March 2020 - Introduction to the National Defence Act

Summary

This briefing note provides an overview of the National Defence Act, including the main duties and authorities of the Minister of National Defence under that Act.

Background

• National Defence Act is structured in eight parts:
  • Part I of the National Defence Act establishes the Department of National Defence and stipulates that the Minister of National Defence holds office during pleasure and has the management and direction of the Canadian Armed Forces and, provides authority for a Deputy Minister, Chief of the Defence Staff, and the Judge Advocate General. It also sets out the regulation making authorities of the Governor in Council (for the organization, training, discipline, efficiency, administration and good government of the Canadian Armed Forces), and the Minister of National Defence (for the organization, training, discipline, efficiency, administration and good government of the Canadian Armed Forces) and the Treasury Board (for matters such as pay, allowances and reimbursement including forfeitures and deductions). Part I also addresses the sale or disposal of materiel that has not been declared surplus and is not immediately required for the use of the Canadian Armed Forces or for any other purpose under the National Defence Act;
  • Part II of the National Defence Act names the Canadian Armed Forces and provides for the appointment of the Chief of the Defence Staff. It provides for numerous matters relating to the functioning and governance of the Canadian Armed Forces including enrolment, promotion, release, active service, non-public property, pay and allowances, service estates and boards of inquiry. Part II also deals with grievances and establishes the Military Grievances External Review Committee, which is mandated to provide findings and recommendations on defined types of grievances to the final authority in the Canadian Armed Forces grievance process, the Chief of the Defence Staff or their delegate;
  • Part III of the National Defence Act is the Code of Service Discipline. The Code of Service Discipline sets out the foundation of the military justice system including disciplinary jurisdiction, service offences , punishments, arrest and pretrial custody, organization and procedures of service tribunals (summary trials and courts martial), sentencing appeals, and post-trial review;
  • Part IV of the National Defence Act deals with complaints about or by military police. It establishes the right to make complaints about the conduct of military police, and the right of military police to make complaints about improper interference with an investigation. It establishes the Military Police Complaints Commission, and it sets out the roles and responsibilities of the Canadian Forces Provost Marshal and the Military Police Complaints Commission in receiving, reviewing and responding to complaints;
  • Part V is entitled, “Miscellaneous Provisions having General Application.” It includes the above-noted Ministerial powers to authorize military manoeuvres in Canada, to authorize the Canadian Armed Forces to perform any duty involving public service, and to authorize Canadian Armed Forces assistance in federal law enforcement matters;
  • Part V.1 of the National Defence Act which previously pertained to the Communications Security Establishment has been repealed and the authorities and the accompanying accountability and transparency measures for the Communications Security Establishment now reside in the Communications Security Establishment Act;
  • Part VI of the National Defence Act governs Canadian Armed Forces service in aid of the civil power. The Canadian Armed Forces, or any part of it, is liable to be called out for service in aid of the civil power. This can happen if, in the opinion of the Attorney General of an affected province, there is a riot or disturbance of the peace that occurs or is likely to occur and is beyond the powers of the civil authorities to suppress, prevent or deal with; and
  • Part VII of the National Defence Act prescribes certain offences, relating to the defence of Canada, which are capable of being committed by members of the public as well as by Canadian Armed Forces members and which are triable by civil courts.

Considerations

Ministerial duties

• The National Defence Act provides that the Minister of National Defence:
  • Presides over the Department of National Defence (National Defence Act, section 3);
  • Has the management and direction of the Canadian Armed Forces² and all matters relating to national defence;
  • Is responsible for the construction and maintenance of all defence establishments and works for the defence of Canada; and
  • Is responsible for research relating to the defence of Canada and to the development of and improvements in materiel (National Defence Act, section 4).
• In addition, the National Defence Act assigns the Minister of National Defence specific responsibilities that include:
  • Tabling in Parliament the annual reports of:
    • the Judge Advocate General on the administration of military justice (National Defence Act, sub-section 9.3(3));
    • the Chairperson of the Military Grievances External Review Committee on grievance committee activities (National Defence Act, sub-section 29.28(2));
    • the Chief of the Defence Staff in relation to the national sex offender registry (National Defence Act, sub-section 227.171(2)); and
    • the Chairperson of the Military Police Complaints Commission on the Complaints Commission’s activities (National Defence Act, sub-section 250.17(2));
  • Causing an independent review of specific provisions of the National Defence Act which includes the military justice system, the military police, the Military Police Complaints Commission, and the Canadian Armed Forces grievance system, and to table the report before both houses in Parliament (National Defence Act, sub-sections 273.601(1) and (2));
  • Reviewing a Military Police Complaint Commission report if the Chief of the Defence Staff or the Deputy Minister is the subject of the complaint, and notifying the Military Police Complaints Commission Chairperson of any action taken (National Defence Act, sub-section 250.5(2) and section 250.52); and,
  • Regarding military judges:
    • recommending their appointment by Governor in Council (National Defence Act, section 165.21);
    • nominating one member of the Military Judges Compensation Committee, which reviews the remuneration of military judges (National Defence Act, paragraph 165.33(1)(b)); and
    • commencing an inquiry into the removal of a military judge from office (National Defence Act, sub-section, 165.32(1)).

Key advisors to Minister of National Defence

• The National Defence Act provides for other key appointments:
  • The Deputy Minister, who can act on behalf of the Minister of National Defence. The Deputy Minister also has other duties under other statutes – for example, he or she is responsible for the civilian staff, all property, both real and personal, and all funds appropriated to the Department of National Defence (National Defence Act, section 4);
  • The Chief of the Defence Staff, who, subject to the regulations and under the direction of the Minister of National Defence, is charged with the control and administration of the Canadian Armed Forces. Unless the Governor in Council otherwise directs, all orders and instructions to the Canadian Armed Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister of National Defence shall be issued by or through the Chief of the Defence Staff (National Defence Act, sub-sections 18(1) and 18(2));
  • Up to three Associate Deputy Ministers, who, under the Minister of National Defence and Deputy Minister, may exercise such powers, duties and functions as Deputy of the Minister of National Defence and otherwise as the Minister of National Defence specifies (National Defence Act, section 8);
  • The Vice Chief of the Defence Staff, who is appointed by the Chief of the Defence Staff, and has the control and administration of the Canadian Armed Forces in the event of the absence or incapacity of the Chief of the Defence Staff (National Defence Act, sections 18.1 and 18.2); and
  • The Judge Advocate General who acts as legal advisor to the Governor General, the Minister of National Defence, Department of National Defence and the Canadian Armed Forces in matters relating to military law and who has the superintendence of the administration of military justice in the Canadian Armed Forces (National Defence Act, section 9.1 and sub-section 9.2(1)).

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Ministerial authorities

• The National Defence Act grants authorities to the Minister of National Defence in relation to several matters, including:
  • Regulations: May make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Armed Forces, and generally for carrying out the purposes and giving effect to the provisions of the National Defence Act – except for regulations made by or expressly placed within the regulation-making authority of the Governor in Council or Treasury Board or for which the Governor in Council has already made regulations (National Defence Act, sub-section 12(2) and section 13);
  • Canadian Armed Forces and related organizations:
    • organizing the elements of the Canadian Armed Forces (National Defence Act, section 17);
    • authorizing the formation of cadet organizations (National Defence Act, sub-section 46(1)); and
    • prescribing the manner in which Department of National Defence and Canadian Armed Forces educational institutions are governed and administered (National Defence Act, sub-section 47(2));
  • Military Grievances External Review Committee: Authorizing a Vice-Chairperson of the Military Grievances External Review Committee to exercise the powers and perform the duties and functions of the Chairperson, in the event of an absence or incapacity of the Chairperson (National Defence Act, sub-section 29.17(2));
  • Military police complaints: Authorizing a member of the Military Police Complaints Commission to exercise the powers and perform the duties and functions of the Military Police Complaints Commission Chairperson, in the event of the absence or incapacity of the Chairperson (National Defence Act, sub-section 250.11(2));
  • Boards of inquiry: Convening a board of inquiry to investigate and report on any matter connected with the government, discipline, administration or functions of the Canadian Armed Forces or affecting any Canadian Armed Forces member (National Defence Act, sub-section 45(1));
  • Military justice system role include:
    • appointing the Director of Military Prosecutions and the Director of Defence Counsel Services (National Defence Act, section 165.1 and sub-section 249.18(1));
    • taking certain actions regarding a person’s petition for a new trial (National Defence Act, section 249.16); and
    • appealing against a decision of the court martial to the Court Marital Appeal Court or against a decision of the Court Martial Appeal Court of Canada to the Supreme Court of Canada (National Defence Act, sections 230.1 and s. 245(2));
  • Operations:
    • authorizing military exercises or movements (“manoeuvres”) over and on such parts of Canada and during such periods as are specified (National Defence Act, section 257);
    • authorizing the Canadian Armed Forces to perform any duty involving public service (National Defence Act, sub-section 273.6(1));
    • on the request of another federal Minister, authorizing the Canadian Armed Forces to provide assistance in respect of any law enforcement matter (National Defence Act, sub-section 273.6(2)); and
    • providing directions regarding the Chief of the Defence Staff’s response to a provincial attorney general’s requisition for Canadian Armed Forces assistance to suppress or prevent a riot or disturbance (National Defence Act, section 278);

Note: The international deployment and employment of the Canadian Armed Forces requires both a domestic and an international legal authority, while domestic Canadian Armed Forces operations require only domestic legal authority. While the legislative authorities noted above are found in the National Defence Act, the source of domestic legal authority for most (if not all) international operations – and for certain domestic operations – is an exercise of the Crown Prerogative, an executive rather than legislative authority. By law and convention, the Crown Prerogative is exercised by Cabinet, by Cabinet committee, by the Prime Minister, or in certain cases as appropriate, by individual Ministers of the Crown having constitutional responsibility for particular matters such as defence and foreign affairs. For certain Canadian Armed Forces operations, this could mean Minister of National Defence acting alone, or in combination with the Minister of Foreign Affairs;

• Communications Security Establishment: The recent passing of Bill C-59 has removed all sections regarding the Communications Security Establishment from the National Defence Act. The authorities and the accompanying accountability and transparency measures for the Communications Security Establishment now reside in the Communications Security Establishment Act; and
• Offences triable by civil courts: Authorizing the prosecution of the offence of unlawful usage of the Canadian Armed Forces picture or mark in advertising, trade or service after having been requested to cease such unlawful usage (National Defence Act, section 291).

Conclusion

• In the legislative sphere, the National Defence Act provides the legal basis for numerous matters relating to the Department of National Defence and the Canadian Armed Forces. It establishes duties and grants authority to the minister and other actors to deal with a variety of matters. Authority is also found in a number of other statutes. Domestic Canadian Armed Forces operations, such as those involving public service support to civil authorities or assistance to law enforcement will generally find their domestic legal authority in the National Defence Act. However, certain types of domestic operations, and nearly all international operations, find their domestic legal authority in an exercise of the Crown Prerogative by the executive, rather than via legislative authority in the National Defence Act.