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(4) All such persons not otherwise subject to Military Law as may be serving in the position of officers of any troops or portion of troops raised by order of His Majesty beyond the limits of the United Kingdom and of India, and serving under the command of an officer of the regular forces. Provided that nothing in this Act shall affect the application to such persons of any Act passed by the Legislature of a Colony."
•
It is suggested, for the consideration of the Law Officers, whether or not Section 175 (1) might be applicable to Canadian Militia Officers serving with British regular troops provided the force in question was under the command of an officer of the British regular forces who is subject to military law. At first sight it would rather seem it is suggested that Sub-section (1) is intended to refer only to regular officers either on or not on the active list. The wording of this sub-section has, however, been the subject of amendment since the passing of the Army Act in 1881, and if reference to the Act as passed in 1881 is made, it will be seen that as the sub- section originally stood, it probably would have included Canadian Militia Officers serving with British regular troops. In these circumstances it may perhaps be considered that the original wording* has some bearing on the construction of the present wording, as there is perhaps some presumption that the intention was not to limit the scope of the sub-section.
With regard, however, to Section 175 (4) it is perhaps a question whether this sub-section would be applicable to officers of troops raised beyond the limits of the United Kingdom (which expression appears to cover the Canadian Militia) when serving away from, and not with, the troops named in the sub-section.
Section 177 provides that "where any force of volunteers or of militia or any other force is raised in India or in a Colony any laws of India or the Colony may extend to the officers, non-commissioned officers and men belonging to such force whether within or without the limits of India or the Colony. And where any such force is serving with part of His Majesty's regular forces, then so far as the law of India or the Colony has not provided for the government and discipline of such force, this Act and any other Act for the time being amending the same shall subject to such exceptions and modifications as may be specified in the General Orders of the General Officer Commanding His Majesty's Forces with which such force is serving apply to the officers, non-commissioned officers and men of such force in the like manner as they apply to the officers, non-commissioned officers and men respec- tively mentioned in the two preceding sections of this Act." (Sections 175 and 176.) The former part of this section makes the Canadian Act applicable to these officers (and see the proviso to Section 175 (4) ), but this does not appear to exclude the operation of the British Army Act; the latter part of the section does not seem applicable to the case of individual officers attached to the British Army.
The Attorney and Solicitor-General are requested to advise:-
(1) Whether officers of the Canadian Militia, permanent or non-permanent, can be authorised to take rank and exercise command in the British Regular and Auxiliary Forces in the manner generally agreed upon by the Imperial and Canadian Governments by means of the proposed amendments of the King's Regulations already drafted, or by means of other similar amendments without any alteration in the form of Canadian Commission being necessary?
(2) Whether, assuming the answer to (1) is in the negative, officers of the Canadian Militia can only be enabled to take rank and exercise com- mand in the British Forces by means of receiving a temporary commis- sion therein, or whether any other means of avoiding the difficulty can be adopted?
(3) Whether a Canadian Officer serving with British Troops in virtue of bis Canadian Commission, or in any case not possessing a temporary commission as a regular officer, would be subject to the Army Act. and generally to military law?
(4) Assuming that the answer to (3) is in the affirmative, whether such a Canadian Officer is subject to the Army Act absolutely, and in virtue
* NOTE.-Sub section (1) as it stood in the Act originally reads as follows: "Officers of the Regular Forces on full pay an 1 if not otherwise subject to Military Law Officers of the Staff of the Army and Officers employed on Military Service under the orders of an Officer of the Regular Forces."
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of some provision in that Act itself, or is subject to it only so far as it is consistent with the Canadian Militia Act, and in virtue of Section 74 of this latter Act?
(5) Assuming that the answer to (3) is in the negative, whether the position of such officer would be illegal or otherwise irregular and incon- venient, and whether in that case the difficulty could be avoided by amending the Army Act so as to bring such officer under military law?
(6) Generally on the matter under consideration.
Opinion.
1 and 2. Officers of the Canadian Militia can be authorised to take rank and exercise command in the British Regular and Auxiliary Forces in the manner agreed upon between the Imperial and Canadian Governments by means of appropriate King's Regulations framed for that purpose without issuing to such officers commis- sions in the same form as the commissions now issued to the officers of the King's Regular Army and Militia Forces.
The amendments already drafted are not, we think, in themselves sufficient to effect the proposed object.
In our opinion the new regulations to be issued should expressly provide that commissioned officers of the Canadian Militia (Permanent Force) shall take rank and exercise command with Officers of the King's Regular Army, and that commissioned officers of the Canadian Militia (Non-Permanent Force) shall take rank and exercise command with officers of the King's Militia Forces. If it is desired to limit geo- graphically the operation of the proposed change, the regulations should specify the portions of the King's dominions in which it is intended that they shall take effect. Concurrently with the issue of such new regulations, it would appear to be necessary to amend the present Canadian commissions so as to make it clear upon the face of these commissions whether an officer is appointed to the permanent or only to the non-permanent force, a distinction which is not apparent in the phraseology of the commissions in their present form.
3, 4, and 5. Officers of the Canadian Militia serving with British troops under such new regulations as above mentioned would be subject to the Army Act and British military law absolutely, as being constituted Regular and Militia Officers under the proposed new regulations (v. Section 175 of the Army Act, 1881). When serving with the Canadian Militia such officers would be still subject to the Army Act, and British military law, and in addition also to the Canadian Militia Act and the regulations made thereunder. Should it be desired to avoid the inconveni- ence which might arise from officers of the Canadian Militia being subject at the same time to two possibly conflicting codes of military law, it would, we think. be necessary either to enact one code of military law for British troops and for the Canadian Militia, or to amend the Imperial Army Act by providing that commis sioned officers exercising command in the Militia of Canada shall while serving with that Militia be subject to Canadian military law only. If the latter course were adopted, we think the Canadian Militia Act, in order to remove any ground of future misunderstanding, should also be amended, and provide that commissioned officers of the Canadian Militia while serving with British troops should be subject only to the Imperial Army Act and British military law.
JOHN L. WALTON. W. S. ROBSON.
Law Officers' Department,
June 25, 1906.
PUBLIC RECORD
OFFICE
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Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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