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Proceedings of the Standing Senate Committee on
Foreign Affairs

Issue 39 - Evidence

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OTTAWA, Tuesday, June 1, 1999

The Standing Senate Committee on Foreign Affairs met this day at 3:37 p.m. to examine the ramifications to Canada of the changed mandate of the North Atlantic Treaty Organization (NATO) and Canada's role in NATO since the demise of the Warsaw Pact, the end of the Cold War and the recent addition to membership in NATO of Hungary, Poland and the Czech Republic; and of peacekeeping, with particular reference to Canada's ability to participate in it under the auspices of any international body of which Canada is a member.

Senator John B. Stewart (Chairman) in the Chair.

[English]

The Chairman: We are assisted this afternoon by Major General Lewis MacKenzie. Most members of the committee, and probably all, know some of the details of General MacKenzie's distinguished career. Before parliamentary committees on other occasions he has taken positions relative to our military equipment and the kinds of operations in which we are likely to make a considerable contribution.

I will begin by asking Major General MacKenzie to make an opening statement and after that to respond to questions. I hope we will not spend too much time on historical detail, because what the General can help us on specifically and greatly concerns the nature of the situations in which peacekeeping, either by the UN or by NATO, can have a reasonable chance of being successful. Since NATO has taking on this new role, in what circumstances is it likely to be able to perform successfully? General, please proceed.

Major-General Lewis MacKenzie (Ret.): Senators, thank you very much for the invitation to appear before your committee. Without wanting to be facetious, it is a pleasure to appear in front of my own Senate representatives. My last three appearances were in front of the United States Senate. Perhaps down there I am a foreigner and, in that respect, considered to be an expert.

Your order of reference states your committee is to examine, in part, "the changed mandate of the North Atlantic Treaty Organization (NATO)." In actual fact, the core mandate of NATO has not changed. It is a defensive alliance. That is its very reason for existence. Although there has been an evolution during the 1990s through crisis management, peace operations and, dare I say, the "conduct of war" -- we are reluctant to use that term to describe what is happening in Kosovo.

Canada needs NATO one hell of a lot more than NATO needs Canada. Therefore, our membership is a given. If that is accepted, then the strategy, objectives and resources being demonstrated now in the operation in Kosovo give us great reason for concern because we should be actively pursuing a more persuasive role in the decision making within the alliance itself and within the headquarters. We cannot just be along for the ride or we find ourselves in a bind, such as we are in now.

I am a 1983 graduate of the United States Army War College where senior colonels, the top 2 per cent of the U.S. Army, study the development of foreign policy, strategy and related subjects. If during that course I had been given the situation in Kosovo and the former Yugoslavia as a basis on which to make some recommendations to exercise my mind, and I had come up with the current NATO strategy objectives and resources, they would not have failed me, they would have sent me home. They would have said, "This guy is incapable of absorbing what he needs to be a senior officer in his nation's military." I would have been RTU, returned to unit.

During my service with the UN, I lived with some really bad decisions in the 1990s, but I understood why they had been made. I understood that they were having a difficult time adjusting, we all were, from the Cold War peacekeeping -- rest his soul, Lester Pearson's concept -- when it was believed: "By your presence, you shall deter states from tearing each other's throats out. You represent an institution of the United Nations, and therefore the belligerents will be reluctant to take you on." That worked when most nations were at war.

Unfortunately, in the former Yugoslavia we started to become involved with factions that did not have a flag flying in front of the UN, factions that did not have an ambassador and staff at the headquarters in the UN. Therefore, our presence was not enough.

The UN struggled with those new challenges. If they are not two of the stupidest decisions in the 20th century they are certainly in the top 10. Two decisions came out of the Bosnian conflict, one was to do with safe havens, which was suicidal, and the other one was to go with a dual key system of authorizing air strikes where two commanders in the field and two at council and in New York had to figuratively turn keys before air strikes could be authorized. If you put people in a padded room and gave them 24 hours to come up with a policy to fail, they could not do a better job.

The Bosnian campaign came to an end and a whole bunch of folks went to Dayton because of a U.S.-inspired and Croatian-led ground offensive in the Krajina. However, revisionists will look back at that period in history and say it was the result of air strikes. Air strikes were a tiny, punitive aspect of that particular situation on the ground in 1995. It was the Croatian ground offensive that came into Bosnia, turned northeast and threatened the Serb headquarters in Banja Luka. It was the new seat of government in Banja Luka that caused the talks in Dayton to be held, not air strikes.

However, unfortunately, it was not until Kosovo really started to boil and the KLA increased its provocations as recently as last year -- and the KLA, the CIA and the Yugoslavian authorities agreed that the KLA controlled up to 40 per cent of Kosovo, this time last year -- did NATO become seriously involved. I thought it was bad enough when the Security Council of which the five permanent nations -- America, Russia, China, France and the U.K. -- had to make a decision. I naively thought that when NATO became involved they would do a better job in decision making. Nineteen heads of state must come up with a recommendation or at least with a strategy. Without American leadership, and particularly with the reluctance of the U.S. to accept casualties, the lowest common denominator was found when they agreed that they would conduct the operation from 15,000 feet.

I wrote an article in the Washington Post, in response to which I received long e-mails from two American ambassadors to NATO, one of whom was in NATO headquarters during the Bosnian conflict. He said that I was right about the lowest common denominator, but that only in the absence of U.S. creditable leadership. We must assume that, in some conflicts in the future, we will once again be faced with a lack of American leadership from the front: We are prepared to fight for this principle, but we are not prepared to die for it. It seems to me that, if you are prepared to fight for it, you must be prepared to die for it.

Air strikes have exacerbated the situation. There is a debate as to whether this was a plot by President Milosevic, that he was already planning to cleanse 1 million Albanians from Kosovo; or whether he moved in that direction after the ultimatum issued at Rambouillet 1, which made it clear to him that if he did not sign up he would lose Kosovo in three years.

Contrary to popular opinion, Canada is not a peacekeeping nation. We have killed more people this century, per capita, than any other nation in the world, other than Australia, which comes second in just causes. I am referring to World War I, World War II and Korea. There is a synergy which flows for standing up for just causes which gives us our peacekeeping credibility around the world, along with a number of God-given national characteristics, most of which came out of having the good fortune of being born here or having moved here.

Many people said that, after our participation in the Gulf War, we had destroyed our credibility as peacekeepers. We have had more requests to participate in UN and other peacekeeping missions since the Gulf War than in the previous 40 years. Our reputation has not been eroded. Time will tell whether the current operation will erode it. I would guess that it probably will not erode it very much. There are still people who will find themselves in trouble, and when they look at the list of the 185 members of the United Nations, they will choose Canada as one of the 10 they may want to help.

What I am about to say is not a commercial for the army; far from it. I no longer need to be politically correct, and I will not be. We cannot meet our modest army commitments as stated in the government's White Paper on Defence. Those commitments are, on three weeks' notice, to move a vanguard, a battle group, 1,200 folks, prepared to fight. It could be armour heavy or infantry heavy. It may have four manoeuvre groups. It would have some self-contained logistical support like indirect fire. The commitment is for 1,200 plus a 1,000-person battalion group which, also, would not be quite self-contained, and not quite as violent on the battlefield but, nevertheless, it would be a fighting unit. That is what we are supposed to have on three months' notice to move.

In addition to that, two or more battle groups from the main force, that is 2,400 people, have 90 days' notice to move. That number is equivalent to two more fighting units, a total of 2,400 personnel, or the rest of our brigade group.

I would argue that we need to put a brigade in the field at any time, otherwise our Canadian identity will disappear, as it will with our 800 personnel heading into Macedonia. In fact, it is not 800. It is 200 recce personnel; plus 200 helicopters; plus 150 engineers; plus the logistics and plus the headquarters. The Canadian flag will disappear the minute they step over the Macedonian border. They will be part of the British brigade. That would not happen to a battalion or a battle group.

That is only 7,000 to 8,000 personnel. Today even The Ottawa Citizen played a numbers game. Senators, this is not a numbers game. The numbers exist. There are about 18,000 army personnel who are capable of heading out of the country, but they are not capable of fighting together as a team. They have individual skills and equipment. As soldiers, some of them are as good as any in the world, and some of them are better than most of the soldiers in the world. However, you cannot send them on 90 days' notice, into an operational theatre. You can if you cross your fingers and pray to God that they are not attacked or they do not have to attack somebody.

In this country, just bringing them together takes a week or two. They have never met each other before. They are from different units. They train differently. They must train together if they are to die together. The time must be programmed to bring them together, to do all the administrative work, and then to give them a reasonable training period. I argue that they should be together for at least six months as they are waiting for the word to go.

Twice a year, brigades used to train together in major exercises, winter and summer. That has not happened for a decade. You cannot just pick these people up as one unit and expect them to go into an operational theatre.

The numbers may be accurate -- and that is between the policy-makers and, dare I say, my old colleagues in NDHQ -- but just ask them if they are capable of moving into the line in two weeks, after one week of administration.

You will also hear that we have troops in 18 countries around the world. It sounds impressive. God bless them. They are doing great work. However, there are not a lot of personnel scattered around those 18 countries. Let me give you some examples. On the Iraq-Kuwait border we have five Canadians. In the Western Sahara we have two. UNSO in the Middle East has 12. The Observer Headquarters in Sarajevo has one. The UN mission in Bosnia has 29. Cypress has 3. The Golan Heights -- the number two deployment after Bosnia -- has 186. Even if we brought them all home, including the 1,200 or 1,300 in Bosnia, we still could not meet the white paper commitments for fighting units as defined by soldiers and as directed by the government.

How do we get here? I would suggest in the mid-1970s, 15 years before the end of the Cold War, we "gave at the office." We chopped our force in Germany in half then. Strangely enough, at the end of the Cold War we had to give another peace dividend. Canada is the only country in the world that gave two. Paradoxically, it was just at the time that we were in the greatest demand. When people tell you that this is as busy as we have ever been, I ask you to look back to 1991-1992 when we had a battalion in Cyprus; we had two battalion equivalents in the former Yugoslavia, an engineer regiment and a battalion; and we had a battalion group in Somalia. We had almost 5,000 troops out of the country.

Since that time, we have reduced our army personnel by 30 per cent. We have reduced our budget by 23 per cent. We will be in demand even more. I am passionate about the fact that we are one of the most popular countries in the world when it comes to giving folks a hand. I am proud of the fact that we do that. Canadians are proud of that. The government, no matter what political stripe, is in the starting blocks just waiting for the next request.

I read about Colombia on the way here, and I believe there is a slight misunderstanding of peacekeeping as it relates to that country. Peacekeeping is not training indigenous armed forces how to peacekeep in their own country. That is a dangerous undertaking. Peacekeeping is a force benign to the internal problems of the country coming inside and helping people sort out their problems. I am not sure we are in the business of training indigenous armed forces to sort out their guerrilla movements. That may be another evolution.

Although we have our own problems, we will be constantly sought out by the UN and by other alliances to participate in the most difficult of peacekeeping missions. Every one of the 43 wars that is occurring today in the world is an internal, civil conflict. The peacekeeping rules that have been used for the first 40 years, since 1956 in the Suez crisis, were designed for interstate conflict. We are feeling our way, and no country is taking the lead more than our country in trying to sort out how to handle some of these problems.

If we want to, when the request comes in and we say behind closed doors, "Please do not ask us," we will not be asked again. I fear that, in the future, because of our resources, particularly in the army, we will not be able to say, "Ready, aye, ready" and make our contribution to an operation that would bring us great credit. It is not just a matter of ego. It is to our credit economically, and geopolitically. It would help to pay the dues for when we may need assistance.

Surely as a minimum, the Government of Canada has a responsibility to provide the resources, the personnel and the training time to our young men and women to do the job that they ask them to do on a regular basis.

The Chairman: At the beginning of your presentation you made remarks which might be interpreted as being critical of United States leadership in the NATO alliance. Is it not a fact that, as long as NATO survives with the U.S. as a member, we must accept the vicissitudes of American politics, given the U.S. constitutional structure, the role of Congress, and the fact that they do not have disciplined parties? We may gripe about this but, at the end of the day, we simply must accept it and live with it; is that not correct?

MGen MacKenzie: I agree with that. However, we could take a more active role in attempting to influence that decision making. Let me give you an example. I have great respect for the Prime Minister. During an interview in 1993 for a documentary, I recall asking him, "Why are we not part of the contact group? We have left more blood in Bosnian soil, and more arms and legs than any other nation in the world. The French numbers may have been higher in total, but we were more per capita, so we have earned the right to be part of the contact group on the former Yugoslavia, have we not?" His response was, "Well, we were not asked." I was told that we were asked, but we did not want to be asked so, officially, we were not asked. I do not know whether that is true or not. We should have lobbied, I would suggest publicly as well as privately that we be a member of the contact group.

Chiefs of staff of NATO forces met last week in Europe to decide on a ground strategy in the event of an invasion or occupation of Kosovo. We keep telling ourselves we are in third or fourth place by way of bombs delivered and missions flown, but nobody invited us to the party. We should insist on participation.

At the United States Army War College, an entire section was dedicated to NATO members. There was also a section dedicated to the U.S. The student body was a little upset when I stood up and reminded them of another "organization" -- Canada. They assume that we are in agreement with everything they do. I told them that they should not make that assumption because we are not the same as them, totally. We have great respect for them, but when it comes to foreign and defence policy we have a single voice.

It is a matter of muscling our way in and that means paying our dues to the NATO decision-making process. I agree with you, sir, but I think we could do more.

The Chairman: You also mentioned in your opening statement that we are not now dealing with interstate conflict, but rather we are dealing with conflict between domestic factions in various countries. Realistically, what chance has NATO of being successful in the long run in dealing with domestic strife, much of it centuries old, but fanned to life by demagogues?

MGen MacKenzie: In the short term, it probably can be successful, depending on the size of its hammer. It can impose a solution. "Long term" may be a matter of five years or so. It will not resolve the situation.

For example in Kosovo, there are those who think that when we have solved the problems in Kosovo, it will be all over. That is wrong. There is still Montenegro to consider. There are still lots of problems festering in the Balkans. The situations in Albania and Macedonia have been exacerbated.

The Chairman: My own reading bears this out to some extent: This area has never been peaceful. There has never been what we call "peace" in the sense of a "justice of the peace," real domestic peace, unless there has been a heavy lid on the crock. At one time it was the Austrian-Hungarian emperor, then it was Tito. Unless we are willing to be the heavy lid, unless NATO is willing to go in and, in effect, be the imperial government, is there any real long-term chance of these factions cooling down and living peaceably together?

MGen MacKenzie: You might be surprised to hear me say, yes, absolutely. The first parachute jump you make is really easy because you do not know what is happening. It is the second one that is difficult. I remember telling President Milosevic back in 1993 that the first democratic election held in his country would be easy. I told him that the problems would arise when he would have to go back to the electorate after having manipulated everything from the media to what can be said.

There is a generation of ex-communist leaders -- and they are not all located in the general area of Serbia -- and once they are gone, I have great faith in the people of the former Yugoslavia, all countries now, Croatia, Serbia, and whatever, to rise up and embrace democratic principles. I believe they will do that.

The dilemma for the West is to try to accelerate the process of replacing those people. We did not choose the right means to do this. I do not blame the military alliance. Rambouillet represents some of the most failed diplomacy I have seen in my lifetime. It was not diplomacy, it was a series of ultimatums which, unfortunately, exacerbated problems.

I have faith in the people in the Balkans. I do not think that what they are doing has anything to do with genetics. They will not continue to cut each other's throats. They must rid themselves of some of the heavy-handed people who use this tension to stay in power. President Milosevic has lost Slovenia, Croatia, Bosnia, and he is about to lose Kosovo, and he is still the president. He should have been gone 10 years ago.

Senator Di Nino: Welcome to the Senate. It is good to hear that someone wants to come here. Perhaps the Prime Minister will do the country a favour and make a phone call and fill a vacancy in the Senate.

MGen MacKenzie: I am non-partisan, but, rather, ecumenical.

Senator Di Nino: Our discussion in committee on this issue is in regard to the future role of NATO. You made a comment I agree with, but it begs a serious question. You said Canada needs NATO a hell of a lot more than NATO needs Canada. Does the world need NATO?

MGen MacKenzie: Sometimes my conditioned reflex, developed from 35 wonderful years in uniform, comes to the fore. As the world's leading alliance, NATO is keeping more peace in the world than any other alliance. It does that by keeping peace between its member states. The larger it gets, the greater the contribution it will make, providing the Russian factor is played properly.

Consider for a moment if the United States withdrew from NATO and came back to "fortress" America. They will not go to war, but France, Germany and the U.K. would go crazy fighting over who would lead NATO. Therefore, the American presence and the European participation are critical to maintaining a stable situation in a critical area of the world where Canada obviously has a national interest.

Providing we can control some of their exuberance in support of ill-founded diplomacy or diplomatic initiatives -- and they have only done it once in 50 years, but it was pretty serious considering there were other ways of dealing with it -- I think, yes, the world benefits from NATO.

Senator Di Nino: How does that affect the United Nations?

MGen MacKenzie: Tragically, the United Nations has been wounded but, I hope, not beyond recovery. In fact is it not a paradox now that NATO is turning to the UN to assist them out of this situation? I did not mention that, in 1995, Bosnia was a paradoxical situation in that, while the war was on, we had peacekeepers there. It was only when there was a ceasefire that the war-fighting machine of NATO would come in as a stabilization force. It would be a subcontractor, in my estimation, to the UN, just as the United States was in Somalia and in Haiti.

I am still confused as to the answer I was given by a member of today's cabinet when I asked the question just before the Kosovo situation: "Should we not be asking the UN for a Security Council resolution for this operation against a sovereign nation?" The answer was, "We know that there will be a veto by the Chinese and the Russians." My reaction was that that was why we put the thing together as we did way back in 1945. It was supposed to constrain the superpowers from going after each other. We just spent a lot of money and a lot of diplomatic effort becoming members of the Security Council, and the first thing we do is turn our backs on the process.

I feel for the UN, and I hope it recovers from this. I think it will if it becomes involved in a solution.

Senator Di Nino: How do you see NATO in the 21st century?

MGen MacKenzie: They will realize that high-tech weaponry is exactly what we need for future all-out wars. However, it does not apply well to the type of crises we are facing around the world at this time and will be in the near future. Therefore, all contributing nations, including Canada, will be asked for more basic military units which can move into a country and maintain a presence to assist in rebuilding, to assist in nation building, and to do the humanitarian work. However, at the same time, the must have a hammer available to them, if needed.

Senator Di Nino: Would it always be under the auspices of the UN?

MGen MacKenzie: I would favour that. I do not see NATO carving out for itself an area of influence where it will decide what happens here. The bizarre situation is that we are talking, in a many instances, about the same leaders. I recall having a conversation with the Prime Minister in 1993 about the battle between NATO and the UN on the use of air strikes in Bosnia. The Prime Minister told me that there were some tensions between the two organizations on the use of air strikes. I asked how that could be because the same leaders were involved. We were talking about Bush and Major and our own Prime Minister. I suggested that all he had to do was phone his representatives and tell them to sort it out in Brussels or in New York. That game back and forth between NATO and the UN was being used as an excuse for not doing anything very effective at the time.

I would like to see the UN, with all its warts, continue to have responsibility for the world -- including Europe.

Senator Grafstein: On the one hand, you implied criticism of the fact that, because of the decision-making process as it currently operates in NATO, Canada's ability to participate in decision making has been diluted. That was your comment with respect to the contact group. I assume it as well with respect to your response about the command structure. However, on the other hand, you just concluded by saying that the greater NATO is, the more stable the peace. Each time we add somebody it dilutes our ability to have our say. How can Canada have a larger say in a body that is growing under the new methodology as opposed to the Partnership for Peace program? I am trying to contrast the two.

Next I will deal with the question of NATO's response time. Since the 1940s or the 1950s, the NATO alliance has spent billions of dollars, all based on two premises: one, to defend the borders of the member states, and, two, to be equipped for a rapid response. Missiles are one level of response, and the other level is a military, air-land rapid response.

We have been told in this committee, in our briefings before the Foreign Affairs Committee of the other place, by the defence establishment, and by one of the officers coordinating with NATO, that it would take anywhere from six to nine months for Canada to be in place to rapidly respond. Our personnel must be together for six or eight months before they can be able to respond. You have confirmed this today. What have we been doing all these years?

Finally, given the proposition, that you suggest, that NATO's effectiveness depends on its ability to succeed in Kosovo in terms of being a model in the future, what would it take at this juncture from Canada for NATO to, in effect, accomplish its mission?

MGen MacKenzie: From what I understand from my friends in low places -- who always seem to be quite accurate -- it would take a little more use of the elbow at the table. As I mentioned before, we do not force ourselves into the decision making.

The expansion of NATO is still a good idea. However, based on the contribution that we make, modest as it is, but grand as it is compared to our military resources, there are additional avenues for us within NATO to make our presence felt. The Canadian stereotype does, occasionally, rear its ugly head. We are considered to be the shy, retiring type; nice, and not too pushy.

On the question of NATO response time, I would just mention that we used to respond on the ground. Even after the government chopped our force in half in the mid-1970s, we maintained a foot on the ground until 1992. In fact, the Canadian forces I had with me in Sarajevo in fact came from Germany. They were in Yugoslavia eight hours after they left Germany.

You could take every member of the Canadian forces, army, navy and air force, put them on one base in Canada, and it would be the 12th largest base in North America.

I am an honourary Chief of the Toronto Police. The chief told me that there are 1,200 more cops in Toronto than there are infantrymen in the regular Canadian army, from private to general. It is tiny. To put together a division or three brigades takes time. Regular forces personnel have to be brought together, and their numbers may have to be augmented by personnel from the reserve force.

On the question of success, I would point out that diplomats are paid a lot of money to come up with solutions where both sides can declare victory. We could have declared victory in Yugoslavia on the second day of the bombing because the objective was to degrade President Milosevic's ability to conduct operations in Kosovo. That was accomplished after the first night of bombing. However, somebody has to say when enough is enough.

I never thought I would reach the point when I would quote Jesse Jackson, but I happen to agree with what he said when he came back from Belgrade. He said, "It is always the stronger that makes the first move." We could pause for 72 hours and probably sort this thing out. If that did not work, we could go back up to 15,000 feet and start again. We are the toughest -- "we" being NATO. There is a way out.

However, the trouble is that every day, each of the 19 leaders in NATO, has a sheet of talking points. Those points must all be the same. They must all be singing from the same sheet. It must be very awkward for some people to say something they do not necessarily believe. Solidarity is important, so they always stick to the same talking points. With 19 heads of state aboard, it is not easy to shift the direction of the ship. Canada is actually arguing for that type of option, that is, pause and sort this thing out.

Senator Bolduc: Why does Canada not just stick with NORAD and forget the rest? We could trade with everyone in the world, just as the Japanese do, in a very quiet way.

MGen MacKenzie: NORAD will not save us if somebody threatens our country. I am not a fatalist. I do not see Russian hordes coming over the Bering Strait, but I do see terrorism. However, if there is not a threat against this nation in the next 20 or 30 years, it will be a unique situation in history. We can be threatened in Europe or in Southeast Asia as well as here on our territory, depending on the threat, whether it is our way of life or our resources, whether it is our business affairs or whatever.

In the centre of Europe we have a very successful alliance that is more than a military alliance. There are political advantages, research advantages, diplomatic advantages, cultural advantages, so it certainly does not cost us anything that we would not be spending on defence in any event. Our percentage of expenditure, based on GDP, is minimal.

I cannot find a good reason for leaving the alliance. In many instances we are given positions and influence out of proportion to our current contribution in NATO because of our wartime record. We have many more officers in good positions in headquarters than reflects our current obligation, which is merely our commitment to help if trouble arises. I would not withdraw from NATO.

The Chairman: I was uneasy about the North American taxpayer's reaction when, three years ago, we reported on the developments in Europe and their impact on Canada. The Europeans are rolling in money. You have only to go to London, Paris or Bonn to see evidence of great wealth. Are they not taking an easy ride on North America? Why should we undertake, to a large extent, to be their peacekeepers?

MGen MacKenzie: From Canada's perspective I do not think we are being taken advantage of because we are not contributing all that much. What we are contributing is very valuable, and people are doing outstanding work, but it is not an expensive undertaking.

From the point of view of the United States, the best defence is a forward defence. That is what has kept them there for 40 some years. Now the European nations want to keep the Americans there.

Who would have ever thought that the Europeans would be denationalizing their military forces and, in actual fact, becoming a European defensive alliance? That must be a major step in the right direction. I doubt very much whether that would have happened in the absence of the United States. There are geopolitical issues at stake here in Europe which are much more important than the practical aspects of the defence alliance. Therein is another argument for maintaining NATO's presence.

The Chairman: I am not challenging that view, but I am saying that, from a political, a poll-box level, if the European countries convey the impression that they are not prepared to make a major effort on their own behalf, why should the taxpayer in Kansas or Alberta foot the bill? You are suggesting that we, in Canada, already have drawn back from footing the bill. Will the Americans have the same reaction, unless the Europeans suddenly decide that they too have a major concern with peace in Central and Eastern Europe?

MGen MacKenzie: The Americans have cut back. I am basing that on my gut reaction and considering the number of forces they maintained when I served there in the 1960s, 1970s, and 1980s. I think they have scaled back considerably.

The Chairman: Do you think the Europeans are pulling their weight?

MGen MacKenzie: They certainly got their fingers burned in Bosnia. They wanted to take the lead, but that fell apart through no fault of their own. This time around, it was decided to conduct an air campaign.

As far as numbers go, and in terms of quality and technology, and if you are absolutely obsessed with suffering no casualties, then America has the machinery to do the job, as was the case in the Gulf War.

One could argue that some countries could pull their weight a bit more because, other than a few lead nations like Germany, France and the U.K., the contributions are very modest. However, they are in the same situation we are in. They can get away with it because those three countries exist. We can get away with it because of the contribution made by our friends south of the border. Some politicians have assigned priorities, and have said that they can get away with not making much of a military contribution because they know their friends will pick up the slack.

My concern is, if the Montreal and Toronto police officers go on strike at the same time, our military could not fill in for them. There are not enough of them.

Senator Andreychuk: You pointed out that we do not have the rapid response capability that we claim to have. Does this go back to the so-called "peace dividend" in the 1990s when it was the political and military view that we and our European allies should be specialists in certain areas, and that we should combine our efforts to ensure a rapid response by each one of us in the area in which we were best technically suited? Do we maintain that position, or are we moving back to doing a little of everything?

MGen MacKenzie: You mentioned that most people claim that we do have a rapid response capability. In fact, most people in uniform do not make that claim. For example, our friends will help us to move vehicles on the ground, but our troops are not ready to fight. That is the difference between my statement, which is made without the encumbrances of professional loyalty, and the statements of those who are still public servants. I have to tell you that we can move the folks, but we cannot fight. That has been the case for about five or six years.

You asked about specialists. Various elements make up the fighting machine. We are now in the situation -- and CDS was the first to admit it -- where we cannot provide a knife, fork and spoon on the battlefield. We can provide only part of the requirements. Our allies will provide, for example, heavy indirect fire support, artillery, forms of intelligence gathering, or whatever. We can provide some parts of the puzzle, but not all.

To maintain all those parts at a highly technical level, particularly in view of the rapid pace of changing technology, is immensely expensive. At present, we cannot do that. My concern relates to training time and people, that the Government of Canada cannot meet its obligations as set out in the white paper.

Senator Andreychuk: I agree with your statement that a more inclusive NATO makes for more security. How do you think the Russia of the future will fit into this expanded NATO, particularly if NATO continues to expand?

MGen MacKenzie: I wish I could give you an articulate response to that. I have certainly spent some time in the States having discussions with the Russian ambassador in Washington. No matter what they say in public, there is some real paranoia about NATO and its encroachment closer and closer to the Soviet Union. They have some good historical background for that concern.

We in North America, to generalize, tend to jump into a problem and merely look forward, as we are doing in Kosovo. There is a requirement to take a look back at history. No country wants NATO to fail more in Kosovo than Russia. Nobody wants us to succeed more than Al Gore. I hope it works.

How the Russians will react to even closer encroachment will probably be dictated by the situation in the world at the time. For example, what is occurring now in Kosovo is not enhancing the relations between NATO and Russia. Something like this could happen in the future. It very much depends on what is occurring geopolitically on the European continent at the time of the expansion. For a few years we were getting along extremely well.

I have told some audiences that if, 20 years ago, I had said: "Tonight when we go to bed 50 per cent of the nuclear arsenal in the world is under questionable control, of questionable quality, in a country with a very unstable political situation," I do not think of anyone would have slept that night. However, for some reason, we accept it now. It is not treated as being as important as a civil war somewhere. It is damn important.

Senator Andreychuk: I understand the military objective in Kosovo. It is an air strike, pure and simple. However, the political objectives continue to change. What troubles me is that, every time the political situation changes, the excuse is that we underestimated or misconstrued what Mr. Milosevic must do. From your understanding, surely after all these years with Milosevic we should have known what his reactions should be, politically, militarily, and in every way. Why did we, NATO, end up in this situation?

MGen MacKenzie: First, we misread the lesson from Bosnia. It was not air strikes that brought about peace.

Second, and more importantly, Milosevic turned tail in Slovenia, Croatia and Bosnia. People forgot that Serbia, to use that term, is his home and it is his last home. It is the last part of the former Yugoslavia. Just like the U.K., Berlin and other places which have been bombed, there are not 11.5 million Milosevic supporters in the streets of Belgrade and other cities as the media has been suggesting. There are 11.5 million very dedicated Yugoslavs and Serbs and the vast majority I met would be delighted to see the president go sooner rather than later.

The great joke around Belgrade right now is why Milosevic is not at home when he is needed there, particularly after his home has been bombed three times. Many people have said that it would not be an easy capitulation and it would not be a three-day, Madeleine Albright-type war. The powers that be decided that the initial objective was to change his mind. They actually stated on CNN: "He will capitulate."

Senator Andreychuk: Were we as naive about that as we will be about the KLA, about its motives and tactics?

MGen MacKenzie: It may be naive enough to say that we will demilitarize them, disarm them.

Senator Andreychuk: It does not bode well for Kosovo in the future.

MGen MacKenzie: No, it does not. They will continue.

Senator Stollery: Not being a professional soldier, I know nothing of the management details of the Canadian Armed Forces and how much they need or how little they need to deal with this increasing peacekeeping. I find it all very perplexing.

For many years I followed these situations. I was in Algeria in the 1950s and I have been in Colombia in amongst the bandits and guerrillas, surrounded by hundreds of them. I have seen in my more than 40 years an increasing disorder, increasing numbers of armed rabble turning out in Somalia, basically the U.S. marines, and that possibly for political reasons, but just the same that is what happened.

We had very interesting testimony this last week from Colonel Galvin who, in talking about the shooting that took place in the night, described these people, not as soldiers but as armed thugs. Is there really any hope of bringing peace to these many areas if people other than the police and the army can go around armed and, effectively, with impunity, murder their, say, orthodox or Catholic neighbours? Will anything work if everyone has guns? Is there any possibility of us disarming these people? Can there be success without that?

MGen MacKenzie: That is an excellent observation, senator. The short answer is no, it is not possible. The only successful disarmament took place in Nicaragua, and I was there at the tail end of it. It only happened because there was a surprising victory by Violeta Barrios de Chamorro in Nicaragua, and the Sandinistes and contras decided to end up on the same side. The weapons that were turned into us had worm holes in the stocks, rusted barrels, et cetera. All the good stuff was placed in plastic bags and buried for future use.

They tried disarming in Albania during their period of anarchy. It has not worked. There is a parking lot in the capital full of weapons. They are arguing over who owns them, whether it is the UN or the Albanian government. Most of it went to the KLA. We will not be involved in those types of operations. There are 1.9 million dead in Tibet, and 1.92 million dead in the Southern Sudan. Turkey is every bit as ruthless in dealing with the Kurds. It goes on and on. Kashmir is unfolding yet again.

The inclination of the international community is not to become involved in any of these 43 internal conflicts. It just so happens that the West really got upset with Milosevic because they considered it to be a question of ego.

The Chairman: The former Yugoslavia was in the NATO area.

MGen MacKenzie: Yes, it was on the periphery.

Tragically regional peacekeeping forces, as provided by Nigeria, for example, in Africa, have ended up being as much of a problem as the problems they are trying to resolve. Even regional operations have not been successful.

Senator Stollery: I am reminded of what happened in Somalia. There have been several other attempts that have ended up, generally, as being fiascos involving an armed rabble. If that can take place, then what is it all about?

MGen MacKenzie: The operation in Somalia was the most successful intervention operation in my lifetime. I went there on the day of the changeover, March 3, 1993. On that day the American-led coalition force, of which the Canadian battle group was a part, withdrew. The United Nations was not capable of carrying on with the operation because they had no combat troops. The U.S., out of the goodness of its heart, left a combat brigade in the football stadium in Mogadishu to provide the combat power. The commander of the UN force could not employ it, only his deputy commander who was an American general and a personal friend of mine could employ that force. Look at that chain of command. It regrettably was destined to fail for one reason and one reason only: no acceptance of casualties.

Senator Stollery: If you are not prepared to govern the place, then do not go there.

MGen MacKenzie: That is a good message.

Senator Forrestall: Is there any reason then to bring these people into the Lester B. Pearson Canadian International Peacekeeping Training Centre at Cornwallis Park so that we might train them?

I have followed the military for the last 35 or 40 years. I have watched us go below what I considered critical mass, about 80,000 of those who can participate meaningfully for extended periods of time. Below that level we were unable to retain sufficient numbers of highly skilled and trained people to do the training necessary in the event we had to increase the numbers to, say, 200,000. That situation became even more complicated in light of new technology. To reach the top of the trade in some of these technological areas takes 10 years of training. We are nowhere near achieving that. All we have is a good reputation and goodwill.

Where do we stand on training? You have crunched the numbers. I tend to agree with you. We are not talking about enormous percentages of the gross national product, to take a battalion today and train it for three to five years. We could break it down and meet some of our obligations. It could be done reasonably. If we want to continue to play this role in the world, how large should our prepared group be, ideally?

Is there anything in the training syllabus of the peacekeeping institute that, if changed, might make a meaningful contribution to achieving some of the more practical goals on the ground? We have now had about 10 years of talking about working together and of planning together, but nothing has happened on training. Could you comment on those two points?

MGen MacKenzie: The problem related to deployment, training and making a meaningful contribution, is relatively straightforward. Our units are too small. For example, an infantry battalion is 601 personnel, and perhaps only 550 would be available. That is being very generous because some people are taking courses, are sick, have injuries or, for some other reason, are unavailable. Nobody in the world, including the UN or NATO, has ever asked for a 550-person battalion. They ask for 800 or 1,000 people. No matter what task you are given, you must take a couple of units, bring them together, bring in some good reservists, and then you have 900 people who do not know each other and, even though they have had good preparatory training as individuals, they must learn to fight together as a team because they are going on a fairly complex operation. You ask how long that will take. I would suggest that you just pick a figure, and that it should be at least six months. That is assuming there will be no administrative diversions along the way.

The army needs to be big enough so that, when it comes time to send a unit overseas, they send a formed unit. The army probably needs augmentation to the tune of about 10,000 if it is to be able to send a brigade overseas and maintain that brigade in deployment. Having a brigade, at least, allows us to retain our Canadian profile and it makes a meaningful contribution if that brigade group is sent to fight.

I am a fellow at the L. B. Pearson Canadian International Peacekeeping Training Centre. They are doing great work, but not for Canadians. It supports the international community by bringing people such as NGOs, police, politicians, diplomats and the military together, because they do work together in peace operations. That is a sideline. We are supposedly ready to kill, and that is what the government orders us to do in conflict. We are not a peacekeeping nation.

We are really talking about training within the military itself. If anything, the military has survived in spite of all the experimentation which is occurring within the military. Do not get me wrong. I introduced women into the combat trades in the Canadian forces. I am not a dinosaur. That took time and resources. It has not been terribly successful because, strangely, not enough women were interested in joining. That did not come as any surprise. I am not criticizing these changes, but it takes time for the military to absorb changes. They have their eye off the target, and all of a sudden, they are asked to move into Yugoslavia. Then the operational requirement becomes paramount.

I am sure as you travel internationally, you meet a lot of people who complain about what we do, and are reminded about some government restrictions such as what a soldier is allowed to do by way of returning fire or whatever. The soldiers themselves do outstanding work.

Senator Forrestall: You should train to chapter 7 and come back down to chapter 6. However, you cannot go from six to seven.

MGen MacKenzie: Absolutely.

Senator Roche: In your opening presentation, general, did you say that Canada is in third or fourth place in terms of missions flown and bombs dropped in the Kosovo war? Can you give me a citation for that figure?

MGen MacKenzie: That figure comes from the DND briefing, which has been repeated frequently in the media. You must remember that America is way out in front with 60 per cent, and then it drops down to the United Kingdom, Canada and France. We are third or fourth. On some days we were number two. I quote those numbers.

Senator Roche: Did I understand you correctly to say that Canadian Armed Forces have killed more people per capita than any other nation in wars of this century?

MGen MacKenzie: In just causes, yes.

Senator Roche: What is the citation for that?

MGen MacKenzie: Lewis MacKenzie and a lot of researching of World War II casualty figures. I would not classify it as an academic footnote. Do not forget that is on a per-capita basis. The population back then was only 14 or 15 million.

The Chairman: Senator Roche, there is a very large highland contingent in the Canadian population.

Senator Roche: I will not take on the highland contingent at the moment, Mr. Chairman.

This committee must write a report about the future of NATO. What advice can you give us concerning the relationship of the United Nations and NATO in respect of Canada's declared intention to follow the rule of law and to build up the rule of law?

It is pretty clear from what you have said that NATO has violated the international law as expressed by the UN Charter. How can we be assured as Canadians that NATO will respect the pre-eminent authority of the United Nations Security Council for the imposition of force? They got away with it this time, and in the meantime have expanded, through the strategic concept, their intended role in the future by moving out of area. How are we to be assured that Canada can have its paramount respect for the development of the rule of law maintained with NATO's present aggressiveness unchallenged?

MGen MacKenzie: I do not think there are any guarantees as long as there is one superpower in the world. Out of the 185, if only one nation can be the world's superpower, I am pretty glad it is the United States. Some day I want somebody to write a book about what would happen if the U.K., Germany, Brazil, India or whatever country, were the superpower.

Senator Roche: With great respect, you are not answering my question.

MGen MacKenzie: I am about to.

Senator Roche: I want to focus on the relationship between NATO and the UN and how Canada will set priorities.

MGen MacKenzie: There are no guarantees. As long as there is a single superpower, the decision-making process in the Security Council and in NATO will be driven by a single country, the United States. All you can pursue is an undertaking by that superpower, depending on who happens to be the executive branch leader at the time, that they will insist on a UN resolution, which I would hope would be the case.

Thus far there has been no admission that they did anything wrong. I think something was done wrong. They should have gone to the Security Council. We keep coming back to the same centre of gravity -- Washington.

Senator Roche: Would you would support a finding by this committee that with respect to the future of NATO and Canada's role in it, Canada must insist that NATO operate at all times under the authority of a Security Council resolution?

MGen MacKenzie: An authorizing resolution, yes, as a subcontractor to the Security Council, as the U.S. has been in Somalia and as NATO should have been in Kosovo, if the Security Council had approved it. It did not. I would agree with that, yes.

Senator Roche: What do you think of the Organization for Security and Cooperation in Europe? We have been here now for an hour and 20 minutes and it has not been mentioned. Is that because it is no longer on the map, so to speak? Why is NATO not operating in concert with the Organization for Security and Cooperation in Europe, which is the pan-European body?

MGen MacKenzie: It has no military component. It would have to subcontract NATO, paradoxically.

Senator Roche: Should we be emphasizing that in our report?

MGen MacKenzie: It brings in more countries, including Russia.

Senator Roche: Is that not good?

MGen MacKenzie: Yes. I have not thought that one through. If the UN subcontracted to the OSCE, and then the OSCE in turn subcontracted NATO, then people might be a little confused. I am not sure that I am prepared to buy into that.

Senator Roche: Would they be any more confused than they are today?

The Chairman: Senators, we have to move on. Senator Prud`homme has been waiting most patiently.

Senator Prud'homme: As far as I am concerned NATO, as we have known it, is in place. Since we do not have time to elaborate, we must deal with these matters directly, we must reinvent because of the situation in the world since the collapse of the two superpowers.

I am of the opinion more than ever that we should carefully reflect on expanding NATO. This massive expansion warrants a lot of reflection. As I said earlier, it started with 12 and then it grew to 19. Now nine are on the waiting list.

Some want to be in NATO because they believe that that it is the only way we will pay economic attention to them. There is no doubt that, if one is attacked, everybody else is considered to be under attack. I have had to pay the price for that over the years. We are moving very close to the old Soviet Union, now Russia. We know there is no love lost between the Baltic countries and Russia and all of this talk, of course, makes the Russians extremely sceptical. They have reason to be concerned.

You mentioned where we are now. As you probably know, my friends Senator Forrestall and Senator Roche were in the House of Commons years ago as well as Senator Stewart.

The Chairman: I was there before you.

Senator Prud'homme: We were involved in defence matters 36 and 37 years ago. We saw the military being reduced to the point where we could not man a brigade. If we were asked to join in a land invasion, our Canadian troops had to serve under the British. I hope that will not happen in 1999.

How far out are we? I am referring to those of us who believe that NATO is dead and it must be re-invented according to the new world we are living in. How much attention should we pay to the scepticism and the concerns that the Russians are expressing? As you know, they try to keep silent because they need the West. Apart from that, there is no love lost.

MGen MacKenzie: While I have opinions, it is outside my area of expertise, but I do think that rumours of NATO's demise may be exaggerated. They will declare victory no matter what happens. They will survive because the alliance is very large and it has superpower leadership. I do not think it will venture down the road it ventured down two months ago again very soon though. I do not think they enjoyed the experience.

As far as the expansion of NATO is concerned, I do not know what the alternative is other than excluding those nations. The lineup to join is longer than nine. Macedonia and Albania will insist on membership if we launch an attack from their borders. Hungary is reeling from the fact that, five days after they joined, they were at war with a neighbour. However, people are still cooped up because there are spin-offs other than the military alliance.

In response to your question, I see no other alternative but the continued expansion of NATO.

The Chairman: Your presentation has been most helpful. What distinguished your evidence is your obvious command of the facts and the concision of your answers, which were most helpful. You are the kind of witness we would like to see more frequently.

Professor Stephen Scott is our next witness. He has at least as long a list of curriculum vitae facts as does General MacKenzie. It is a long and impressive list.

Professor, there are three areas on which we need the kind of guidance that a professor of law might be able to give us. I suspect that you will say that you feel more comfortable in one area than in the other two. You heard just now the discussion brought on by Senator Roche as to the relationship between the United Nations and NATO. That is one area in which we need the guidance of an authority.

Second, we need to have on the record from an authority information as to the constitution of legal power regarding war or peacekeeping or peacemaking in the United States.

Third, and probably most important but simplest of all, we need information on the role of the Houses of Parliament in making a decision to involve Canada in peacemaking or peacekeeping missions.

You may have other points that you wish to make, but I mention those three centres of focus.

Mr. Stephen A. Scott, Professor, McGill University, Faculty of Law: Honourable senators, in January 1996, when I last appeared before one of your committees, senators seemed startled by my remark that a television commentator had asked that very morning, "What kind of game are these Senators playing?" Your colleagues appeared visibly relieved to learn that the question was about the Ottawa hockey team. Then, as now, senators were engaged in serious public business. I thank you for your welcome today. It is always a privilege and a pleasure to be invited to meet with you.

Your interest, as your officers advised me, concerns the authority of the executive to send Canadian forces abroad, and to despatch them there; and, in particular, to do so on any given occasion without parliamentary approval or authorization. It is my understanding -- though I have not myself searched the Journals -- that for the present operations in the Yugoslav theatre no formal approval was obtained from either House.

My reaction was to suggest that -- constitutionally at least -- the position was too straightforward to require formal evidence to be given. In the absence of specific statutory restrictions -- and I know of none -- the executive government can, by constitutional law, employ the Canadian Armed Forces in Canada or abroad as it thinks proper, and can do so without the need of parliamentary authorization or approval. Nor is there any convention of the constitution requiring such authorization or approval by either House or by both Houses. Indeed, even a declaration of war lies within the sole authority of the Crown, as does the making of peace.

The conventions, needless to say, impose a responsibility to the House of Commons in the ordinary way -- for military action as for all else. The House can make its will effective in the last resort. Moreover, as a matter of prudence, governments sometimes seek parliamentary approval of their intended course of conduct, thereby sharing responsibility if their actions are then, or later should become, controversial -- or perhaps because things take a turn for the worse. In any event, it makes it easier for them to return to Parliament either for grants of money or for further legislation if needed.

Though this, I think, accurately summarizes the constitutional position, senators may be interested in some elaboration as a matter of history and background.

The Constitution Act, 1867, provides, by section 9, that "The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen." This general grant of executive authority is supplemented by certain particulars, notably section 15: "The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen."

We need not tarry upon the executive instruments by which the Queen has delegated to the Governor General authority to exercise these powers on her behalf -- though not to the exclusion of their exercise by Her Majesty's own person. Nor need we linger either upon the legislative enactments -- notably the National Defence Act -- or upon the executive acts, which further delegate powers first to the Minister of National Defence and then down to the chain of command -- in due subordination to the Queen and the Governor General. Moreover, it is needless to examine the paraphernalia of seals and countersignatures by which the acts of the Sovereign or her vice-regal representative attract the political and the legal responsibility of other public officers, notably Ministers of the Crown. Suffice it to say that all this executive power is in practice wielded either by, or on the advice of, the Ministers of the Crown, or by subordinate civil and military officers, always on ministerial responsibility. The major decisions, of course, will usually be made at cabinet level, that is, formally speaking on the advice of the Queen's Privy Council in Canada.

This corpus of law, then, sets the institutional framework for the exercise of the authority within the military establishment. But it does not -- unless implicitly -- speak to the powers that may be exercised. The extensive body of law contained in the National Defence Act, and in the regulations made thereunder, deal with the management of the forces both in general and in detail. However, this body of law does not spell out the nature and extent of the constitutional power of the executive to dispose of the armed forces in Canada and abroad. This flows from the common law.

The "prerogatives" of the Crown are, quite simply, the special powers and attributes conferred upon the Crown by the common law, though the term "prerogative" is also used in a few variant senses. For example, it is used more widely to include all the Crown's non-statutory powers even if they are not special to it, such as owning, contracting and spending. The common law, in part, operates by defining such things as scope of "executive authority" under section 9, and "command" in section 15 of the 1867 Act. Moreover, the common law also flows through section 129, which, on July 1, 1867, continued all pre-Confederation laws in force until altered by the competent law-making authority. (The adjunct section 12, and its fraternal but not identical provincial twin, section 65, may be noted in passing).

Joseph Chitty, whose classic Treatise on the Law of the Prerogatives of the Crown appeared in 1820, provides a good summary of the relevant English law, from which the following are excerpts (page 43 and following pages):

As representative of his people, and executive magistrate, the King possesses...the exclusive right to make war or peace, either within or out of his dominions....This right may be exercised either partially or absolutely, so that his Majesty may institute a war against part of the subjects of a foreign power, excepting the other part, as was done by William the Third, in a war with France, in which he excepted the French Protestants....

The reason which is given by Grotius why, according to the law of nations, a formal declaration of war ought always to precede the actual commencement of hostilities is, not so much that the enemy may be put upon his guard (which is a matter rather of magnanimity than right), but that it may be clear that the war is undertaken not by private persons, but the will of the whole community, which, as we have already seen, is, in legal contemplation, transferred to and vested in the King. Blackstone argues, from this reason assigned by Grotius, that in order to make a war completely effectual, it is necessary, by the law of this country, that it be publicly declared, and duly proclaimed by the King's authority, and then all parts of both the contending nations, from the highest to the lowest, are bound by it. Notwithstanding this, it seems that no public declaration, or formal proclamation of war is, by law, absolutely necessary to render it the duty of the King's subjects to consider and treat as an enemy, any foreign power against whom war has in fact been resolved upon and commenced by his Majesty....

As the constitution of the country has vested in the King the right to make war or peace, it has necessarily and incidentally assigned to him on the same principles the management of the war, together with the various prerogatives which may enable his Majesty to carry it on with effect. Thus the King is at the head of his army and navy, is alone entitled to order their movements, to regulate their internal arrangements, and to diminish, or during war, increase their numbers, as may seem to his Majesty most consistent with political propriety.

After discussing the special statutory arrangements governing the militia, Chitty continues:

With respect to the regular force of the kingdom, who are totally unconnected with, and substantially different in their nature and object from the militia, the King is not by law restrained to any particular limits as to the services in which they may be employed against his enemies. They may of course be sent to any place, or employed to any extent, to which his Majesty may think fit....The King's power over the Fleet in time of war, is as general as that which his Majesty possesses during that period over his armies....

Honourable senators, in the aftermath of the English Civil War, An Act declaring the sole Right of the Militia to be in [the] King and for the present ordering & disposing of the same was enacted by the Parliament of England in 1661, and appears in its statute-book as 16 Charles II, Statute I, Chapter 6. The striking preamble to this act is often cited, and quoted, as a classic authority on the constitutional relationship between the executive and the armed forces. The introductory portion of this preamble long survived the remainder of the act and was ultimately repealed as recently as January 1, 1970. Its resounding phrases read, in part, as follows:

...[W]ithin all his Majesties realmes and dominions the sole supreme government command and disposition of the Militia and of all forces by sea and land and of all forts and places of strength is and by the lawes of England ever was the undoubted right of his Majesty and his royall predecessors Kings and Queenes of England and...both or either of the Houses of Parliament cannot nor ought to pretend to the same....

Honourable Senators, I do not think I can improve upon that. So, with your leave, I conclude my introductory remarks.

The Chairman: You describe eloquently the English law on that subject. I gather that we should take it as obvious that in the absence of an explicit alteration of the terms of that law insofar as Canada is concerned, what you have said relative to England is also true for Canada.

Mr. Scott: That is drawn into the Constitution acts through section 9, speaking of the executive government of authority being vested in the Crown. The common law is drawn in through there and also through section 129, which upholds all previous laws until they are competently altered.

Perhaps I should stress a little more the National Defence Act because if you read through the first 30-odd sections you will here and there infer from various provisions more or less that result. However, the common law has it all up front if you like, and quite explicitly.

Senator Grafstein: This is fascinating. As a practising lawyer and amateur scholar of the Constitution, I want to start with a general proposition about the role of convention versus the black letter law of the Constitution and whether or not convention acts as some sort of restriction on the prerogative of the Crown.

I would have agreed with you more wholeheartedly before the Supreme Court of Canada decision with respect to the repatriation of the Constitution. Mr. Justice Dickson took a different view in the most recent decision of the Supreme Court of Canada with respect to the role of convention as the limiting factor on the black letter law of the Constitution.

Mr. Scott: The patriation decision sets the situation quite clearly. The two are parallel. If you read the Constitution Act, you see a federalized version, applied to Canada with the necessary changes, of the English Constitution as it was in the time of Blackstone. The Americans rebelled and then revolted against the English Constitution, and they then adopted it as a paradigm which they could then republicanize with an elected head of state and the like. That is as they conceived it.

The transformation both in England and Canada takes place precisely through the conventions. The modern democratic system is therefore brought into place through the operation of the conventions, so all of these powers are exercised on advice and the ministry is effectively responsible to the House of Commons.

Senator Grafstein: We agree that the convention therefore has changed the constitutional legitimacy of limitations on the executive, because of the democratic process.

Mr. Scott would have us believe and accept that there are no, in effect, restraints on the executive when it comes to questions of war and peace. I want to explore that with him.

The Chairman: The word "convention," which you have used, has been used in many ways. There are at least two prominent definitions. One is the one put forward by A.V. Dicey in his Introduction to the Study of the Law of the Constitution where he argues that there are certain practices which, if not respected, eventually will lead to a violation of the law of the land. For example, if the House of Commons declares no confidence, there is no immediate legal requirement that the government could resign or bring on an election. Yet the executive government knows that if they do not take appropriate action, they will eventually be deprived of money and will be able to carry on only by misappropriating money from the Consolidated Revenue Fund. In that case, the convention is sort of a practical and logical result of the law of the Constitution.

On the other hand, a convention can refer simply to political practice, and I think this prevailed in the case to which you just now made reference. It might be a shrewd thing to have a vote on a motion in the House of Commons. Mind you, a government would not move for a resolution unless it were sure it would win.

Those are two distinct definitions of convention. Before we start talking too much about conventions, we ought to know which meaning we are employing.

Senator Grafstein: Let me say that I really want to deal with the question. I think either application would apply to my argument for the moment. It may not be a valid argument. The argument is that by convention, in Canada, Parliament has had an active role in the questions of war and peace, separate and distinct from the executive. For example, for the First World War, the government of the day decided, notwithstanding that the royal prerogative was pure and untrammelled -- that Parliament would pass a declaration of war. For the Second World War, Mr. King decided that he would wait until Parliament could reconvene in order for him to get Parliament to approve a declaration of war as well as a Throne Speech at the time. Now that was convention two. Convention three -- and I use this term with the intended meaning of conventional practice in Canada -- was during the Korean War. I do not have the actual parliamentary answer in front of me, but the argument was raised that Parliament did not necessarily have to have a role, but in fact Parliament gave its opinion by more than debate on the issue, in terms of a resolution and supply motions that acted as an inhibition on the Crown or on the royal prerogative. In other words, the King or the cabinet does not have the untrammelled power to declare war; the decision must take place in Parliament.

By the way, I am not sure that we are dealing with war here. Nobody has declared war, the government has not said that we are at war; we have something less than war.

Is it not fair to say that in Canada the Supreme Court of Canada's opinions on conventions are limitations? In fact there are some parliamentary limitations on the royal prerogative for the questions of war, let alone peace.

Mr. Scott: First of all, there are the general conventions of responsible parliamentary government. The executive is responsible to the House of Commons for the exercise of all of its powers. At any time, the House of Commons can in principle bring down the government, can express disapproval. A government concerned about that may prudentially take steps in advance to approach the Commons and seek its approval. However, all the executive powers are subject to the conventions of responsible parliamentary government. There is therefore general responsibility to the Commons.

Now, there do not appear to be any conventions because there has been no practice other than, if you like, prudential measures from time to time of approaching the Commons. There is no acknowledgement by the government that it is obliged to ask in advance for the consent, approval or authorization of either or both Houses. Thus, no convention is developed where it is acknowledged that for this or that power, for example declarations of war or sending troops abroad, it is necessary for the government to approach either of those Houses of Parliament, to receive either a general or particular authorization. There do not appear to be any conventions specific to this area requiring authorization or approval.

Of course, it is a matter of common sense for a government, if it foresees that things may become long and difficult and things may go badly to move in advance to the Houses of Parliament and receive a general resolution of approval. It might well have been sensible and prudential on this occasion to do so. Perhaps if the government had foreseen how badly things would go, it might have done so. However, it is not possible to establish a convention that requires them to go in advance to the Senate or House of Commons, or both, to ask for authorization or approval.

Senator Grafstein: Obviously we can disagree with the witness. I want to deal with a specific matter that you have touched on, and it relates to the existing law, which is the National Defence Act. Take a look at section 31.

Mr. Scott: That struck my eye yesterday.

The Governor in Council may place the Canadian Forces, or any component, unit or other element thereof or any officer or non-commissioned member thereof on active service anywhere in or beyond Canada at any time when it appears advisable to do so

by reason of an emergency, for the defence of Canada; or;

in consequence of any action undertaken by Canada under the United Nations Charter, the North Atlantic Treaty or any other similar instrument for collective defence which may be entered into by Canada.

Senator Grafstein: Go to the part where Parliament must be called. I do not have the statute in front of me. I am doing this from memory.

Mr. Scott: In the last version I had it was section 32.

Whenever the Governor in Council places the Canadian forces, or any component or unit thereof on active service, if Parliament is then separated by an adjournment or prorogation that will not expire within ten days, a proclamation shall be issued for the meeting of Parliament within ten days, and Parliament shall accordingly meet and sit on the day appointed by the proclamation, and shall continue to sit and act in like manner as if it had stood adjourned or prorogued to the same day.

That has to do with putting units on active service. I know that if they have reserves, they must be put on active service. It is a shame that General MacKenzie is not still here. He would know how that is administered. I am not certain that moving the body of the forces on active duty to Yugoslavia and even having them engage in activities involves a question of active service, but this has to do with transferring units to active service.

Senator Grafstein: Obviously, Canadian armed forces are now in active service, for they are in a war theatre. Would you accept that, Professor Scott?

Mr. Scott: They may have been on active service already.

Senator Grafstein: Does that statute not say to you that somewhere, either in the common law or the statutory law, Parliament must be in effect sitting or convened before Canadian armed forces can be put in harm's way?

Mr. Scott: It does not quite say that. It says that you call the forces into service. If you put the units into active service, then you issue a proclamation for the meeting of Parliament within 10 days. In other words, a government that is careful and prudential and sees that this is a highly sensitive matter would be well advised to bring Parliament into session immediately, if it is not already in session, and perhaps put a motion. If you said that, I might agree with you. To say that the law requires that they receive prior approval or authorization or even receive approval or authorization after Parliament has come into session is another matter.

Senator Grafstein: I want to lay this on the table. We should see if we can invite legal advisors from National Defence so we can explore this issue more fully. My contention is that there is within the common law a requirement for Parliament to be called and for supply to be considered, and this is part of the parliamentary process. I do not want to give evidence.

The Chairman: I disagree with you.

Senator Bolduc: In 1939, I was 11 years old, and I was leaving my hometown to go to school. It was a big day for me. That was the day that war was declared and Mackenzie King came on the radio. I think that Parliament was not there at all. I may be wrong.

The Chairman: We can check that. What the law makes clear is that Parliament must not be left long in adjournment after the forces have been put on active service. However, that does not mean that the government of the day must propose a resolution in the House of Commons or the Senate. For example, it could mean that the opposition, with Parliament sitting, could put down a motion of no confidence or, on a supply day,decry what the government had done.

Senator Stollery: A government might well want to bring Parliament into it and get the nation as such interested in the war that would be about to take place. That is not the same thing as saying that Parliament has to or must be or that there is a legal requirement for this.

The Chairman: That point was made very clear initially. Mr. Scott agreed with you clearly and emphatically in his original statement, and I am glad to hear you reaffirm it because I happen to agree with everything Professor Scott said.

Senator Grafstein: Professor Scott, what is the role of Parliament with respect to supply for war-making actions?

Mr. Scott: The same rule in the same context of responsible parliamentary government as it always is. It can refuse supply; it can grant supply. From time to time, this has been a question between the Senate and the other place. Supply is considered primarily the gift of the House. There have been questions between the two Houses about amendments by the Senate. In principle, yes, of course, and in law, the Senate can amend money bills. It is asked if this is proper, and so on.

Of course, the conventions of responsible parliamentary government apply here as everywhere else. Any member of either House is free to make remonstrance to the government, to propose resolutions, and to vote on any legislation which may be before either House. The Houses can grant or withhold supply. All these matters apply, as they do to every other matter.

That is not peculiar to defence, missions abroad or Yugoslavia. It is of general application in all circumstances.

[Translation]

Senator Prud'homme: Is there another professor Scott at McGill University?

Mr. Scott: Not any more. There was professor Frank Scott who is better known than I am; he taught at McGill for 40 years.

Senator Prud'homme: When he announced that Canada would be a member of the forces against Irak, the Right Honourable Brian Mulroney was wise enough to ask Parliament for a vote. There was a prolonged debate. In fact, my own party in the House had decided to vote against Canada's participation in that war. One day, when you read what happened on that day, you will understand why some members had a change of heart that night. I, myself, did not, but that is another story.

I like the British parliamentary system because anything is possible, except that there are precedents. More and more precedents are being established. To take part in a war -- things are a bit ambiguous here because there has been no formal declaration of war -- but if there is indeed a war, we must follow precedents. Could these precedents set aside everything we have learned since 1608 or 1720, et cetera? The British system with its precedents is very strong. It is used daily in the House of Commons. Both Speakers may refer to it. When they have no recent decisions at hand, they look up the precedents. And that is how new binding precedents are made.

Mr. Scott: When you read the Supreme Court of Canada patriation references, you find that the judges make no distinction on this point in their decision. The court has considered the necessary elements for a convention to exist. We need precedents that will make sense in order to establish a rule. Also, the political actors, those in charge, must feel bound by the rule. Some precedents could exist without being implicitly recognized. The fact that the actors feel bound by the rule must be quite clear. In fact, you can act the same way hundreds of times without ever creating a convention. The court and the authors were very clear on that. You have to feel bound by the rule.

There are many reasons to believe that wisdom commands that in such circumstances, it is important to ask for a resolution of the House. If I were prime minister and I had to deal with such an issue, I would feel very uncomfortable if I did not take precautionary measures because things can go wrong and get worse. We could have a serious problem.

Senator Prud'homme: If there is a series of precedents that could apply to a similar situation, would it not be a precedent of our new law?

Mr. Scott: You are right, if there is some evidence that the political actors feel bound by a rule. Doing the same thing hundreds of times simply mean that you are careful. It does not necessarily mean that you do it in order not to violate some moral constitutional rule. Conventions are moral constitutional rules. You can do the same thing hundreds of times without acting that way because you feel bound by a moral constitutional rule.

[English]

Senator Andreychuk: I think you have covered the points quite well; but a wise and prudent government might think ahead as to some of the powers Parliament could use to exercise its dissatisfaction with the executive. That would not create any obligations. However, you are not saying that, in modern society, we might change our opinion and put some constraints on the executive by some enactment of law, which would then preclude the customary law applying, are you?

Mr. Scott: There was a parliamentary resolution in 1871 that was provoked by the federal executive having approached the Imperial Parliament for legislation, which became the Constitution Act, 1871, as we now call it, on the creation of new provinces and so on without prior approval of the Houses of the Parliament of Canada. There was a resolution here, and that was subsequently treated as creating convention.

I suppose that has happened from time to time in connection, for example, with a desire that the federal executive not approach the imperial government to create titles -- peerages and the like -- for Canadian residents, though that was breached by the Bennett government, as I recall. Nevertheless, if both Houses passed a resolution desiring that, in future, no employment of military abroad, for the sake of argument, take place except with prior authorization or approval, then that would be regarded as effectively binding. Of course, you would not get that through the House of Commons unless the government in practical terms approved of this new policy, and such a resolution would have to be worded to allow for emergencies and the like, sudden attack and various sorts of things. It would probably be a fairly complicated sort of resolution to draft, and it might have to do with a certain number of days, bringing the house together and getting approval of both Houses.

You could easily institute new conventions but you do not need precedents to do that. It seems clear that, just as with the precedents created by imperial conferences dealing with the status of the dominions, the appointment and status of the Governor General, and so on, if the body of persons here in the Senate and the House of Commons, who are regarded as being in an authoritative position to create precedents, to create constitutional principles, if you like, choose to do so even without a statutory enactment, they would be quite entitled to do so.

Senator Andreychuk: On page 6, you state:

The introductory portion of this preamble long survived the remainder of the Act, and was ultimately repealed as recently as 1st January, 1970.

What was repealed, the preamble or the rest of the act?

Mr. Scott: The rest of the act had been repealed quite a long time ago, I believe in the 19th century, by one of the statute law revision acts. The first portion of the preamble was left in force, not the whole preamble. On January, 1, 1970, the last bit of the preamble was repealed. It was, I suppose, so grand and so historic and so much regarded as stating in a classical way the constitutional position, that they did not want to touch it. It was just left on the books. The Statute Law Repeals Act, 1969, came into force on January 1, 1970, the effective date of repeal of the last surviving portion of the preamble, of which nearly all is quoted on that page. I left out a "whereas" and another word.

Senator Andreychuk: My point is, by repealing it, it did not change the position at all.

Mr. Scott: No. This was regarded as a parliamentary recognition of the common law principle, and it is often quoted in the case law. As a matter of fact, there are a few interesting cases on the Crown and the forces. I know Senator Grafstein indicated that he was an interested lawyer and so he would possibly be interested in the case China Navigation Company, Limited v. Attorney-General, which can be found at [1932] 2 K.B. 197. It had to do with the Crown putting soldiers on British merchant ships in the South China Sea because of the problem of internal piracy. Passengers would come aboard and pull knives and take over the ship. This case established that the Crown had the discretion to put its troops on board. It could choose to do so only if the merchant vessel shipping company were willing to pay for it. That gives you a lot of the old law.

Another interesting case is Chandler and others v. Director of Public Prosecutions, which can be found at [1964] A.C. 763. It goes into a lot of the old law. Anyone who is interested in this area can thus get a bit of the flavour of the old authorities and the reasoning of the courts.

There is an interesting Canadian case in connection with the Charter, Operation Dismantle Inc. et al. v. the Queen et al., which is found at 18 D.L.R. (4th) 481. That was in 1985.

If you took those three cases and sat down with them, you would have a very good flavour of all the old learning and how the courts have looked at the question of the Crown, the forces and the role of the courts.

Senator Di Nino: Could you add one bit of practical knowledge for us? What is the practice in other Western countries?

Mr. Scott: My understanding was that, in Britain, at times, they went to the Commons to get resolutions when they thought it desirable and prudential, but they were not obliged to do so under any sort of convention or any accepted principle.

In the United States, of course, the system is very different. The executive and the Congress have always been in tension. The Congress has the formal power to declare war, but even as early as the Adams or Jefferson administration, there were examples of troops or forces being used abroad to deal with pirates and the like without necessarily getting congressional approval.

Then, as a result of the Vietnam episode, there is of course a resolution signed by the president, so it is considered as being statutory, having a certain balance requiring a certain amount of consultation with Congress. I forget the exact details of that. That is quite involved, but that was new coming out of the Vietnam conflict.

The executives insist on a pretty fair degree of freedom to act and do not particularly want to be bound to come to either or both houses of a legislature in advance, but sometimes this can be imposed on them, and very often governments prudentially do approach their legislatures.

Senator Di Nino: Do countries with the parliamentary system deal with this issue in a manner different from other countries?

Mr. Scott: I have the general impression there is nothing very specific for Australia or New Zealand or these other constitutional monarchies within our historic evolution, but I could not testify to that. I would have needed a little bit of advance notice, and I could have looked at that. I rather regretted, when the chairman indicated the points that senators were interested in, that I did not have most of them in my remarks because I dealt with basically what I had been told in advance senators were interested in.

Senator Di Nino: We thank you for that.

The Chairman: Yes. You have certainly helped us out in one of the major areas of our concern.

Honourable senators, let me put this proposition to Professor Scott. There was a time in this country when sessions of Parliament lasted about three months. The government was voted its supply, and the members of the Houses were allowed to go home. Obviously, in that situation, unless Parliament was called back into what would have been called a special session, there was no possibility of the government getting additional funds to meet a genuine crisis. However, over the years, the sessions have gone on longer and longer. The House of Commons now has a system whereby supply, which is fundamental to responsible government, is dealt with in three time periods, one ending about the middle of December, the next one ending March 26, and the last one ending in June.

There now are many opportunities for members of either House to question what the executive government is doing. The way to do it, particularly in the House of Commons, is to vote against parts of the appropriation bills

For example, right now, if an opposition party does not like NATO's action in which Canada is participating, they can simply identify that estimate that they do not like and, when the time comes to vote in on an appropriation bill, they vote against it. That is the technique. There is no problem now, given the fact that sessions run so long and that the supply process runs throughout the sessions. The House of Commons would have no problem reining in a government that is using a royal prerogative extravagantly.

Senator Stollery: That is what happened to Information Canada in 1973. The item was identified in the Main Estimates and voted down. That was the end of Information Canada.

The Chairman: Yes, I remember.

Senator Di Nino: That can only happen if there is a minority government. If there is a majority, it is very difficult.

The Chairman: Do not argue that responsible government exists only when there is a minority government.

Senator Di Nino: Sometimes one must wonder.

The Chairman: Think back to the late 1980s.

Senator Grafstein: Therefore, at any time, Parliament, because it has accessibility, through its sittings, to the executive, can call a vote of confidence, or in effect curb by a vote of Parliament the use of the prerogative by the Crown through the war powers.

The Chairman: In each of three supply periods, a certain number of opposition motions are voteable. The motion can be put down by the opposition and at the end of the day there is a vote. There are many opportunities to hold a government responsible now. That was not true in the days of short sessions.

Senator Grafstein: Our witness would say that this is prudential, not constitutional.

Mr. Scott: They are not obliged to do it, but if it is a matter of sufficient concern, there are opportunities. I take it the procedure is still in force to move the adjournment to discuss an urgent public matter. I would have thought that if people were upset and concerned about a matter, that would be one of the fastest ways to get a debate. I would have thought that the speaker would not say no where a matter of war is involved to a request by the opposition to debate this as a matter of urgency.

The Chairman: To be blunt and dramatic, if a party now in the House of Commons is opposed to Canada's participation in the current NATO missions, they can challenge the current appropriation bill. That contains money for national defence.

Senator Forrestall: They can, however, the government now has a prerogative indicating before any vote whether they consider it to be matter of confidence. That changed in the last 10 or 15 years.

The Chairman: Senator, if the relevant vote for national defence is defeated, what the government is doing in the former Yugoslavia has been condemned by the House.

Senator Forrestall: Not since the day of the postage stamp increase, when the Prime Minister of the day was on the beaches in the Caribbean, has that been true. However, it is academic.

Senator Stollery: If the money is turned down, it is the end of the project, whatever it may be. The government is left with no trick to play.

The Chairman: Professor Scott, we seem to need to debate this among ourselves.

Mr. Scott: I thought that these legal matters might well be found to be a bit on the dry side. I did not expect this animated discussion. The fact that senators are interested in debating it amongst themselves is something I am thoroughly enjoying.

Senator Stollery: Most of us have been in minority parliament, and in minority parliament these are very big matters.

The Chairman: Professor Scott, you have helped us greatly. Mind you, there may be one or two who remain unpersuaded. You have certainly persuaded me. On behalf of myself and all my colleagues, I thank you.

Senator Forrestall: Could I ask what he persuaded you of?

The Chairman: Yes. I could answer that, however, I do not feel I should take any more time.

Senator Grafstein: I have a question to pursue on this line.

Under the National Defence Act, there is a requirement for the executive to issue an order in council declaring that troops are under active service. That triggers a number of issues. It increases the benefits, insurance, and so on.

My understanding is that the previous practice was to issue an order in council for each mission where Canadians were put in harm's way. In other words, for every mission they would be put on active service by an order in council. The current practice is to have one standing order to cover all events. What is your view of that practice?

Mr. Scott: I would not dare to venture an opinion without having researched it in advance. Also, of course, one can look at the text of the statutory provision. Unless one gets quite familiar, in certain instances, with the entire history and practice of how it has been understood and applied through the years, what the administrative understanding of it is, and so on, one can be quite in the dark. I had difficulty being sure exactly what was meant by active service in the context. It did not seem that every deployment of the troops was necessarily a change from inactive to active service. That will clearly be the case with the reserves, but with the general forces, when deployed abroad, I was not sure that act triggered the section in question.

Senator Grafstein: That is for another day, Mr. Chairman.

Senator Forrestall: It is very important that we pursue that because I am not very happy with it either.

The committee adjourned.

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