Queen cannot send Canadian troops to war, Attorney General says in letter aimed at settling longstanding dispute
Joseph Brean, National Post
04 December 2014
The Queen is Canada’s head of state and commander-in-chief of the Canadian Forces. She is ceremonially ubiquitous in the Forces — from the Loyal Toast given at regimental dinners to the playing of God Save The Queen and the recent renaming of the “Royal” Canadian Air Force.
According to the Attorney General of Canada, though, the monarch “cannot unilaterally deploy the Canadian Forces,” which may seem an odd thing for Canadian officials to say, given that she has never tried.
But the unusual declaration came in the settlement of a longstanding dispute between the Canadian Forces and Aralt Mac Giolla Chainnigh, a lifelong military man who served in Afghanistan and recently retired as professor of physics at the Royal Military College of Canada.
As a Canadian with Irish heritage who resents the trappings of British monarchy, he fought for many years against being made to toast the Queen at formal dinners, and only reluctantly swore allegiance to her as a representative of Canada.
His superiors were less than enthusiastic about his concerns. He said General Thomas Lawson, now Chief of Defence Staff, in his previous role as Commandant of RMC, wrote to him about his concern that the Queen possessed the constitutional prerogative to send Canada to war without parliamentary approval, saying “Don’t know. Not interested.”
The final settlement of his grievance, with its careful circumscription of the Queen’s military powers, falls in line with a recent decision of Ontario’s top court that swearing allegiance to the Queen does not violate the Charter right to free expression. That action was brought on behalf of an activist group that included people of Irish or Trinidadian background, and ideological anti-monarchists, all similarly reluctant to swear an oath of allegiance to a hereditary British monarch.
“The oath to the Queen of Canada does not violate the appellants’ right to freedom of religion and freedom of conscience because it is secular; it is not an oath to the Queen as an individual but to our form of government of which the Queen is a symbol,” the Ontario Court of Appeal ruled.
As the expression goes, a constitutional monarch reigns but does not rule. Similar conclusions were reached in Capt. Mac Giolla Chainnigh’s federal court case.
“I cannot think of any Canadian institution where an expectation of loyalty and respect for the Queen would be more important than the Canadian Forces,” the judge wrote, noting the importance in the military of “standards of decorum and respect,” including raising a toast to the Queen.
“This is particularly obvious in an environment of command and control management,” the judge wrote. “Whether Capt. Mac Giolla Chainnigh likes it or not, the fact is that the Queen is his Commander-in-Chief and Canada’s Head of State. A refusal to display loyalty and respect to the Queen where required by Canadian Forces’ policy would not only be an expression of profound disrespect and rudeness but it would also represent an unwillingness to adhere to hierarchical and lawful command structures that are fundamental to good discipline.”
A letter from the office of the Attorney General, Peter MacKay, to ultimately settle the challenge acknowledged the Queen cannot send Canadian troops into battle; that is the nature of ceremonial power. Going to war “is an executive decision that is made by the government, through Cabinet,” the letter reads. “The Queen and the Governor General stand as legally necessary figureheads in this process.”
Despite his loss in court, Capt. Mac Giolla Chainnigh was “not completely dissatisfied” by the experience, he said in a letter. “I had carefully, and honestly, represented an issue of justice and freedom to the legal system of the country. Although I had lost, my voice had been heard.”
He is also keen that people, especially in the military, know what is now so bluntly stated in his settlement letter. The Queen “cannot issue orders within the military establishment,” he wrote. “All that she is empowered to do is to parrot the decisions of our democratically elected officials. The power lies with the people, as it must if we are to claim the status of a democracy.”
