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Studies of Canadian constitutional law have tended to overlook section 15 of the Constitution Act, 1867, which vests the command-in-chief of Canada’s armed forces in the Crown as the executive power. This article argues that, despite being largely ignored, section 15 is a significant constitutional provision, one that grants the executive constitutionally protected powers over the armed forces. Specifically, the article demonstrates that this section provides the executive with an entrenched constitutional authority to raise, govern, command, and use Canada’s armed forces. While parliamentary statutes could limit how this authority is exercised, these powers of the executive cannot be abolished or displaced by an Act of Parliament owing to their being sourced in section 15.
The article begins with an overview of the nature of executive power in Canada, in order to establish that the Crown is vested with constitutionally entrenched authorities that cannot be abolished or entirely displaced by statute. Next, the article argues that section 15 of the Constitution Act, 1867 provides the executive with a constitutionally protected authority to raise, govern, command, and use Canada’s armed forces. Drawing on comparisons with Australian and New Zealand laws, the article then demonstrates that these section 15 powers are assumed to exist by Canada’s National Defence Act, the parliamentary statute that is often presented as the source of the executive’s authority over the armed forces.
