Beverley McLachlin takes part in a news conference in Ottawa on Dec. 15, 2017.CHRIS WATTIE/Reuters
Beverley McLachlin has spent the past six years servicing the reputation of Hong Kong’s top court, while destroying the one she spent a lifetime building in Canada.
Had she decided, upon her retirement from the Supreme Court of Canada in 2017, to invest in a nice condo in Boca Raton and take up watercolour portraits or something, her legacy would have been set as one of the most esteemed and accomplished jurists in generations. She was the first woman and longest-serving chief justice of the Supreme Court; she was a professor, an author, and at times, a polarizing figure, but her fidelity to law and order, to democracy and fairness was without question. But Ms. McLachlin has torched that very legacy by renting out her reputation to a sham court operating under the thumb of Beijing’s repressive and authoritarian regime.
A new report is only the latest to urge the nine foreign non-permanent judges currently serving on Hong Kong’s Court of Final Appeal (CFA) to step down. Authored by activists Alyssa Fong and Samuel Bickett, the report makes the case that Hong Kong’s nominally independent judicial system was compromised by the introduction of the national security law in 2020, and Article 23 in 2024, which gives authorities expanded powers of detention, prosecution and imprisonment. The report’s authors argue that foreign judges “lend their prestige to a justice system that has been undermined and co-opted by Beijing in its relentless efforts to exert total control over Hong Kong.”
This is not a novel observation. In March, 2022, then-British foreign secretary Liz Truss announced, after a review, that serving British judges would no longer sit on Hong Kong’s CFA. In May, 2022, more than 50 diaspora groups and non-governmental organizations signed an open letter urging foreign non-permanent judges to step down from the court, claiming that their presence “only serves to legitimize the Hong Kong and PRC governments’ campaign to dismantle all vestiges of political freedom and democracy in the city.”
That same month, a number of international judicial scholars, including Canada’s Irwin Cotler, signed a legal opinion detailing the systemic threats that have undermined judicial independence in Hong Kong, pointing out that the ability for non-permanent judges to act as a moderating influence on the court is “limited.” (That’s an understatement; the Beijing-appointed chief executive gets to decide which judges hear cases involving Hong Kong’s national security law. There are no foreign judges hearing the case of media tycoon and outspoken Beijing critic Jimmy Lai, who faces the prospect of life in prison for charges under the national security law.)
Ever since she joined the CFA in 2018, Ms. McLachlin has been asked what, exactly, she is thinking by participating in a judicial system that sends people to jail for clapping. And her answer is always the same: she and her fellow eight overseas non-permanent judges are bulwarks against oppression. They offer the final checks and balances on state overreach (but only when cases make it up to the CFA, and when and if foreign judges are permitted to hear cases involving the national security law). And that the court remains entirely independent (except for all of the evidence cited in the reports, letter and legal opinion above).
Ms. McLachlin told CBC News in June, 2022, that there is no governmental influence on the judiciary. “If there were,” she said, “I wouldn’t be there.” In their report, however, Ms. Fong and Mr. Bickett note that Beijing can and has used its power of “interpretation” under Hong Kong’s Basic Law and national security law to overturn CFA decisions. Most recently, it used it to overturn a CFA ruling that Jimmy Lai could be represented by a British lawyer. Ms. McLachlin, however, has yet to tender her resignation.
Indeed, she continued to serve the court – lending it both her reputation, as well as Canada’s – for the entirety of Beijing’s detention of Michael Spavor and Michael Kovrig. She remained in her position during China’s spurious bans of canola and pork products from Canada. And she has given no public indication of ambivalence now, despite all we’ve learned over the course of the public inquiry on foreign interference about China’s efforts to meddle in Canadian elections. No reasonable person could hear that evidence and accept that evidence, but also believe that Beijing would leave Hong Kong’s judiciary alone. Why would China go through all the effort to interfere in Canada’s democratic process, but respect the boundaries and independence of Hong Kong’s courts? It absolutely defies logic.
It is both naive and narcissistic for Ms. McLachlin to insist that the mirage of credibility she offers the court actually conveys some tangible benefit to the people of Hong Kong. Indeed, it is quite the opposite. She is lending out her good name to a corrupted system that perpetuated injustice, and is trafficking Canada’s along with it.
If she walks away when her term is up in June, it will be years too late.