Brian Lee Crowley

Getting real about China, on NAFTA, national security and trade diversification

I have a bit of a bee in my bonnet these days about China, as any sensible person should. Everyone seems fixated on Donald Trump bullying Canada (and that is a reasonable concern) but the number of people who hold up China as some kind of alternative is truly staggering. If you want real, subtle, long-term bullying in unapologetic pursuit of national interests, you cannot do better than China. Add to that that China is an authoritarian, autocratic and repressive country without even a nodding acquaintance with the rule of law and a hostile relationship with the western alliance, etc., etc., etc., and China gets less appealing every day as a partner for Canada. Here are three recent op-eds in which I develop these various themes:

In the 30 May 2018 edition of the Globe, I took aim at China for its clear threats to Canadians’ national security. The context was Ottawa’s rather unexpected but welcome decision to veto the takeover of Canadian construction giant Aecon by a Chinese firm. As I pointed out, if this means that Ottawa is going to take national security threats from China more seriously (including their to-date insouciance about Huawei’s deep involvement in building Canada’s next generation 5G wireless network) that is very good news indeed and not before time.

Then came the G7 Summit. The G7 seems to me a little adrift these days, an organisation in search of a mission that would unite the disparate interests of Japan, North America and the largest European economies. My suggestion in an 8 July piece in Inside Policy: they should all agree to unite and reinforce their current disparate efforts to confront China’s disgraceful behaviour in the South China Sea that is an affront to the rule of law and freedom of navigation. There is also a video version of this piece.

Finally, Ottawa has been ramping up its focus on “trade diversification” as a kind of defensive card to play in its NAFTA negotiations with Washington. But of all the daft ideas, the one that China can replace or even partially compensate for our trade relationship with the US is surely the daftest. Read my op-ed, co-authored with Sean Speer, in the Globe of 20 July 2018 about why China is no trade saviour for Canada.

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Judicial activism and the culture of the law

The critics of judicial activism tend to focus on the Supreme Court (SCC) and its individual decisions. I think that’s a mistake. There are systemic forces at work undermining the commitment of the legal profession as a whole to the integrity of the law. Most powerful of these is the Charter and its grant of unaccountable power. In my latest column for Economy Lab in the Globe’s ROB, I lay out the case that the judiciary’s increasing abandonment of the law in favour of judge’s opinions about social and political issues is actually introducing increasing uncertainty into the meaning of the law, with potentially serious consequences.

To my critics, I ask the following simple question: Do you think that it is easier or harder today than it was 20 or 30 years ago to assess a case’s chances of success before the courts? Every lawyer I ask says it is harder, meaning that the law is becoming a less certain guide to behaviour. As I argue in my column, this brings serious social and economic costs in its train.

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D-Day, the Cold War and Putin’s challenge to the West

In the latest of my seemingly endless screeds for the Ottawa Citizen and other PostMedia newspapers today I mine the D-Day invasion and the West’s success in the Cold War for lessons to apply to Russian President Vladimir Putin’s challenge to the values of freedom, democracy and the rule of law. Relax, Mr Obama: We don’t have to engage the Russians militarily.  On the other hand, if we don’t show an unwavering willingness to do so if necessary, he will continue his campaign to re-create Russian greatness and a bi-polar world at our expense and that of weaker countries on his borders and perhaps farther afield. The longer we delay in responding decisively, the more emboldened he will become.

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Social licence: 007 never had such a powerful licence to kill!

“Social licence” is a concept on everyone’s lips these days as we debate pipelines, dangerous rail cargoes, appropriate forestry policies, etc. But this benign sounding term conceals a multitude  of dangerous and arbitrary features. In the end, as I argue in my column for today’s ROB, it masks a unilateral requirement for a project’s opponents to give their blessing before a project can proceed, making it a licence for NIMBYists to kill things they don’t like, regardless of their net benefit to Canadians. This is unacceptable in a world where change always creates winners and losers and in a society governed by the rule of law.

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Column: Tell the truth, separatism is dead

In today’s Ottawa Citizen, and following on the heels of the recent Great Canadian Debate “The Government of Quebec can decide unilaterally to secede from Canada” I argue that for all practical reasons, the idea of an independent Quebec is a non-starter.

Column: Tell the truth, separatism is dead

By Brian Lee Crowley, Ottawa Citizen June 21, 2013

Why will no political leader stand up and tell the truth about Quebec separatism? That truth is that separatism is dead—not, of course as something to dream about and vote for; that, like death and taxes will always be with us. No, the truth is that the hurdle is set so high for it to be done successfully and legally that separation is, for all intents and purposes, impossible.

Even Stéphane Dion, architect of the Clarity Act and one of the most courageous and rightly admired of Quebec federalists, still maintains the fiction that the key question is whether Quebec gives a clear answer to a clear question on secession. Quebec will not be kept in Canada “against its will.” He said so again the other night at one of the Great Canadian Debates Series organised by my institute in Ottawa. If Quebeckers really want to go, he says, they can.

True, forcing Quebeckers to stay against their clearly expressed will is a recipe for misery. On the other hand, downplaying the certain costs Quebeckers would confront to get out of Confederation encourages separation fantasies, distorting that very decision about whether to vote to leave. The secessionists, like former Bloquiste Daniel Turp, who debated Dion, strive to make Quebeckers believe that independence would be essentially costless, while creating all kinds of benefits (we will finally be maîtres chez nous, or as the great Quebec chansonnier  Félix Leclerc put it, it would mean the end of the fat greasy fingers of strangers pawing through the family papers).

It seems clear, though, that if Quebeckers understood the real cost they would have to pay to get out of Canada, the likelihood of such a vote ever occurring would plummet. So by failing to confront Quebeckers with the truth of their legal and constitutional position, the defenders of federalism actually help to foster the climate of confusion and uncertainty that has cost the whole country so dearly, and no one more than Quebeckers themselves over the last half century.

The Supreme Court had the cojones to make clear just how high the bar to secession sits in its 1998 decision on three questions referred to it by the Chrétien government. Those questions dealt with when and under what conditions Ottawa might be required to recognise a pro-independence vote in a Quebec referendum and negotiate the province’s secession.

What many people, including the federal government, took away from the Court’s ruling was that Quebec could not unilaterally set the rules of such a referendum. Ottawa is entitled to say it will never open negotiations on Quebec independence unless a clear question has been asked and a clear majority given. The 1999 Clarity Act gives legal form to this requirement.

Ottawa has remained silent, however, on the rest of the Supreme Court’s decision, for it did not stop at setting the conditions under which Ottawa would be legally obliged to open negotiations on secession.  There were also conditions to be attached to the negotiations themselves. Those conditions include respect of the rule of law, the rights of minorities and the federal nature of Canada.

Think about what any of those conditions might mean. The rule of law means that secession must be accomplished under the Constitution. Since the Constitution does not contemplate a province leaving, it would have to be amended. Such an amendment would fall under the unanimity rule, meaning that Quebec must negotiate secession with the nine other provinces plus Ottawa; any province, even tiny Prince Edward Island, could legitimately upset the secession applecart all on its own. Nor would any province give its consent unless it got its quid pro quo; Quebec taught us that rule of constitutional negotiation. Federalism doesn’t disappear simply because Quebeckers vote to make it go away.

Respecting minority rights means that Ottawa would almost certainly have to protect the interests of at least two minorities: Aboriginals (who have zero interest in leaving Canada) and federalists who voted to remain in Canada. Accordingly, Quebec could not possibly get out of the negotiations with its territory intact. Minorities given short shrift in the negotiations could turn to the Supreme Court for relief.

Fond fantasies aside, Quebec cannot, by majority vote, wave away its legal obligations. Quebec would crave and need international recognition, but that recognition will only be forthcoming if Quebec leaves according to the rules. Those are the ones the Supreme Court has laid down.  Virtually any imaginable secession deal that could emerge from such negotiations would be repugnant and unacceptable to Quebec nationalists. Result: economic devastation and deadlock, no matter how much Quebeckers might wish to leave.

Breaking up is indeed hard to do; so hard in fact that the chances of it ever occurring are microscopic. We should say so and act accordingly.

Brian Lee Crowley (twitter.com/brianleecrowley) is the Managing Director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa: www.macdonaldlaurier.ca.

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Brian Lee Crowley
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