Chapter XIK
Problems in Jurisdiction

The deployment of large numbers of U.S. troops and associated civilians to Canada during World War II inevitably gave rise to many complex problems vis-á-vis Canadian authorities and the general public. The fact that the areas in which the U.S. personnel operated were never seriously threatened by hostile action added to the complexity of the problems. Had a real threat existed, it would probably have inspired a will to co-operate that would have caused many of the issues which arose to pale into insignificance. The U.S. forces stationed in Canada understandably considered themselves a cog, however remote from the combat zones, in the machine created to fight the enemy. Many Canadians, also understandably, took the view that, since the major combat, zones were remote and hostilities were not taking place in Canada, the situation did not call for cessions of Canadian sovereignty or grants of limitless rights and privileges to the U.S. forces.

Canadian attitudes were conditioned by the history of relations with the United States. From 1776 to 1871 Canadians were threatened with annexation, particularly in two actual wars and two long periods of filibustering, and thereafter were promised this fate at intervals by many Americans in responsible positions. Throughout the history of Canadian-U.S. relations most Canadians, and especially French Canadians, have also feared and resisted cultural absorption by the United States. The Canadian Government therefore found it necessary, in considering its position on the various problems that came up for discussion with the United States during World War II, to weigh not only the military needs of the situation but also the force of public opinion, the desires of the provincial governments, and the impact on the position and strength of the Dominion Government itself. Under these circumstances it was a notable achievement that the numberless questions bearing on jurisdiction arising during the war years were all worked out in a manner acceptable to, if not to the full satisfaction of, both countries.

Jurisdiction Over Friendly Foreign Forces

Although the United States deployed troops to Newfoundland a year before the Pearl Harbor attack, it did not send U.S. forces into Canada in

significant numbers until after that event. While Canada apparently never issued a clear-cut invitation for the entry of U.S. troops, such entry took place in execution of joint defense projects approved by the Canadian Government after approaches had been made through the Permanent Joint Board on Defense, or through diplomatic or service channels. Although Canadian permission may not have been explicitly stated in the correspondence relating to projects such as the Northwest Staging Route, the Alaska Highway, and the Canol Project, it was implicit in the broader authority, granted in each instance. By April 1942 the need for an agreement on questions of jurisdiction over U.S. troops had been informally discussed within the Permanent Joint Board on Defense. Although the Legal Adviser of the Department of External Affairs had recommended such an agreement, the Board members did not feel that one was necessary and no action was taken.¹

Clarification of the jurisdiction to be exercised by U.S. military authorities over their forces in Canada was accomplished by unilateral Canadian action. The Canadian Government had on 15 April 1941 issued an orderin-council, the Foreign Forces Order, 1941, which provided for limited exercise of jurisdiction in Canada by forces of certain designated countries and of such other countries as might later be designated.² On 26 June 1942 Canada issued another order-in-council, "as an interim measure," which made the provisions of the Foreign Forces Order, 1941, applicable to the United States. Before Canada took this step, U.S. service courts, according to the Canadian view, had no right to carry their sentences into effect in Canada. This order stated that U.S. service courts and authorities were empowered to exercise in Canada, in matters concerning discipline and internal administration, all such powers as were conferred by the laws of the United States, except for the offenses of murder, manslaughter, and rape. However, the order also that the Canadian civil courts retained concurrent jurisdiction of offenses committed by U.S. military personnel against any law in force in Canada.³

Even before this interim step was taken by Canada, the authorities of the two countries had discussed the nature of the U.S. wishes in the matter. The

United States was then in the process of negotiating an agreement with the United Kingdom providing for the exclusive jurisdiction by each country over such of its forces as might be stationed in the other. United States authorities indicated that they would like a similar agreement with Canada, the making of which would have resulted in the abandonment of Canada's claim to exclusive jurisdiction of murder, manslaughter, and rape, and to concurrent jurisdiction of other offenses. For their part, the Canadian authorities in early July 1942 indicated a willingness to negotiate for a new agreement along these lines when the U.S.-United Kingdom agreement had been concluded.⁴ A short time later the agreement with the United Kingdom was concluded by an exchange of notes' dated 27 July 1942, and on 6 August the British Parliament enacted the United States of America (Visiting Forces) Act, 1942, to give effect to the agreement.⁵ During the ensuing months the Canadian Government considered a U.S. request that Canada, too, grant the United States complete criminal jurisdiction over its military personnel serving in Canada. By the beginning of 1943, Canada was contemplating rejecting the request. However, as a result of U.S. argument that Canada should be willing to conclude arrangements similar to those already effected with other nations in the British Commonwealth (Australia and New Zealand, as well as the United Kingdom), joint discussions looking toward an acceptable solution were initiated.⁶ The Canadian Government moved cautiously toward satisfying the U.S. requests, for Canadian public opinion was slow to accept the notion of U.S. courtsmartial sitting on Canadian soil, especially if the offense to be tried was one against the person or property of a Canadian. This gave the governments of some of the western provinces opportunity to embarrass the Dominion Government by attempting to exercise the concurrent jurisdiction claimed by Canada over U.S. soldiers.⁷ As a result of the discussions with the U.S. authorities, Canada took two steps toward meeting the U.S. requests:

1. It issued a new order-in-council excepting the United States from

the provision of the Foreign Forces Order that reserved to Canada jurisdiction over the offenses of murder, manslaughter, and rape.⁸
2. It sought an advisory opinion from the Supreme Court of Canada on two questions that looked toward a more liberal attitude on the part of Canada:

   1. Are members of the military or naval forces of the United States of America who are present in Canada with the consent of the Government of Canada for purposes of military operations in connection with or related to the state of war now existing exempt from criminal proceedings prosecuted in Canadian criminal courts and, if so, to what extent and in what circumstances?

   2. If the answer to the first question is to the effect that the members of the forces of the United States of America are not exempt from criminal proceedings or are only in certain circumstances or to a certain extent exempt, had Parliament or the Governor General in Council acting under the War Measures Act, jurisdiction to enact legislation similar to the statute of the United Kingdom entitled the United States of America (Visiting Forces) Act, 1942.⁹

The Attorney General of Canada filed a factum (brief) urging that both questions be answered in the affirmative. Since the court action was a domestic Canadian matter, the United States could not participate as a party of interest. However, at the request of the Canadian Government, the U.S. officers concerned prepared two unsigned memorandums which examined, from the U.S. point of view, the principles of law involved. These memorandums Were printed and laid before the court, as were briefs by four of the nine provinces (Quebec, Ontario, Alberta, and British Columbia) that opposed grants of broader jurisdiction to the United States.¹⁰

On 3 August 1943 the five justices who considered the case presented four separate opinions, none of which represented that of the court. Concerning the first question, two justices, Kerwin and Taschereau, reached conclusions generally in accord with the U.S. view. The opinion of Chief Justice Duff, concurred in by justice Hudson, concluded that unless specific legislation so provided, friendly forces visiting Canada enjoyed no exemption from criminal court jurisdiction. The other justice, Rand, took a middle position.¹¹ As to the second question, all the justices agreed that both the Parliament and the Governor General in Council, acting under the War

Measures Act, had the authority to enact legislation similar to the United States of America (Visiting Forces) Act, 1942, enacted in the United Kingdom.

These court opinions established both an adequate juridical basis and a suitable political framework in Canada for the next step. In December 1943, in response to repeated U.S. inquiries as to when the action might be forthcoming, the Governor General in Council issued an order which provided that the service courts of the United States would have "jurisdiction to try all members of its forces in Canada in respect of every offense committed by any of its members in Canada." This order met in full the requirements for which the U.S. authorities had been negotiating. The order also authorized various administrative measures, such as the compulsory attendance of Canadian witnesses before U.S. courts-martial in Canada, and the release, upon request, of a member of the U.S. forces detained by any Canadian authority.¹²

Certain points not fully clarified by the order-in-council were discussed in notes exchanged during the ensuing months. In the first of these notes, the Canadian Government stated its assumption that any persons surrendered to the United States by Canadian authorities would be tried. The United States in reply took the position that such persons would be brought to trial only if investigation warranted. However, in the event of a negative finding, the United States agreed to confer with Canadian authorities and to proceed with a trial if they considered one necessary. Other similar questions were harmoniously and satisfactorily worked out.¹³

To the full extent permitted by its system of government, the United States granted to Canada the privileges the Dominion had conferred upon the United States. The United States considered the basic privileges already to be available to Canada without agreement or legislative or other action, since Canadian forces, in the U.S. view, possessed such privileges under international law, which was deemed to be a part of the law of the United States. Apart from the basic privileges of exclusion from the local criminal jurisdiction, certain auxiliary arrangements necessitated enactment of legislation by the Congress. In order to carry out its undertakings to Canada and other governments, the executive branch sought and obtained such legislation. An act of Congress approved on 30 June 1944 provided that, upon

suitable proclamation by the President, arrangements as follows could be effected with designated countries:

1. Arrest and delivery of persons of a foreign force upon request of the commanding officer of that force.

2. Compulsory attendance at courts-martial of friendly forces subject to their having the same privileges and immunities as if before a similar U.S. court.

3. Confinement of prisoners sentenced by a foreign court in a U.S. place of detention.¹⁴

On 11 October 1944 the President of the United States by proclamation made the provisions of the act of Congress applicable to Canada and the United Kingdom.¹⁵

On the whole, the arrangements worked very satisfactorily. In Canada, isolated incidents involving Canadian civilians took place in which the Canadian public expressed concern as to the adequacy of the punitive action taken by the U.S. service courts, but such incidents were lost in the over-all pattern of co-operation in handling these problems. In the United States, where the proportion of Canadian service personnel was negligible in comparison to U.S. service personnel in Canada, no problem of any significance arose regarding jurisdiction over criminal offenses.

Airway Traffic Control

As the scope of U.S. activities and the network of U.S. installations in Canada and Newfoundland expanded both before and after Pearl Harbor and as the Volume of U.S. military air traffic in those areas increased, questions quickly arose as to the control of air traffic and airways. In all areas there existed the basic need for co-ordinating the systems employed by the services of the two countries for the regulation of their traffic. There also existed within Canada the fundamental question of sovereignty involving the extent if any, to which control should be yielded to another government or its agencies over Canadian airways and aircraft movements in the Canadian airspace.

The problem first arose in the latter part of 1941 in Newfoundland, where not only U.S. and Canadian service aircraft but also those of the Royal Air Force operated in connection with Atlantic ferrying operations. By December 1941 the U.S. Newfoundland base commander, Maj. Gen. Gerald C. Brant, had worked out standardized regulations for air traffic control

applicable to U.S. Army Air Forces and U.S. Navy aircraft operating in Newfoundland. During December he also submitted proposed regulations to control all aircraft movements in the Newfoundland area.¹⁶ During 1942 the proposal was discussed and reworked by Canadian and U.S. authorities. The RCAF desired to include in the proposed agreement a provision requiring that all aircraft movements be cleared from a central RCAF control station. According to the U.S. base commander, such an arrangement was unacceptable, not only to U.S. Army and Navy units but also to the RAF command in Newfoundland. A protracted controversy took place between the Canadian and U.S. Air commanders concerned, who were unable to agree on standardized regulations. Members of the Permanent Joint Board on Defense discussed the subject briefly in September 1942 and again at their meeting in November. As a result of the latter discussion, an informal meeting of representatives of the two countries took place in Washington on 12 January 1943, but no significant progress materialized from any of these discussions and the problem of co-ordinating airway traffic in Newfoundland and Labrador went, for the time being, unsolved. As a consequence, the air units of each country continued to use their own procedures.¹⁷

The problems of co-ordinating or controlling airway traffic and of standardizing communications and other procedures in western Canada were examined by the military commands there in early 1943. As a result of U.S.-Canadian service-level discussions at a meeting on 8 January 1943, a joint agreement was concluded for the purpose of establishing "procedures, methods and communications to be used jointly to provide the best exchange of information" on all flights in the area and thus to reduce the number of unidentified aircraft in, the air defense zones of western Canada and the adjacent United States.¹⁸

The procedures governing the movement of aircraft to and from Alaska were re-examined and revised at frequent intervals. At scheduled meetings, the next two of which were held on 15 April, and 23 June 1943, representatives of the numerous Canadian and U.S. military commands conducting air operations met and agreed on the revised techniques and procedures to be employed. At the second of these two meetings, at which the agreement acquired the title JAN-CAN (for joint U.S. Army, Navy-Canadian

Agreement), the commands represented were the Western Air Command, RCAF, and six U.S. commands--Western Defense Command, U.S. Army; Alaskan Wing, Air Transport Command, U.S. AAF; Northwest Sea Frontier, U.S. Navy; Naval Air Transport Squadrons, West Coast; Alaska Defense Command; and Fourth Air Force.¹⁹ Similar meetings took place during the rest of 1943, and at the meeting held on 11 November a permanent JAN-CAN Committee, comprising a representative of each of the commanders signatory to the agreement, was established. The RCAF provided a nonvoting secretary for the committee, while the U.S. Navy Northwest Sea Frontier provided office space and administrative assistance.

While the foregoing arrangements were being worked out, the postwar planners of both countries had apparently begun to look at the relationship of the numerous new air bases in northern North America to possible postwar civil air transport operations. This relationship and the wartime impetus given to transport aviation, particularly intercontinental operations, presaged an important Canadian role in international civil aviation. For one thing, the great circle air routes from the United States to northern Europe and to the Orient passed over Canadian territory. For another, bases such as those at Gander in Newfoundland and Goose Bay in Labrador promised to be important stations in the network of postwar civil airports for transoceanic operations. Interest in postwar civil aviation was quickened on the southern side of the boundary, too, where statements and press comment on the subject gave rise to suspicions in Canada that the United States perhaps intended to utilize its wartime position in Canada to its own advantage in the field of civil air transport. The United States, in turn, wondered if Canada was not thinking of gaining a postwar advantage through the Canadian air bases and operations in Newfoundland.²⁰ In any event, the statement of Prime Minister King in Parliament on 2 April 1943 on the civil aviation policy of the Canadian Government acknowledged publicly the

decision of Canada to act to take full advantage of Canada's strategic location and to seek a leading place in postwar civil aviation.

The completion of the Alaska Highway and the Canol Project provided the breathing spell that enabled Canada to clarify the question of control of the northern airports and airways constructed and used in collaboration with the United States.²¹ Canada had as its objectives (a) to regain full control over the airways and air traffic on them, (b) to establish controls over operations of U.S. civial airlines providing military transport services under contract to the U.S. Army, and (c) to establish adequate controls over the air bases themselves.²² The initial attack on the problem took the form of raising from the service level to the governmental level discussions on the question of co-ordinating air traffic.

The joint U.S.-Canadian policy was provided by the Thirty-second Recommendation of the Permanent Joint Board on Defense agreed upon at its 24-25 August 1943 meeting. This recommendation, which was approved by the two governments within a month, provided for the allocation of control, as between the two countries, of the wartime air bases of joint interest in Canada and of the airway traffic through them. Canada was assigned control of air traffic through all the airports in northwestern Canada except for the flight strips of the Alaska Highway and Canol Project, which promised to be of little significance to postwar civil aviation except as emergency fields. In the east, Canada yielded control of the more northern of the ferry route bases in Canada, most of which also promised to have no significant place in postwar civil aviation. The air bases of Newfoundland and Labrador were not covered by the recommendation.²³ The recommendation in addition provided that any airway traffic regulations issued should be prepared jointly by the using services.

A joint U.S.-Canadian committee first met in Ottawa on 19 August 1943 to consider the problems emerging from the Thirty-first Recommendation and the Thirty-second then under consideration in draft form. This main committee met again at Ottawa on three subsequent occasions, in December 1943 and in April and October 1944, to work out in detail the many questions that arose in implementing these two recommendations.

A Joint Subcommittee for Canadian Air Traffic Regulations, constituted

by the main committee, met in Washington on 23 September 1943. It prepared recommendations as to air traffic regulation in Canada, which were reviewed and approved by the U.S. agencies concerned. The recommendations were then promulgated by Canada in November 1943 in RCAF publication CAP 365, entitled "RCAF Regulations for Control of Aircraft Movement in Canada." CAP 365 was "intended to provide standard regulations for the movement and flight of aircraft on routes and airways through the Royal Canadian Air Force operational areas in the Dominion of Canada, Newfoundland and Labrador, for the purpose of defense. All aircraft which . . . received right of entry to any of the concerned countries . . . {were to} be subject to and governed by these rules and regulations." The regulations were made applicable on the Northwest Staging Route, in Newfoundland and Labrador, and in eastern Canada east of a line twenty-five miles west of Blissville, New Brunswick, and north of a line twenty-five miles north of Quebec City.²⁴ The over-all flying control plan included (a) airway traffic control on designated airways, (b) route traffic control on certain other RCAF routes, (c) airport traffic control at all airports, and (d) general supervision of all flying in the operational areas to permit integration of the complete traffic pattern.²⁵

Canada proceeded to establish the organization required to exercise the airway traffic control envisaged in CAP 365. In western Canada, the JANCAN Agreement and Committee were dissolved as of 29 February 1944. To discharge the airway traffic control responsibility on the Northwest Staging Route, a new RCAF command, the Northwest Air Command, was established on 1 June 1944 at Edmonton under Air Vice Marshal T. A. Lawrence. During 1944 thirty-six RCAF officers undertook a course of training at the U.S. Civil Aeronautics Administration School of Airway Traffic Control. As matériel and trained personnel became available, airway traffic control centers were established at Halifax, Vancouver, Edmonton, Prince George, and St. John's.

On the Northwest Staging Route, the inauguration of airway traffic control operations by the RCAF was delayed by the shortage of land-line communication facilities. The AAF had made a through teletype circuit between Edmonton and Whitehorse available to the RCAF, but the circuit was unsuitable for this purpose. The U.S. Army agencies in northwest Canada felt unable, in the light of their own communications requirements, to release

additional facilities to the RCAF. As a result of discussions of ways and means of meeting the RCAF needs, the U.S. Army at the beginning of 1944 undertook a $2-million project for the installation of the additional voice and teletype circuits and construction of the additional facilities needed by the RCAF. Although construction of these additional facilities which the RCAF had been urging for many months was to be financed as a War Department project, the Morgenthau-Ilsley discussions concurrently in progress provided that Canada would reimburse the United States for the entire landline project, as well as for other construction in Canada.²⁶

By midsummer 1944 the installation of the wire circuits was well advanced, but difficulties in procuring certain of the essential signal equipment had been encountered. Despite the best efforts of Canadian and U.S. signal officers, the equipment had not yet been secured by the spring of 1945. Although the RCAF was able to establish full airway traffic controls south and west of Edmonton and along the so-called Interior Staging Route in British Columbia, and partial controls on the Northwest Staging Route, full controls on the latter route were not established after the terminations of hostilities.²⁷

Similar equipment deficiencies were encountered for airway traffic control at Gander and Goose Bay air bases. Upon the assumption by the RCAF of airway traffic control in Newfoundland, the AAF proceeded to remove its control tower equipment from the two bases. Since Canada was unable to duplicate the equipment, it requested that the United States sell the equipment to Canada. The removal order was then canceled.²⁸

Despite the difficulties encountered in the actual inauguration of control operations Canada succeeded, through the Thirty-second Recommendation and subsequent efforts, in establishing the principle of Canadian control of airway traffic. As hostilities terminated and the U.S. intention to withdraw from Canada as rapidly as possible became fully apparent, the Canadian fears that had been aroused concerning U.S. intentions were completely allayed.

Military Air Services

An early by-product of the Ogdensburg Declaration was the simplification of procedures governing the travel of public vessels and service aircraft of the two countries. An initial agreement, arranged by an exchange of notes in September 1940, gave blanket authority for U.S. service aircraft to fly over Canadian territory and waters between the United States and Alaska

upon prior notification in each instance to the RCAF Western Air Command and subject to the requirement to avoid prohibited areas. More extensive arrangements worked out in December 1940 provided, upon local notification, for (a) passage by U.S. public vessels through Canadian waters between the United States and Alaska or U.S. bases in Newfoundland and by service aircraft over Canadian territory, (b) exchange visits on joint defense matters, (c) Canadian flights over Maine on the Quebec-Maritime Provinces route in connection with joint defense matters, and (d) U.S. flights between points in the United States over the Ontario peninsula.²⁹

The arrangements for local notification were worked out in detail over the succeeding eight months and provided authority adequate for the need for travel of military aircraft between the two countries throughout 1941 and for the first few months after Pearl Harbor. Commercial operations by civilian airlines were covered by a separate agreement that defined the routes over which duly licensed airlines of each country could operate.³⁰

By the end of February 1942 a new element had been introduced into the problem of travel by military aircraft. The AAF had for some time planned to use commercial airline aircraft on a contract or charter basis to meet military requirements.³¹ Not long after Pearl Harbor, the Canadian Government granted authority for such contract service by Northeast Airlines to the U.S. garrisons in Newfoundland and at Goose Bay. The AAF needed a similar service on the Northwest Staging Route and proceeded on 20 February 1942 to make contract arrangements with Northwest Airlines for the desired military transport services. The U.S. Section of the Permanent Joint Board, at the request of the AAF sought authority at the 25-26 February meeting for an arrangement under which "traffic would be strictly limited to United States Government personnel directly connected with the prosecution of the war" and to military cargoes, and would exclude transportation of commercial passengers or cargo for hire. The Canadian Section undertook to process the request and stated that a favorable reply would probably be received from the Department of Transport.³²

Before a reply was received from the Canadian authorities, a Northwest Airlines survey aircraft, presumably acting upon instructions, landed at

Edmonton on 27 February without authority and without undergoing customs processing. The aircraft was detained by the Canadian authorities while the question was examined by Brig. Gen. Robert Olds, commanding the Air Corps Ferrying Command, with Minister of Munitions and Supply C. D. Howe, who chanced to be in Washington. On 2 March the latter orally granted authority for the projected Northwest Airlines operations, and the survey aircraft, which had returned to Minneapolis on 1 March, proceeded to make its survey flight. A few days later Howe in a letter dated 7 March confirmed the grant of authority for use of all airfields and facilities of the Department of Transport by both military aircraft and civilian contract carriers, starting that it was his understanding in regard to the contract carriers that the United States would, "as soon as possible, either enlist the pilots in the Air Corps or replace them by Air Corps personnel."³³

Northwest Airlines completed its survey flights in March and initiated operations that same month. By mid-May company personnel in Canada and Alaska numbered eighty-eight, mostly located at Edmonton. Until the end of May, the operations were of little consequence and about half the 410 tons of cargo carried (in addition to 889 passengers) comprised Northwest Airlines supplies and equipment. During April two more civilian contract carriers initiated operations for the AAF--Western Airlines from the United States to Edmonton, and United Airlines from the United States through Edmonton to Fairbanks.³⁴

The unauthorized Northwest Airlines landing on 27 February had a permanent and unhappy effect on Canadian-U.S. relations locally, and events of the following months produced no improvement. Northwest Airlines employees apparently deliberately emphasized and flaunted the civilian complexion of their operations. Personnel, aircraft, and facilities bore company identifications, and the employees identified their work as a company rather than U.S. Army task. During this period the company operated virtually autonomously and with no local supervision, since the AAF began the gradual introduction of cadres for its organization in Canada only in the latter half of 1942.³⁵

The situation displeased Canadians, who saw the Northwest Airlines

actions as designed to create and advertise a privileged position that could be exploited after the war in commercial operations. Misunderstandings developed over the carrying out of agreements for the exchange of meteorological data between the Department of Transport and U.S. Army agencies at the air bases. Reports that Northwest Airlines was carrying passengers for hire were circulated and did not improve the atmosphere.

Finally, at an AAF-RCAF meeting in Ottawa on 25 June 1942, the conferees heard Canadian protests. The Canadians had understood, at similar meetings in Ottawa in March and April as well as in the Howe-Olds exchange, that the AAF had agreed to militarize the civilian contract carriers and to assume ownership of their aircraft.³⁶ The AAF officers acknowledged this to be so and promised efforts to carry out the Canadian wishes, including the full militarization of the communications and weather personnel.

The AAF took appropriate steps immediately thereafter. It instructed Northwest Airlines to replace its own markings and insignia with those of the Air Transport Command. Personnel were to wear the same uniform as U.S. Army personnel. Army Air Forces personnel were gradually introduced with a view to taking over the communications and weather functions of Northwest Airlines. The change-over to military communications and weather personnel moved slowly and in the face of opposition from Northwest Airlines employees, who resisted relinquishing their jobs. At the beginning of 1943 the transfer was finally effected. A short time earlier the establishment of a Headquarters, Alaskan Wing, Air Transport Command, effective 1 November 1942, had projected military control into the scene of operations over the Northwest Staging Route.

The Canadian Government still remained dissatisfied with the character of the Northwest Airlines operations. In early 1943 Canada claimed that the company was not only continuing to employ its title and conduct its operations as if independent of the AAF, but it was also carrying passengers for hire. To support the last charge, the Canadian Government formally transmitted evidence indicating that the Northwest Airlines had carried personnel for hire and reiterated other grievances.³⁷

The Canadian complaints were thoroughly investigated and a comprehensive report was forwarded to Ottawa on 30 March. The report concluded that, although the general Canadian complaints might have been true

several months earlier, the corrective action pressed continuously by the U.S. Army had eliminated most of the grievances such as the use of airline markings. Although not all the aircraft had become U.S. Government property, most of them had and the others were indistinguishable. Not all the personnel had been militarized, but the civilian employees wore uniforms rendering them almost indistinguishable from military personnel. The Air Transport Command explained the circumstances of the transport-for-hire charges and gave assurances of its earnest desire to extract full compliance from its contract carriers with their instructions in these matters.³⁸

Another aspect of the operations of U.S. military air services in Canada that troubled the Canadian Government was their Topsy-like growth. The Northeast and Northwest Airlines contracts had been followed by additional separate grants of approval for similar operations by several other U.S. companies in eastern and northwestern Canada. In addition, the AAF was itself operating military air transport aircraft over a number of routes, some of which had been specifically authorized, others of which had not. During March 1943, as part of its broader program to reassert full Canadian control over air operations and air installations in Canada, the Canadian and U.S. Governments initiated a re-examination of the civilian air transport contract service operations of the AAF. After reviewing its continued dissatisfaction with the character of the operations, the Canadian Government pointed out that some of the operations appeared to have no authority except possibly the December 1940 exchange of notes or the Twenty-second Recommendation of the Permanent Joint Board, both of which appeared to cover only occasional or emergency flights.³⁹ Canada accordingly proposed to re-establish the authority for all U.S. military transport services in a single over-all agreement to replace the existing piecemeal agreements. Where no specific authority existed, the Canadian Government felt that authorization should first be applied for by and granted to the United States, as a preliminary step to being placed within the framework of the new over-all agreement. The proposal contemplated that the conditions under which the civilian contract services would henceforth be provided could be set forth and made public, thus eliminating misunderstandings which might exist in Canada. An important objective of the proposal was to prevent the U.S. commercial airlines from appearing to have a vested interest in routes that would have postwar commercial significance.⁴⁰

The proposed over-all agreement, to be effective for the duration of the war, would provide (a) that service aircraft of one country could use the airway facilities of the second on a reciprocal basis for traffic limited as follows: There would be no traffic for hire; goods were to be owned by an Allied government; only diplomatic mail would be carried except in cases where other mail was for delivery outside the second country; and only armed services and other governmental officials and Allied personnel traveling in connection with the war effort would be transported. It also provided (b) that authority would first have to be obtained by appropriate U.S. officials for service aircraft to use routes other than those then in effect, and (c) that commercial aircraft operated on behalf of one country could use airway facilities of the second on a reciprocal basis on routes already approved. Traffic was to be limited as for (a). In addition, commercial aircraft operations were to be replaced within six months by service aircraft operations employing service personnel.⁴¹ The Newfoundland Government, upon Canadian inquiry, stated that it had no objection to inclusion of airway facilities operated by Canada or the United States in Newfoundland territory within the scope of the agreement.⁴²

After the War Department had studied a preliminary draft of the Canadian proposal, it prepared a counterproposal for submission to the Canadian Section of the Permanent Joint Board on the occasion of the 6-7 May 1943 meeting. United States diplomatic officials during conversations with their Canadian colleagues had meanwhile obtained the impression that Canada had decided not to press for the agreement inasmuch as the proposal had probably already served its purpose in getting the United States to curb the objectionable commercial airline practices. The U.S. counterproposal was not presented and the matter was not discussed at the Permanent Joint Board meeting.⁴³

At the beginning of June Canadian authorities inquired concerning a reply to the Canadian proposal. Three months later Canadian officials again queried the U.S. Section and expressed a hope for an early reply. In the interim, additional Northwest Airlines practices of a kind inconsistent with the intent of the proposed agreement had been reported.⁴⁴

Upon receipt of the June inquiry, State, War, and Navy Department officers had conferred at the working level and had prepared a revised version of the counterproposal drafted earlier. United States reconsideration of

the Canadian proposal moved at a leisurely pace, and the counterproposal, forwarded to the Department of State on 1 October, was further considered there until late November 1943 but was not changed.⁴⁵ The counterproposal, finally forwarded to Ottawa on 24 November 1943 for submission to the Department of External Affairs, was an extensive revision of the Canadian proposal, incorporating changes that met the substantive U.S. objections by (a) eliminating the requirement for militarization of commercial contract aircraft as undesirable, and substituting controls designed to meet the Canadian objections, and (b) broadening the categories of traffic to be carried to include, for example, mail for U.S. troops.⁴⁶

Canada undertook a protracted study of the counterproposal. On 17 March 1944 it presented a new draft to the U.S. Embassy at Ottawa. In the main, the suggested changes represented a tightening and clarification of the provisions of the U.S. draft. The major change was the broadening of the definition of U.S. territory to include Hawaii as well as the United States proper and Alaska, looking to the time when the shifting of aircraft to the Pacific after V-E Day might "raise practical problems concerning military air routes across the Pacific."⁴⁷

The United States continued to study this latest draft until early August 1944, when a new aspect of the problem arose. Transoceanic aircraft of the Air Transport Command had begun carrying, on a fill-up basis, fare-paying passengers traveling in connection with the war effort. The U.S. authorities felt that this practice of selling fill-up spaces should be authorized by the agreement, since it was a practice of the British Overseas Airways Company, a crown company operating over the same transatlantic route, and since they considered an intermediate country (Canada) should not dictate terminus to terminus traffic policy. Because Canada opposed such a provision, in late September the United States was prepared to accept a text omitting it.⁴⁸

But before final agreement on the text was reached, the issue was again raised when President Roosevelt signed Executive Order 9492 on 25 October 1944. By this order the President authorized the Air Transport Command to carry passengers for hire under certain conditions. Since it was necessary to take cognizance of this action in the proposed Canadian-U.S. agreement,

and Canada considered the carrying of passengers for hire illegal and in violation of Canadian law and treaty provisions, discussions on the problem continued on into January 1945. Finally, at a meeting in New York City in late January, an article in the proposed agreement was redrafted to permit traffic for hire through, but not into or away from, Canada, in connection with Air Transport Command transatlantic operations. With this last point of disagreement resolved, the exchange of notes was effected at Ottawa on 13 February 1945.⁴⁹

When the agreement was made, it included a confidential attachment that listed in detail the routes being operated by each country (a) through use of commercial carriers under military contract, and (b) by its armed forces. Canada operated no route under (a), and only one under (b), the route originally authorized under the 12 December 1940 agreement. The United States was authorized thirteen routes in the first category and seventeen in the second.⁵⁰

Contrary to the originally stated Canadian intention to publish the agreement, it was not made public. Instead, an official press release was issued on 19 February 1945, announcing the substance of the agreement. Actually, the negotiations themselves, lasting over almost two years, had produced the required corrective action on the part of the U.S. authorities so that the Canadian objectives were largely achieved long before complete agreement was reached.⁵¹

Maintenance and Control of Bases

The establishment of a U.S. Army air garrison at Newfoundland (Gander) Airport in 1941 using housing and other facilities provided by Canada gave rise to problems that were rapidly to become more numerous and complex as the scale of U.S. activities in Newfoundland and Canada enlarged. The division of responsibility for maintaining and servicing, as well as for operating and defending, the facilities in which there was a joint U.S.-Canadian interest was the subject of negotiations lasting into 1944.

To meet the initial situation, the Permanent Joint Board on Defense on 10 November 1941 adopted the Twenty-first Recommendation, which was promptly approved by both governments. Under it the forces of one country occupying buildings provided by the other were charged with maintaining

them, as well as the appurtenant buildings within the assigned area, where it was feasible to delineate such an area. Utilities and services were to be provided by the host government on an equitable basis. Where a separate area was assigned and lent itself to the use of an independent system of services and facilities, they could be provided by the occupying forces. The arrangement was to be applicable reciprocally in both countries.⁵²

At Gander Airport a separate U.S. area was not delimited. Before long the U.S. Newfoundland base commander concluded that an arrangement by which he was dependent on the Canadian forces for fire and police protection was not desirable. Because of this and the frictions that he cited as being inevitably generated by an arrangement with "two families living in the same house," he continued to press unsuccessfully, during the following months, for designation of a physically separate U.S. area within which responsibility need not be divided.⁵³

The same problem soon arose at Goose Bay Airport in Labrador, where forces of both nations also occupied facilities constructed by Canada during the fall and winter of 1941-42. The construction of facilities did not, for diverse reasons, keep abreast of the demand, and, not long after the base was officially established as an RCAF station in March 1942, Canada permitted the U.S. Army to construct an independent group of facilities on the opposite side of the air base from the facilities tenanted by the Canadian and British elements.

The formula embodied in the Twenty-first Recommendation also proved suitable for application to the problems of joint occupancy at the principal bases of the Northwest Staging Route, where U.S. forces used facilities provided by Canada. But it did not cover the air-base facilities constructed by the United States itself in Canada in connection with the North Atlantic Ferry Route and along the Northwest Staging Route and Mackenzie River valley.⁵⁴ As these facilities built up and for the United States became operational beginning in the latter months of 1942, new arrangements were needed, since the Twenty-first Recommendation had provided only for tenancy by one country of facilities provided in and by the second country.

The broader questions of control, maintenance, and operation of bases occupied in their entirety by the tenant forces came under discussion at the 24-25 February 1943 meeting of the Permanent Joint Board. The Board agreed that the following arrangement would be suitable:

1. Canada would be responsible for administration, security, traffic con-

2. The United States would assume these responsibilities at air bases used exclusively or mainly by its own forces. Canada might post a liaison officer to each such air base.⁵⁵

The Board agreement was not cast in the form of a recommendation. Shortly after the Board consideration, the Canadian Goverment asked that the agreement be held in abeyance pending further discussion. At the 1 April 1943 Permanent Joint Board meeting, the Canadian Section withdrew its support of the earlier proposal and submitted one that assigned to Canada control of bases which it used substantially and to the United States only those where it was the sole user.⁵⁶ The Permanent Joint Board did not settle the matter until its next meeting, on 6-7 May. At this time the Board adopted its Thirty-first Recommendation, which assigned responsibility to the United States for bases of which its forces were the principal or exclusive user. It also provided that defense standards at such bases should be acceptable to the Canadian Chiefs of Staff and that, should Canada desire to assume control of such an airfield, "the necessary arrangements . . . should be concerted between the two Governments."⁵⁷ The Canadian Government, in reviewing the recommendation, would have preferred that it conform to the Canadian proposal of 1 April. Nevertheless, since the recommendation called for a specific schedule allocating the air-base responsibilities and incorporation of this schedule into a further Board recommendation, the Canadian Government approved the Thirty-first Recommendation.⁵⁸

During the succeeding months the Air members of the Permanent Joint Board worked out on the basis of the Thirty-first Recommendation the allocations of air bases and the details of responsibilities. The results were adopted by the Board on 24-25 August 1943 as the Thirty-second Recommendation. To the United States were allocated the Canol Project and Alaska Highway flight strips; the North Atlantic Ferry Route air bases it had constructed; the air base at The Pas, where it was the principal user; and the Edmonton satellite air base, which was the only one of the major. Northwest Staging Route air bases developed from its inception by the United States. Both governments approved the recommendation in September. Approval of the Thirty-second Recommendation represented another step in the

Canadian program to reassert Canadian authority over Canada's airways, air bases, and air traffic.⁵⁹

The four meetings of the joint U.S.-Canadian committee that studied problems arising from the Thirty-first and Thirty-second Recommendations, mentioned earlier in the chapter, were also the means for working out further details of the application of the Thirty-second Recommendation. As a matter of fact the greater portions of those meetings were devoted to problems of this type. During the meetings an excellent spirit of co-operation and understanding prevailed, as a result of which suitable arrangements and adjustments were effected as to work specifications, division of labor, and similar questions in a manner best reflecting the availability of resources and the needs of the forces of the two countries.

The Thirty-first Recommendation provided the basis for appropriate shifts of control of air bases to accord with changing circumstances before the general transfer to Canada of control of the entire U.S. system of bases at the end of the war. Control of the Mackenzie River valley flight strips of the Canol Project was transferred to Canada before the end of 1944. Between V-E and V-J Days, it became fully apparent that the air bases at Churchill and The Pas would have no appreciable role in the support of the U.S. effort in either Europe or the Pacific. Since Canada was prepared to take them over and integrate them completely into the Canadian network of civil airports, the transfers were effected on 1 and 2 August 1945, respectively. With Canadian assumption of control and responsibility for these air installations, the general transfer of the entire U.S. air-base system to Canadian control was well under way.⁶⁰

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Footnotes

1. Ltr, Hickerson to LaGuardia, 22 Apr 42, PDB 104-22.

2. Privy Council 2546.

3. Privy Council 5484. For an account, from the point of view of international law, of the handling of jurisdictional questions between the United States and Canada and other states during World War II, see Archibald King, "Further Developments Concerning Jurisdiction Over Friendly Foreign Armed Forces", American Journal of International Law, XL (1946) 257-79. See also the following articles in the British Year Book of International Law: G. P. Barton, "Foreign Armed Forces: Immunity From Supervisory jurisdiction", XXVI (1949), 380-414, and "Foreign Armed Forces: Immunity From Criminal jurisdiction", XXVII (1950), 186-235; and M. E. Bathurst, "Jurisdiction Over Friendly Foreign Armed Forces", XXIII (1946), 338-41.

4. Ltr, Hickerson to SUSAM, 16 Jul 42, PDB 104-22.

5. The notes are to be found in EAS, 355, and also as addenda to the Act, which is 5&6 Geo. 6, c. 31. For an account of the development of this agreement and for an examination thereof in terms of World War I and other World War II practice, see Archibald King, "Jurisdiction Over Friendly Foreign Armed Forces", American Journal of International Law, XXXVI (1942, 539-67.

6. Memo/Conv, Hickerson and Pearson, 2 Feb 43, D/S 811.203/252.

7. For example, in the case of Pvt. William Evans, which aroused public indignation in Dawson Creek, the Attorney General of British Columbia issued a warrant for the arrest of Evans, but his commanding officer refused to surrender him. (Memo/Conv, Hickerson and Clark, 13 Feb 43, PDB 104-22.)

8. Privy Council 2813, 6 Apr 43.

9. The reference to the Supreme Court was made by Privy Council 2931, 9 Apr 43.

10. The factum and an accompanying case book by the federal Attorney General of Canada were publish by E. Cloutier, King's Printer, Ottawa, in 1943 under the title "Jurisdiction of Canadian Criminal Courts Over Members of the Armed Forces of the United States." Memo/ Conv, Clark and R. T. Yingling, 24 Apr 43, D/S 811.203/246-5/6.

11. The opinions are contained in Reference re Exemption of U.S. Forces From Canadian Criminal Law (1943, Canadian S.C.R. 483. For a synthesis of these opinions, see King, "Further Developments Concerning Jurisdiction Over Friendly Foreign Armed Forces", pp. 272-74.

12. Ott Leg Desp 103, to Secy State, 4 Sep 43, D/S 811.203/324; Ltr, Atherton to Hickerson, 5 Oct 43, D/S 811.203/341; Department of State Desp 95, to Ott Leg, 25 Oct 43, D/S 811.203/341; Privy Council 9694, 20 Dec 43.

13. Department of External Affairs Notes 160 and 26, 27 Dec 43 and 9 Mar 44; U.S. Emb Ott Note 95, 10 Feb 44; all in D/S 811.203/392.

14. PL 384, 78th Congress.

15. Proclamation 2626, 8 FR 12403.

16. Ltr, CG NBC to CG Eastern Theater of Operations, 23 Feb 42, PDB 104-5.

17. Memo, E. W. Hockenberry for SUSAM, 11 Mar 43, PDB 12 6-6.

18. Appendixes, to Alaskan Division, Historical Record Report, Nov 42-Dec 43 volume, p. 325. The agreement, essentially one for co-ordination and standardization, was effected between representatives of RCAF Western Air Command; Alaskan Wing, ATC; Western Defense Command; and Northwest Sea Frontier. The RCAF had taken over the airway traffic control functions on this route from the Department of Transport in September 1942.

19. Progress Rpts, at PJBD meetings of 1-2 Apr and 1-14 Jul, PDB 124.

20. U.S. Leg Ott Telg 28, 17 May 43, D/S 842.00/690; Memo, Parsons to Hickerson, 5 Apr 43, D/S 840.50/2092; journal PJBD meeting, 13 Jan 44, PDB 124. See also the exchange of correspondence that took place in October 1943 when the State Department first learned of the Canada-Newfoundland negotiations, which had been in progress about two years, for a ninety-nine-year lease to Canada of Goose Bay air base. (D/S 842.7962/111.) The first comprehensive study on the role of air transportation as a force in national policy had been published only a few months earlier and was indicative of, and perhaps even contributed to, the quickening interest in the subject. See Oliver J. Lissitzyn, International Air Transport and National Policy (New York: Council on Foreign Relations, 1942. The Canadian Government had by the end of 1942 set up an interdepartmental advisory committee on international air transport. The United States set up a similar body in January 1943, and some exploratory talks took place subsequently between the two groups.

21. H. C. Debates, 2 Apr 43, pp. 1776-78; The Canada Year Book, 1945, p. 703.

22. Associated objectives of the Canadian program included the execution of all construction on the more important bases by the Canadian Government, and the acquisition of title or the leases to land occupied by official U.S. agencies and installations. They are treated above in Chapter VIII. See also Alaskan Division, Historical Record Report, Nov 42-Dec 43 volume, pp. 214-17.

23. Appendix A, below.

24. Privy Council 9792, 24 December 1943, declared those portions of Canada through which the Northwest Staging Route passed to be a prohibited area, under the Defense Air Regulations, 1942, thus subjecting them to military control.

25. Minutes, 15-16 Dec 43 PJBD meeting, PDB 126-10; CAP 365, PDB 126-10.

26. See below, pp. 320-25.

27. Memo, SUSAM for CG AAF, 20 Sep 44, PDB 105-16.

28. Journal, 7-8 Nov 44 PJBD meeting, PDB 124.

29. Memo, Berle for Christie, 18 Sep 40, and Reply, 19 Sep 40, D/S 811.2342/732 and /738. The exchange of diplomatic notes on 16 December 1940 is in PDB 126-10.

30. EAS, 186; CTS, 1940, No. 13.

31. For an excellent account of such operations during World War II, see Cleveland, Air Transport at War.

32. Journal, PDB 124; Memo, Brig Gen Olds for SUSAM, 23 Feb 42, PDB 126; Carr, Great Falls to Nome: The Inland Air Route to Alaska, 1940-1945, p. 26, cites War Department contract No. DA W535ac 1763, dated 20 February 1942 and approved 27 February 1942.

33. The letter to General Olds is in PDB 126. Howe's account of the Edmonton episode is to be found in H. C. Debates, 15 May 42, p. 2486. His letter was thereafter cited as the basic authority for U.S. military air operations in Canada.

34. Carr, Great Falls to Nome: The Inland Air Route to Alaska, 1940-1945, pp. 30-36.

35. These paragraphs are based on the Carr manuscript and on Alaskan Division: Historical Record Report, II. The president of Northwest Airlines believed that the United States should get its airlines firmly established in Canada and apparently conducted his own company operations with this objective. (Memo/Conv, Moffat and C. Hunter, 14 Dec. 42, D/S 811.79642/ 291.)

36. Extracts of Canadian reports of the meetings are quoted in Memo, SUSAM for CG ATC, 17 Mar 43, and in Ltr, from Hickerson, 27 Mar 43, both in PDB 110-8.

37. Memo, SUSAM for CG ATC, 17 Mar 43, PDB 110-8. On the other hand, the AAF must have had some degree of success, for the president of Northwest Airlines expressed himself as unhappy about the status of his company and desirous of regaining his company's identity in its operations in Canada. (Memo/Conv, Moffat and Hunter, 14 Dec 42, D/S 811.79642/291.)

38. Memo, SUSAM for Cdn PJBD Secretary, 30 Mar 43, PDB 110-8. This memorandum replied to a note from the Canadian secretary, acting in his capacity as Under Secretary of State for External Affairs, to the U.S. Chargé d' Affaires, in Ottawa through the diplomatic channel.

39. Memo, Under Secy State for External Affairs for U.S. Chargé d'Affaires, 16 Mar 43, PDB 126-10.

40. Memo, Hickerson for SUSAM, 26 May 43, PDB 126-10.

41. Memo cited above, n. 39.

42. Ltr, Keenleyside to Chargé d'Affaires Clark, 17 Apr 43, PDB 126-10.

43. Unused Memo, SUSAM for Keenleyside, 5 May 43; Memo, Hickerson for SUSAM, 12 May 43, both in PDB 126-10.

44. Memo, Hickerson for SUSAM, 20 Sep 43; Memo, SUSAM for CG ATC, 2 Aug 43, both in PDB 126-10; Ltr, Clark to Hickerson, 4 Jun 43, D/S 811.79642/6-443.

45. Memo, SUSAM for Hickerson, 1 Oct 43; Department of State Desp 123, to U.S. Emb Ott, 18 Nov 43, both in PDB 126-10.

46. Department of State Desp 123, to U.S. Emb Ott, 18 Nov 43, PDB 126-10.

47. Department of External Affairs Memo, 17 Mar 44, PDB 126-10.

48. Memos, Parsons for Berle, 3 and 21 Aug 44, D/S 811.79642/8-344, and /8-2144; Department of State Desp, to U.S. Emb Ott, 26 Sep 44, D/S 811.79642/9-2644.

49. Memo, from Parsons, 18 Jan 45, D/S 811.79642/1-1845. The agreement is TIAS, 2056; CTS, 1945, No. 1.

50. TIAS, 2056; CTS, 1945, No. 1.

51. Department of State Bulletin, February 25, 1945, XII, 307. In 1950, when the attachment listing the authorized routes was no longer considered confidential, the text of the agreement was published.

52. Appendix A, below.

53. Ltr, CG NBC to Bissell, 16 Dec 41, PDB 107-3.

54. See Ch. VIII, above.

55. Journal, PDB 124.

56. Memos, SUSAM for CG AAF, 10 Mar and 5 Apr 43, PDB 113-2.

57. Appendix A, below.

58. Alaskan Division, Historical Record Report, Nov 42-Dec 43 volume, p. 225.

59. Appendix A, below. Despite the provision in the Thirty-first Recommendation for stationing of liaison officers, Minister of Munitions and Supply C. D. Howe revealed a year after approval of the schedule of allocations that there were one or two bases that to his knowledge no Canadian had yet seen, indicating that Canada apparently had not made use of this provision. (H. C. Debates, 8 Aug 44, p. 6084.)

60. See Ch. XII, below.