by Philippe Lagassé

Canada’s deployment of military advisors to Iraq has raised questions about Parliament’s role in deployment decisions. The Conservative government has decided that a parliamentary committee will be briefed about the operation. The New Democratic Party (NDP) deems this insufficient; they would like the House of Commons to vote on the mission. The Liberal Party, meanwhile, supports the government’s position. In light of the request for a vote by the official opposition, it is worth revisiting what the law and precedents tell us about when a military deployment vote should be held.

Legally, the executive can deploy the Canadian Forces (CF) without consulting Parliament. The legal authority to deploy the armed forces is sourced in a royal prerogative, powers that the Crown possesses independently of parliamentary statute and that are exercised on ministerial advice. Parliament has never sought to appropriate the military deployment prerogative, nor has it been curtailed by an act of Parliament. It remains a discretionary authority that belongs solely with the executive.

Because the criteria for holding are political, rather than legal, they are especially difficult to pin down.

The argument might be made that the executive is nonetheless bound by constitutional convention to hold a vote prior to deploying the military, but precedents do not support this assertion. Canada’s military has been deployed on combat operations overseas without a vote in the Commons and the armed forces are routinely sent on non-combat missions without one. For example, the Liberal government of Prime Minister Paul Martin deployed the CF to Kandahar, Afghanistan in 2005 for a combat operation without a vote, and the Conservative government sent military units to Eastern Europe this past year without holding a vote.

Governments do occasionally ask the Commons to approve military deployments, however. Since forming his government in 2006, Prime Minister Stephen Harper has made it a point to secure the House’s approval for military missions involving combat. Accordingly, the Harper government held votes for the extension of the CF’s mission in Kandahar and the military’s contribution to the invention in Libya.

What are we to make of these votes? Above all, they can be seen as a courtesy that the executive shows to the Commons. The votes allow MPs to express themselves on a matter of national importance. In addition, they can be seen as a means of assuring the military that their mission has the support of the elected house of Parliament, and the votes add an aura of democratic legitimacy to controversial policy decisions. More cynically, holding these votes can be interpreted as a way for the governing party to protect itself politically. By laundering these decisions through the House, the government gives the impression that the Commons shares responsibility for the deployment. And if an opposition party votes in favour of the operation, its ability to hold the government to account for the mission will be diminished, since the ministers will be able to remind them – and the public – that they endorsed the deployment.

Regardless of what drives practice of holding the votes, the conditions for when they are held or not are becoming clearer. Votes will be initiated by the Conservatives when a deployment of the regular forces involves combat or a high risk of combat. Votes will not be initiated if combat is not expected. Missions that carry a risk of casualties do not necessarily require a vote; the Prime Minister’s choice to highlight that the advisory mission in Iraq carries some risk but will not get a government-sponsored vote highlights this principle.

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We also know that deployments of warships to conduct anti-piracy missions and counter-terrorism operations have not been accompanied by votes, nor have the dispatch of military transport planes and fighter aircraft to air patrol operations. It is likely that Canada’s special operations forces have been deployed missions that involved the use of force, yet these operations did not warrant a vote. (Even the more ardent advocates of holding votes would probably agree that it would not make sense to advertise when covert operations will take place or have taken place.) Finally, sending members of the Canadian Special Operations Regiment (CSOR) to advise regional partners who are battling insurgents, organized crime, or extremist groups has not prompted a vote, as the regiment’s missions in Latin America, Africa, and now Iraq, demonstrate.

The NDP seem to have a broader view of when votes should be held, though the criteria the party applies is murkier. Given that the NDP wanted a vote for the CF’s training 2011-2014 training mission in Kabul, Afghanistan, it appears that the party thinks that certain non-combat missions should be voted upon. Interestingly, though, the NDP did not request a vote on the deployment of fighter aircraft and training personnel to Eastern Europe, and it has not tried to initiate votes for smaller deployments, such as the navy’s anti-piracy missions. What is more, the NDP did not suggest that there be a vote for CSOR’s training missions in Latin America or Africa, but the party is now demanding that there be one for the regiment’s mission to Iraq.

When I queried them on Twitter, the NDP responded that the deployment to Eastern Europe did not need a vote since it contributed to a routine NATO mission. I also asked why CSOR’s operation in Iraq should be voted upon, despite the fact that the regiment’s comparable mission elsewhere did not. This question did not elicit a response. In lieu of a greater degree of consistency from the party, it is safest to conclude that the NDP believes that votes should be held when a military deployment seems potentially divisive or dangerous.

This is likely not the last time the government and opposition will debate whether there should be a vote on a military deployment. Because the criteria for holding are political, rather than legal, they are especially difficult to pin down. However, those who favour holding votes more often should make an effort to set clearer, more consistent criteria.