Democracy in the 21st century: Canada needs a War Powers Act.

• Author: Dunn, Christopher
• Position: Guest Editorial - Editorial

In Canada the declaration of war, or its functional equivalent, is still a prerogative power. It should not be.

A.V. Dicey, in his Law of the Constitution described the prerogative power as the residue of discretionary authority which at any given time is left in the hands of the Crown. This means in effect that whatever ancient power the monarch once uniquely possessed, and was not taken away by Parliament, is still intact.

As a government power, the prerogative is both substantial and inconsequential. The large and sprawling field of foreign policy, which involves matters like making treaties, declaring war, deploying the armed services in international conflicts, appointing ambassadors, recognizing states, accrediting diplomats and so forth, is largely governed by the prerogative power. Then there are more mundane areas like issuing passports, granting honours, appointing Queen's Counsel, and clemency.

There are discretionary prerogative powers which rest with the monarch, such as appointing the Prime Minister and his or her ministers, royal assent, dissolution of Parliament, and the emergency power--and then there are those which have devolved from the monarch to ministers of the Crown, who act in the name of the Crown--such as those foreign policy powers described above. Ministers enjoy the exercise of the power without necessarily having to involve Parliament. In fact, throughout history, Parliament was bypassed in the decisions to allocate this ministerial prerogative power.

It is the latter use of the prerogative--that devolved one--that Canadians must watch, especially as concerns commitment of our armed services. Parliament has been consulted but it has never expressly claimed the right to declare war (or its equivalent), or to say when it has ended, or how it shall be conducted. It should.

Canada has not declared war for close to seventy years. However, war has clear functional equivalents. Involvement in armed conflicts, collective police actions, and actions undertaken under instruments for collective defence: all of these have placed the Canadian Forces on active service and in harm's way.

For the most part Canada has entered international wars and conflicts on the basis of the domestic prerogative power. One exception in the 20th century was World War I. Canada was at war on August 4, 1914 because the Imperial Government had declared war and, as such, according to the practice of the day, "the Dominions, Colonies and...