The National Defence Act: Legal Framework and Authorities

Background

• The National Defence Act (NDA) is structured in seven parts:
  • Part I of the NDA establishes the Department of National Defence (DND) and stipulates that the Minister of National Defence (MND) holds office during pleasure and has the management and direction of the Canadian Armed Forces (CAF) and provides authority for a Deputy Minister (DM) and the Judge Advocate General (JAG). It also sets out the regulation making authorities of the Governor in Council (GiC) (for the organization, training, discipline, efficiency, administration and good government of the CAF), and the MND (for the organization, training, discipline, efficiency, administration and good government of the CAF) 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 CAF or for any other purpose under the NDA;
  • Part II of the NDA names the CAF and provides for the appointment of the Chief of the Defence Staff (CDS). It provides for numerous matters relating to the functioning and governance of the CAF 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 (MGERC), which is mandated to provide findings and recommendations on defined types of grievances to the final authority in the CAF grievance process, the CDS or their delegate;
  • Part III of the NDA is the Code of Service Discipline (CSD). The CSD sets out the foundation of the military justice system including disciplinary jurisdiction, declaration of victims' rights, service offences^{Footnote 1}, punishments, arrest and pretrial custody, organization and procedures of summary hearings (jurisdiction, sanctions, and review) and courts martial, sentencing appeals, and post-trial review;
  • Part IV of the NDA 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 (MPCC), and it sets out the roles and responsibilities of the Canadian Forces Provost Marshal and the MPCC receiving, reviewing and responding to complaints;
  • Part V is entitled, "Miscellaneous Provisions having General Application." It includes the ministerial powers to authorize military manoeuvres in Canada, to authorize the CAF to perform any duty involving public service, and to authorize CAF assistance in federal law enforcement matters;
  • Part V.1 of the NDA, which previously pertained to the Communications Security Establishment (CSE), has been repealed and the authorities and the accompanying accountability and transparency measures for the CSE now reside in the Communications Security Establishment Act;
  • Part VI of the NDA governs CAF service in aid of the civil power. The CAF, or any part of it, is liable to be called out for service in aid of the civil power by the Attorney General of an affected province if 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 NDA prescribes certain offences, relating to the defence of Canada, which are capable of being committed by members of the public as well as by CAF members and which are triable by civil courts.

Considerations

Ministerial Duties

• The NDA provides that the MND:
  • Presides over the DND (NDA, section 3);
  • Has the management and direction of the CAF^{Footnote 2} 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 (NDA, section 4).
• In addition, the NDA assigns the MND specific responsibilities that include:
  • Tabling in Parliament the annual reports of:
    • the JAG on the administration of military justice (NDA, subsection 9.3(3));
    • the Chairperson of the MGERC on grievance committee activities (NDA, subsection 29.28(2));
    • the CDS in relation to the national sex offender registry (NDA, subsection 227.171(2)); and
    • the Chairperson of the MPCC on the Complaints Commission's activities (NDA, subsection 250.17(2)).
  • Causing an independent review of specific provisions of the NDA which includes the military justice system, the military police, the MPCC, and the CAF grievance system, and to table the report before both houses of Parliament (NDA, subsections 273.601(1) and (2));
  • Reviewing an MPCC report if the CDS or the DM is the subject of the complaint, and notifying the MPCC of any action taken (NDA, subsection 250.5(2) and section 250.52); and
  • Regarding military judges:
    • recommending their appointment by GiC (NDA, section 165.21);
    • nominating one member of the Military Judges Compensation Committee, which reviews the remuneration of military judges (NDA, paragraph 165.33(1)(b)); and
    • commencing an inquiry into the removal of a military judge from office (NDA, subsection 165.32(1)).

Key Advisors to the Minister of National Defence

• The NDA provides for other key appointments:
  • The DM, who leads the department. The DM 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 DND (NDA, section 7)^{Footnote 3};
  • The CDS who, subject to the regulations and under the direction of the MND, is charged with the control and administration of the CAF. Unless the GiC otherwise directs, all orders and instructions to the CAF that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the MND shall be issued by or through the CDS (NDA, subsections 18(1) and 18(2));
  • Up to three Associate Deputy Ministers, who, under the MND and DM, may exercise such powers, duties and functions as Deputy of the MND and otherwise as the MND specifies (NDA, section 8);
  • The Vice Chief of the Defence Staff (VCDS), who is appointed by the CDS, and has the control and administration of the CAF in the event of the absence or incapacity of the CDS (NDA, sections 18.1 and 18.2); and
  • The Judge Advocate General, who acts as legal advisor to the Governor General, the MND, DND and the CAF in matters relating to military law and who has the superintendence of the administration of military justice in the CAF (NDA, section 9.1 and subsection 9.2(1))^{Footnote 4}.

Ministerial Authorities

• The NDA grants authorities to the MND in relation to several matters, including:
  • Regulations: May make regulations for the organization, training, discipline, efficiency, administration and good government of the CAF, and generally for carrying out the purposes and giving effect to the provisions of the NDA – except for regulations made by or expressly placed within the regulation-making authority of the GiC or Treasury Board or for which the GiC has already made regulations (NDA, subsection 12(2) and section 13);
  • CAF and related organizations:
    • organizing the elements of the CAF (NDA, section 17);
    • authorizing the formation of cadet organizations (NDA, subsection 46(1)); and
    • prescribing the manner in which DND and CAF educational institutions are governed and administered (NDA, subsection 47(2)).
  • MGERC: Authorizing a Vice-Chairperson of the MGERC 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 (NDA, subsection 29.17(2));
  • Military police complaints: Authorizing a member of the MPCC to exercise the powers and perform the duties and functions of the MPCC Chairperson, in the event of the absence or incapacity of the Chairperson (NDA, subsection 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 CAF or affecting any CAF member (NDA, subsection 45(1));
  • Military justice system roles include:
    • appointing the Director of Military Prosecutions and the Director of Defence Counsel Services (NDA, section 165.1 and subsection 249.18(1));
    • taking certain actions regarding a person's petition for a new trial (NDA, section 249); and
    • appealing against a decision of the court martial to the Court Martial Appeal Court or against a decision of the Court Martial Appeal Court of Canada to the Supreme Court of Canada (NDA, sections 230.1 and 245(2));
  • Operations^{Footnote 5}:
    • authorizing military exercises or movements ("manoeuvres") over and on such parts of Canada and during such periods as are specified (NDA, section 257);
    • authorizing the CAF to perform any duty involving public service (NDA, subsection 273.6(1));
    • on the request of another federal minister, authorizing the CAF to provide assistance in respect of any law enforcement matter (NDA, subsection 273.6(2)); and
    • providing directions regarding the CDS's response to a provincial attorney general's requisition for CAF assistance to suppress or prevent a riot or disturbance (NDA, section 278);
  • CSE: The recent passing of Bill C-59 has removed all sections regarding the CSE from the NDA. The authorities and the accompanying accountability and transparency measures for the CSE 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 CAF picture or mark in advertising, trade or service after having been requested to cease such unlawful usage (NDA, section 291).

Conclusion

In the legislative sphere, the NDA provides the legal basis for numerous matters relating to the DND and the CAF. It establishes duties and grants authority to the minister and other actors to deal with a variety of matters. Authority is also found in several other statutes. Domestic CAF 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 NDA. 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 NDA.