on a Charter matter, then there would appear to be no other appropriate place to do so. This line of reasoning has been supported by case law. In another context, in Black, the court stated:

Where matters of high policy are concerned, public policy and public interest considerations far outweigh the rights of individuals or their legitimate expectations. In my view, apart from Charter claims, these decisions are not judicially reviewable.130 [Emphasis added]

Wilson J. clearly references the doctrine of justiciability in her decision in Operation Dismantle. The argument that the doctrine should apply to future Charter challenges resulting from Crown prerogative decisions may now have a clear legal foundation.


Footnotes

1 While the terms "Crown prerogative" and "Royal prerogative" are synonymous, the term "Crown prerogative" is used in the title of this paper, and throughout. Use of the term "Crown" leaves no doubt that the entity referred to is the monarch in Her public capacity, who in a monarchical system is a member of the executive or central government: see O. Hood Phillips & Paul Jackson, O. Hood Phillips' Constitutional and Administrative Law, 7th ed. (London: Sweet & Maxwell, 1987) at 267.

2 (2001), 54 O.R. (3d) 215 (C.A.).

3 Peter W. Hogg, Constitutional Law of Canada, Looseleaf ed. (Scarborough: Thomson Carswell, 1997) at 1.9, cited at Black, supra note 2 at 224. This definition was also accepted by a majority of the S.C.C. in Ross River Dena Council Band v. Canada (2002), 213 D.L.R. (4th) 193 at 217, LeBel J., in the following words: “Generally speaking, in my view, the Royal prerogative means [Professor Hogg's definition].” The minority differed on another point and did not offer a definition for Crown prerogative.

4 Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1959) at 424.

5 supra note 2.

6 Ibid. at 224.

7 Hogg, supra note 3 at 1.9 note 76, directly criticizes Professor Dicey's definition: “as well as prerogative powers, there are a number of prerogative privileges or immunities, which give to the Crown immunities from some kinds of legal proceedings, priority in the payment of debts, etc. This miscellaneous class of prerogatives, which is ignored in Dicey's definition ("…") has also been reduced by statute, but some of it lingers on.” See also Phillips & Jackson, supra note 1 at 267, who say that prerogatives may be powers, rights, privileges, and immunities; and see Paul Lordon, Crown Law (Toronto: Butterworths, 1991) at 65, who says that “the royal prerogatives are comprised of a collection of powers, rights, privileges, immunities, and duties derived from the common law.”   

8 Hogg, supra note 3 at 2.1.

9 77 E.R. 1342.

10 Hogg, supra note 3 at 1.9. Legislation was required for taxation. As is discussed below, in the case of a conquered territory without a legislative assembly, the King had a prerogative right to legislate, and through this mechanism, to tax.

11 Hogg, supra note 3 at 1.9.

12 Hogg, supra note 3 at 1.9 citing Entick v. Carrington (1765), 95 E.R. 807 (K.B.) This judgment postdates the early colonization of what is now Canada, and was issued after the Crown prerogative had been used in what would later become Canada.

13 Hogg, supra note 3 at 2.3(a).

14 The pivotal British victory on the Plains of Abraham took place in September of 1759, and France formally ceded the area to Great Britain by the Treaty of Paris, signed 10 February 1763.

15 (U.K.), R.S.C. 1985, Appendix II, No. 1.

16 Hogg, supra note 3 at 2.3(b). The assembly never met and was abolished by imperial statute (i.e. statute from the imperial Parliament) in 1774. Quebec and Ontario would be granted elected assemblies by imperial statute in 1791.

17 Ibid. at 1.9.

18 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3.

19 The other territories and provinces were admitted into Confederation over time, or were created from other entities which joined Confederation over time.

20 supra note 18, s. 9.

21 This process was completed following the passing of the Statute of Westminster 1931, (U.K.), 22 & 23 Geo. 5, c.4.

22 The issues of what jurisdiction of Canadian government, i.e. federal or provincial, and of exactly what entity may exercise the Crown prerogative are discussed below.

23 Hogg, supra note 3 at 10.8(a).

24 Lordon, supra note 7 at 65-66; Black, supra note 2 at 225: “despite its broad reach, the Crown prerogative can be limited or displaced by statute.” It is interesting to note that the court in Black cited section 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1, in support of this statement. Section 4 confirms for the Canadian Houses of Parliament those powers and privileges enjoyed by the Commons House in the United Kingdom in 1867. Obviously this basis for the rule applies only in respect of the federal Crown prerogative.

25 See, e.g., Ross River, supra note 3.

26 This immunity is, in fact, a prerogative. There is an issue as to whether this immunity extends past the Crown in right of the legislating government. The “weight of modern authority is firmly on the side of” the wide view that the Crown in all its capacities benefits from this immunity prerogative: see Hogg, supra note 3 at 10.9(a).

27 R.S.C. 1985, c. I-21.

28 As discussed at Hogg, supra note 3 at 10.8(b), all but two (2) provinces have interpretation acts confirming this immunity. In British Columbia and Prince Edward Island, the two exceptions, the interpretation acts reverse the presumption and provide that provincial legislation will bind the Crown unless the statute “otherwise specifically provides.

29 supra note 27, s. 17. It is this section that Lordon cites when he states “a royal prerogative may be altered or abolished by legislation”: Lordon, supra note 7 at 66. A statute may bind the Crown without displacing a prerogative power or privilege.

30 See e.g. Ross River, supra note 3 at 199, Bastarache J. (with McLachlin C.J.C. and L'Heureux-Dubé J.); Hogg, supra note 7 at 10.8(a); Canadian Encyclopedic Digest, vol. 8, 3rd ed. (Carswell: Scarborough, looseleaf) "Crown," para. 69.

31 Lordon, supra note 7 at 66. See also the minority judgment of Bastarache J. in Ross River, supra note 3 at 199: “It is less certain whether in Canada the prerogative may be abolished or limited by necessary implication.” Cf. Hogg, supra note 3 at 10.8(a); C.E.D., vol. 8, supra note 30 "Crown," para. 69:  “expressly or by necessary intendment;Ross River, Ibid. at 217, LeBel J. (who, interestingly, cites among other authorities Lordon, supra note 7 at 66, quoted in the text, supra).

32 Hogg, supra note 3 at 10.9(b).

33 For a discussion of these issues see, e.g., Ibid..at 10.9.

34 See Ibid.. at 10.9(d).

35 Ross River, supra note 3 at 217, LeBel J.

36 [1920] All E.R. Rep. 80 (H.L.).

37 Ibid. at 86, Lord Dunedin, cited with approval in Ross River, supra note 3 at 217, LeBel J. Another way to describe what happens when a prerogative is limited by a statute is as Lordon has done: “Parliament may by statute preserve the prerogative but regulate the manner in which it is to be exercised.” See Lordon, supra note 7 at 67.

38 Ross River, supra note 3, LeBel J.

39 Ross River, Ibid., Bastarache J.

40 (1993), 11 C.E.L.R (N.S.) 1 (Fed. T.D.); affirmed (1995), 16 C.E.L.R. (N.S.) 24 (Fed. C.A.); leave to appeal dismissed (1995), 17 C.E.L.R. (N.S.) 298 (S.C.C.).

41 The Canadian Environmental Protection Act; Atomic Energy Control Act; and the Canada Shipping Act.

42 Vancouver Island, supra note 40 at 35.

43 Ibid.

44 De Keyser's Hotel, supra note 36 at 86, Lord Dunedin.

45 R.S.C. 1985, c. C-50.

46 Ibid., s. 3. Of note, it is difficult to think of legislation that more clearly applies to the Crown than this Act. The provincial acts governing proceedings against the Crown have also altered the associated Crown prerogative vis-à-vis the Crown in right of the provinces: see C.E.D., vol. 8, supra note 30 "Crown," para. 29 and 82.

47 R.S.C. 1985, c. N-5.

48 Parts of the NDA, Ibid., give direction on the management and control of the CF, but do not thereby displace the associated Crown prerogatives. Specifically, Section 15 establishes the regular force and reserve force as components of the CF (and expressly provides that the Governor in Council shall authorize the maximum number of officers and noncommissioned members in each component). Section 31 grants the Governor in Council the authority to place members or elements of the CF on active service, and deems certain members to be on active service. Section 34 states that those under 18 years of age may not be deployed by the CF to a theatre of hostilities. Section 60 sets out the classes of persons subject to the Code of Service Discipline, and provides that the Governor in Council may by regulation prescribe rules in relation to the application of the Code of Service Discipline to members of other nations' forces attached or seconded to the CF. Section 273.6 provides that “the Governor in Council or the Minister may authorize the Canadian Forces to perform any duty involving public service.” To date, no court appears to have made a finding that any section of the NDA here discussed has the effect of displacing a Crown prerogative.

49 This list is taken from Lordon's list which he calls "Crown prerogatives of contemporary importance." See Lordon, supra note 7 at 75.

50 Ibid. The importance of the Crown prerogative as a source of authority to the DND and the CF is clear from this list.

51 Lordon, supra note 7 at 75-105.

52 supra note 18.

53 Ibid. See Hogg, supra note 3 at 9.2 Note 9. See also Lordon, supra note 7 at 68.

54 supra note 18.

55 As is discussed in Section 2 of this paper, and bears repeating at this stage, the Crown prerogative consists not only of powers, but also of privileges (including immunities). The discussion on how the Crown prerogative is exercised will focus on the exercise of a Crown prerogative power.

56 In political theory, the executive government in Canada at the federal level consists of the monarch, the Governor General, the Prime Minister, and Cabinet.

57 The fact that the Crown prerogative is not, in fact, exercised by the formal head of state, but rather by other entities, derives mostly from a constitutional convention. As Hogg, supra note 3, puts it at 1.9 “an extraordinary feature of the system of responsible government is that its rules are not legal rules in the sense of being enforceable in the courts. They are conventions only. The exercise of the Crown's prerogative powers is thus regulated by conventions, not laws.

58 The term "political executive" is used here to set off that element of the executive that uses executive authority in Canada as a matter of practice. As will be discussed, the Canadian head of state legally retains executive authority, but in fact does not personally use it. This complex state of affairs finds its origin in court declarations that the Canadian head of state shares Crown prerogative authority with the political executive: in fact, and as will be discussed, convention (which is not referenced by the courts) dictates that the political executive retains executive authority alone.

59 Executive power in Canada is addressed in Part III, being sections 9 to 16, of the Constitution Act, 1867 (U.K.), supra note 18. As was mentioned in Section 2.2 of this paper, Section 9 of the Constitution Act, 1867, ensures that the Crown prerogatives, in respect of Canada, rest with the Queen. It reads “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.

60 The office of the Governor General, the Queen's representative in Canada, was created by a prerogative act of the Queen: the Letters Patent Constituting the Office of Governor General of Canada, 1947, R.S.C. 1985, Appendix II, No. 31. Art. I reads “We do hereby constitute, order, and declare that there shall be a Governor General and Commander-in-Chief in and over Canada…”. In fact, there is no structure in place in the Constitution Act, 1867 (U.K.), supra note 18, for the creation of the office of the Governor General.

61 Art. II of the Letters Patent, 1947, Ibid., reads: “And We do hereby authorize and empower Our Governor General, with the advice of Our Privy Council for Canada or of any members thereof or individually, as the case requires, to exercise all powers and authorities lawfully belonging to Us in respect of Canada…

62 Ibid. The Privy Council for Canada is established by section 11 of the Constitution Act, 1867 (U.K.), supra note 18, which reads: “There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen's Privy Council for Canada…

63 Ibid., art. II.

64 As per Gregory Tardi, The Legal Framework of Government, a Canadian Guide (Aurora: Canada Law Book, 1992) at 83: “in political reality, the focus of [executive] power is in the Cabinet, with the Governor General retaining a role as a legally necessary figurehead.

65 In fact, there is no mention of the Cabinet in the Constitution Act, 1867 (U.K.), supra note 18.

66 The Cabinet “constitutes the only active part of the Privy Council, and it exercises the powers of that body:” Hogg, supra note 3 at 9.3(b). Cabinet has by convention historically been made up of all Federal ministers. The Cabinet is a part of the Privy Council, along with individual appointees: Hogg, Ibid.at 9.3(b). Appointment to the Privy Council is for life; technically all living members of former cabinets are members of the Privy Council.

67 As per Hogg, supra note 3 at 9.2: “in a system of responsible government' (or cabinet or parliamentary government, as it may also be called) the formal head of state… must always act under the advice' (meaning direction) of ministers who are members of the legislative branch and who enjoy the confidence of a majority in the elected house of the legislative branch.

68 Hogg, supra note 3 at 9.3(b).

69 supra note 2.

70 Ibid. at 226.

71 Operation Dismantle v. The Queen (1985), 18 D.L.R. (4th) 481 (S.C.C.) , this case is discussed more fully at Section 2.7.2, infra.

72 Ross River, supra note 3, can also be used in support of this point. In that case, the majority stated (at 221 D.L.R., LeBel J.): “if the power to create reserves is derived from the royal prerogative, the Governor General, or Governor in Council, would normally exercise that power.” [Emphasis added.]

73 John Willis, "Delegatus Non Potest Delegare" (1943), 21 Can. Bar Rev. 257 at 257.

74 R. v. Harrison (1976), 66 D.L.R. (3d) 660 (S.C.C.) at 665.

75 Lordon, supra note 7 at 39.

76 It appears neither the rule nor its rationale has been referenced in relation to an exercise of the Crown prerogative.

77 Harrison, supra note 74 at 665.

78 Harrison, Ibid., considered the power in the Criminal Code of Canada permitting the Attorney-General to institute an appeal on behalf of the Crown.

79 Carltona, Ltd. v. Commissioners of Works and Others, [1943] 2 All E.R. 560 (C.A.).

80 The federal Interpretation Act, supra note 27, s. 24(2) goes some way to legislating the Carltona principle: “Words directing or empowering a minister of the Crown to do an act or thing…include: … (c) his or their deputy; and (d) notwithstanding paragraph (c), a person appointed to serve, in the department…over which the minister presides, in a capacity appropriate to the doing of the act or thing, or to the words so applying.” 

81 See, e.g., Lordon, supra note 7 at 40: “An exception to the delegatus principle which operates in favour of Ministers or government Departments finds its origin in Carltona.

82 See, e.g., Ibid: “The Carltona doctrine may not apply to every statutory power exercisable by a Minister or Department.” [Emphasis added.]

83 Further, and as will be discussed infra, there does not seem to be any support for the position that the Crown prerogative can be exercised below the level of minister. By its terms, the Carltona principle empowers sub-ministerial levels of the executive.

84 Carltona, supra note 79 at 563; cited by the S.C.C. in Harrison, supra note 74 at 285.

85 Lordon, supra note 7 at 71.

86 The Black case, supra note 2, actually dealt with a delegation of the Crown prerogative from the head of state down: see Section 2.6.1, supra.

87 Black, supra note 2 at 226. The court emphasized the point at 227, stating: “I conclude that the Prime Minister and the Government of Canada can exercise the Crown prerogative as well.

88 The number and jurisdiction of Cabinet Committees varies from time to time, but there are usually four policy Committees of Cabinet dealing with economic, social, government operations and management, and foreign and defence policy:” see Privy Council Office, "Memoranda to Cabinet: A Drafter's Guide," updated June 2000. While this guide is dated and not regularly updated, it remains a good source for basic information of Memoranda to Cabinet and associated machinery of government. On 15 January 07, there were 7 Cabinet Committees: http://www.parl.gc.ca/information/about/people/key/CabCom.asp?Language=E.

89 See, e.g. Black, supra note 2 at 227: “as members of the Privy Council, the Prime Minister and other Ministers of the Crown may also exercise the Crown prerogative.

90 Hogg, supra note 3 at 9.3(d).

91 Ibid.

92 Lordon, supra note 7 at 71.

93 Black, supra note 2 at 226.

94 Generally, only Treasury Board Cabinet committees will consider OICs.

95 See Privy Council Office, Regulatory Affairs Division, "Governor in Council Process Guide: Developing a Proposal Seeking the Approval of an Order by the Governor in Council," July 2004, ISBN 0-662-36451-1. Although this document is not regularly updated to reflect often changing OIC practices, it remains a good source of basic information on the OIC process.

96 Ibid.

97 "Memoranda to Cabinet: A Drafter's Guide," supra note 88.

98 Ibid.

99 Ibid.

100 Not all business brought to Cabinet or Cabinet Committee by way of MC will concern an exercise of the Crown prerogative. Frequently, MCs will be informational only, or may request exercise of authority based in something other than a prerogative source.

101 "Memoranda to Cabinet: A Drafter's Guide," supra note 88.

102 Such letters used in the context of CF deployments are referred to as "strategic objective" letters, and are discussed more fully in Section 3 of this paper, below.

103 A theoretical example is a Crown prerogative decision to deploy CF elements. One form of the Crown prerogative decision to deploy might state that the deployment has the strategic objective of stabilizing a region, and another might give direction to the force to assist the local government. Although both formal Crown prerogative decisions authorize the CF deployment, there will be confusion at the operational level flowing from inconsistent and possibly opposing strategic level guidance.

104 Lordon, supra note 7 at 72.

105 Phillips & Jackson, supra note 1 at 269ff.

106 Ibid.

107 Black, supra note 2 at 229ff.

108 The word "challenged" here refers to an attempt to have the court revisit a decision made under the Crown prerogative. A decision made under the Crown prerogative can also be the subject of a claim framed in tort, or a request for a declaratory judgment, and in fact many of the cases herein discussed fall into these classes.

109 The doctrine of justiciability extends beyond the arena of judicial review. For example, the Black case, supra note 2, was framed in tort and the claims were dismissed as non-justiciable.

110 supra note 71.

111 Ibid at 500, Wilson J. The comment might be considered obiter. The cases referred to dealt with British restrictive trade legislation passed in the 1950's and 60's.

112 Black, supra note 2 at 229ff.

113 Ibid. at 231.

114 [1984] 3 All E.R. 935 (H.L.). Before this case, it was generally held in the U.K. that decisions made under the Crown prerogative were not amenable to the judicial process.

115 Black, supra note 2 at 232. 116 Ibid.

117 [1989] 1 All E.R. 655 (C.A.).

118 It is arguable that the idea behind the concept of 'high policy' has used in other English cases, and does have some precedent. In GCHQ, supra note 114, which preceded ex Parte Everett, Ibid., Lord Roskill stated that some decisions amounting to an exercise of the Crown prerogative might be considered to be in the 'excluded categories,' or categories of decisions not subject to judicial review. This obiter was referred to in Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, [2002] E.W.J. No. 4947 (C.A.), where the court developed the concept of 'forbidden areas' of Crown prerogative use not subject to judicial review (see para. 106). Abbasi was followed on this point in Campaign for Nuclear Disarmament v. Prime Minister, [2002] E.W.J. No. 6344 (Q.B.) at para. 50.

119 Aleksic v. Canada (Attorney General) (2002), 215 D.L.R. (4th) 720 (Ont. Div. Ct.) at 732.

120 Blanco v. Canada (2003), 231 F.T.R. 3 at 6.

121 Turp v. Chrétien (2003), 111 C.R.R. (2d) 184 (F.C.) at 188.

122 This point will be expanded upon in Section 3.4 of this paper.

123 supra note 71.

124 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

125 In Operation Dismantle, supra note 71, seven Justices sat during the arguments, but only six judges took part in the judgment. While all participating Justices agreed with the result, 11 pages of the 36 pages making up the decision were taken up by Dickson J.'s decision, and four other Justices concurred with this decision. Wilson J. signed her 25-page judgment alone, and it is this judgment that is most often cited in support of guidance on the issue of Charter applicability to Crown prerogative decisions. With this in mind, the Operation Dismantle decision is seminal in the area of Crown prerogative law.

126 Ibid. at 497ff.

127 Ibid. at 491, Dickson J.

128 Ibid. at 504, Wilson J.

129 Ibid. at 494, Dickson J.

130 Black, supra note 2 at 232.

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