A Life of Duty, Service, and Devotion

Like many who have borne service to the Crown, I am coming to terms with the death of Her Majesty Queen Elizabeth II.  For me, her passing has given rise to significant contemplation, reflection and, admittedly, a range of emotions.  So much so, that it has taken me a couple of days to consider what, if anything, I might commit to writing regarding her passing.

This Blog-space, and the focus of my broader scholarship and academic inquiry, is dedicated to discussing the legal dimensions of the relationship between the Crown and members of what was Her Majesty’s armed forces, and what are now His Majesty’s armed forces.  The Crown is inextricably linked to that legal paradigm.

A recurring theme of remembrance regarding Her Majesty was her unparalleled sense of duty and her dedication to service.  These are not unfamiliar sentiments to those who accept ‘the Queen’s shilling’ (and now, the King’s shilling).  I suspect that was one of the many reasons why many who served in Her Majesty’s armed forces – in Canada and elsewhere – were so devoted to her.  It was certainly one of the reasons that I looked upon her with admiration and affection as a role model.  And, admittedly, there were times that I failed to measure up to her example.

But I find that her commitment to duty, and her affection for members of Her Majesty’s armed forces, does stand in contrast to an enduring principle of public law pertaining to the Crown-soldier relationship.  And this is a principle that lies at the heart of much of my scholarship and research.

The modern principle of the Crown-soldier relationship in Canada was described in Gallant v The Queen in Right of Canada (1978), 91 DLR (3d) 695 (FC TD).  And I cannot help but be compelled to add an asterisk (*) whenever I make that statement.

First, it is hardly a new judgment.  In January 2023, this judgment will be 45 years old.  A marked proportion of the people presently serving in the Canadian Forces (CF) were not alive when the judgment was handed down.

Moreover, this judgment from Justice Marceau relied heavily – almost exclusively – on the conclusions of Lord Esher in Mitchell v The Queen, [1896] 1 QB 121. And even that style of cause is a tad misleading, as Mitchell v The Queen – a judgment of the Court of Appeal for England and Wales – was not actually reported as a judgment when it was decided in 1890.  It was reported, six years later, as an annex to a judgment of the Court of Appeal for England and Wales in Dunn v The Queen, [1896] 1 QB 116.

Mitchell v The Queen began as an application by a retired Lieutenant Colonel of Her Majesty’s (Queen Victoria’s) armed forces in the United Kingdom, who brought a Petition as of Right seeking, as pension, a sum that had been promised him from the Crown.  Retired officers were often referred to as being on ‘half pay’ – Lieutenant-Colonel Mitchell would have been referred to, colloquially, as a ‘half-pay Colonel’.  In Dunn v The Queen, the Court of Appeal relied upon the earlier judgment in Mitchell v The Queen, holding that ‘public officers’ in Her Majesty’s public service had a similar relationship to the Crown.  More on that in a moment.

Therefore, even setting aside the fact that the judgment in Gallant v The Queen is nearly 45 years old, it espouses a principle that is over 125 years old.  It is, therefore, difficult to suggest that this is a modern principle.

Finally, the judgment in Gallant v The Queen is a judgment of what was then the Federal Court, Trial Division – a court of first instance.  It was not a judgment of the Supreme Court of Canada or even the Federal Court of Appeal.  It has been cited with approval by the Federal Court of Appeal[1], and this brief judgment, encompassing what is essentially three pages of text, is cited time and again as the definitive statement of the Crown-soldier relationship in Canada.

What does this have to do with Her Majesty’s devotion to duty and her affection for members of Her Majesty’s armed forces?

Here is what Justice Marceau had to say in 1978:

Both English and Canadian Courts have always considered, and have repeated whenever the occasion arose, that the Crown is in no way contractually bound to the members of the Armed Forces, that a person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations, and that relations between the Queen and Her military personnel, as such, in no way give rise to a remedy in the civil Courts. This principle of common law Courts not interfering in relations between the Crown and the military, the existence of which was clearly and definitively confirmed in England in the oft-cited case of Mitchell v. The Queen, [1896] 1 Q.B. 121, was taken over by our Courts and repeated in a wide variety of situations …[2]

And here is what Lord Esher MR stated in Mitchell v The Queen, upon which Justice Marceau relied so definitively:

… the law is as clear as it can be, and that it has been laid down over and over again as the rule on this subject that all engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract.  It has been argued that this is not to be treated as an engagement between a person in the military service of the Crown and the Crown, but as a contract made between a civilian and the Crown. The answer to that contention seems to me to be that it is contrary to the truth.  At the time when the engagement was made the suppliant may have been on half-pay, but he was getting half-pay for being in the military service, although he may not have had any active service to perform. The engagement which was made between him and the Crown was made solely in consequence of his having previously been and still being at the time in the service of the Crown as a soldier. It was made with him as a soldier with reference to what the Crown would do for him upon his retirement because he had been a soldier in the service of the Crown.  It is perfectly clear that such an engagement is within the rule which I have mentioned.  The suppliant is not, it must be remembered, suing in respect of a matter which is provided for by an Act of Parliament, but of a matter which arises under the War Office Regulations. It is a matter which arises between him and the Crown in consequence of certain regulations which the Crown has made with regard to its officers. It has been decided over and over again that, whatever means of redress an officer may have in respect of a supposed grievance, he cannot as between himself and the Crown take proceedings in the courts of law in respect of anything which has happened between him and the Crown in consequence of his being a soldier. The courts of law have nothing whatever to do with such a matter.[3]

Mitchell v The Queen was reported as an footnote annexed to Dunn v The Queen and was a key judgment upon which the Court relied.  Counsel for the Crown appearing before the Court of Appeal also relied on the prior judgment of De Dohsé v R, decided by the Court of Appeal in 1885 and which was upheld by the House of Lords in 1886, but which was not reported.  In the Court of Appeal, the lead judgment in De Dohsé v R was written by Sir William Brett, MR.  And, in 1885, Sir William Brett was raised to the peerage as Baron Esher.  It appears that, when Lord Esher was referring to a rule laid down time and again, he was referring to a rule that he laid down time and again.

Therefore, the ‘modern principle’ of the Crown-soldier relationship in Canada – notwithstanding that it is firmly grounded in a Victorian perspective and philosophy – can be characterized as follows:

1. The Crown is in no way contractually bound to the members of the Armed Forces;
2. A person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations; and
3. Relations between the Queen and Her military personnel, as such, in no way give rise to a remedy in the civil courts.

However, this ‘principle’ is inconsistent with what we have experienced in the 45 years since Justice Marceau handed down his judgment.

Addressing the last element of this principle first: it is clear that personnel of what are now His Majesty’s armed forces raised by Canada may seek a remedy before civil courts.  It happens relatively frequently, in both applications and actions.  And they can be brought as individuals or as a class.  Granted, the scope and nature of that remedy may be influenced, significantly, by the nature of the relationship.  However, it cannot be said, with any degree of reliability, that relations between the Crown and its military personnel do not give rise to remedy before civil courts.

Resolving the other two elements of this principle, which are closely aligned, is less apparent.  These elements – that the relationship does not give rise to a contract but is a unilateral commitment (on the part of members of the armed forces) and that the Crown assumes no obligations therefrom – give rise to an ambiguous antonymic definition: the Crown-soldier relationship is not one of contract.  Fair enough; but if it is not based on contract, how should it be defined?  And this ambiguous definition continued to be applied (relatively consistently, but not always) whenever matters had been brought before the courts by members of Her Majesty’s armed forces, often to the disadvantage of those same members of Her Majesty’s armed forces.

However, those elements of the principle lie in stark contrast to the character and actions of Her Majesty, the late Queen Elizabeth II.  Throughout her life of duty and service exemplified by the pledge she delivered 75 years before her death, Her Majesty exhibited a clear sense not only of affection, but of obligation, to the personnel of Her Majesty’s armed forces.  It was clear that, to her, this was anything but a unilateral commitment.

A distinction may be drawn between the actions of the Sovereign, in personam, and the Crown as it is constituted at law.  And I suspect that statement might cause some people to start nit-picking about the constitutional status of the Crown.  However, neither Her Majesty, nor her personal representative in Canada, the Governor General, personally adjudicated matters in the administration of the affairs of the Canadian Forces.  Even when recognition was granted, or actions taken, in her name, the true decision-making was done by others.  When necessary – and it was not always necessary – those decisions were certainly ratified by the Sovereign or her representative (typically the latter) on the advice of the relevant statutory or constitutional decision-maker, but the administration of the affairs of the CF was governed by the relevant laws – notably the Constitution Act, 1867, Constitution Act, 1982, and the National Defence Act – and the decisions and actions of others were taken under those laws.

Nevertheless, Her Majesty’s example of duty, service, and devotion suggest that the governing principle of the Crown-soldier relationship is in need of true modernization.  If Her Majesty was capable of exhibiting an unparalleled dedication and devotion to Her Majesty’s armed forces, ought not the law governing that relationship evolve to reflect that mutual sense of duty?

As Lord Esher alluded over 130 years ago, it is open to Parliament to better define that relationship.  Since the judgment in Mitchell v The Queen, Parliaments in the UK and Canada (and the other Realms) have enacted many laws that affect the Crown-soldier relationship in those Realms.  But they have done little to better define the relationship.  And, frankly, the courts have not done much more, choosing instead to rely on what may be characterized as antiquated and simplistic expressions of what is essentially the sole remaining Master-Servant relationship in Common Law jurisdictions.

Perhaps the time has come for Parliament to offer a more precise and defensible articulation of the Crown-soldier relationship.  It is doubtful that Parliament will take such action; the continuing ambiguity of the current antonymic definition generally favours the Crown – specifically the Executive Branch of government – in litigation.

Consequently, perhaps it is time for the courts to revisit the Crown-soldier relationship in a much more meaningful manner, to delve more precisely and critically into the nature of this relationship.  After all, it was defined, over a century ago, by the Court of Appeal for England and Wales (and, more specifically, by the Master of the Rolls).  Perhaps the time has come for Canadian judges of the 21^st Century to lift what a colleague of mine has described as the “… dead hand of Lord Esher lying frozen …” on the neck of every subsequent case that has addressed the Crown-soldier relationship.[4]  Perhaps the time has come to embody the example of Her Majesty, the late Queen Elizabeth II, and redefine the Crown-soldier relationship so that it reflects the obligations – and rights – that arise from duty and service.

Requiescat in pace, Elizabeth Regina.

O Deus optime salvum nunc facito Regem nostrum.

[1] For example: Canada (Attorney General) v Jost, 2020 FCA 212, paras 51 to 60. Note, however, that there was a degree of equivocation about the application of this principle to a statutory regime.

[2] Gallant v The Queen in Right of Canada (1978), 91 DLR (3d) 695 (FC TD), 696.

[3] Mitchell v The Queen, [1896] 1 QB 121 (CA), cited in Dunn v The Queen, [1896] 1 QB 116 (CA).

[4] RJ Stokes, “Sgt Dunsmuir:- The Crown Soldier Relationship in Canada”, (2011) 24 Can J Admin L & Prac 57, 3-4.

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