The Canadian Under Secretary of State for External Affairs (Robertson) to the American Ambassador in Canada (Atherton)4

No. 160

Sir: I have the honour to invite your attention to the correspondence and discussions with regard to the legal position of members of the Armed Forces of the United States of America charged with having committed offences within Canada.

I am enclosing copies of an Order-in-Council, P. C. 9694 dated 20th December, 1943,5 which defines the legal position of members of the United States Forces in respect to offences committed in this country.
You will observe that this Order-in-Council conforms closely to the provisions which were discussed with representatives of your Government, and I have no doubt that they will be satisfactory.
Without commenting upon all of the provisions of this Order, I should like to mention several points.
You will observe that by virtue of the provisions of Regulations, 2, 3, 5, and 6, United States Service Tribunals are enabled to exercise exclusive jurisdiction over members of the United States Forces within this country. The only cases in which Canadian civil authorities will be able to exercise any jurisdiction over members of the United States Forces are those in which your own Service authorities have refrained from action.
The second point is that when a request has been made under the provisions of the Regulations to Canadian civil authorities, normal proceedings cannot be continued in civil courts. The effective working of these arrangements is, therefore, dependent upon the United States Service authorities taking the accused and submitting him to trial before a United States military tribunal. The Canadian Government feels justified in assuming that your authorities will, in all cases, submit any person, who may be surrendered under the provisions of Regulation 6, to trial before a United States military court.
The third point to which I should like to invite your attention is that the Regulations enable United States military courts to exercise jurisdiction over certain classes of civilians who are subject to the military and naval law of the United States. The provisions of Regulations 5 and 6 do not apply to such persons and jurisdiction over them is, in fact, concurrent with that of the civilian courts in Canada. Under our constitutional system, the jurisdiction of the civilian court in such circumstances is necessarily paramount, and in the event that it [Page 125] is invoked in any case, either by the Attorney-General of Canada or by the Attorney-General of a province, it would be necessary for your military authorities to deliver the accused, notwithstanding that proceedings have been commenced in accordance with the provisions of Regulations 2 and 3. It is assumed that you will give directions to your military commanders to this effect.
You will observe that the Regulations, read in conjunction with the Foreign Forces Order 1941,6 provide a comprehensive procedural code whereby Canadian authorities are under a legal obligation to do all things which are necessary in fact to enable the jurisdiction conferred by the Regulations to be exercised in an effective manner.
An arrangement of this sort presents insurmountable difficulty unless it is based upon effective reciprocity. The legal advisers of the Government, and especially the Judge Advocate General’s office, are of the opinion that it would be impracticable for Canadian Service Court to exercise similar jurisdiction in respect of Canadian Forces in the United States of America in the present state of the law in the United States of America. They are convinced that, until some measures similar to those embodied in the legislation now before Congress are enacted, it will be impossible to cope with the complex problems presented in unusual cases in which crimes have been committed by Canadian sailors, soldiers or airmen. It is hoped, therefore, that your Government will endeavor to obtain the necessary legislation.
There is a point of practice with regard to Form B7 which I venture to bring to your attention. Form B is intended to be a basis for a document to be issued by the United States military and naval authorities. It is intended for service within Canada, and I assume that your authorities would want the finished document to be in a form which would insure its effectiveness. In order to make the scheme work, it is essential that the person summoned should fully understand the consequences of failure to comply with its provisions. It is thought that the documents should be prepared with a foot-note along the following lines:

This summons is issued in accordance with the provisions of a Canadian Order-in-Council, P.C. 9694, December 20, 1943, which makes regulations including the following: (Here might be printed Regulations 9, 10, 11.)

(1) Any United States service court, or any commissioned officer of the forces of the United States of America authorized to do so under the laws of the United States, shall have power to require the attendance before such court in Canada of any person whose evidence is required for the purpose of the trial before it of any member of the forces of the United States of America.
(2) If the person whose attendance is so required is a member of the home forces, such attendance shall be obtained by a request in writing made to any appropriate officer of the home forces indicating the place and time at which the attendance of such person is required, and the proper officer of the home forces, subject to the military exigencies of the moment, of which he shall be the sole judge, shall make the appropriate Order for the attendance of such person accordingly.
(3) If the person whose attendance as a witness is required as aforesaid is not a member of the home forces, the officer of the forces of the United States of America authorized to require his attendance may issue a subpoena, in form “B” attached hereto, which may be served by a peace officer or by a Canadian service authority; and any person served with such a subpoena shall attend and give evidence as thereby required upon payment to him of an amount sufficient to cover his necessary travelling expenses going to, staying at and returning from the place at which his attendance is required and an additional amount of $3.00 a day during his necessary absence from his place of residence for the purpose of such attendance.
Any person who, not being a member of the home forces, fails to comply with the provisions of the last preceding section shall be liable to be dealt with by any civil court in the same way as if such failure had followed the service of a subpoena out of such court or such refusal had occurred on a trial therein.
Every person other than a member of the forces of the United States of America who attends as a witness before a United States service court shall be entitled to all the privileges and immunities as a witness to which he would be entitled if his evidence were being given in proceedings in a Canadian civil court.

Accept [etc.]

N. A. Robertson
  1. Copy transmitted to the Department by the Ambassador in Canada in his despatch No. 481, December 29, 1943; received January 1, 1944.
  2. Not printed.
  3. April 15, 1941; Canadian Order-in-Council P.C. 2546.
  4. Not printed.