QR&Os: Volume I - Chapter 23
Duties In Aid Of The Civil Power

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Section 1 - General

23.01 - DEFINITIONS

In this chapter,

attorney general(procureur général)
has the meaning given in section 274 of the National Defence Act which provides:

"274. For the purposes of this Part, "attorney general" means the attorney general of any province, the acting attorney general of a province or any minister of a government of a province who performs for the time being the duties of a provincial attorney general."

officer in immediate command(officier de commandement immédiat)
means an officer at any level of authority who is in command of and accompanies a part of the Canadian Forces at the scene of a riot or disturbance;
officer in superior command(officier de commandement supérieur)
means:
  1. a Region Commander, or
  2. an officer in command of all parts of the Canadian Forces called out in aid of the civil power in a province, city or other geographical area, but does not include an officer in immediate command; and
representative of the civil authorities(représentant des autorités civiles)
means a person designated by the attorney general or deputy attorney general of a province to accompany, for the role mentioned in article 23.13 (Role of Representative Of the Civil Authorities), a part of the Canadian Forces called out in aid of the civil power.

(M)

NOTES

(A) In some provinces, the attorney general has the title of Minister of Justice in addition to, or in lieu of, that of Attorney General. In one province the Premier is the attorney general and another minister is the Minister of Justice. The distribution of duties among provincial ministers is not a matter of federal concern in relation to aid of the civil power. Any action in that connection to be taken by a provincial attorney general under the National Defence Act or this chapter could be taken by an acting attorney general or by another provincial minister. Military authorities should presume that another provincial minister, for the purposes of the Act and this chapter, "performs for the time being the duties of a provincial attorney general" as mentioned in the above definition where he takes any such action.

(B) For the Yukon Territory and the Northwest Territories, the "attorney general" is the Attorney General of Canada.

(C) An example of an officer in immediate command would be an officer who is physically present and exercising command over his troops in a street where a riot is taking place, as distinct from an officer in an operations room.

(D) The civil authorities of all provinces have agreed that persons designated as representatives of the civil authorities will, with the exception mentioned below, be selected from among civil police who have had adequate training and experience in the control of riots or disturbances. In Newfoundland, magistrales may be designated as representatives of the civil authorities in certain communities outside St. John's.

(C)

23.02 - APPLICATION

This chapter applies to aid of the civil power under Part VI of the National Defence Act.

(M) (1 September 1999)

NOTE

For the purposes of Part VI of the National Defence Act and this chapter, the Yukon Territory, the Northwest Territories and Nunavut are provinces.

(C) (1 September 1999)

23.03 - POSITION OF THE CANADIAN FORCES IN RELATION TO THE CIVIL POWER

(1) Where a part of the Canadian Forces is on service in aid of the civil power, it does not replace the civil authorities but assists them in the maintenance of law and order.

(2) The responsibility for the reading of the proclamation prescribed in the Criminal Code, commonly known as the "Proclamation Under the Riot Act", or of making any other proclamation required by law, rests entirely with civil authorities and not with the Canadian Forces.

(M)

NOTE

The role of members of the Canadian Forces called out in aid of the civil power will vary with the circumstances of the situations that confront them. All this chapter seeks to do is to explain the application of the law, including the provisions of the National Defence Act, concerning aid of the civil power in the general situations that the Canadian Forces are likely to encounter. It does not preclude other orders being issued by superior authority that may be necessary to deal with particular situations.

(C)


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Section 2 - Requisitioning of Canadian Forces

23.04 - ATTORNEY GENERAL OF PROVINCE MAY REQUISITION CANADIAN FORCES

Section 277 of the National Defence Act provides:

"277. Where a riot or disturbance occurs or is considered as likely to occur, the attorney general of the province in which the place where the riot or disturbance occurs or is considered as likely to occur is situated, on the initiative of the attorney general or on the receipt of notification from a judge of a superior, county or district court having jurisdiction in the place that the services of the Canadian Forces are required in aid of the civil power, may, by requisition in writing addressed to the Chief of the Defence Staff, require the Canadian Forces, or such part thereof as the Chief of the Defence Staff or such officer as the Chief of the Defence Staff may designate considers necessary, to be called out on service in aid of the civil power."

(C)

23.05 - SUPPLEMENTARY PROVISIONS RESPECTING REQUISITIONS

Sections 280 and 281 of the National Defence Act provide:

"280. (1) In a requisition made under this Part, it shall be stated that

  1. information has been received by the attorney general from responsable persons, or a notification has been received by the attorney general from a judge, that a riot or disturbance beyond the powers of the civil authorities to suppress or to prevent or to deal with, as the case may be, has occurred or is considered as likely to occur and that the Canadian Forces are required in aid of the civil power; and
  2. it has been made to appear to the satisfaction of the attorney general that the Canadian Forces are so required.

(2) [Repealed, R.S., 1985, c. 22 (4th Supp.), s. 76]

(3) Every statement of fact contained in a requisition made under this Part is conclusive and binding on the province on behalf of which the requisition is made, and every undertaking or promise in the requisition is binding on the province and not open to question or dispute by reason of alleged incompetence or lack of authority on the part of the attorney general or for any other reason.

(4) A statement of fact contained in a requisition made under this Part is not open to dispute by the Chief of the Defence Staff.

281. Where a requisition is made under this Part, the attorney general of the province concerned shall, within seven days after the making of the requisition, cause an inquiry to be made into the circumstances that occasioned the calling out of the Canadian Forces or any part thereof, and the attorney general shall send a report on the circumstances to the Secretary of State of Canada."

(C)

23.06 - FORM OF REQUISITION

Section 279 of the National Defence Act provides:

"279. A requisition of an attorney general under this Part may be in the following form, or to the like effect, and the form may, subject to section 280, be varied to suit the facts of the case:

"Province of

To Wit

Whereas information has been received by me from responsible persons (or a notification has been received by me from a judge of a (superior) (county) (district) court having jurisdiction in _____) that a riot or disturbance of the peace beyond the powers of the civil authorities to suppress (or to prevent or to deal with) and requiring the aid of the Canadian Forces to that end has occurred and is in progress (or is considered as likely to occur) at _____;

And whereas it has been made to appear to my satisfaction that the Canadian Forces are required in aid of the civil power;

Now therefore I, _____, the Attorney General of _____

_____, under and by virtue of the powers conferred by the National Defence Act, do hereby require you to call out the Canadian Forces or such part thereof as you consider necessary for the purpose of suppressing (or preventing or dealing with) the riot or disturbance.

Dated at _____, this _____ day of _____ 19_____.

Attorney General"

(C)


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Section 3 - Receipt of and Action Upon Requisition

23.07 - RECEIPT OF REQUISITION

(1) Any officer to whom a requisition has been delivered shall accept it and shall immediately cause:

  1. the Chief of the Defence Staff or an officer acting for him at National Defence Headquarters; and
  2. the Region Commander concerned or an officer acting for him at his Headquarters;

to be informed by telephone of the contents of the requisition and then cause the wording of the requisition to be transmitted by teletype to the Chief of the Defence Staff and by teletype, or by hand where appropriate, to the Region Commander concerned.

(2) The original signed requisition shall be sent by the most expeditious means to the Chief of the Defence Staff.

(3) The Chief of the Defence Staff has "received" a requisition within the meaning of the National Defence Act and this chapter when both of the following conditions are met:

  1. the requisition has been accepted on behalf of the Chief of the Defence Staff by any officer; and
  2. the Chief of the Defence Staff or an officer acting for him at National Defence Headquarters has been informed of its contents.

(M)

23.08 - EXAMINATION OF REQUISITION BY CHIEF OF THE DEFENCE STAFF

Where the Chief of the Defence Staff receives a requisition from an attorney general, he shall immediately:

  1. examine the requisition, or ensure that it has been examined on his behalf, to determine its validity by ascertaining whether it contains the information and undertaking prescribed in subsection 280(1) of the National Defence Act (see article 23.05 - Supplementary Provisions Respecting Requisitions);
  2. if the requisition is determined to be valid, take the action required by that requisition; and
  3. if the requisition does not appear to him to be valid, return the requisition to the attorney general with an indication of the defect in the requisition.

(M)

23.09 - CALL OUT OF CANADIAN FORCES

(1) Section 278 of the National Defence Act provides:

"278. Upon receiving a requisition in writing made by an attorney general under section 277, the Chief of the Defence Staff, or such officer as the Chief of the Defence Staff may designate, shall call out such part of the Canadian Forces as the Chief of the Defence Staff or that officer considers necessary for the purpose of suppressing or preventing any actual riot or disturbance or any riot or disturbance that is considered as likely to occur."

(2) The composition of a force employed in aid of the civil power shall be at the discretion of the Chief of the Defence Staff or of an officer designated by him for that purpose.

(M)

23.10 - LIABILITY OF CANADIAN FORCES TO BE CALLED OUT TO SUPPRESS RIOT

Sections 275 and 276 of the National Defence Act provide:

"275. The Canadian Forces, any unit or other element thereof and any officer or non-commissioned member, with materiel, are liable to be called out for service in aid of the civil power in any case in which a riot or disturbance of the peace beyond the powers of the civil authorities to suppress, prevent or deal with and requiring that service, occurs or is, in the opinion of an attorney general, considered as likely to occur.

276. Nothing in this Part shall be deemed to impose liability to serve in aid of the civil power, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only."

(C)

23.11 - OFFICERS AND NON-COMMISSIONED MEMBERS HAVE POWERS AS CONSTABLES

Section 282 of the National Defence Act provides:

"282. Officers and non-commissioned members when called out for service in aid of the civil power shall, without further authority or appointment and without taking oath of office, be held to have, in addition to their powers and duties as officers and non-commissioned members, all of the powers and duties of constables, so long as they remain so called out, but they shall act only as a military body and are individually liable to obey the orders of their superior officers."

(C)

NOTES

(A) Constables are peace officers as defined in section 2 of the Criminal Code. See article 22.01 (Officers and Non-commissioned Members - Peace Officers) for the circumstances in which officers and non-commissioned members are actually peace officers in addition to simply having the powers and duties of constables under section 282 of the National Defence Act.

(B) The phrase "but they shall act only as a military. Body" in section 282 of the National Defence Act means that officers and non-commissioned members, while acting in aid of the civil power, have and may exercise all of the powers and duties of constables but are not to be considered constables in the service of the civil authorities. They continue to be part of the armed forces and to be governed as such by the ordinary norms of service discipline and, as specifically stated in section 282, liable to obey the orders of their superior officers.

(C) Officers and non-commissioned members acting in aid of the civil power may lawfully be employed in whatever manner may be necessary for the purpose of suppressing or preventing any actual riot or disturbance of the peace, or any riot or disturbance of the peace that is considered likely to occur. The phrase "but they shall act only as a military body" does not prevent members being required to perform patrol duty ordinarily performed by members of a police force such as patrolling specified areas to protect persons and property or to keep peace and also to guide traffic. This is subject to the general principle that the performance of such duties must be related to an actual or likely riot or disturbance contemplated by a requisition made by an attorney general. The ordinary duties of members of a police force mentioned may be performed by small patrons under the command of non-commissioned members above the rank of private.

(C)


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Section 4 - Representatives of the Civil Authorities

23.12 - PRESENCE OF REPRESENTATIVE OF THE CIVIL AUTHORITIES

(1) An officer in immediate command shall, as soon as he and the part of the Canadian Forces of which he is in command arrive at the scene of the riot or disturbance, ensure that a representative of the civil authorities is present at that scene and remains present until the representative has, under article 23.13 (Role of Representative of the Civil Authorities), requested him to take action.

(2) If a representative of the civil authorities is not present, the officer in immediate command shall at once cause the officer in superior command to be informed of that fact.

(3) Upon being informed as prescribed in paragraph (2), the officer in superior command shall cause the attorney general who made the requisition, or the deputy attorney general, to be informed immediately of the necessity of having a representative of the civil authorities made available.

(M)

NOTES

(A) Every effort must be made to ensure that a sufficient. number of representatives of the civil authorities are available so that each separate body or group of armed members likely to be faced with the requirement to use force will be accompanied by a representative at all times.

(B) See Note (D) to article 23.14 (Action to be Taken by Officer in Immediate Command) as to the action to be taken in the absence of a representative of the civil authorities.

(C)

23.13 - ROLE OF REPRESENTATIVE OF THE CIVIL AUTHORITIES

(1) The role of a representative of the civil authorities is to request the officer in immediate command whom he accompanies to take action, whether the proclamation referred to in article 23.03 (Position of the Canadian Forces in Relation to the Civil Power) has been read or not, where that representative has:

  1. determined that a riot or disturbance is beyond the power of the civil police or other civil authorities to suppress or deal with; and
  2. decided that action by the Canadian Forces is essentiel.

(2) The request mentioned in paragraph (1) should be in writing if practical but, if not practical, may be made orally.

(M)

NOTE

Upon making the request mentioned in paragraph (1), a representative of the civil authorities has completed his role but may be required to repeat that role.

(C)


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Section 5 - Action to be Taken

23.14 - ACTION TO BE TAKEN BY OFFICER IN IMMEDIATE COMMAND

(1) After having been requested to take action under article 23.13 (Role of Representative of the Civil Authorities), the officer in immediate command shall:

  1. consider whether immediate action is necessary;
  2. if he considers that action is necessary, take the action that appears to hint to be requisite;
  3. exercise his discretion as to the nature of the action to be taken and as to the weapons, materiel or other devices that members under his command shall use;
  4. where he has satisfied himself that the situation makes it imperative that fire be opened, exercise his discretion in any orders given to members under his command as to the opening of fire and as to whether the fire is to be for effect; and
  5. discontinue any action instituted when it appears to him that further action is not required.

(2) In the absence of a request from a representative of the civil authorities to take action, the officer in immediate command when faced with a situation which appears to that officer to require the use of force shall:

  1. if time and circumstances permit, seek direction from his superior in command by any means possible; and
  2. in the absence of any direction to the contrary from his superior in command, comply with subparagraphs (1)(a) to (e).

(M)

NOTES

(A) This section does not supplant the normal chain of command. For example, in a particular situation, there may be a battalion of four companies "at the scene of a riot or disturbance" and the battalion commander and each of the company commanders could be an "officer in immediate command". If the circumstances permit, each company commander would take action under this article only in accordance with the orders of his commander. If the circumstances do not permit communication with his battalion commander, a company commander would be authorized to act under this article on his own authority if he is an "officer in immediate commande". Similar principles would apply in the case of other organizational arrangements.

(B) See Notes (A) and (B) to article 23.15 (Orders to Fire) as to firing for effect.

(C) See Note (D) to article 23.15 (Orders to Fire) as to the Unlawfulness of using more than the minimum force necessary.

(D) If, in spite of all efforts having been taken in accordance with article 23.12 (Presence of Representative of the Civil Authorities), a representative of the civil authorities is not physically present with a main military body, for example, by reason of his sudden death or illness, or if, as may happen, there are insufficient representatives of the civil authorities available to accompany each detachment, patrol, guard, or other separated armed member called out in aid of the civil power, the absence of the representative of the civil authorities does not relieve officers and non-commissioned members from their legal obligation, when confronted with a riot or other serious crime or disturbance, to take such action as is reasonably necessary in the circumstances to maintain law and order. Legally, a commander will not be performing his duty if, from fear of responsibility, he takes no action and allows outrages to be committed which it is in his power to check, merely on the ground that there is no representative of the civil authorities to direct him to take action. Thus, although the presence of the representative of the civil authorities is of the highest value and moment, his absence does not alter the duty of the soldier, nor ought it to paralyse his conduct, but only to render him doubly careful as to the proper steps to be taken. (See Note (C) to article 23.11 - Officers and Non-commissioned Members have Powers as Constables.)

(E) Where an officer in immediate command is on the spot with his non-commissioned members, and the need for action appears to be imminent, he may in some cases be in as good a position as the representative of the civil authorities to form a cool level-headed opinion as to the trend of events: the fact that a request to take action has or has not been made must have all due weight given to it, but the receipt or non-receipt of a request cannot absolve him from his legal duty, which is to use such force and so much only as is necessary for the restoration of order and the checking of violence, but yet, at his peril, to use no excessive amount of force. Further, the force which he uses must only be the amount which is necessary to effect the immediate object before him, and he must on no account use force with a view to its deterrent effect elsewhere or in the future.

(C)

23.15 - ORDERS TO FIRE

(1) Subject to paragraphs (5) and (6), orders to fire may be given only by:

  1. an officer in superior command;
  2. an officer in immediate command; or
  3. an officer specifically designated by one of the officers described in subparagraphs (a) and (b).

(2) Subject to paragraphs (5) and (6), no member shall open fire except upon the order of an officer described in paragraph (1).

(3) The officer in immediate command shall ensure that every member under his command is made aware

  1. of those officers by whom an order to fire may be given;
  2. that, except upon the order of one of those officers or in the circumstances mentioned in paragraphs (5) and (6), the discharge of firearms is strictly forbidden;
  3. that if he is ordered to fire, he must do so in such a manner as to be able to cease fire immediately when it becomes no longer necessary;
  4. that if he is ordered to fire a warning shot it shall be aimed so as to minimize the risk of hitting anyone, whether directly or by ricochet; and
  5. that if he receives a general order to fire for effect he shall do so only upon those persons whom he, on reasonable grounds, believes to be actively participating in the riot or disturbance.

(4) The officer in superior command shall so dispose his forces and organize the chain of command that, if it is necessary to open fire, the action will be carried out by the minimum number of officers and non-commissioned members required to attain the object desired.

(5) Nothing in this article deprives an officer or non-commissioned member of the right that every person has under the Criminal Code to defend himself or any person or property under his protection.

(6) Where a small group of officers, officers and non-commissioned members or non-commissioned members is detached, the senior officer or, if one officer only is present, that officer or, if no officer is present, the senior non-commissioned member may order the use of firearms for the collective defence of the group under paragraph (5).

(M)

NOTES

(A) In subparagraph (3)(e), the expression "fire for effect" means firing with an intent to disable.

(B)

  1. A person would be "actively participating in a riot or disturbance" within the meaning of subparagraph (3)(e) in circumstances such as the following:
    1. where a person is assaulting or is about to assault an officer or non-commissioned member or other person opposing the riot or disturbance; or
    2. where a person is in the act of using, or is believed on reasonable grounds to be about to use, arms or other dangerous weapons in support of the riot or disturbance.
  2. A person would not be "actively participating in a riot or disturbance", within the meaning of subparagraph (3)(e), if merely present at the scene of a riot or disturbance, or demonstrating by voice, placard or the like.

(C) The provisions of the Criminal Code referred to in paragraph (5) are sections 34, 35, 36, 37, 38 and 41. For details see instructions issued by the Chief of the Defence Staff.

(D) The law that no more force may be used than is necessary applies at all times; lethal weapons must not be used to prevent or suppress minor disorders or offences which are not serious and in no case shall firearms be discharged if less extreme measures will suffice.

(C)

23.16 - SITUATION REPORTS

During the period that any portion of the Canadian Forces is on service in aid of the civil power, an officer designated by the Region Commander for that purpose shall forward situation reports to the Chief of the Defence Staff in accordance with the instructions issued by him.

(M)


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Section 6 - Termination of Aid of the Civil Power and Expenses

23.17 - DURATION OF AID OF CIVIL POWER

Section 283 of the National Defence Act provides:

"283. The Canadian Forces or any part thereof called out in aid of the civil power shall remain on duty, in such strength as the Chief of the Defence Staff or such officer as the Chief of the Defence Staff may designate deems necessary or orders, until notification that the Canadian Forces are no longer required in aid of the civil power is received from the attorney general of the province concerned and, from time to time as in the opinion of the Chief of the Defence Staff the exigencies of the situation require, the Chief of the Defence Staff may increase or diminish the number of officers and non-commissioned members called out."

(C)

23.18 - REPORT ON COMPLETION OF DUTY

On completion of the duty for which the Canadian Forces have been on service in aid of the civil power, the Region Commander shall forward a detailed report in writing to the Chief of the Defence Staff in accordance with instructions issued by him.

(M)

(23.19 TO 23.99 INCLUSIVE: NOT ALLOCATED)