Legislation and National Defence

The following is a brief description of the statutes of greatest relevance to the Department of National Defence and the Canadian Forces. These laws affect organizations and individuals in Canada in a wide range of different ways.

Laws Defining the Framework of Rights and Obligations in Canada

The Canadian Constitution - The Constitution prescribes which powers - legislative, executive and judicial - may be exercised by the different organs of the state and sets limits on those powers. It also describes how powers will be distributed among the national and provincial governments. The Constitution Act, 1867, makes several references to Defence: Section 15 gives the command-in-chief of the land and naval militia, and of all naval and military forces of Canada to the Queen; Subsection 91(7) states that the legislative authority of Parliament extends to the militia, the military and naval service, and defence; finally, Section 117 refers to the rights of provinces to retain all their public property except when Canada requires them for the fortifications or the defence of the country.

The Canadian Charter of Rights and Freedoms provides guarantees that are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The fundamental freedoms are those of: conscience and religion; thought, belief, opinion and expression (including the press and media); peaceful assembly; and association. The Charter also prescribes basic rights for individuals related to: democratic government; mobility in Canada; legal matters; equality regarding race, national or ethnic origin, colour, religion, sex, age or mental or physical disability; and minority language education.

The Official Languages Act reaffirms the status of English and French as Canada’s official languages and the language rights enshrined in the Canadian Charter of Rights and Freedoms. It defines the obligations of federal institutions regarding the use of one or both official languages for the provision of services to the public and as the language of work within federal institutions. It also outlines the federal government’s commitment and responsibility to ensure equal employment opportunities for and equitable participation of English-speaking and French-speaking Canadians in federal institutions, and to support the development of English and French linguistic minority communities.

The Access to Information Act provides a right of public access to information in records under the control of government institutions, subject to certain necessary exceptions limited and specified in law. The Minister and Deputy Minister are ultimately responsible for the application of the Act within a portfolio. Decisions can be reviewed by the Information Commissioner, and finally by the Federal Court. Of course, potential embarrassment is not grounds for withholding information that should properly be disclosed. Each department has established internal expertise and management systems for responding to Access requests. The Government's communications policy (developed by the Treasury Board) complements the Act by directing departments to:

• provide timely, correct information to the public (and within government),
• determine public views and concerns, and
• enable answerability, visibility and accessibility.

The Privacy Act protects the privacy of individuals regarding information about themselves that is collected, held and disposed of by government institutions. The Minister of National Defence, for example, must abide by the conditions set out in the Act under which personal information on Department of National Defence and Canadian Forces personnel can be disclosed.

The Official Secrets Act prohibits, inter alia, the communication of information in any manner prejudicial to the safety or interests of Canada.

The Criminal Code identifies prohibited acts or omissions and associated sanctions.

Laws Defining Responsibilities and Authorities of National Defence

The National Defence Act gives the Minister of National Defence authority to manage and direct all matters relating to national defence and the Canadian Forces. This "national defence" mandate is further defined in the Government's defence policy. Additional elaboration is provided in documents submitted to Parliament seeking spending authority, and parliamentary approval of the Estimates implies agreement that they are within the mandate of "national defence".

The Emergencies Act provides the Government with additional powers to make orders and regulations once the Government declares a national emergency related to the public welfare, public order, international security or armed conflict. The Government is obliged to seek parliamentary confirmation of the declaration within seven days. These orders and regulations can obviously have a major impact on public organizations such as the Canadian Forces.

The Aeronautics Act governs the use of Canadian airspace and, for matters related to defence, assigns relevant responsibilities to the Minister of National Defence.

The Fisheries Act deals with the management and protection of fish stocks. It provides authority for the Department of Fisheries and Oceans to call upon the Canadian Forces and others for assistance.

International Treaties and Obligations affecting Defence Operations

International Treaties, Conventions, and Protocols that are ratified by Parliament and remain in force are binding on the government and therefore on affected departments.

Of special significance to Canadian defence are:

• the Charter of the United Nations;
• the North Atlantic Treaty;
• the Conventional Forces in Europe Treaty; and Conventions and Protocols dealing with war and use of weapons (such as the Geneva Convention).

Laws Defining How Government Departments Manage Their Affairs

The Financial Administration Act is the principal statute governing the management of departments and agencies and the provision and use of public funding by those organizations. The Act created the Treasury Board (and its Secretariat) and gave the Board the broad mandate of:

• organization and general administration of the public service;
• determination and control of establishments (i.e. staffing levels);
• financial management (including collection, management and disbursement of public money; and format of accounts);
• public service personnel management, including terms and conditions of employment; and
• management of public property (including contracting and protection of assets).

The Act gives the Treasury Board the authority to approve all expenditures of funds. While the Board has delegated some of its authority to departmental Ministers, Treasury Board Submissions are still required for all major expenditures.

The Department of Public Works and Government Services Act governs contracting for goods and services. The Minister of Public Works and Government Services establishes regulations and arranges major contracts while individual Ministers are delegated authority to approve contracts up to certain limits.

The Federal Real Property Act gives Ministers authority to acquire, lease, let and dispose of land and buildings in their custody.

The Canadian Environmental Assessment Act stipulates that new initiatives affecting the environment, including proposed defence projects and activities, must have an assessment carried out before they can be implemented. The Government has decreed that assessment of policy changes is also required.

The Canadian Environmental Protection Act obliges the Government to take preventative and remedial measures in protecting the environment.

The Auditor General Act establishes the Auditor General as an "agent of Parliament" with the responsibility to scrutinize departmental programs and expenditures. The Auditor General is required to advise Parliament of wrong-doing, inefficiencies and non-compliance with regulations and procedures, and to assess program effectiveness. The Act recently established the position of Commissioner of the Environment and Sustainable Development and tasked departments to develop and report their "sustainable development strategy" through the Commissioner.

The Public Service Employment Act created the Public Service Commission and made it responsible for appointments and selection standards, as well as staff training and development programs. While the Commission continues to oversee the development and placement of senior public servants and implementation of the "merit" principle in departments, authority has been delegated to deputy ministers and agency heads to manage most actions related to the creation and staffing of positions.

The Public Service Staff Relations Act designates the Treasury Board as the "employer" of the public service, making it responsible for all collective agreements. Administration of agreements and ongoing consultation with unions is the responsibility of deputy ministers and agency heads.