Monday, December 05, 2011

Does Command of the Canadian Military Lie With a Single Individual?

In a previous post, I argued Mr. MacKay broke the law by putting human life in jeopardy.

I have been looking at another aspect concerning Mr. MacKay's use of military resources. MacKay's action may actually be an issuance of a command in breach of constitutional and defence statutes. Operational command of the military seems to lie with the Chief of Defence Staff. Cabinet is responsible for policy:

> Primary authority rests with the Governor in Council to implement and amplify the NDA by regulations for the "organization, training, discipline, efficiency, administration and good government of the Canadian Forces."5 Under section 12(2) of the NDA, the minister has the power to regulate the same matters but subject to any regulation made by the Governor in Council and Treasury Board. The minister has the power to make regulations governing who commands what and whom, but the "exercise" of command is then in the hands of the designated commanders subject to law.

What authority does Mr. MacKay have to command operation of the military in the absence of a Cabinet order? Has Cabinet issued any orders to the CDS allowing the minister direct command of the military? If yes, allowing one individual to command the military is a very dangerous situation. If no, then Mr. MacKay has grossly abused his position.

> Subsection 18(1) of the NDA states that the Governor in Council may appoint a CDS "who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Forces." Furthermore, "command" of and in the CF is confirmed as a military activity that flows through commissioned and non-commissioned officers under
section 18(2):

>> Unless the Governor in Council otherwise directs, all orders and instructions to the Canadian Forces that are required to give direction to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff.

Was the order placed using proper chain of command, namely was the order given through the CDS? If not, has the CDS properly delegated someone to receive requests from the minister and is there a defined list of requests which are to be approved? Was the use of SAR resources by the minister specifically ordered, by CDS, as delegated? Is the minister permitted to arrange for operations which, by agreement of the military, are to be denied? Can the minister order covert military operations?

> Although the CDS is subject to the minister's direction in exercising general powers, the responsibilities of the CDS are not delegated from the minister. Moreover, the CDS has responsibility exclusive of the minister of National Defence in three areas: powers in respect of which the CDS is not subject to the direction of the minister, for example, in the promotion of
members below the rank of general;6 in all matters related to "aid of the civil power";7 and in the conduct of military operations.

MacKay's use of a helicopter ride under the 'guise' of a training operation is, in fact, a matter related to "aid of the civil power" and an order to conduct military operations. The minister has no authority to give such direction.

If the Minister of National Defence can issue arbitrary orders to the Canadian military, what stops him from using military power for far less benign purposes? There are plenty of examples of states in which unchecked command of the military lies in the hands of an individual. Does Canada wish to be seen as one of that rather unsavoury clique?

All of the quotations, above, were taken from the DND document located here:

Update: In this article from the St. John's Evening Telegram, it appears someone ordered a military investigation of NDP MP Scott Simms. Simms actively pursued MacKay's SAR misuse in the House of Commons. The article suggests someone used the military in support of political power.  This is a blatant misuse of the military for support of political power which is specifically outlawed.  Who supports their political power through use of the military? There are no shortage of tyrannical dictators in the news.  Is this what Canada has become?

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