Stephen Harper Democracy Strikes Again

[Saipan]

Liberal Tory same old story.

True, but Tories are out with Joe Who and David Orchard.

[William Ashley]

Disagree as fully as you like; ToadBrother's still correct.

In your mind it is, if that keeps you stable, good for you. Slow and steady.

"A commander in cheif" of the Canadian forces is the Queen

and the governor general has the same capacities but is still apointed and holds office on the wishes of the Queen.

The Queen is also the executive,

The queen is the executive - head of state. So she is the one who has the final say on foreign affairs.. and then the governor general has the final say - but both conduct foreign affairs base on advice of the privy council - and there is no limitation nor any constitutional precedent that removes the rest of privy council from giving advice regardless of what you may think. I have yet to see any evidence of this. This does not prevent consultation with other members of the privy and weigh based on the standing of those members. It is just another form of court.

with that power carried out by the governor general in her name,

They are two separate powers, but the governor general can exercise some of those powers with the permission of the Canadian Privy Council.

but he or she must govern as such on the advice of the Privy Council.

The governor-general CAN act on the advice, they are not required to. They can also seek advice or permission to act.

As they have responsibilities in addition to simply being a stamp for the government. They may use their powers and capacities - as people have the duty to them to assist them in performing their responsibilities.

Of course, the Cabinet is a committee of the Privy Council and by constitutional convention it's the ministers therein who direct the sovereign and/or the viceroy on matters of executive governance.

It goes both ways.

There's nothing in the constitution - either in writing or by convention - that allows parliament to run the military directly. The only impact parliament has in that regard is the ability to make or amend law and to hold up or bring down the government that does command the armed forces.

It is called the ability of parliament to make law - parliament is supreme under god. (and the queen is part of parliament)

(parliament can remove the queen btw - then what? Really though, the thing is thou don't get that the queen is part of parliament. Understand that parliament is constitutionally the big guy on the block.. --- the executive is delegated by parliament through ends policies through legislation - they say how people do things ---- the executive makes means policies, they use the laws parliament makes to do stuff... and people carry them out if they can)

Edited November 13, 2010 by William Ashley

[punked]

Before we blame Harper we should look to the opposition for their opinions.

Bob Rae says

“Whether there's a parliamentary resolution is not a matter of law (or even custom) but a choice of the government,” Mr. Rae told The Globe Friday morning. “In the current circumstance I fully understand the government's decision.”

So looks like the Liberals support the Conservatives so unless we are voting NDP we really don't get to make a big stink. Are you voting NDP because the Liberals think this an A-OK decision.

Edited November 13, 2010 by punked

[g_bambino]

In your mind it is, if that keeps you stable, good for you.

You've provided nothing to show that I am wrong.

[William Ashley]

You've provided nothing to show that I am wrong.

Being wrong and having only a portion correct are two different things. Also you are diluting the comments - what did I state that was wrong and where is your evidence of this?

Point by point por favor

enough with your completely devoid of substantial rebuttal rhetorical eggbeater.

You could achieve the same effect by talking to your hand.

I'm a fan none the less you serve wonders for the less knowing around the world.

Edited November 14, 2010 by William Ashley

[g_bambino]

[W]hat did I state that was wrong and where is your evidence of this?

Your indication that the Queen-in-Council is not the Commander-in-Chief is what you said that was wrong. The evidence of your error was provided here.

[fix link]

Edited November 14, 2010 by g_bambino

[William Ashley]

Your indication that the Queen-in-Council is not the Commander-in-Chief is what you said that was wrong. The evidence of your error was provided here.

[fix link]

Dude you clearly can't read I said the QUEEN.. I also stated that the queen in parliament would be just as functional, as queen in council.. but the intent, the meaning of means of address, likely relates to any means of address, not simply queen in council. Queen in council generally only relates to orders in council and some other things.. this is not the only means of the queen issuing orders, likewise this would be applicable to all Commandants.

Also linking to a post without any evidence is exactly what I am refering to when I say devoid.

Edited November 14, 2010 by William Ashley

[William Ashley]

Your indication that the Queen-in-Council is not the Commander-in-Chief is what you said that was wrong. The evidence of your error was provided here.

[fix link]

Dude you clearly can't read I said the QUEEN.. I also stated that the queen in parliament would be just as functional, as queen in council.. but the intent o likely relates to any means of address, not simply queen in council.

Also linking to a post without any evidence is exactly of queen in council is exactly what I am referring to when I say devoid.

You are totally misrepresenting my statements.

I stated the QUEEN.. the QUEEN IN COUNCIL is when the queen acts on advice of its council.

much like the QUEEN acting with the QUEEN IN PARLIAMENT

or the QUEEN ACTING on a perogative of mercy or any other application of reserve powers including command of the forces or granting letters patents or proclamations regarding those powers. THE QUEEN could very much make a patent without an order in council via an act of parliament or a court order. Likewise there are other means.

you just arn't getting it.

The exclusivity you are purporting n QIC is what I find issued, I am not denying the fact that QIC has the ear of the queen (although GIC is usually more appropriate in canada)

Queen in Parliament is more powerful than queen in council, because it is unbound except by the constitution. The executive is also bound by laws that restrain it.

I'm not aware of laws restraining parliament, except the parliament act, parliaments standing orders and house rules etc, but parliament can alter its own law... the ammending formula complicates this - as well as some other things..

http://laws.justice.gc.ca/en/P-1/

I am still of the belief parliament is unbound for constitutional reasons. Much the same that the executive is bound by the judicature and its own legitimacy.

Prohibited use of expression “Parliament Hill”

80. (1) Notwithstanding anything contained in any Act of Parliament or regulation made thereunder, no person shall use the words “Parliament Hill” in combination

(a) to describe or designate a property, place, site or location in the National Capital Region described in the schedule to the National Capital Act other than the area of ground in the City of Ottawa bounded by Wellington Street, the Rideau Canal, the Ottawa River and Kent Street;

( to identify any goods, merchandise, wares or articles for commercial use or sale; or

© in association with a commercial establishment providing services.

Offence and punishment

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Construction

(3) This section shall not be construed as limiting in any way the powers, privileges, rights and immunities of both Houses of Parliament and of their members.

R.S., 1985, c. P-1, s. 80; 2001, c. 20, s. 13.'>Offence and Punishment

Prohibited use of expression “Parliament Hill”

80. (1) Notwithstanding anything contained in any Act of Parliament or regulation made thereunder, no person shall use the words “Parliament Hill” in combination

(a) to describe or designate a property, place, site or location in the National Capital Region described in the schedule to the National Capital Act other than the area of ground in the City of Ottawa bounded by Wellington Street, the Rideau Canal, the Ottawa River and Kent Street;

( to identify any goods, merchandise, wares or articles for commercial use or sale; or

© in association with a commercial establishment providing services.

Offence and punishment

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Construction

(3) This section shall not be construed as limiting in any way the powers, privileges, rights and immunities of both Houses of Parliament and of their members.

R.S., 1985, c. P-1, s. 80; 2001, c. 20, s. 13.

Edited November 14, 2010 by William Ashley

[g_bambino]

I also stated that the queen in parliament would be just as functional, as queen in council..

Whether she would be or not, that's not the case now. Actions like the deployment of troops are made on the advice of ministers in Cabinet, not at the direction of the House of Commons and Senate (though it is the opposition's duty to hold those ministers to account for the advice they tender to the monarch/governor).

[+]

Edited November 14, 2010 by g_bambino

[William Ashley]

Whether she would be or not, that's not the case now. Actions like the deployment of troops are made on the advice of ministers in Cabinet, not at the direction of the House of Commons and Senate (though it is the opposition's duty to hold those ministers to account for the advice they tender to the monarch/governor).

[+]

The minister of defence does not command the Canadian Forces. The national defence act outlines what powers cabinet has and they are specific - this is not the ONLY way to deploy the forces.

Do you know the legislative process? It goes beyond the commons and senate there is also ascension where the monarch or their representative agrees to the law.. they don't have to, there have been acts that have been denied in the totality of Canadian constitutionality.

In 1999, Queen Elizabeth II, acting on the advice of the government, refused to signify her consent to hearing of the Military Action Against Iraq (Parliamentary Approval) Bill, which sought to transfer from the monarch to Parliament the power to authorize military strikes against Iraq

I won't post the whole history of consent but many case specific examples of it is layed out here

http://en.wikipedia.org/wiki/Royal_Assent

However this establishes

1. the monarch may refuse but does so at their own prerogative (based upon their capacities to and the effect of taking those actions) on their determination and based on historical context only for matters of great importance, in regard to the duties of the monarch that cannot be alienated

2. that the monarch has command of the forces in Britain, but parliament can ask

3. other things.

For example

The appropriate formula for withholding Assent is the euphemistic La Reyne s'avisera (the Queen will consider it).

. The power to withhold the Royal Assent was notably exercised by Alberta's Lieutenant Governor, John C. Bowen, in 1937, in respect of three bills passed under William Aberhart's Social Credit Government. Two bills sought to put banks under the authority of the province, thereby interfering with the federal government's powers. The third, the Accurate News and Information Bill, purported to force newspapers to print government rebuttals to stories to which the provincial cabinet objected. The unconstitutionality of all three bills was later confirmed by the Supreme Court of Canada and by the Privy Council.

Here we can see three examples of when royal ascent was denied.

You are very much incorrect though in that it is not cabinet, it is privy council, and more so it is also queens council, and other councils.

Take a look at these

http://www.justice.gc.ca/eng/dept-min/pub/ccs-ajc/page3.html

For example

Military Courts

Military courts, or courts martial, were established under the National Defence Act to hear cases involving the Code of Service Discipline. The Code applies to all members of the Canadian Forces as well as civilians who accompany the Forces on active service. It lays out a system of disciplinary offences designed to further the good order and proper functioning of the Canadian Forces.

The Court Martial Appeal Court hears appeals from military courts. Its function is comparable to that of a provincial/territorial appeal court, and it has the same powers as a superior court. Judges in the Court Martial Appeal Court are selected from the Federal Courts and other superior courts throughout the country. Like other courts of appeal, the Court Martial Appeal Court hears cases as a panel of three.

TRIAL BY JURY

Under the Canadian Charter of Rights and Freedoms, individuals accused of the most serious criminal offences generally have the right to choose to be tried by a jury or by a judge alone. A jury is a group of people, chosen from the community, who assess the facts of a case after a judge explains the law to them. They then make a decision based on their assessment. Sentencing, however, is left to the judge. Trial by jury is also available in some civil litigation, but is rarely used.

THE SUPREME COURT OF CANADA

The Supreme Court of Canada is the final court of appeal from all other Canadian courts. The Supreme Court has jurisdiction over disputes in all areas of the law, including constitutional law, administrative law, criminal law and civil law.

The Court consists of a Chief Justice and eight other judges, all appointed by the federal government. The Supreme Court Act requires that at least three judges must come from Quebec. Traditionally, of the other six judges, three come from Ontario, two from western Canada, and one from the Atlantic provinces. The Supreme Court sits in Ottawa for three sessions a year – winter, spring and fall.

Before a case can reach the Supreme Court of Canada, it must have used up all available appeals at other levels of court. Even then, the Court must grant permission or "leave" to appeal before it will hear the case. Leave applications are usually made in writing and reviewed by three members of the Court, who then grant or deny the request without providing reasons for the decision. Leave to appeal is not given routinely – it is granted only if the case involves a question of public importance; if it raises an important issue of law or mixed law and fact; or if the matter is, for any other reason, significant enough to be considered by the country’s Supreme Court.

In certain situations, however, the right to appeal is automatic. For instance, no leave is required in criminal cases where a judge on the panel of a court of appeal has dissented on how the law should be interpreted. Similarly, where a court of appeal has found someone guilty who had been acquitted at the original trial, that person automatically has the right to appeal to the Supreme Court.

The Supreme Court of Canada also plays a special role as adviser to the federal government. The government may ask the Court to consider questions on any important matter of law or fact, especially concerning interpretation of the Constitution. It may also be asked questions on the interpretation of federal or provincial/territorial legislation or the powers of Parliament or the legislatures. (Provincial and territorial courts of appeal may also be asked to hear references from their respective governments.)

Edited November 14, 2010 by William Ashley

[g_bambino]

The minister of defence does not command the Canadian Forces.

You're right, he doesn't. He advises the Commander-in-Chief and/or the personal representative thereof on how to command the Canadian Forces. By constitutional convention, the Commander-in-Chief and/or the personal representative thereof cannot go against that advice unless the advice is illegal or the person tendering it has lost the right to be a minister of the Crown.

[William Ashley]

You're right, he doesn't. He advises the Commander-in-Chief and/or the personal representative thereof on how to command the Canadian Forces. By constitutional convention, the Commander-in-Chief and/or the personal representative thereof cannot go against that advice unless the advice is illegal or the person tendering it has lost the right to be a minister of the Crown.

All these constitutional conventions that are untested in court, and have no examples sure seem convincing, not.

Senior military officers are appointments, much like senior judge positions, they exercise at their own leisure, and only owe loyalty to the queen and the laws of Canada. They determine their own actions, there are only some mechanisms of standing orders issued through the national defenece act, much like the governor general or queen can issue orders, much like a commandant can issue orders that fall within their operating scope.

Where are you drawing your statements this from? Ths seems like you are concocting these for some ulterior motive.

Letters patent or acts have not been created for what you are explaining. I disagree with your assessment that there is convention obliging the military to follow commands of ministers of the crown. Only those that have specific powers would be applicable.

The military is an independent body, and they do not take orders from just any minister. governor in council - does provide as stated some measures under SPECIFIC acts, it does not give a carte blanche for cabinet to command the forces at their liesure.

Governor in council can request things from the governor general who must agree to the order, and the governor general can refuse. You notion of a completely devoid governor general are false and a gross violation of the position - it is not "convention" it is a violation of previous long standing tradition.

By convention the leaders of opposition should also be consulted and if controversial to the public of Canada and a serious act the issue should be refered to parliament to determine public will.

Use of the forces in a non emergency situation in foreign acts of war, really does fall under the area of parliament, although the GG can act on advice - it simply isn't mindful of a democratic society to act on such serious issues without parliaments consent. It is not entirely illegal but if in issue, it is damaging to the notion of democracy. And Canada has been incredibly poor in terms of democracy Over the last 3 years, this is only another nail in the coffin of a functioning democracy in Canada. And yes I will say that this is even more important in a minority parliament, because even the government isn't fully legitimate in terms of being the wlll of parliament - as atleast two attempts have been made by the majority in parliament to remove them.

Also in this case, it is akin to fraud because multiple statements made by the PM are directly contrary to their latest statements - such as no military mission will take place after 2011. The Canadian forces save for people to guard the embassy will be removed. These are statements that are false. Clearly when a government is liein to the public then it is an issue. Non invoking of the emergencies act also shows that the situation is not an immediate threat. Standing orders under the national defence acts NATO clause also have not been issued. ISAF is a UN mission, the government is not acting within the established legal frame work and that is part of the issue, because they are not acting by parliaments will, they are exercsing arbitrary rule, and that is a constitutional nono. This situation is problematic because 1. it is not a declared emergency 2. it is not a standing order under nato - it is a UN mission, and Canada has no statutory or conventional requirement to contrary to the democratic principles of their nation oblige a UN security council declaration - I can understand assisting this if the public supported it, but that is the whole reason why the public is consulted. Also Canada should not put in more than the full request of NATO, also there is no reason in the over 200 nation UN that canada pay for the mission on its ow, afterall there are even countries who don't have a huge public debt. Why isn't t being financed by the more wealthy UN nations. Simply put it is non democratic, fiscally irresponsible, and unfair to the public of Canada for the government to engage unilaterially.

While there are methods to do this statutorily, the means being used by the government are not, they are arbitrary and an abuse of the governor general when there are acts established to use the forces. Debate HAS occurred on this, and it is not a sudden development. In the past the PM made statements completely contrary to what has occurred. That is very much bait and switch, and it is a dishonorable and wrong act.

It is criminal in civil society

http://en.wikipedia.org/wiki/Bait-and-switch

There are some epistemological ways of for instance controlling command but it requires consent of people who are legally queens Captains(such as the governor general - by Captain I mean individual who commands some office in their own right - but still answer to the queen. A Lieutenant is someone who acts on specific orders.

I don't bring these terms in to confuse the military terms and the more historic terms.

Any powers the minister of defence over the process mostly stem from the national defence act. However I see no where in it that the minister of defence commands the forces.

http://laws.justice.gc.ca/eng/N-5/page-2.html#anchorbo-ga:l_II-gb:s_19

http://www.cmp-cpm.forces.gc.ca/dsa-dns/index-eng.asp

Responsibility and channels of communication

(2) Unless the Governor in Council otherwise directs, all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff.

Note that Governor in council is inclusive of the governor general. And the GIC invoking standing orders to the forces without parliamentary consent in a non emergencies act situation - is as stated above a constitutional nono.

It is more or less arbitrary rule and as stated above is not a democratic process.

The fact this deployment is months off, only demonstrates a contempt of parliamentary process, also not obtaining supply prior commitment to a mission is also offensive. International Agreements of a non emergency situation that involve commitments ought to be tested in parliament. If it is not an emergency and there is no legal requirement why is arbitrary rule being used?

This was decided back in the 1670's, that exercise of royal prerogative over state functions was subset to parliament - under Charles II.

http://www.localhistories.org/17thcent.html

A Dissolution Act stated that parliament could not be dissolved without its consent.

http://en.wikipedia.org/wiki/Self-denying_Ordinance

In practical terms, the Ordinance solidified the power of Cromwell and his “war party” faction. Cromwell was a member of the House of Commons, so he was obligated to resign his post as well. However, the Committee of Both Kingdoms, which oversaw the war, found his talents as a soldier indispensable. His term in command was extended several times, in forty-day increments, until it was finally made permanent. While this appointment was officially as Fairfax’s lieutenant general, Cromwell wielded influence well beyond his rank.

Edited November 14, 2010 by William Ashley

[g_bambino]

Where are you drawing your statements this from? Ths seems like you are concocting these for some ulterior motive.

I'm basing my statements on a knowledge of civics that anyone over at least the age of 12 should already have: the Queen and governor general follow the advice of ministers accountable to the elected House of Commons unless said advice is illegal or the person giving it has lost the right to be a minister. That is the case in Canada, other constitutional monarchies like Canada, and in Westminster parliamentary republics. If you think there's an ulterior motive contained in there somewhere, take it up with the Brits who started the whole system in the first place.

And Canada has been incredibly poor in terms of democracy Over the last 3 years, this is only another nail in the coffin of a functioning democracy in Canada.

No, it's not.

Also in this case, it is akin to fraud because multiple statements made by the PM are directly contrary to their latest statements - such as no military mission will take place after 2011.

The prime minister is allowed to change his mind. If that upsets the majority of elected representatives of Canadians in the House of Commons, then it's within their power to bring down the prime minister. That's parliamentary democracy.

[+]

Edited November 14, 2010 by g_bambino

[William Ashley]

I'm basing my statements on a knowledge of civics that anyone over at least the age of 12 should already have

Who was your civics teacher? Name. Where did they get this information? Essentially you are saying because someone else told me so. That doesn't make it true, it makes it hearsay. Hearsay is not a strong argument, only a lead to find more solid information or "substantial evidence" of a fact to be established.

: the Queen and governor general follow the advice of ministers accountable to the elected House of Commons

I don't know where you are getting this from. Ministers are appointed by the person granting post (usually the chancellor / chief privy council officer. There is no restriction that ministers come from the commons - more over the only requirement is in general for them to be privy councilors - however this has been based on type of appointment. As there are different classes of ministers. Also they are not accountable to the house - the government is accountable to votes of confidence - although technically a bill could be crafted to have the queen enact specific individuals as "private bills" (not to be confused with private member bills) or commissions of office stemming from an act of parliament. Whereby parliament would select the minister. However the Prime minister is who generally nominates and manages government - however both the GG and Queen and anyone they designate can also under letters patent do much the same in managing government. There is no letters patent I am aware of for the office of the PM though.

unless said advice is illegal or the person giving it has lost the right to be a minister.

Not the case --- actually advice is based on membership in the privy council or queens council or other councils and means of address such as the courts, parliament, and other means. Likewise the advice need not be illegal but rather be of a nature whereby it is not good advice due to particular nature of the effects of acting on such advice - much the same as a fiduciary responsibility- that is causing disastrous consequences of acting upon it - for whatever reason. Obviously a level of distraction needs to be determined when anyone exercises a reserve. Due to it being a refusal - and this can cause political indifference.

Galambos v. Perez

http://csc.lexum.umontreal.ca/en/2009/2009scc48/2009scc48.html

That is the case in Canada, other constitutional monarchies like Canada, and in Westminster parliamentary republics. If you think there's an ulterior motive contained in there somewhere, take it up with the Brits who started the whole system in the first place.

ELEMENTS: an express or implied undertaking by the fiduciary to act with loyalty

and discretionary power to affect the other party’s legal or practical interests.

IN this instance due to custom the Queen owes duty to her people, and the PM owes duty to the Queen. Likewise any officers who perform oaths of loyalty it is much the same - but this in respect of the duty including what the queen repressents - such as the constitution, tradition and rite.----

The Brits didn't start the system the King did. Learn a little about parliamentary history it goes back much father and ties in with many tribal customs - as far back as time immemorial. The parliamentary institution came about to address specific issues. It is history, you are implying I'm not aware of the history, this simply isn't the case.

No, it's not.

because.... substance and evidence , I believe you can do it.

The prime minister is allowed to change his mind.

Does this show the person as a decisive person with good foresight, the type of person you want to entrust with guiding a government? I fully agree though that situations change, but I havn't been demonstrated with anything indicating the environment has changed between the last vote and his declaration not to involve parliament with positioning of Canada's best training officers, and well probably 1 in 5 training officers Canada has. As well as deploy forces without acquired supply for 3 years. Hey, I'm sure the Afghans might house and feed them, but they are on payroll. Why not just give them a 3 year leave and let the Afghans pay them. Supply it is a supply decision. Supply has to be raised through the commons.

If that upsets the majority of elected representatives of Canadians in the House of Commons, then it's within their power to bring down the prime minister. That's parliamentary democracy.

[+]

...

Edited November 14, 2010 by William Ashley

[g_bambino]

Essentially you are saying because someone else told me so. That doesn't make it true...

And you making up random theories doesn't make them true. There are constitutional rules that form the system; I am adhering to those.

There is no restriction that ministers come from the commons...

True. But it has become the norm.

Also they are not accountable to the house - the government is accountable to votes of confidence...

And where, exactly, is it you think votes of confidence take place if not in the House of Commons?

The Brits didn't start the system the King did.

Constitutional monarchy and parliamentary democracy emerged in the United Kingdom, often against the will of the monarch.

[Topaz]

Today, there's a report out that President Karazi, wants the US to stop the night time raids on the villages because the people do not like it. Karazi also says these raids are creating more Afhanis to join the Taliban. The US gebneral and the President don't see eye to eye on this. Perhaps, ALL forces should leave by the end of 2011. http://www.ottawasun.com/news/world/2010/11/13/16131201.html

[William Ashley]

And you making up random theories doesn't make them true. There are constitutional rules that form the system; I am adhering to those.

They arn't random theories, they are facts. If you can contest any of them do so, but I suggest you back it up with evidence. Challenge any point I have made.

True. But it has become the norm.

There is no norm. 50 years is only a small portion of the last 300 or last 3000. See the big picture. If you learn from history you can choose the right thing. You suggest blind experimentation - that is a little irresponsible when civilization is at stake.

And where, exactly, is it you think votes of confidence take place if not in the House of Commons?

The difference is that you state minister not government. A non confidence vote in government is much different than a non confidence vote in a minister. See the difference. If there is only one person as to a problem then you can address that person without a non confidence motion in government. A good government can have a weak link and not require the whole thing to be sunk.

Constitutional monarchy and parliamentary democracy emerged in the United Kingdom, often against the will of the monarch.

Yes but the king called parliament and put out a request for representatives. This grew from the hereditary council of lords that composed the king's government. This is what the privy council evolved from, then have you parliament.

[g_bambino]

If you can contest any of them do so, but I suggest you back it up with evidence. Challenge any point I have made.

Already done.

[William Ashley]

Already done.

You looping your post back to a post that didn't even address or rebut any of the points it responded to with evidence does little to disprove anything I said nor provide evidence. You arn't presenting any real discussion here, and at best it is rhetorical fluff. If this is the illegal and fraudulent world you aim to live in, it is your own loss.

[g_bambino]

You looping your post back to a post that didn't even address or rebut any of the points it responded to with evidence does little to disprove anything I said nor provide evidence. You arn't presenting any real discussion here, and at best it is rhetorical fluff.

It does indeed prove to be false your claim that it is not the Queen-in-Council (or Governor General-in-Council in her place) that directs the deployment of Canadian Forces troops and that their being sent to Afghanistan without a prior vote in parliament is somehow illegal.

[William Ashley]

It does indeed prove to be false your claim that it is not the Queen-in-Council (or Governor General-in-Council in her place) that directs the deployment of Canadian Forces troops and that their being sent to Afghanistan without a prior vote in parliament is somehow illegal

And how does your statement provide evidence of that?

The problem is the mechanism. The PM cannot just say - ok we are going to invade Ireland today. Even the US president can't do that without the senates prior approval legally, an order of that sort would probably be grounds for impeachment. That is exactly what that sort of unilateral act is, illegal., the PM doesn't command the forces. The minister of defence sets general operating policies based on parliamentary acts, they do not tell them where to go, they facilitate for the military to help them meet their objectives. This however over sighted by parliament - as they control the executive, and the monarch. That is part of the parliamentary system - to keep government representative of the peoples wishes, rather than a dictatorship. Meanwhile the executive is there to enact the will of the people, not their own minority policy.

You were stating things like the Ministers etc.. when in fact it is by the Privy Council, you could at least make note of the correct usage.

Some notable examples for instance:

Offices of the Ministry but not of the Cabinet

There have been several offices that were considered of the ministry but not of the cabinet. The Solicitor General of Canada, Controller of Customs, and Controller of Inland Revenue have all, at various times, fallen into this category. They were not appointed to the Privy Council and did not attend cabinet meetings..[9] Parliamentary secretaries and parliamentary under secretaries during the Ninth and Tenth Ministries were also included in this group.

On several occasions, parliamentary secretaries and parliamentary under secretaries were appointed from among members of the House of Commons to assist various ministers or to act in their absence. The Parliamentary Secretary of Militia and Defence and the Parliamentary Under Secretary for External Affairs, were appointed by Order in Council on 15 July 1916. A Parliamentary Secretary of Soldiers' Civil Re-establishment was appointed in February 1918. Since their duties were ministerial in nature, parliamentary secretaries and parliamentary under secretaries were considered of the ministry but not of the cabinet..[10] An annual salary of $5000 was provided for in September 1917 by Statute Geo. V, c. 35. The Statute also provided for the abolition of the offices of Parliamentary Secretary of Militia and Defence and Parliamentary Under Secretary for External Affairs at the end of the session of Parliament in which the First World War ended. The office of Parliamentary Secretary of Soldiers' Civil Re-establishment was abolished in June 1928.

Parliamentary Assistants and Parliamentary Secretaries not of the Ministry

Parliamentary assistants were first appointed in the Sixteenth Ministry. Provision for their appointment and a salary of $4000 per annum was made by an annual vote in the House of Commons estimates. Formal appointments were made by Order in Council and the parliamentary assistants ceased to hold office on the dissolution of the House. Parliamentary assistants were not considered to be of the ministry. By the Parliamentary Secretaries Act, 1959, the office of parliamentary assistant was replaced by that of parliamentary secretary. The Act provided for the appointment of a maximum of 16 parliamentary secretaries. In 1970, it was amended to allow the appointment of a parliamentary secretary to assist each minister.

It is closer to the truth that a minister advising on their own ministry might be taken with more weight than not, this goes further why cabinet tends to have the open exerted influence in privy - because they advise in regard to their duties. This does not mean that other members of privy cannot minister on the subject matter, but they may not be as "involved" in the ministry.

My statement was that it is "The Queen" that is commander in cheif, but she is not the only commander in chief, likewise there are commandants who command and direct the forces based on standing orders. Those orders can come through a variety of mechanisms such as the defence act and emergency act. For instance Cabinet acts under the emergency act - not the ministry, but requires parliamentary review. The defence act only has certain means.

Any privy can advise.

In regard to standing orders - that is a while dfferent issue from what you were stating.

I already showed you http://www.cfsuo.forces.gc.ca/so-op/soc-opc-01-eng.asp to start to explain this process.

Technically a letters patent could be issued but this sort of self declaration would be incredibly rare use of the reserve powers and done secretly without public knowledge.

I'm not saying it can't happen, but I am saying the way the PM is going about this is not "within the law" as it exists to the public eye.

It is a deployment in a war zone, and it is one where I have yet to see any standing orders issued of that sort. The PM hasn't gone along and said as part of the ongoing NATO war effort against the Taliban since our collective security is threatened due to al qaeda.

Under that premise that NATO is at war with a non nation it means that they can even be at war in Canada right now without parliamentary consent. It is an issue. It turns the war on terror into a global war where the military can be used in full effect without public consent. That is a police state.

Likewise there was never war declared on the Taliban so they are all illegal acts of war.

This is a deployment to a war zone, the only normally legal mechanism - that is non arbitrary deployment at this point, is based on an ongoing war conducted by NATO - not the UN. And in this case there is a "secret non declared war"

It is acting outside the law.

It is misappropriation, if funds go to the CF for lawful purposes an unlawful war would be misappropriation if moving funds from lawful purposes to unlawful purposes.

It would be a violation of rules of supply. Especially if there have already been funds allocated to this deployment without consent of parliament, raised through public moneys.

I should note though the appointments in the above quote appear to violate the place act.

Edited November 15, 2010 by William Ashley

[g_bambino]

And how does your statement provide evidence of that?

By pointing out the relevant parts of the constitution.

[ToadBrother]

All these constitutional conventions that are untested in court, and have no examples sure seem convincing, not.

You don't test constitutional elements in court, other than to refine how they apply, or normally, how legislation measures up against them.

This is no convention. The BNA Act explicitly puts the military under the command of the Queen. You can keep trying to argue your way out of this, but it's there in black and white. Parliament does not directly control the military, and has not in any way done so in well over three hundred years.

Besides, what's the sudden "needs to be tested in court" line anyways? I showed you where the Act of Settlement, 1701 and the Statute of Westminster were tested in a Canadian court and deemed to be constitutional documents still fully in force, and you just invented some crapola about how the judge was wrong.

Edited November 15, 2010 by ToadBrother

[William Ashley]

By pointing out the relevant parts of the constitution.

You are loading your responses with misleading information - and quoting the constitution 1867 doesn't void everything that has happened after that. You seem to think that since the constitution 1867 states the queen is commander in cheif, the letters patent on the office of the governor general 1931 seems to mean that the governor general isn't commander in chief also.

I go on to each point you happen to make and explain the shortcomings in the total situation. Just quoting one document does not give a full and accurate answer, it narrows only one part of the application.

You are contesting statements without giving the full answer, and as far as me contesting your statements, I've only done so as much as they do not fully address all laws involved.

So you state your evidence is all in the constitution 1867 - well it doesn't fully address how the command structure of the military works it only explains a portion of it.

You are essentially clinging to that one document like a safety blanket as opposed to actually getting up and seeing the big picture.

So once again I invite you to contest any point I have made and supply a rebuttal with evidence - evidence supporting a full view rather than one that doesn't address the whole picture.

Edited November 15, 2010 by William Ashley

[Army Guy]

Here is some Quotes from the book "National Defence Headquaters: Center for Decision, by Douglas Bland.

Chap 2

Basic concepts.

Responsibilty for preparing defence policy and using the armed forces to provide a reasonable assurance of National defence is delegated by the people of Canada to the Governing party. However the delegation of these responsibilities to the government of the day is limited. No government has unrestricted power over the CF. Rather Caanda's constitutional arrangements and laws provide a set of checks and balences meant to control the authority of the government, CF and civil bureaucracies.

In effect the formulation of defense policy and the implementation and administration of that policy are shared by the Govern General, PM, MDND, and the CDS, and a minor role to the Deputy MDND.

The concept of shared responsiablity is one source of those checks and balances laid out in the NDA. And decreases the risk if slight of a majority party ordering the Military to do something that is partisan, If the CDS was under direct control of the government he would have to follow the partisan order or break the law.

Therefore under the NDA (National Defense Act)The military falls under the GG, which falls under the Queen. and provides the break needed. Another break is the only person allowed to give direct orders to the Military is the CDS. meaning any orders must come out of that office, or are invalid.

You really need to read the entire NDA, as it lays out who can do what and when , including ordering our country to war.