THE NATIONAL DEFENCE ACT,
AND THE DECISION TO PARTICIPATE
Political and Social Affairs Division
First World War
Second World War
Japan, Hungary, Romania, and Finland
Consensus on Procedure
SINCE THE SECOND WORLD WAR
Canadian Participation in the Korean Conflict
Implications of the United Nations Charter
The Korean Conflict and the U.N. Charter
Persian Gulf Crisis
Placing Canadian Forces Personnel on Active Service
Active Service since 1950
Active Service for Peacekeeping and Other Operations
MOTIONS CONCERNING CANADIAN
PARTICIPATION IN THE PERSIAN GULF CONFLICT
PARLIAMENT, THE NATIONAL DEFENCE ACT,
AND THE DECISION TO PARTICIPATE
Following Iraqs invasion
of Kuwait on 2 August 1990, the Canadian government decided to deploy
three ships to the Persian Gulf to help enforce sanctions against Iraq
called for by the United Nations Security Council. There was controversy
in Canada not only over the decision to become involved in international
actions against Iraq, later to escalate to military measures, but also
with regard to Parliaments role in authorizing the deployment of
Canadian Forces units and placing them on active service. Some Canadians
thought that a declaration of war was necessary before such action could
be taken, while others argued that Parliament should have been involved
in these decisions much sooner.
To clarify the question,
this paper examines Parliaments role in the process whereby Canada
declared war in the two World Wars and the extent to which the United
Nations Charter has modified this process. The National Defence Act
provisions for placing Canadian military personnel on active service are
discussed, as are the measures taken by Parliament during the Persian
Gulf crisis. We can thus determine to what extent the established process
First World War
The parliamentary processes
through which Canada became involved in the First and Second World Wars
were basically the same, although the political context had changed significantly
between these events. Canada was a colony of Great Britain in 1914, and,
like other colonies of Great Britain, entered the war on 4 August
1914, the same day as the mother country.
On that day, the Canadian
government issued an order in council proclaiming that Canada was at war
and, in the following days, passed other orders in council dealing with
war-related measures. When war broke out, Parliament was not sitting and
these orders in council were tabled in the House of Commons when Parliament
reconvened on 18 August 1914 (instead of 28 August as originally
planned). On 18 August, the Governor General delivered a speech in
the Senate Chamber indicating the measures the government would take to
deal with the war. An Address in reply to the Speech from the Throne was
debated in both Houses of Parliament and a motion approving that address
was adopted by the House of Commons on 19 August.(1)
Second World War
The political context was
different at the beginning of the Second World War because in 1939 Canada
was an independent country. There were still strong economic, cultural
and diplomatic ties with the mother country and there was little doubt
that Canada, like other countries of the British Commonwealth, would ally
itself with Great Britain; nevertheless, Canada did not declare war on
the same day as Great Britain, as it had done in 1914. Canadian political
leaders wanted to wait for Parliaments approval partly in order
to demonstrate Canadas independence.
Thus, although Great Britain
declared war on Germany on 3 September 1939 (after that countrys
invasion of Poland on 1 September), it was not until 10 September
that Canada declared war on Germany. Canada was officially a neutral country
for the first 10 days of the Second World War, although there was little
doubt that the country was preparing for war.
When the war started in
Europe, Parliament was not in session and was not scheduled to return
before 2 October; however, it resumed sitting on 7 September
1939. As in 1914, the Governor General read a Speech from the Throne and
an Address in reply to the Speech from the Throne was debated. During
this debate, which began on 8 September, Prime Minister Mackenzie
King explained how Parliaments approval of the Address in reply
to the Speech from the Throne would pave the way for a formal declaration
The adoption of the
address in reply to the speech from the throne will be considered
as approving not only the speech from the throne but approving the
governments policy which I set out yesterday of immediate participation
in the war.
If the address in reply
to the speech from the throne is approved, the government will therefore
immediately take steps for the issue of a formal proclamation declaring
the existence of a state of war between Canada and the German Reich.(2)
The motion to adopt the
Address was passed in the Senate while the House of Commons continued
debate on the motion and adopted it late in the evening of 9 September.
The next day the government issued an order in council indicating that
Canada was at war with Germany. Since 10 September was a Sunday,
the order in council was tabled in the House only on 11 September,
when the Prime Minister told the House that the Cabinet had issued the
order in council shortly after the motion had been adopted and that the
government had been informed at 11:15 a.m. on 10 September that the
King had approved the petition asking for his approval of the proclamation.(3)
No specific time frame for
declarations of war or similar statements was set by the course followed
in 1939, but the practice of having both Houses of Parliament adopt an
Address in reply to the Speech from the Throne was confirmed and a new
precedent was set for the sequence of events leading up to the issuance
of the order in council. In 1914, the order in council had been proclaimed
the day the war started and parliamentary debate followed; however, in
1939 parliamentary debate preceded the order in council declaring war.
This was the procedure followed when war was declared on Italy in 1940.
On 10 June 1940, while
German troops continued their advance into France, Italy declared war
on Great Britain and its allies. On the same day, Prime Minister Mackenzie
King moved the following motion in the House of Commons:
Whereas Italy has declared
her intention to enter the war on the side of Germany and against
the allied powers; and
Whereas a state of war
now exists between the United Kingdom and France on the one hand and
Italy, on the other; and
Whereas at the outbreak
of war the parliament of Canada decided to stand at the side of the
United Kingdom and France in their determined effort to resist aggression
and to preserve freedom;
It is expedient that
the houses of parliament do approve the entry of Canada into a state
of war with Italy, and that this house does approve the same.
After moving the motion,
the Prime Minister explained the procedure which would be followed:
May I say that when
this resolution is passed, its adoption by both Houses will be followed
by a submission to His Majesty from his Privy Council for Canada,
with a view to the authorization by him of a proclamation declaring
the existence of a state of war between Canada and Italy.(4)
The motion was debated and
adopted on the same day by both Houses of Parliament and the Cabinet quickly
issued an order in council proclaiming the existence of a state of war
between Canada and Italy as of that day. The following day, the Prime
Minister read in the House of Commons the text of the proclamation as
printed in the Canada Gazette. Thus, as in the case of the declaration
of war on Germany, the government proclaimed that Canada was at war with
another country only after Parliament had debated and adopted a motion
to this effect.
3. Japan, Hungary, Romania
of war by Canada during the Second World War took place without any parliamentary
debate. When the Japanese attacked Pearl Harbour on 7 December 1941,
Parliament had been adjourned since 14 November and was not scheduled
to resume sitting until 21 January 1942. There was a special meeting
of the two Houses on 30 December, but this was for an address to
the Canadian Parliament by the British Prime Minister, Winston Churchill.
When Parliament resumed
sitting as planned on 21 January 1942, Prime Minister Mackenzie King
tabled in the House of Commons a proclamation dated 8 December 1941
indicating that a state of war existed between Canada and Japan as of
On 21 January 1942,
Prime Minister Mackenzie King also tabled proclamations dated 7 December
1941 indicating that a state of war existed as of that date between Canada
and three European countries, Romania, Hungary, and Finland, three countries
that had recently allied themselves with Nazi Germany. The fact that Parliament
had not been in session when war was declared on Japan and these three
other countries was apparently of some concern to Prime Minister Mackenzie
King. However, according to his diary, he comforted himself with the knowledge
that the declarations of war against Japan, Hungary, Romania and Finland
were "all part of the same war," that is, the war that had begun
for Canada on 10 September 1939, when Parliament had adopted the
Address in reply to the Speech from the Throne.(6)
Thus, the Prime Minister decided he did not need to reconvene Parliament
earlier than scheduled to approve these later declarations of war.
The Debates of the House
of Commons do not indicate that the opposition objected to the fact that
Parliament had not been reconvened to adopt motions concerning the declarations
of war on Japan, Hungary, Romania and Finland. Indeed, at this point in
the war, Canadian public opinion accepted that Canada had no choice but
to maintain its war effort against the continued aggression of Germany,
Japan and Italy and their allies. If Parliament had been reconvened soon
after 7 December 1941, there is little doubt that the declarations
of war on Japan and Germanys allies would have been quickly approved.
Indeed, there was generally
little criticism of the process the government followed to indicate formally
that Canada was at war. In 1939, the CCF Party opposed sending Canadian
soldiers abroad, but it decided, after much discussion, to give qualified
support to the war effort. J.S. Woodsworth, the partys leader, did
not accept his partys position and indicated his continued strong
opposition to war in a speech in the House of Commons. Following Germanys
invasion of Belgium, Holland and France in 1940, however, most doubts
about Canadas participation in the war quickly disappeared. For
example, during debate on the motion concerning the declaration of war
on Italy on 10 June 1940, M.J. Coldwell, the CCF Partys spokesman
This war is none of
our seeking; it is thrust upon us. And we have no option, it seems
to me, but to accept the challenge and to go forward to ultimate victory.(7)
Perhaps the strongest criticism
of the process adopted to formalize Canadas declaration of war came
from Professor Frank Scott, who sent a letter to the Prime Minister in
1939, which said:
May I point out that
your Cabinet, a "group of individuals," took so many steps
to place Canada in a state of active belligerency before Parliament
[met]...that you very greatly limited Canadian freedom of action to
decide what course to follow...(8)
Professor Scott was also
upset by the fact that the government had announced the decision to send
an expeditionary force overseas on 13 September, after Parliament
had been prorogued. In the early days of the war, the sending of an expeditionary
force was a controversial issue mainly because of concerns that this would
lead to a conscription crisis similar to that in the First World War.
In fact, Professor Scott
actually underestimated the importance the government attached to Parliaments
role in the political process. At a meeting of the Cabinet Defence Committee
on 5 September, the government made it clear to the military that
major decisions like the one to send an expeditionary force overseas would
not be considered until Parliament reconvened on 7 September to approve
the declaration of war.(9)
While Professor Scott thought
that Parliament had been ignored, other Canadians would have been angered
by any government delay in rallying to Britains side as soon as
war broke out. In other words, there were opposing views on the importance
of Parliaments role in the process. The government, by insisting
on reconvening Parliament before actually declaring war, had asserted
Parliaments importance in the political process, and this was generally
accepted by Canadians.
Nevertheless, some measures
remain the prerogative of the Governor in Council, that is, the Cabinet.
Whether or not every government decision should be taken only after parliamentary
debate is open to argument, but, according to the laws of the land (including
the National Defence Act, which will be dealt with later in this
paper), the Cabinet can certainly decide on some measures, especially
those of a military nature where speed and security are factors, before
SINCE THE SECOND WORLD WAR
Canadian Participation in the Korean Conflict
While the declarations of
war during the First and Second World Wars established a number of parliamentary
precedents, since 1945 there has been a completely different set of circumstances;
Canada has participated in a number of international conflicts, but has
never declared war. The process through which this came about can be understood
by looking at how Canada became involved in the Korean conflict between
1950 and 1953.
Following North Koreas
invasion of South Korea on 25 June 1950, the Security Council of
the United Nations passed a resolution requesting member countries of
the U.N. to assist South Korea in dealing with North Korean aggression
and to reestablish peace in the region. The Soviet representative on the
Security Council, who had been boycotting meetings for some time, was
not present. On 26 June, Secretary of State for External Affairs
L.B. Pearson made a statement in the House of Commons concerning the Korean
situation and read into the record the text of the Security Council resolution.
On 30 June, Prime Minister St. Laurent, commenting on the Korean
situation and the Security Council resolution, said:
Any participation by
Canada in carrying out the foregoing resolution - and I wish to emphasize
this strongly - would not be participation in war against any state.
It would be our part in collective police action under the control
of the United Nations for the purpose of restoring peace to an area
where an aggression has occurred as determined under the charter of
the United Nations by the security council, which decision has been
accepted by us.
The Prime Minister also
I would add, however,
that if we are informed that a Canadian contribution to aid United
Nations operations, under a United Nations commander, would be important
to achieve the ends of peace, which is of course our only purpose,
then the government wishes parliament to know that it would immediately
consider making such a contribution.(10)
In short, the Prime Minister
made it clear that Canada was ready to send military personnel and equipment
to help South Korea deal with the aggression if the United Nations considered
such action necessary. Canada would not have to declare war on North Korea,
however, because our military forces would be participating in a collective
police action, in keeping with the U.N. Charter. On 30 June, however,
when Parliament was about to recess for the summer, the Prime Minister
suggested that it might be recalled to consider more measures if there
were new developments:
If the situation in
Korea or elsewhere, after prorogation, should deteriorate and action
by Canada beyond that which I indicated should be considered, Parliament
will immediately be summoned to give the new situation consideration.(11)
Subsequently, the government
decided in early July to deploy three ships to Korea and a few days later,
committed a squadron of transport aircraft. When Parliament returned on
29 August 1950, it was for a special session that dealt with a national
railroad strike, as well as with the situation in South Korea; however,
the Speech from the Throne made it clear that the Korean situation was
the main purpose. U.S. and allied troops were being overrun, and because
of fears in Western countries that this was a precursor of other acts
of aggression by the Soviet Bloc, the Canadian government wanted a rapid
expansion of Canadas military forces as a whole, as well as an increase
in the number of Canadian personnel involved in the Korean police action.
Thus, the government introduced new legislation, including the Canadian
Forces Act to amend the National Defence Act and the Defence
Appropriation Act to increase the defence budget.
The special session of Parliament
did not, however, debate or pass a motion specifically dealing with the
governments decision concerning Canadian participation in U.N. police
action in Korea. Indeed, during debate on the Canadian Forces Act,
an opposition Member asked the Prime Minister if there would be a resolution
authorizing the sending of troops to Korea. Mr. St. Laurent replied:
No, sir; that would
be something which has never been done. The government announces to
parliament what its policy is, and asks parliament for the ways and
means to carry it out. It is for that reason that we have our appropriation
bill. If parliament does not authorize the ways and means to carry
out the policy, it cannot be carried out.(12)
The Defence Appropriation
Act was passed by Parliament, thereby authorizing the ways and means
for the government to carry out its policy on the Korean conflict.
Implications of the United Nations Charter
1. The Korean
Conflict and the U.N. Charter
The fact that Canada participated
in the Korean conflict without declaring war on any country demonstrates
the new element that was added to international conflicts after the Second
World War. A new basis for international action against a country that
committed an aggressive act against another was established with the signing
of the United Nations Charter in 1945.
While nothing prevents one
country from declaring war on another, the general notion of collective
security provided for in the U.N. Charter means that member countries
of the United Nations can take collective action to stop aggression by
one country and to restore peace without having to go through the formality
of declaring war. As Prime Minister St. Laurent said in his statement
of 30 June 1950, Canada can be involved in a collective police action
against a state without necessarily declaring war on that state. Indeed,
the United Nations is above all preoccupied with restoring peace and it
can influence invading forces to withdraw from neighbouring territory
first by diplomatic means, and then, if necessary, by military means.
The U.N. Charter was written
during the last days of the Second World War when an idealistic view of
the post-war world coloured the blueprint for a system of international
peace and security. The collective use of force to deal with threats to
peace and acts of aggression was one of the pillars of the new system.
Another pillar was the renunciation of the use of force by governments
and its replacement with the peaceful resolution of disputes. According
to the Charter, the Security Council "would be the supervisor and
executor of the process" while the International Court of Justice
would be the arbiter of the legal aspects of any dispute.(13)
The post-war international
system envisaged by the U.N. Charter never really materialized, however.
The Cold War, in which the Western bloc led by the United States and the
Soviet bloc faced each other menacingly, created a distorted international
situation that almost paralyzed the United Nations. No agreement was reached
on the implementation of Article 43 of the Charter, which would have put
the military forces of various countries under the authority of the United
Nations for collective security operations. The members of the U.N. also
found it impossible to use as originally planned the Military Staff Committee,
which, under Article 47, was authorized to advise and assist the Security
Council on military matters.
Thus, some elements of the
collective security machinery laid out in the Charter were not in place
when the Korean conflict started in 1950. Nevertheless, such action "by
air, sea or land forces as may be necessary to maintain or restore international
peace and security," was still possible under Article 42.
It has been argued that
the U.N. military action in the Korean conflict, the only such action
taken by the U.N. against an aggressor until the recent Persian Gulf crisis,
was made possible only because the Soviet Union at the time of the invasion
was boycotting the meetings of the Security Council; otherwise, the Soviet
Union would almost certainly have vetoed the decision of the other Security
Council members. Thus, the Korean conflict has been described as "not
a UN war, but a war of western states condoned by the UN."(14)
Some might argue that by condoning such a war, the U.N. had not acted
within the letter of the Charter.
However, since the international
situation in 1950 was not the one envisaged by the Charter, and since
a number of its provisions were, as a result, not in full effect, it is
difficult to see how the U.N. could have strictly adhered to the provisions
of the Charter on collective security matters. U.N. credibility, not to
mention respect for international law, would have been seriously undermined
had North Korea been allowed to pursue its invasion of neighbouring territory.
The U.N. therefore decided to act on the basis of the general concept
of collective security contained in the Charter, even though the measures
taken were not exactly those prescribed by the Charter.
The action in Korea is not
the only occasion on which the U.N. has not acted strictly according to
the letter of the Charter. There are many examples of improvised U.N.
actions to deal with international situations unforeseen in 1945. For
example, peacekeeping operations are not mentioned specifically in the
Charter, but they are now universally accepted as worthwhile and necessary.
The expansion of the role of the Secretary-General, something which proved
desirable when the Cold War was paralyzing many elements of the U.N.,
is another development not in keeping with the letter of the Charter.(15)
2. Persian Gulf Crisis
When Iraq invaded Kuwait
on 2 August 1990, the U.N. was again presented with a situation not
exactly as envisaged in 1945. As in 1950, a majority of U.N. members reached
a consensus on the need to take action. The Security Council passed resolutions
imposing economic sanctions on Iraq and calling for action to force Iraqi
forces out of Kuwait. While the international communitys interpretation
of the Charter and the actions taken may be open to debate, the fact remains
that the Security Council passed resolutions condoning military intervention
in the Persian Gulf by a coalition of U.N. member countries.
Once again, the measures
taken did not correspond exactly to the letter of the provisions in the
Charter. The international context in 1990-1991, though perhaps closer
to the one envisaged in 1945 than any since that time because the Cold
War was coming to an end, was still different enough to force the U.N.
to act basically as it had done at the time of the Korean conflict. The
Soviet Union did not veto any resolutions of the Security Council and
all five permanent members were involved in the decisions; thus, the validity
of the U.N. actions was enhanced. Whether or not the Security Council
should have such sweeping powers can be questioned; however, there was
consensus within the international community (tenuous as it may sometimes
have appeared) on the need to respond to Iraqs aggression against
Canada has always strongly
supported the United Nations and championed collective action to ensure
international peace. Moreover, Canada has generally accepted the position
of its allies, such as the United States and the United Kingdom, on major
collective security issues. Thus, Canadas August 1990 decision to
participate in the international response to Iraqs invasion of Kuwait
was in keeping with the basic tenets of Canadian foreign policy since
1945. Indeed, after years of championing the U.N. and collective international
action, it would have been inconsistent for Canada to oppose the U.N.
Since the measures taken
against Iraq, like those against North Korea in 1950, did not require
Canada to declare war, it was not necessary for Parliament to debate a
declaration of war. It was also within the powers of the government, without
recalling Parliament, to authorize other actions taken by Canada shortly
after Iraqs invasion of Kuwait.
For example, when on 6 August
1990 the United Nations Security Council passed Resolution 661, which
made it mandatory for U.N. members to impose strict economic sanctions
on Iraq, the Canadian government did so by invoking the United Nations
Act, which stipulates only that any orders and regulations made under
it will be tabled as soon as Parliament returns.
The United Nations Act
can be invoked only if the Security Council calls for mandatory sanctions;
the government could have imposed sanctions that were merely recommended,
but at that time the process for this was more complex. New legislation,
the Special Economic Measures Act, passed by the House of Commons
on 6 May 1992, now makes it easier for sanctions to be imposed in
cases where the United Nations Act cannot be invoked. Both Acts
can be invoked without recalling Parliament.
At the time of the Gulf
crisis, it was not necessary to declare an international emergency or
a war emergency (not to be confused with a declaration of war). The Emergencies
Act (successor to the War Measures Act) specifies that Parliament
will be recalled within seven days after such declarations. A declaration
of an international or war emergency might have been issued if the Persian
Gulf crisis had threatened to escalate to a world conflict between, for
example, the U.S. and the Soviet bloc. The government could then have
invoked the Emergencies Act to give itself special powers to carry
out Canadas war effort, to control resources, and to maintain law
and order within Canada. Canadas security was not threatened by
the Persian Gulf conflict, however, and the agreement of the Soviet Union
and China with the actions of the Security Council meant there was little
danger of a world war. Indeed, in retrospect, invoking the Emergencies
Act at that time would have been an extreme measure.
The introduction of comprehensive
sanctions required the use of military forces, mainly ships to patrol
sea lanes near Iraq, to ensure that they would not be circumvented. On
10 August 1990, the government announced that Canada, like other
U.N. countries, would supply ships for this task. On 25 August, the
Security Council passed Resolution 665, which called on the multinational
force to take all necessary measures to ensure the effectiveness of the
The governments decision
to send ships to assist in the policing of sanctions in the Gulf sparked
a controversy in Canada. It was claimed that Parliament should have been
recalled before the planned date of 24 September, in order to consider
the situation. Section 32 of the National Defence Act states that
Parliament, if it is not sitting, must reconvene within 10 days after
the Canadian Forces have been placed on active service. Thus, there was
much discussion in August and September 1990 as to when military units
deployed to the Persian Gulf should be placed on active service and when
Parliament should be reconvened. To clarify the issues raised at this
time, it is necessary to examine the history of the National Defence
Placing Canadian Forces Personnel on Active Service
The National Defence
Act provides the legislative authority for measures taken by the Minister
of National Defence and the Department of National Defence and outlines
the regulations governing the members of the Canadian Forces. Among other
things, the Act makes it possible for the government to place Canadian
Forces personnel on active service. Section 31 of the National Defence
31. (1) The Governor
in Council may place the Canadian Forces or any component, unit or
other element thereof or any officer or non-commissioned member thereof
on active service anywhere in or beyond Canada at any time when it
appears advisable to do so
(a) by reason of an
emergency, for the defence of Canada; or
(b) in consequence of
any action undertaken by Canada under the United Nations Charter,
the North Atlantic Treaty or any similar instrument for collective
defence that may be entered into by Canada.
Section 32 of the Act stipulates
that if Parliament is not sitting at the time Canadian military personnel
are placed on active service, "a proclamation shall be issued for
the meeting of Parliament within ten days."
Before the Act was amended
in 1950, the Canadian military could be placed on active service only
if there was an emergency with regard to Canadas defence. An emergency
was defined as a "war, invasion, riot, or insurrection, real or apprehended."
Determining whether or not Canadas defence faced an emergency was
left up to the Cabinet, who could place the military on active service
before Parliament could debate the issue.
In 1939, the Canadian military
was placed on active service on 1 September, but the orders in council
to this effect were tabled in the House of Commons only on 7 September
when Parliament reconvened.(16)
On 25 August, however, long before it was placed on active service,
the Canadian military had already taken precautionary measures in the
face of mounting international tensions.(17)
In September 1950, the government
introduced legislation to amend the National Defence Act, not only
to deal with the Korean conflict, which had started a few months before,
but also to reflect the new situation created by the United Nations Charter,
drafted in 1945, and the North Atlantic Treaty, signed in 1948. The Canadian
Forces Act added s. 31(1)(b) to the National Defence Act,
amending the Act so that the armed forces could be placed on active service
not only when Canadas security was threatened, but also when collective
action was taken under the United Nations Charter, the North Atlantic
Treaty or other collective defence arrangement.
The National Defence
Act had also been amended earlier in 1950, among other things, to
require Parliament to be recalled within 10 days rather than 15. Nevertheless,
debate on the Canadian Forces Act centred on Parliaments
role with regard to active service, for example, in cases when it reconvened
after the military had been placed on active service. One opposition M.P.,
Stanley Knowles, stated that all "that the law seems to require is
that parliament must be here and be sitting within fifteen days, now ten
days, after the proclamation placing the forces on active service has
Later on in the debate, Prime Minister St. Laurent confirmed this: "My
understanding of the constitutional position is that there is no specific
action required by parliament in the form of an affirmative decision."(19)
While it was not completely
clear what Parliament would do when it resumed sittings, the government
did affirm its commitment to recall Parliament when there was an emergency
situation. Referring to Canadas commitments under the North Atlantic
Treaty to come to the aid of any NATO ally being attacked by another country,
Secretary of State for External Affairs Lester B. Pearson stated:
If such an attack is
made I take it that it will be the duty of this government to call
parliament at once and tell parliament that an attack had been made
on a member of the north Atlantic group and therefore an attack had
been made on Canada. Parliament would then decide whether an attack
had or had not been made on Canada.(20)
The next day, the Minister
of National Defence pointed out that Parliament had accepted these commitments
when it had ratified Canadas decision to sign the United Nations
Charter and the North Atlantic Treaty, but that this did not affect the
obligation to recall Parliament within 10 days of placing the armed forces
on active service.(21)
Debate also focused on the
fact that it was difficult to define exactly what "active service"
meant. As noted above, the military can take measures before being placed
on active service and can in fact become involved in combat operations.
Indeed, when Parliament was debating the Canadian Forces Act in
early September 1950, though the Canadian military had not been placed
on active service, three Canadian ships were already in Korean waters
and participating in combat operations. The Minister of National Defence,
Brooke Claxton, referring to the ships and transport aircraft already
deployed, stated that he had been "advised by the Department of Justice
that it was quite possible to send them to Korea without putting them
on active service."(22)
In fact, placing the military
on active service is done for bureaucratic reasons. Some Canadians may
have the impression that the Canadian military cannot become involved
in combat operations or cannot be deployed until they are on active service,
but in fact active service is important for other reasons. During debate
on the Canadian Forces Act, the Minister of National Defence stated:
The effect of placing
the forces on active service is rather technical. It relates to the
application of the insurance principle under the Canadian Pension
Act; the application of the disciplinary code, and provisions
for release from the armed forces.(23)
The Minister later indicated
that the military would not be officially on active service until the
date an order in council was passed to this effect, but pension and other
benefits would be calculated as of 5 July, when the ships were sent
The Canadian Forces Act
was passed by the House of Commons on 8 September 1950 and, soon
after Royal Assent had been given the next day, Order in Council P.C.
1950-4365, concerning Canadian personnel assigned to the Korean operation,
was issued. This imposed a limit on the total number of personnel to be
involved in the operation, and placed all Canadian military personnel
on active service:
In order that officers
and men of the Canadian forces, not exceeding 15,000 in number at
any one time, may most effectively participate in action undertaken
by the United Nations to restore peace in the republic of Korea, the
components of the Royal Canadian Navy, Canadian Army and Royal Canadian
Air Force that are referred to in the National Defence Act
as the regular forces are hereby placed on active service.
Active Service since 1950
As a result of Order in
Council 1950-4365 and subsequent amendments, Canadas armed forces
have in effect been on active service since 1950, mainly because Cold
War tensions and developments in military technology made devastating
surprise attacks more likely. Memories of the surprise attack on Pearl
Harbour in 1941 had a great influence on post-war Western military planning,
and for most of the following period Western countries feared a surprise
attack by the Soviet Union.
Since there were fears that
North Koreas aggression against South Korea was a precursor of other
attacks against Western interests by the Soviet Bloc, the Canadian government
decided to send Canadian troops and fighter squadrons to bolster NATO
defences along the border between West Germany and East Germany. This
deployment was covered by Order in Council P.C. 1951-5598 of 18 October
1951, later replaced by P.C. 1961-1276 of 7 September 1961; however,
Canadian military personnel were in fact still on active service as a
result of P.C. 1950-4365.
During the debate on the
Canadian Forces Act, Prime Minister St. Laurent had assured an
opposition Member that Order in Council P.C. 1950-4365 would place the
military on active service only for the Korean situation.(25)
In fact, however, the threat of Soviet aggression elsewhere in the world
and the Cold War in general gave a broader definition to the term Korean
situation. Since Canadian military forces stationed in Europe near the
central front after October 1951 might at any time experience a surprise
Soviet attack, it became necessary to keep them on active service. Moreover,
when the Soviet Union developed nuclear weapons and long-range bombers
capable of reaching North America, the possibility that interceptor pilots
might have to attack Soviet bombers on a surprise attack in Canadian airspace
increased significantly. Cold War tensions and developments in military
technology therefore made it expedient to keep military forces in a high
state of readiness, and, since they theoretically might have to go into
action at any moment, it was considered necessary to keep them on active
In fact, P.C. 1950-4365
was revoked on 20 November 1973 and was replaced the same day by
Order in Council P.C. 1973-3641. In order to meet Canadas obligations
under the North Atlantic Treaty, it placed Canadian military personnel
of the Regular Force on active service anywhere in and beyond Canada.
When reserve forces became more important in Canadian defence planning
in the late 1980s, P.C. 1973-3641 was revoked by Order in Council P.C.
1989-582 and was replaced by P.C. 1989-583 issued on 6 April 1989.
This placed both Regular Force and reserve force personnel of the Canadian
Forces on active service to meet Canadas NATO obligations.
Active Service for Peacekeeping and Other Operations
Although Canadian military
personnel were already on active service for NATO duties, it became the
practice to issue orders in council whenever a significant number of Canadian
military personnel participated in specific missions, such as in U.N.
peacekeeping operations. Examples are: P.C. 1956-1712 for the Suez peacekeeping
mission in 1956; P.C. 1960-1080 for the Congo operation in 1960; and P.C.
1964-389 for the Cyprus mission in 1964.
This practice continues
today. P.C. 1989-584 of 6 April 1989 concerned the force sent to
Namibia to participate in the United Nations Transition Assistance Group
(UNTAG) operation. It was tabled in the House of Commons on 12 April
1989 and debated the same day, although the governments decision
to contribute personnel to the UNTAG mission had been announced on 1 March,
a full month before. Another example is P.C. 1990-192, of 1 February
1990, concerning the personnel participating in the United Nations Observer
Group in Central America (ONUCA).
Nevertheless, in August
and September 1990, when the government announced that Canadian ships
and CF-18 aircraft would join other forces in the Persian Gulf to enforce
actions decided upon by the U.N. Security Council, there was considerable
controversy over when Canadian military personnel should be placed on
active service. Following the 10 August 1990 announcement that three
Canadian ships would be sent to the Persian Gulf area, there were calls
for Parliament to be reconvened at once, rather than on 24 September
as scheduled. Overlooked was the fact that in early July 1950, three ships
had left Canada for Korean waters, two months before an order in council
was issued to place the sailors on active duty.
The ships did not leave
Halifax for the Persian Gulf until late August and reached the entrance
to the Suez Canal in mid-September. Technically, the personnel aboard
the ships did not have to be on active service before they were in the
area of operation. In any case, while they crossed the Atlantic and trained
off Gibraltar, they could have been said to be on active service in fulfilment
of NATO duties in accordance with P.C. 1989-583.
Indeed, there was considerable
confusion on this issue, even in the Department of National Defence itself,
according to some press reports at the time. Nevertheless, Order in Council
P.C. 1990-1995 was passed on 15 September 1990 and Parliament reconvened
on 24 September, that is, within the 10 days specified in the National
Defence Act. It has been claimed that when the ships were about to
enter the Suez Canal and thus approaching the danger zone, P.C. 1990-1995
was passed for them to go from peacekeeping to active service.(27)
However, this was simply not the case.
While the National Defence
Act states that Parliament must reconvene within 10 days after the
armed forces have been placed on active service, there is no indication
as to exactly when that must be done. Indeed, while some may argue that
Canadian military personnel should be placed on active service as soon
as a decision has been reached to deploy them outside Canada and that
Parliament should be involved at once, perhaps too much attention is paid
to the active service status which is mainly concerned with benefits for
Canadian Forces personnel. As demonstrated in 1950, active service status
can always be declared retroactively, so an order in council can be passed
at any time. Thus, while Parliament has a role in approving the process
of placing military personnel on active service, its most important role
is in reviewing the governments decision concerning Canadian participation
in international conflicts.
MOTIONS CONCERNING CANADIAN
PARTICIPATION IN THE PERSIAN GULF CONFLICT
On the same day (24 September
1990), as the Minister of National Defence tabled in the House of Commons
Order in Council P.C. 1990-1995,(28)
the Secretary of State for External Affairs moved a motion calling for
the "despatch of members of the Canadian Forces to take part in the
multinational military effort in and around the Arabian Peninsula."(29)
The wording of the motion was subsequently modified during debate in the
House of Commons and after discussions between government and opposition
representatives. The amended motion supported, among other things, "the
sending of members, vessels and aircraft of the Canadian Forces to participate
in the multinational military effort in and around the Arabian Peninsula."
A new item was added, asking the government "to present a further
resolution to this House in the event of the outbreak of hostilities involving
Canadian Forces in and around the Arabian Peninsula."(30)
The revised motion was passed on 23 October 1990.
Basically, the motion approved
the measures taken by the government to deal with the Persian Gulf crisis,
including the despatch of Canadian Forces personnel. When Iraqi forces
remained in Kuwait, despite demands by the United Nations that they should
be withdrawn by 15 January 1991, other motions, passed on 29 November
1990 and 22 January 1991 (tabled on 15 January), reaffirmed
Canadas support for the U.N. actions, including the use of military
force. The motion passed on 22 January 1991 was in fact the "further
resolution in the event of the outbreak of hostilities involving Canadian
Forces" called for in the motion passed on 23 October 1990.
Although there was no formal
declaration of war, Canadas participation in the Persian Gulf conflict
was debated in Parliament and motions were passed approving the measures
taken in accordance with United Nations police action. Parliament was
also advised that Canadian Forces personnel had been placed on active
service. The procedure followed was not exactly the one used in 1950 for
the other U.N. police action, but in 1990-1991, Parliament passed specific
motions and was thus more directly involved.
The need for motions to
reaffirm previous motions in 1990-1991 arose from the complexity of the
Persian Gulf issue and the controversy it generated. The fact that a further
resolution was called for "in the event of the outbreak of hostilities
involving Canadian Forces," even though the military personnel had
already been placed on active service, created an important precedent.
Parliament passed not only a motion to approve the government measures
(such as deploying troops), taken to deal with the conflict, but also
a motion to approve the actual participation of Canadian Forces personnel
already in the combat zone.
Such a motion was a product
of the particular circumstances of the Persian Gulf conflict where, after
a territory had been conquered quickly, the aggressor country and the
U.N. confronted each other for many months before the latter took military
action. A future conflict might, however, be more like the Korean situation,
where U.S. and allied forces were engaged with the enemy and were being
pushed back almost to the sea while Parliament was meeting. In such a
situation, there might not be time for Parliament to pass a motion before
the "outbreak of hostilities involving Canadian Forces." In
short, Parliaments role in approving Canadian participation in international
conflicts and in reviewing the government decisions to place the military
on active service, should perhaps be reexamined not only to protect Parliaments
rights, but also to clarify the status of Canadian Forces personnel in
situations that might develop at some future date.
Canada, House of Commons, Debates, 19 August 1914, p. 19.
Canada, House of Commons, Debates, 9 September 1939, p. 51.
Canada, House of Commons, Debates, 11 September 1939, p. 88-89.
Canada, House of Commons, Debates, 10 June 1940, p. 653.
Canada, House of Commons, Debates, 21 January 1942, p. 4461-4462.
C.P. Stacey, Canada and the Age of Conflict, Volume 2: 1921-1948,
University of Toronto Press, Toronto, 1981, p. 320.
Canada, House of Commons, Debates, 10 June 1940, p. 653.
J.L. Granatstein, Canadas War: The Politics of the Mackenzie
King Government, 1939-1945, Oxford University Press, Toronto, 1975,
C.P. Stacey, Arms, Men and Governments: The War Policies of Canada,
1939-1945, Queens Printer, Ottawa, 1970, p. 10.
Canada, House of Commons, Debates, 30 June 1950, p. 4459.
Canada, House of Commons, Debates, 8 September 1950, p. 495.
Brian Urquhart, "Beyond the `Sheriffs Posse," Survival,
Vol. 32, No. 3, May/June 1990, p. 196.
Hans Arnold, "The Gulf Crisis and the United Nations," Aussenpolitik,
Vol. 42, No. 1, 1991, p. 69.
Urquhart (1990), p. 197.
Canada, House of Commons, Debates, 7 September 1939, p. 2-3.
See Lt.-Gen. Maurice A. Pope, Soldiers and Politicians: The Memoirs
of Lt.-Gen. Maurice A. Pope, University of Toronto Press, Toronto,
1962, p. 137.
Canada, House of Commons, Debates, 8 September 1950, p. 493.
Ibid., p. 496.
Canada, House of Commons, Debates, 6 September 1950, p. 351.
Canada, House of Commons, Debates, 7 September 1950, p. 441.
Canada, House of Commons, Debates, 8 September 1950, p. 499.
Canada, House of Commons, Debates, 7 September 1950, p. 439.
Canada, House of Commons, Debates, 8 September 1950, p. 501.
Ibid., p. 497.
The active service status should not be confused with the increased state
of readiness of Canadian interceptors in NORAD, which became an issue
during the 1962 Cuban missile crisis.
Thomas Lynch, "Canada and the Gulf, Operation Friction," Navy
International, Vol. 95, No. 11, November 1990, p. 394.
Canada, House of Commons, Debates, 24 September 1990, p. 13218.
Ibid., p. 13232.
Canada, House of Commons, Debates, 23 October 1990, p. 14612.