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CANADIAN NON-PERMANENT MILITIA UNITS WATSON SELLAR Ottawa

Canada has hitherto never maintained a standing army in times of peace. The Militia Act' provides for a Permanent Force, not exceeding 10,000 in all, but it is defined by the Act as meaning that portion of the Active Militia permanently embodied for the purpose of providing for the care and protection of forts, magazines, armaments, warlike stores and other military service, and of securing the establishment of schools for military instructions .

Consequently, the Permanent Force exists for the purpose of facilitating a system of national defence based on a citizens' militia organized into non-permanent corps. The statute may properly be regarded as suffering from the pains of obsolescence, a ready illustration being the statutory provisions with respect to enrolment in the non-permanent corps or units. Section 8 states that all male inhabitants of Canada between the ages of eighteen and sixty, who are (a) British subjects and (b) not exempt or disqualified by law, shall be liable to service in the Militia : Provided that the Governor General may require all the male inhabitants of Canada, capable of bearing arms, to serve in the case of a levee era masse.

Section 24 directs that whenever men are required to organize or complete a corps at any time,

either for training or for an emergency, and enough men do not volunteer to complete the quota required, the men liable to serve shall be drafted by ballot .

The following section vests in the Governor in Council a power to make regulations to make effective the balloting process. In practice, these provisions have not been applied. Public-spirited citizens organize and maintain units for the several arms of the service and often, when public grants are inadequate to maintain enthusiasm and attract recruits, money is found by way of private contributions or the officers and men assign drill pay and allowances to the general funds of their unit. On October 16th, 1945, the Minister of National Defence announced that Canada's post-war plans provisionally call for a reserve army to be organized as a force of six divisions with 1 R.S.C ., 1927, c. 132.

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supporting armoured elements and selected corps and army troops for an army of two corps. This represents between 130,000 and 150,000 officers and men. Thus, post-war plans contemplate a materially expanded non-permanent active militia and may, in one way or another, give rise to questions of law, for example, relating to capacity to contract. The Militia Act gives little assistance. It merely recognizes them by declaring: 20 . The Active Militia shall consist of such corps as are from time to time named by the Governor in Council. (2) The Governor in Council may, at any time, disband any corps or portion- of a corps, if he considers it advisable so to do. It is silent, however, as to their status and powers in relationships with the public. Consequently, regulations made by the Governor in Council under the authority of section 139 of the Act are of concern. These, when published in the Canada Gazette, "shall have the same force in law as if they formed part of this Act", and may provide for carrying this Act into effect, for the organization, discipline, efficiency and good government generally of the Militia, and for anything requiring to be done in connection with the military defence of Canada. The power so to legislate is broad, but it might be imprudent were one to accept the words as bringing everything within the field of Parliament and statute law. The Act opens with the declaration that: . 4. The command in chief of the Militia is declared to continue and be vested in the King, and shall be exercised and administered by His Majesty or by the Governor General as his representative . This is a repetition of section 15 of the British North America Act, which,'in turn, takes its origin in a constitutional declaration made in a statute enacted in 1661 during the reign of Charles II : the sole supreme government, command and disposition of the militia and of all forces by sea and land and of all fonts and places of strength is and by the laws of England ever was the' undoubted right of His Majesty and his royal predecessors kings and queens of England and that both or either of the Houses of Parliament cannot nor ought not to pretend to the same. So it is that while the Bill of Rights declares it unlawful to main- tain a standing army in times of peace without the consent of Parliament, once permission is given the prerogative regulates command and administration . Halsbury's Laws of England defines the field of the prerogative in this way:

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the government of the forces is vested in the Crown who has power to make regulations as to command and administration . More colloquially, Anson's Law and Custom of the Constitution (3rd ed., vol. 2, Pt . 2, p. 209) points out that in England the Secretary of State for War is responsible for the exercise of the royal prerogative, and everything that is done in the Army is done subject to his approval . For the use of these powers he is responsible to Parliament . He must answer to Parliament for the discipline of the troops and for their relations with the citizen as well as for their distribution, efficiency and cost . The House of Commons may express its disapproval of a Minister directly by censure, or indirectly by refusing him a vote on a question which he thinks important in the business of his office : but while he holds office he is responsible for the exercise of the King's prerogative in respect of the Army , and is bound to take care that the prerogative is exercised by the Crown and not by Parliament . This distinction may also be illustrated by reference to China Navigation Co. v. Attorney General.2 The Company had requested the British Army to station soldiers on certain of its ships as guards against attacks by river pirates during the course of voyages. This was done. The litigation was to recover the cost. The following is a quotation from the judgment of Lawrence L. J. . It by no means follows that, because it was not the duty of the Crown to provide guards for the plaintiff company's ships, that therefore the Crown had no power to provide the guards and to demand the pay ment of a sum o£ money in consideration for making such provision. I know of no authority which prevents the Crown, if so minded, from employing any available soldiers in time of peace as well as in time of war in rendering services to private individuals, or from demanding and receiving remuneration for any services so rendered, It might form the subject of just criticism in the House of Commons if the Crown were to employ soldiers gratuitously for such purposes, but I see no valid reason for holding that such employment, with or without remuneration, is unconstitutional or against public policy. A soldier enrolls in a unit, but his agreement is with the Crown:

I The enlistment of the soldier is a species of contract between the sovereign and the soldier, and under the ordinary principles of law can- not be altered without the consent of both parties . The result is that the conditions laid down in the Act under which a man was enlisted cannot be varied without his consent .3 While he subordinates himself to the discipline of his immediate superiors, he shares in no collective responsibility for the affairs 2 [193212 K.B. 197. 3 Manual of Military Law (1929), p. 214.

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of the unit. For example, by section 44 of the Militia Act the value of public property issued to a corps, if lost, "may be recovered . . . from the officer in command of such corps" . But the officer in command may recover the value of such articles of public property, or property of the corps. . . . from the officer, man or men responsible therefor. Any liability is personal,, not collective, and while the section refers to property of the'corps, it seems prudent not to regard it as an-association, but as Clode defines it : a body constituted by the commander; in chief for purposes of command, discipline and administration. . Jones v. Hope is the only case noted in which the capacity of a volunteer corps, or unit, to contract as a principal was in issue. It is a decision of the British Court of Appeal, but is oddly reported. The three judges gave extended reasons for their unanimous decision, but although the case was decided in 1880, it is reported 4 as a reporter's footnote to Overton v. Herwitt (a decision relating to the liability of members of a social club for goods supplied) . The corps involved in Jones v. Hope was one constituted under the Volunteer Act (1863) - a statute in its essentials comparable to Canada's Militia Act -which pro- vided that : It shall be lawful for Her Majesty to accept the services of any persons desiring to be formed under this Act into a volunteer corps, and offering their services to Her Majesty through the lieutenant of a county. On such acceptance the proposed corps shall be deemed lawfully formed under this Act as a corps of that county. Jones, a solicitor, performed professional services for the corps. He spoke_ to the colonel about his account : Had you not better give me a cheque and then get the money out of the corps? Colonel: No, I do not wish to do that, it was a corps' debt .. Jones: So it was. I will send in the bill to headquarters . It was not paid ; thereupon he sued the corps, naming the colonel, his successor and the members of the finance committee as existing when the work was undertaken. The Court of Appeal were unanimous in dismissing the case. Brett L.J. was of the opinion that it was beyond the power of the corps, "even if made by every member", to contract to pay legal expenses out, of moneys of the corps and that any person who performs such a service 4 (1886-87), 3 T.L.R. 247.

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cannot make a contract with the corps to be paid out of the money of the corps, and the only contract which he can make is with somebody who will pledge their own personal liability to him. Thesiger L.J. dubbed the corps an "abstract entity" and declared the corps incompetent, as a principal, to ratify a contract purporting to be made as agents in its behalf. Cotton L. J. was more restrained. He was prepared to consider the pos- sibility of a supplier having recourse by means of proceedings being framed against the members of the Finance Committee at the time when the action was brought alleging that they had control of~the funds of the corps, that there had been a contract made pledging the funds of the corps for services rendered to the corps, and that the plaintiff was entitled to be paid out of these funds, But he added : I decline to express an opinion as to whether or not any funds of a vol- unteer corps can be properly made liable to pay a bill of costs for work and labour done by a solicitor for the benefit of the corps. It is another question, perhaps, whether or not the funds of the corps can be so made liable. Subsequent litigants turned to regulations to establish liability of commanding officers. The issue in National Bank of Scotland v. Shawl was with respect to the overdraft in a bank account headed "Second Volunteer Battalion, Royal Scots Fusiliers, Finance Committee". The defendant had been com- manding officer when the overdraft occurred and had joined in signing cheques against the account. The bank, among other grounds, sought to establish liability by reason of a regulation which read in part : . . . . . the whole of the property of a volunteer corps is vested in the commanding officer for the time being, and he is solely responsible for the proper administration of all moneys and other property belonging to the corps. . . . All orders to tradesmen on behalf of the corps should be given by the commanding officer alone and not by the finance committee, and the commanding officer alone should be a party to any necessary contracts so that he alone may remain liable for such expenditures . If the finance committee gives orders to, or enters into contracts with, tradesmen for supplies, they will become jointly and severally liable for the expenditure arising from such orders or contracts . . . . The Court of Session sustained the opinion of the Lord Ordinary, who found that (1) a bank was not a "tradesman", (2) the regulations were "matters of domestic legislation as between the War Office and the Volunteer Force", and (3) the 5 [19131 S.C. 133.

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liability of the person or persons connected with the corps to pay the tradesmen would depend on whether the tradesmen had contracted with him or them on the footing of personal liability, or on the footing of being paid for whatever the corps got the benefit of, or on the footing of being paid only out of the available corps funds.

A few years later, the Canadian Field Artillery Depot, Shorncliffe, England, was involved in Lascelles v. Rathbun.' The plaintiff was a tradesman who had furnished supplies to the officers' mess. The defendant had been commanding officer. By reason of a defalcation, funds of the mess had been lost, with the result that when the defendant surrendered his command mess funds were inadequate to discharge all accounts owing. The plaintiff stressed a regulation reading :

Before handing over the command of a unit or portion of a unit in which an officers' mess is maintained, the commanding officer will send to the district officer commanding a certificate that all debts owing by the mess have been paid, or that a sufficient amount is in hand to meet all liabilities . Should he be unable to furnish this certificate, he will explain the reasons which have necessitated the contracting of debts, so that the district officer commanding may decide whether they are to be paid by the commanding officer or canbetaken over by his successor. The trial judge dismissed the plea, pointing out that : No doubt the regulations laid much responsibility of one kind and another on the commanding officer, but all that the regulations did was to regulate the relations of officers inter se, 'and they had nothing to do with the relations of officers to tradesmen .

For the .Court of Appeal, Bankes L.J. added : The King's Regulations were of a disciplinary character, and they did not of themselves create, and could not create, any liability, or affect any liability between the .C.O . and tradesmen. To succeed, the plaintiff must establish the necessary constituents of a cause of action for goods sold and delivered. He must establish that the defendant either gave, or authorized the giving of, the ordersfor the goods, and that the defendant was the person to whom he gave credit . There was no evidence to estab- lish a cause of action on either of these matters. The only case observed where a commanding officer (or rather his estate) was held liable for a tradesman's account is Samuel Brothers, Limited v. Whetherly.' It related to uniforms supplied and was decided against the defendant because it. was established that he had authorized the goods to be ordered. No Canadian decisions have been noted, so it is prudent to add a footnote to the foregoing. Regulations. made under the 6 (1918-19), 35 T.L .R. 242 and 347. 7 [1907] 1 K.B. 709.

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British Volunteer Act were not, by the statute, declared to have the force of law. Section 136 of Canada's Militia Act declares that all general orders (defined by the Act as orders and in- structions issued to the militia through or by the Adjutant General with the approval of the Minister) shall be held suffi- ciently notified to all persons by insertion in the Canada Gazette, while section 139, already quoted, declares that regulations made shall have the force of law. The British Volunteer Act was re- pealed in 1907, the Territorial and Reserve Forces Act being substituted . This legislation authorizes the incorporation of county associations which hold all property of units in the county. Land may be registered in the corporate name. In short, such an association performs all functions, other than training, of the units which go to constitute it. The association holds all funds, and the Act provides that: The members of an association shall not be under any pecuniary liability for any act done by them in their capacity as members of such association in carrying out the provisions of this Act. Thus British legislation, unlike that of Canada, has established, at least to a degree, a line of demarcation between the field of the prerogative and that of Parliament. While the English courts have been loath to recognize an army unit as a principal to a contract, bequests have been freely recognized. In 1902 Thomas Donald bequeathed sums to the officers commanding various volunteer corps, including the London Scottish Volunteers, for any purpose that they might think to be for the benefit of their corps, "it being my intention that the said sums shall be deemed private funds and be held and expended entirely independently of Government control". Before the legacy was paid over the corps had become subject to the Territorial and Reserve Army Act, and the commanding officer of the London Scottish contested the proposal that the money be paid to the county association instead of to himself. He failed, Warrington J. deciding : Whatever he may have meant by being `deemed to be private funds', it is quite plain that the commanding officer here could not have used the money for his own purposes. That being so, the Legislature has intervened and said that money which is held for the benefit of the corps is now to be paid to the county associations and to be applied by them for the benefit of the corps. It seems to me that . . . . the money ought to be paid to the county associations .a Another bequest to an army unit was before the court in 1925 when executors sought instructions. One of the bequests 3 Re Donald, [1909] 2 Ch. 410, at 421.

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was for £2300 to provide the nucleus of a sports fund in a named regiment "fox the promotion of sport (including in that term only shooting, fishing, cricket,, football and polo)". - $y the time the will took effect the regiment had lost its identity, having been consolidated with another. IZomer J. remarked :

It is also asked by the summons whether the trusts, assuming them to be valid, have failed owing to the disbandment of the regiment mentioned in the testators' will. I think, however, that it is reasonably clear that the regiment has not ceased to exist, but still exists under another name. That particular point was, therefore, very properly ,abandoned at the Bar.9

He decided that the gift was a valid charitable gift. Twenty years earlier an officers' mess had been recognized for the purposes of a charitable trust. A non-commissioned officer died leaving a substantial estate. Among the bequests was one to,provide for the continuing maintenance of a library in the officers' mess of the unit in which he served. An affidavit was filed by the Assistant Adjutant General which stated that :

The said mess is like all other regimental'officers' messes constituted under His Majesty's Regulations for the Army . Every officer of the regiment has to be a member thereof, and as such has certain specified privileges and certain specified obligations . The mess is in fact a regi- mental institution as indissoluble as the regiment itself, and its plate and other property are in no sense the property of its members, but belong to the institution in trust for its members for the time being.,

Farwell J. decided'° that such a mess was "not a mere club" and that the gift "is not a gift to the individual officers of the mess, but it is a gift to the mess for the time being". He held that the gift of a fund, the income of which was to be applied in perpetuity for the benefit of a mess, was "a good charitable gift within the statute of Elizabeth", and named trustees to administer the trust. This was done prior to the legislation authorizing the creation of county associations . Later, Parliament intervened by directing that the accounts be annually audited by the Comptroller and Auditor General and a report made to the House of Commons. In so doing a precedent was followed which had been established many years before. A bequest of £10,000 had been made to the Secretary of State for War and the Paymaster General. The income from it was to be applied to supplement pensions to any fifteen widows selected , by the trustees whose officer husbands had died on active service. The I)rouly Fund 9 Re Gray, [192511 Ch. 362 . 10 Re Good, [1905] 2 Ch. 60:

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Act, 1838, declared the principal to be public money, but to be applied as the will directed. These instances are noted because they permit the conclusion to be drawn that whenever a bequest may have the effect of lessening the Crown's dependence on Parliament for money for army needs, Parliament feels free to intervene.