98 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. 1946] Canadian Non-Permanent Militia Units 99 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: 100 The Canadian Bar Review [Vol. XXIV 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. 1946] Canadian Non-Permanent Militia Units 101 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.