Former Chief Justice of the Supreme Court of Canada Beverley McLachlin listens to a question during a news conference, in Ottawa on Dec. 15, 2017.Justin Tang/The Canadian Press
When pro-democracy newspaper publisher Jimmy Lai goes to trial in Hong Kong on Monday facing national-security charges, he will be appearing in a court system that includes Beverley McLachlin – Canada’s longest-serving Supreme Court chief justice.
Sebastien Lai, the publisher’s son, is among those calling on Ms. McLachlin to reconsider her decision to remain a part of the legal system at a time when China is cracking down on democracy and dissent.
“The legal system’s not siloed,” he told The Globe and Mail. “It all links together, right? Do they want to be part of a court system that has 1,500 political prisoners, who are imprisoned for things that are very much legal in their home country?”
A member of Jimmy Lai’s international legal team, Jonathan Price of London, is also urging Ms. McLachlin to reconsider.
“The decline of the rule of law is constant, precipitous, ongoing,” he said, adding that the question of whether to remain needs to be reviewed every few months.
Two days ago, the House of Commons voted unanimously to call on Hong Kong authorities to release Mr. Lai and cease prosecuting him and others under Beijing’s national-security law, imposed on Hong Kong in 2020.
But Ms. McLachlin, who is 80 and has resisted previous calls to step down, says she is staying because she believes the courts are still independent.
“The court is doing a terrific job of helping maintain rights for people, insofar as the law permits it, in Hong Kong. Which is as much as our courts do,” she told The Globe.
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She mentioned a ruling from the Court of Final Appeal in October, upholding a lower court’s decision to grant equal inheritance rights to same-sex couples, over the government’s objections.
“I think Hong Kong has need of the rule of law in supervisory courts and independent courts, which the Court of Final Appeal is,” she said.
The Lai case could ultimately make its way up to the Court of Appeal and then the Court of Final Appeal though she would not be eligible to hear it, as foreign temporary judges do not sit on national-security cases.
Ms. McLachlin became the first Canadian appointed to the Hong Kong Court of Final Appeal in 2018, just months after retiring from a 28-year career on the Supreme Court, including 18 as chief justice. During those 28 years, she earned a reputation as a fearless challenger of government overreach.
When she joined the Hong Kong court as one of its 10 foreign, temporary members, the city still had a free press and freedom of expression and protest. But a little more than two years later, China established a national-security law criminalizing subversion in Hong Kong, and arrested Mr. Lai, publisher of Apple Daily, a pro-democracy tabloid and the city’s most popular newspaper. He has been in jail ever since and at 76 is facing a minimum 10-year sentence if convicted, and a maximum of life. The newspaper closed down. Since then, two British judges have resigned, and another British judge chose not to accept renewal, citing the national-security law.
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The trial of Mr. Lai, a British citizen, on charges of sedition and collusion with foreign forces (including by his tweets, and interviews he posted with foreign politicians, according to Human Rights Watch) is a pivotal event in Beijing’s crackdown. Hong Kong’s top security official has boasted of a 100-per-cent conviction rate in national-security cases.
The trial will be in front of three judges, who in national-security matters are handpicked by Hong Kong’s chief executive, with the advice of Beijing, according to Benedict Rogers, co-founder of UK Hong Kong Watch, a rights monitor.
He said he expects Mr. Lai to spend the rest of his life in prison.
“Jimmy Lai is really emblematic of the dismantling in Hong Kong of press freedom, freedom of expression, freedom of protest, all of which were rights which he was very courageous in exercising,” Mr. Rogers said.
Editorial: It’s time for Beverley McLachlin to quit Hong Kong’s high court
Jeremy Webber, a former law dean at the University of Victoria, said Ms. McLachlin has a record of “complete integrity” as a judge. But he says individual integrity is just one consideration.
“Although we often think of judges as being heroes, working with integrity, speaking truth to power, and it is extraordinarily important that they act with complete integrity – that is not enough. They also act within a structure that in large measure shapes what it’s possible to achieve as a judge.”
The Canadian Bar Association, a 38,000-member group of lawyers, declined to comment. The current Chief Justice, Richard Wagner, also declined to comment.
Michael Chong, a Conservative MP, reiterated his earlier calls on the Trudeau government to review Ms. McLachlin’s participation in the Hong Kong court system to determine whether it is consistent with judicial independence, the rule of law and Canada’s foreign policy. But Ms. McLachlin is in Hong Kong as a private citizen, not a representative of the government.
As a Canadian judge, Ms. McLachlin was known for shaping the right to liberty and personal autonomy, and for protecting the rights of vulnerable groups, including ones with little political constituency.
According to Simon Young, a former prosecutor in Hamilton who is now an associate law dean at Hong Kong University, Ms. McLachlin’s Canadian rulings, including those on fair-trial rights, have helped shape the jurisprudence on the court on which she now sits. And the rulings she has made there have been influential.
For example, she wrote an important judgment on the limits of a defendant’s constitutional right to be present at trial, and recently she was a member of a court panel that quashed a university professor’s convictions for the murder of his wife and daughter. She also upheld a claim of breaching an individual’s constitutional right to be free from forced labour.
But Prof. Young expressed a view starkly at odds with that of UK Hong Kong Watch and Mr. Lai’s legal team, saying that “all indications” leave him expecting a fair trial, that the judges for the case at hand will be chosen by the Chief Judge of the High Court, and that if convicted, Mr. Lai would have a chance to appeal.
“I myself have not seen anything that would change her opinion” that the court remains independent and free from government interference, he said, expressing a hope that more judges from Canada’s Supreme Court will be appointed.
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