Memorable Quotations

Foreword

These memorable quotes from Strayer’s “Patriation and Legitimacy” (1982) prove, in his own words, that the so-called patriation of the Constitution in 1982 was a coup d’état.  It was not a constitutional amendment, as claimed by Pierre Trudeau’s regime, for which Strayer worked for over 20 years as senior advisor on the Charter.  Like Ian Smith and his executive in 1965 in Southern Rhodesia, Trudeau and his executive changed the Constitution and clung to power.  They overturned the Constitution that had brought them to power, and as a result, their regime had no legal source in the new Constitution of 1982.  It was clearly a usurper regime, and it still is.  The coup can be subject to judicial review on the grounds that it was misrepresented as a constitutional amendment.

Memorable Quotations

Tonight I wish to consider first the legal legitimacy and legal effectiveness of this patriation process, and then I want to enquire as to the lessons to be derived from this great national adventure with respect to the sources of political legitimacy for our constitution.

— Strayer, Conférence Cronkite N° 2 (1982), page 3-30

Therefore, you can have a perfectly respectable constitution even though it is not legally legitimate.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-3

Unlike many legal philosophers, Hans Kelsen has been widely cited in the courts, particularly in countries of the Commonwealth where judges have had to cope with coups d’état, revolutions, and other legal discontinuities in government.  As you can imagine, he has been a great comfort to the judicial mind when faced with the need to recognize new governments which enjoy some political legitimacy but lack legal legitimacy.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-3

Once the political legitimacy of a constitution is established, and the regime it prescribes becomes the effective system of government, it is only a matter of time until the courts generally will recognize it; then its legal legitimacy will follow.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-5

During the last two years, this country has gone through a constitutional trauma in which we have seen the former legal mechanisms for changing the Canadian constitution abandoned in Britain and their replacement established in Canada.  I want to examine questions such as how this was done legally, and whether it was legally effective.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-2

As I already have suggested, legitimacy has two aspects: legal and political. A legally legitimate constitution is one which has been adopted or amended by some preexisting body or process that was legally authorized to adopt or amend the constitution.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-2

A constitution is politically legitimate when it is generally acceptable to the people it governs because it was adopted or altered by persons or agencies that they generally accept as having the political right to decide such matters. — Strayer, Cronkite Lecture N° 1 (1982), page 3-2

Normally, legal legitimacy and political legitimacy are found together in any working constitution. But sometimes you have one without the other, as I shall demonstrate shortly. Where this happens, it is political legitimacy which, in the long run, is decisive as to whether a constitution survives.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-2

I will not belabour further the differences between legal legitimacy and political legitimacy.  I simply wish to reiterate that both are important and both normally coexist but, in the long run, it is political legitimacy which is the more important.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-5

In other words, political legitimacy is essential; legal legitimacy is desirable but not necessary.  Or put another way, nothing succeeds like success.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-3

I confess in this analysis to having been influenced long ago by Hans Kelsen and his theory of the grundnorm.  Kelsen said that to understand a legal system you have to find the basic norm or rule by which the making of laws is determined.  You do not need to know the source of that basic rule — that is, whether it was an act of God or of man.  All you need to know is that it works.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-3

On November 11, 1965, Mr. Ian Smith, the Prime Minister of Rhodesia, issued a unilateral declaration of independence. Although he and his ministers were dismissed by the Governor, they proceeded to adopt a new constitution.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-4

While the legally legitimate authority over Rhodesia rested in the United Kingdom Parliament, the effective constitution of Rhodesia was that put in place by the Smith government in 1965.

— Strayer, Conférence Cronkite N° 1 (1982), page 3-4

Strayer Quotes

Perhaps one can venture the conclusion that the patriation scheme of that day could afford to be a bit weak on legal legitimacy because it was to be so richly endowed with political legitimacy.  This is, perhaps, a further illustration of the point I made earlier—that one can always cure a bit of legal anemia with a good dose of political legitimacy.

— Barry Lee Strayer, Patriation and Legitimacy of the Canadian Constitution, Cronkite Lecture No. 1 (1982), page 3-15

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Patriation and Legitimacy of the Canadian Constitution by Barry Lee Strayer.  Free ebook coming soon.


Patriation and Legitimacy of the Canadian Constitution by Barry Lee Strayer.  Free ebook coming soon.

Memorable Quotations

Memorable Quotations

WAR ON CANADA

Lorraine E. Weinrib

Lorraine E. Weinrib

Who Dares Wins / Qui Ose Gagne
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“Anything Goes … Because So Few Know …”

In a surprisingly candid reflection in his article “Constitutional Reform of the Canadian Judiciary” in the Alberta Law Review  of 1969 (7 Alta. L. Rev. 103 (1969), Professor Peter Russell declares the very obvious basis on which the 1982 coup d’état was pulled off (including with his own collaboration).  Said Russell: “The opening phrase of the American Constitution, “We the people of the United States, in Order to form a more perfect Union …” provides the main clue to the basic difference between the status and role of the written constitution in our two countries.  Granted there is an element of political mythology.  “The opening phrase of the American Constitution, “We the people of the United States, in Order to form a more perfect Union …” provides the main clue to the basic difference between the status and role of the written constitution in our two countries.  Granted there is an element of political mythology in those initial words of the U.S. Constitution, but still it is a mythology with very real roots in the American political culture.  For certainly the United States’ Constitution is much more a product and a possession of the popular political conscience of that country than is the B.N.A. Act, with its colonial origins and Imperial trappings, of ours.  In practical terms this means that in Canada there is an insufficient common understanding — at the political level — of the content and purpose of the important provisions of the Constitution, with the result that almost anything goes because few people know.”  [Emphases added.]