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Brian Bird: Barry Strayer: An extraordinary Canadian and a sterling example of public service

Commentary

Late last year, Canada lost one of its constitutional architects. The Honourable Barry L. Strayer, a principal drafter of the Charter of Rights and Freedoms, died in Ottawa on December 3, 2022, at the age of 90.

By happenstance, I only learned of Strayer’s passing very recently. Somewhat to my surprise, I discovered that, apart from the publication of an obituary, nothing seems to have been published to mark his death. This, in my view, should not be the case for someone who played a pivotal role in Canada’s constitutional development.

Born in Saskatchewan in 1932, Strayer obtained his law degree at the University of Saskatchewan and completed graduate studies in law at Oxford and Harvard. In the early stages of his career, in the late 1950s and early 1960s, Strayer taught law at the University of Saskatchewan and worked for the province’s attorney general. In the latter context, Strayer formed part of Saskatchewan’s delegation to a number of federal-provincial conferences on the future of the Canadian Constitution.

In 1967, Strayer went to Ottawa to work on constitutional matters within the federal Department of Justice. Over the next 15 years, Strayer was at the epicentre of constitutional design and reform. Working with Prime Minister Pierre Trudeau, Strayer eventually became assistant deputy minister of justice and a principal drafter of the Charter of Rights and Freedoms as well as other elements of Canada’s constitutional transformation of 1982. For a part biographical and part legal-historical account of this transformation, Strayer’s book entitled Canada’s Constitutional Revolution is a must-read.

In 1983, Strayer joined the judiciary: first as a judge of the Federal Court of Canada and later as a judge of the Federal Court of Appeal and as Chief Justice of the Court Martial Appeal Court. Strayer remained a judge until his retirement from the bench in 2004. In 2010, he was invested as an Officer of the Order of Canada. His citation rightly describes him as a “renowned expert in constitutional law” who “holds a distinguished place in Canada’s legal history”. In his public service, he “contributed considerable wisdom and insight to the evolution of a uniquely Canadian system for the administration of justice.”

Strayer’s contributions to constitutional architecture went far beyond Canada’s borders. His obituary recounts that he “drafted a constitution for the Republic of the Seychelles to restore constitutional government after a coup d’etat; advised the Government of Hong Kong on the drafting and adoption of a Bill of Rights in preparation for the transfer of sovereignty to the People’s Republic of China; and assisted the Canadian Bar Association in helping the Nepal Bar Association in the writing of a new constitution.”

On a personal note, Strayer’s writing on Canadian constitutional law has shaped my work as a legal academic. I believe my first encounter with his work occurred as I was trying to understand how the Canadian Constitution counted as the supreme law of Canada prior to 1982. After 1982, owing to the addition of an express supremacy clause in the Constitution, it was easy to identify what allowed Canadian courts to nullify legislation that violated the Constitution. What allowed courts in Canada to do so before 1982, however, is not so obvious. Strayer, it turns out, wrote his doctoral thesis at Harvard on how Canadian courts review legislation for constitutionality and later published it as a book. The clarity of his thinking on this topic has been invaluable as I have pursued my own writing on Canadian constitutional law and history, including a set of essays I wrote for The Hub last year to mark the 40th anniversary of the Charter.

I also had the good fortune to engage directly with Strayer when I invited him to participate in a virtual conference on forgotten foundations of the Canadian Constitution in April 2021. Strayer graciously accepted my invitation, and an abridged version of his remarks at the conference appear as the foreword to a collection of essays published last year that I and my co-editor Derek Ross had the privilege to assemble. These, to my knowledge, are the last scholarly words published under Strayer’s name. We are profoundly grateful for his generosity and willingness to entrust these remarks to us.

I am sure many individuals who knew Barry Strayer far better than I did could write a more nuanced and detailed tribute to him, and I hope these tributes are paid in due course. But it speaks volumes, in my view, that the details of his life that reside in the public record, standing alone, reveal that Strayer was an extraordinary Canadian. His life was, for Canada, a sterling example of public service.

I close with what Derek Ross and I wrote in the introduction to the collection of essays to which Strayer contributed. It is eminently fair to say that Strayer “is not only one of the architects of the Canadian Constitution, but, by virtue of what any constitution seeks to achieve, he is also an architect of Canada itself.”

May he rest in peace.

Sean Speer: The Canadian establishment’s ‘China consensus’ has been wrong from the start

Commentary

An underrated force behind the months-long Chinese interference scandal and even David Johnston’s report this week may be the Canadian establishment’s own self-consciousness about its deep-rooted yet wrongheaded commitment to what one might describe as the “China consensus.”

One gets the sense that the key players involved including the prime minister and the former governor general cannot bring themselves to acknowledge that their basic assumptions about Canada’s relationship with China, its broader place in the world, and the sources of its long-term prosperity were in hindsight misplaced.

They’re so resistant to the idea that they made a misjudgment that they’re prepared to live with the perception that they’re corrupt, politically motivated, and ultimately hiding something. Their egos are big enough, in other words, that they’ve come to misread their own self-interest. They’d rather look sketchy than wrong.

The China consensus began to take shape more than 30 years ago in the triumphalism of the Cold War victory. It assumed as a matter of political economy that China’s integration into the global economy would lead to its political liberalization and ultimately democracy. These forces weren’t just seen as contingent. They were casual.

U.S. foreign policy scholar Henry Rowen even famously predicted in a 1996 essay that China would become a democracy in 2015 based on its economic development patterns and the similar experiences in Japan and South Korea.

Although Canadian business and political elites never quite committed themselves to such firm predictions, they strongly endorsed the notion that greater economic integration with China would invariably put it on the path towards broader liberalization. As recently as 2019, for instance, former Chrétien-era Trade Minister, Roy Maclaren, still spoke of how “deepening trade and investment relations with China…would lead to human-rights advances.”

This wasn’t the source of major partisan disagreement. It was a political consensus that extended from Jean Chrétien to Stockwell Day and virtually everyone in between. Even my former boss Stephen Harper who was elected in 2006 with the most skeptical views about China of any major political figure in decades eventually succumb to the consensus in part due to growing frustration with the Obama administration’s indifference to Canada.

It’s fair to say, though, that the Trudeau government came to office in late 2015 with a renewed commitment to the China consensus. The new government’s so-called “reset” included bilateral free trade talks with China even though Australia and other allies were starting to raise alarms about the Chinese government’s duplicitous model of economic and diplomatic engagement.

Canada’s political class wasn’t alone in its “leap of faith” on China. It has extended it far beyond to the country’s broader establishment including Johnston himself. As National Post columnist Terry Glavin has recently documented, Johnston was as committed to the China consensus as any political figure of the era. He oversaw the establishment of one of the country’s Confucius Institutes and has met Chinese President Xi Jinping several times. Glavin even calls him “an elite capture poster boy.”

This optimism about the opportunities inherent in a burgeoning economic relationship with China was rooted in the long-standing Canadian goal of diversifying our economic and geopolitical dependence on the United States. That Canada had been first to officially establish diplomatic relations with China in October 1970 and many in Canada’s establishment were drawn to China’s top-down technocracy reinforced this predisposition.

I’ve assumed that these Sinophiles at the centre of Canadian business, cultural, and political life persisted in their views about China long after the evidence confirmed otherwise out of a sense of dogmatism. They were so committed to the idea of China as an ideological proposition that they refused to see its backsliding under President Xi on the country’s market reforms and his growing political centralization and crackdowns on personal freedoms using the technologies paid for by our two-way trade.

Even as the political classes in the United States, United Kingdom, and elsewhere came to accept that their own bipartisan versions of the China consensus were wrong, Canada remained a bit of an outlier. We’ve been the slowest to come to this realization. Our exclusion from the Indo-Pacific Economic Framework and the AUKUS security alliance is in large part a result of a perception that the Canadian government has yet to fully move on from the China consensus.

The past few years have provided plenty of evidence to bolster this perception. The Trudeau government’s foot-dragging on banning Huawei equipment from Canada’s wireless networks, its bizarre COVID-19 vaccine deal with a military-connected China company (which Johnston describes as “once promising”), and its failure to act in response to the mounting evidence of Chinese election interference are only the highest-profile examples. As I’ve recently written, notwithstanding the government’s tough talk in its newly-released Indo-Pacific Strategy, its actions suggest that it remains uneasy about the implications of reconceptualizing China as a hostile actor and a geopolitical threat.  

The same reluctance is present in Johnston’s report. Although he generally singles out China for foreign interference, he tends to emphasize the more general risk. He never mentions by name the Chinese official at the heart of many of these allegations and defends former Ontario cabinet minister Michael Chan’s proximity to the Chinese consulate in Toronto on the grounds that he’s “admitted it publicly.” He even goes to some length to justify the idea that diplomats posted in Canada will have preferences in our elections and they “may even express those preferences openly or privately.”

These observations read as though they’ve been put forward by someone who’s hesitant to see what he’s actually seen in the intelligence reports. That in and of itself is revelatory. Perhaps it isn’t merely ideology that’s come to blind Canada’s establishment to the true ambitions and activities of the People’s Republic of China. Maybe it’s just ego. Maybe the prime minister, Johnston, and others like them just can’t bring themselves to admit that they were wrong. They cannot acknowledge that their decades-long assumptions about China’s economic and political model and the future of Canada’s global relationships were mistaken. They cannot reckon with the misalignment between their perception of the world and its disappointing yet incontrovertible reality. 

It leaves the rest of us however suspended between the two. We continue to live in a country in which the establishment stubbornly clings to a failed consensus on China. The past several weeks—including what Johnston’s report says and doesn’t say—have exposed the consequences. It’s clear to everyone but seemingly those in charge.