[Canada] Canadian Politics Redux

[The Minsky Moment]

If Russia attacked Canadian territory to support its possible claims, whould this not be a NATO Article 5 matter?

Not necessarily if the statuts of the "territory" was uncertain or in dispute.
Also keep in mind the US in not a LOS signatory so can't be counted on the back exclusive economic zone claims.
To the extent an issue regarding free movement arose, the US could probably be relied upon to back the Canadians up.
But if the issue was say conflicting EEZs, from the US POV resolving that in Canada's favor would probably not be viewed as a major US strategic interest.
And if the US isn't going to provide strong support, I don't think you can really count on other NATO powers to pitch in.

OTOH, if it is merely a measure of showing some presence in the arctic, icebreakers would be a more sound investment than fighter jets.

That is one dimension of presence, but only one and a slow-moving one at that.
Recently in another maritime claim context -- i.e. China/Japan -- one of the first "moves" by China was to assert a air defense zone that covered some the disputed territory.  The ability of Japan to deploy say tanker ships through that zone would not have been of much reassurance to Japan. OTOH the fact that Japan could in theory deploy modern fighters that are technological superior to Chinese models has strategic relevance.

Interestingly, despite the existence of a unconditional territorial defense obligation, the US response to the Chinese move in that case was not entirely unambiguous, nor was it to the satisfaction of the Japanese government.

[viper37]

We need more Canadians on this forum.

Here is an argument in a Globe opinion piece for scraping the procurement of the new fighters completely.

New Canadian fighters would almost certainly never be involved in serious strike or aerial combat operations and are not required to protect Canada's populace or sovereignty. They would only be of symbolic assistance (such as Canada currently is doing in Eastern Europe via NATO) and could provide support of ground forces in low-combat hostilities, which could be had more effectively and at lower cost by other types of aircraft.

The only credible aerial threat to Canadian territory, sovereignty and populace is a copy-cat "9/11" attack – a danger that essentially cannot be defeated by fighter aircraft.

Natural disasters at home or abroad would not require fighters, but could require helicopters, transport aircraft and other forms of military assistance.

Canada could be involved in providing humanitarian relief, peace-keeping or to help maintain order and protection of people and property - a type of operation would not likely involve aerial combat, but could require aerial support to ground operations. This type of operation could be provided more effectively and at lower cost than by using fighters.

The more-demanding roles for fighter aircraft – aerial combat and striking – would occur during an intense war involving major powers, which have F-35 or comparable ("Gen 5") aircraft and also have the economic ability to fully engage in heightened warfare. The only credible foreseeable future situation where that could pertain would be a highly improbable war between the United States and China. Russia is – and will be for decades – a weak economic and military power trying to play a significant role in world affairs, moving gradually closer to the western industrialized nations and not exhibiting a perceptible effort to build up offensive military capabilities. For the foreseeable future, despite current tensions re Ukraine, Russia will not aggressively challenge the United States or its allies, in which case Canada does not need fighters for defence of Western Europe.

In the most unlikely event of war between U.S. and China, it is difficult if not impossible to concoct a credible scenario which would merit Canada providing Gen 5 aircraft.

Fighters simply cannot contribute anything substantial toward the achievement of the six Canadian defence objectives. The best course for the Harper government would be to defer any further decisions on military equipment procurement pending a thorough rethink about Canada's defence posture.

A rethink should start with a study, analysis and assessment of the foreseeable state and trends of the world and the action of the major nations. It would then be possible, with the perspective such a study should provide, to specify the roles that the Canadian Forces may be called upon to discharge, and therefore indicate the size, organization and equipment that the Forces – land, sea and air – should have for the 21st century. The result would be a report more substantial and specific than the weak and specious out-of-date Canada First Defence Strategy.

We had the same debate, with the same arguments, 20 years ago, when it was time to replace our aging helicopter fleet.  Where are we on those replacements?

[Jacob]

Recently in another maritime claim context -- i.e. China/Japan -- one of the first "moves" by China was to assert a air defense zone that covered some the disputed territory.  The ability of Japan to deploy say tanker ships through that zone would not have been of much reassurance to Japan. OTOH the fact that Japan could in theory deploy modern fighters that are technological superior to Chinese models has strategic relevance.

Interestingly, despite the existence of a unconditional territorial defense obligation, the US response to the Chinese move in that case was not entirely unambiguous, nor was it to the satisfaction of the Japanese government.

That sounds reasonably convincing to me.

[The Minsky Moment]

It's a cost-benefit analysis in the presence of uncertainty.
Another way to think about it is what provides a better value - "free" but vague American strategic commitment or expensive but tangible American hardware?

[crazy canuck]

Recently in another maritime claim context -- i.e. China/Japan -- one of the first "moves" by China was to assert a air defense zone that covered some the disputed territory.  The ability of Japan to deploy say tanker ships through that zone would not have been of much reassurance to Japan. OTOH the fact that Japan could in theory deploy modern fighters that are technological superior to Chinese models has strategic relevance.

Interestingly, despite the existence of a unconditional territorial defense obligation, the US response to the Chinese move in that case was not entirely unambiguous, nor was it to the satisfaction of the Japanese government.

That sounds reasonably convincing to me.

It would be interesting to see a scenario where Russia asserted an exclusive air defence zone in an area already patrolled and controlled by NORAD.

[crazy canuck]

It's a cost-benefit analysis in the presence of uncertainty.
Another way to think about it is what provides a better value - "free" but vague American strategic commitment or expensive but tangible American hardware?

It would also be interesting to see a scenario under which Canada ever would or could act unilaterally outside its commitments to NORAD regarding airspace defence or the assertion of airspace rights by Russia.

[The Minsky Moment]

It would also be interesting to see a scenario under which Canada ever would or could act unilaterally outside its commitments to NORAD regarding airspace defence or the assertion of airspace rights by Russia.

Canda is a sovereign so I would think it still reserves the right to defend what it sees as its sovereign rights regardless of the more limited views of others.
As to whether Canada "would" do so, that i cannot say.
Certainly if it lacks the assets to respond credibly there is no option to do so and the answer become no by default.
OTOH if it has those assets and can credibly threaten to deploy them, an opposing power might refrain from testing that hypothesis in the first place.

[crazy canuck]

In committee hearings regarding the new prostitution legislation the Minister is reported to have stated what his lawyers told him and that he has relied on that advice to draft the legislation in its current form.

Mr. MacKay said Monday, however, the government was confident the bill was constitutional, but that it did not seek an outside legal opinion on the matter, as it has in other high-profile cases.

Instead, he said government relied on its own lawyers, which said the bill goes beyond the Bedford requirements and will pass muster.

Bad grammar aside, I think it unlikely his lawyers gave him the advice as clearly as that.  It is hard to imagine any government lawyer telling the Minister there were no uncertainties about a potential constitutional challenge.  If this is an accurate quote of what the Minister said and if I were an enterprising editor of a newspaper, I would propably be considering obtaining the legal opinion on which the Minister said he relied on the grounds that priviledge has been waived.

I wonder, Josephus, who might be in that position?

If there are valid grounds to resist discosure under freedom of information legislation those restrictions will not apply when litigation commences and I think it likely that the parties in the inevitable constitutional challenge will obtain disclosure of the legal opinion on the basis that priviledge has been waived and it will likely find its way to the public in those proceedings.

File this under Mackay puts another foot in mouth.

Does the Globe and Mail read languish.

Minister of Justice Peter MacKay has confidently asserted two things about Bill C-36, the Government's new proposed prostitution law: that it will certainly be challenged in the courts and that it is constitutional. Mr. MacKay is undoubtedly correct that there will another round in the legal battle over the country's prostitution laws that will make its way back to the Supreme Court. Until then, we will not know if he is correct about the bill's constitutionality.

Mr. MacKay can, however, back up his second claim by showing Members of Parliament and Canadians the legal advice that supports his confident assertion. And he should.

Canadian governments have remained steadfast in their refusal to publicly reveal the legal advice that forms the basis for many of their decisions. Governments love to rely on solicitor-client privilege – the protection afforded by the law to confidential communications between a client and lawyer. The Supreme Court of Canada has recognized solicitor-client privilege as a fundamental legal and civil right that enjoys constitutional protection in certain circumstances. For reasons that I have argued elsewhere, it does not make a lot of sense to talk about the government enjoying such constitutional protection.

However, this right of solicitor-client privilege applies to the client, and the client – in this case the government – can waive that right. Rarely have governments chosen to do so. In this, the Harper government is no different from its predecessors. If anything, it is better. It opened the door to the musty secret world of legal advice in the Nadon appointment when it released the legal opinion provided to the government by former Supreme Court of Canada justice Ian Binnie. Kudos to Mr. MacKay and the Harper government for doing so. The release of the Binnie opinion facilitated a vibrant debate about the legality of the Nadon appointment. That the Supreme Court of Canada ultimately decided against the government's opinion is beside the point.

The point is that the government released a legal opinion and the sky did not fall. I have argued that government should release legal opinions because it is in the public interest to do so. Governments exercise great power in enacting laws or in making appointments and they do so based on legal advice that authorizes them to exercise such power. They should demonstrate the basis for the exercise of that power.

This assertion frightens many people in government, especially lawyers. I have had great debates with some government lawyers about this who fear a "chilling effect" if their legal advice is or can be released. I don't buy that argument. First, all public servants have a duty to provide "fearless advice." Lawyers in government are no different. Second, other countries release their government legal advice without the state collapsing.

In the United States, you can find legal opinions from the Department of Justice's Office of Legal Counsel on a special website. The Attorneys General of each of the 50 states release legal advice, to varying degrees. In Britain, the public inquiry in to the Iraq War sifted through the various legal advice. It is not clear why legal advice in Canada should be a special case.

This government is uniquely placed to lift the veil of secrecy that shrouds government legal advice. It came to power in 2006 promising Canadians more accountability. Releasing some legal opinions would be consistent with this pledge. On Bill C-36, Mr. MacKay is surely correct: a legal challenge is inevitable. The government should place its legal cards on the table now.

[crazy canuck]

It would also be interesting to see a scenario under which Canada ever would or could act unilaterally outside its commitments to NORAD regarding airspace defence or the assertion of airspace rights by Russia.

Canda is a sovereign so I would think it still reserves the right to defend what it sees as its sovereign rights regardless of the more limited views of others.
As to whether Canada "would" do so, that i cannot say.
Certainly if it lacks the assets to respond credibly there is no option to do so and the answer become no by default.
OTOH if it has those assets and can credibly threaten to deploy them, an opposing power might refrain from testing that hypothesis in the first place.

Yes, Canada's sovereignty is not question.  However, you proposed a scenario of Russia claiming airspace over which NORAD asserts control.  I am not sure why NORAD would not respond to such a provocation nor why Canada should develop an independant means of addressing it outside of NORAD.  Surely you are not suggesting the US would violate its obligations under NORAD?

[Jacob]

More fodder for CC's Peter McKay's fanclub files: http://www.cbc.ca/news/politics/afghan-memorial-unveiled-with-short-notice-on-minister-s-order-1.2695737

Afghan memorial unveiled with short notice on minister's order

A decision by then-defence minister Peter MacKay to unveil on short notice a memorial to Canadians killed in Afghanistan left officials in the department scrambling to notify families of the fallen in time to attend, documents obtained by CBC News show.

What had been a carefully planned event to honour the memory of those who were killed during Canada's participation in the war was derailed last July when military officials were asked on a Wednesday to have a national memorial display ready in Ottawa for the following Monday.

The new plan saw the families of the fallen travel from across the country to Ottawa for a private viewing on July 8, followed by a public unveiling with media present on July 9.​

[The Minsky Moment]

Yes, Canada's sovereignty is not question.  However, you proposed a scenario of Russia claiming airspace over which NORAD asserts control.  I am not sure why NORAD would not respond to such a provocation nor why Canada should develop an independant means of addressing it outside of NORAD.  Surely you are not suggesting the US would violate its obligations under NORAD?

I honestly do not know the exact scope of the airspace over which NORAD asserts control.  The Agreement says "airspace of the United States and Canada."  Given the unsettled nature of Arctic territitorial claims, Canada might have a different view over what "airspace of Canada" means than the US.  That is one risk.  In addition, if one assumes that "airspace" refers to the air above the territorial boundaries extending an additional 12 nautical miles out, then that would exclude from NORAD's assertion of control a substantial part of Canada's Exclusive Economic Zone under UNCLOS.

[crazy canuck]

Yes, Canada's sovereignty is not question.  However, you proposed a scenario of Russia claiming airspace over which NORAD asserts control.  I am not sure why NORAD would not respond to such a provocation nor why Canada should develop an independant means of addressing it outside of NORAD.  Surely you are not suggesting the US would violate its obligations under NORAD?

I honestly do not know the exact scope of the airspace over which NORAD asserts control.  The Agreement says "airspace of the United States and Canada."  Given the unsettled nature of Arctic territitorial claims, Canada might have a different view over what "airspace of Canada" means than the US.  That is one risk.  In addition, if one assumes that "airspace" refers to the air above the territorial boundaries extending an additional 12 nautical miles out, then that would exclude from NORAD's assertion of control a substantial part of Canada's Exclusive Economic Zone under UNCLOS.

JR, do you for a second believe that if Russia asserts military control over the airspace over arctic NORAD will sit on its hands and concede the point?

[The Minsky Moment]

JR, do you for a second believe that if Russia asserts military control over the airspace over arctic NORAD will sit on its hands and concede the point?

Ask Abe.

IIRC NORAD is an early warning system.  It wasn't designed to contest maritime sovereignty claims.

[crazy canuck]

JR, do you for a second believe that if Russia asserts military control over the airspace over arctic NORAD will sit on its hands and concede the point?

Ask Abe.

IIRC NORAD is an early warning system.  It wasn't designed to contest maritime sovereignty claims.

Its more than that JR.  It is the system we have created with our friends in the south to defend and control all North American airspace including Canadian airspace.  You set up a hypothetical that Russia would claim military control over airspace claimed by Canada.  That would be a direct challenge to NORAD.

I agree that NORAD is not designed to contest maritime sovereignty claims.  That is what navies are for.  But according to the NORAD website it is desgned, in part, to "maintain the sovereignty of North American airspace."

http://www.norad.mil/AboutNORAD/CanadianNORADRegion.aspx

[crazy canuck]

More fodder for CC's Peter McKay's fanclub files: http://www.cbc.ca/news/politics/afghan-memorial-unveiled-with-short-notice-on-minister-s-order-1.2695737

Afghan memorial unveiled with short notice on minister's order

A decision by then-defence minister Peter MacKay to unveil on short notice a memorial to Canadians killed in Afghanistan left officials in the department scrambling to notify families of the fallen in time to attend, documents obtained by CBC News show.

What had been a carefully planned event to honour the memory of those who were killed during Canada's participation in the war was derailed last July when military officials were asked on a Wednesday to have a national memorial display ready in Ottawa for the following Monday.

The new plan saw the families of the fallen travel from across the country to Ottawa for a private viewing on July 8, followed by a public unveiling with media present on July 9.​

I wondered what reason the Ministry could have for changing the dates so quickly.  Then I read the article further.  Mackay claimed that made the move to increase the number of people who would see it.  But his explanation makes no sense.  Ottawa has a surge of visitors for Canada day - more than one week earlier.  Also if the goal was to maximize the number of people seeing it that would have been the plan all along.  But it wasnt.  The plan was to unveil the memorial on Remembrance Day - as would be appropriate one would think.

So what then was the real reason.  The article provides the answer.

The unveiling of the memorial came amid speculation that Prime Minister Stephen Harper would shuffle his cabinet and move MacKay out of the defence portfolio.

On July 15, the Monday after the Afghanistan memorial was unveiled to the families of the fallen, Harper shuffled his cabinet, moving MacKay out of national defence and Rob Nicholson into the post