Conclusion - Crown Prerogative

4. Summary and Conclusion

The definition of Crown prerogative herein advocated is Professor Hogg's: “the powers and privileges accorded by the common law to the Crown.”¹⁷¹ The content of the Crown prerogative is determined by the common law, through judicial consideration of statute. Matters for which prerogative powers and privileges exist include acts of state in matters of foreign affairs, as well as defence and the CF. The apportionment of the Crown prerogative between the federal and provincial orders of executive government mirrors the apportionment, from the Constitution Act, 1867,¹⁷² of legislative powers between the federal Parliament and provincial legislatures. For example, section 91(7) of the Constitution Act, 1867 gives the federal Parliament legislative authority over matters of Militia, Military and Naval Service, and Defence. The federal executive has the prerogatives associated with this subject area.

The Crown prerogative in Canada is, through our system of Parliamentary democracy, exercised by the political executive rather than the head of state. Political executive authority in Canada is concentrated in the hands of the Cabinet, the Prime Minister, and individual Ministers, all of which, in theory, have powers of prerogatives. While there is no formal methodology for capturing a Crown prerogative decision, practices have developed in this matter. A Cabinet or Cabinet committee decision is normally captured in a Record of Decision, normally in the form of an Order in Council or a response to a Memorandum to Cabinet. The Prime Minister and ministers will issue decisions by letter, either in reply to requesting correspondence, or on their own. In all events, by its very nature, a Crown prerogative decision is not subject to formal legislative approval. It is important to note, however, that the Executive may consult the legislature in sensitive matters in accordance with practices that have developed in this regard. A common way to present a Crown prerogative decision to the legislature is through a take note debate.

Crown prerogative decisions are theoretically subject to consideration by the courts by way of judicial review application or Charter¹⁷³ challenge. Judicial review of Crown prerogative decisions is subject to the subject matter test and the doctrine that decisions of high policy are not justiciable. The courts have also accepted as theoretically possible a Charter review confined to the narrow issue of whether a Crown prerogative decision violates an applicant's rights as guaranteed under the Charter.

In section 3, dealing with the specific case of the deployment of the CF on military operations outside of Canada, it was affirmed that the power to order such a deployment resides clearly within the federal Crown prerogative. This prerogative has not been fettered by legislation. While such a decision to deploy the CF internationally is, in theory, subject to an application for judicial review, the courts have consistently held that such decisions are matters of high policy and have declined to intervene. Such a Crown prerogative is in theory subject to Charter review, but no such review has to date been successful.

The Crown prerogative decision to deploy the CF internationally rests with the federal Executive and therefore, in theory, may be taken by Cabinet (or Cabinet committee); the Prime Minister; the MND and MFA jointly (as the members of Cabinet with relevant portfolios); and, occasionally, by the MND alone. Regardless by whom, and by what means, a Crown prerogative is exercised, experience has shown it imperative to have only one decision made in any given case to avoid the risk of conflicting strategic direction. In practice, Cabinet, or one of its committees, will capture such a decision with the appropriate Record of Decision: normally an Order in Council or a response to a Memorandum to Cabinet. A Prime Ministerial or ministerial decision is captured in a strategic objective letter. When a decision is taken by the MFA and MND, or by the MND alone, it is customary to inform the Prime Minister of the decision taken. When the Minister or Ministers seek Prime Ministerial concurrence following the exercise of a Crown prerogative, the decision is properly considered to be the Prime Minister's.

Footnotes

¹⁷¹ Hogg, supra note 3 at 1.9.

¹⁷² Supra note 18.

¹⁷³ Supra note 124.