She’s a former chief justice of the Supreme Court of Canada. How can she be so oblivious?

2023/07/18 Leave a comment

Good question, echoed in Globe editorial:

The plight of the “Two Michaels” might seem a distant memory for most Canadians.

Yet barely two years after China released these two high-profile hostages from prison, Canadians have reason to fear a repetition of Beijing’s strong-arm tactics — through the heavy hand of Hong Kong.

Where once Canadian citizens on the mainland were considered fair game for domestic hostage-taking — notably Michael Kovrig and Michael Spavor — now it is Hong Kong dissidents seeking sanctuary in Canada who are being targeted for bounties both exorbitant and extraterritorial.

For a reward of $1 million in local currency (about $170,000 in Canadian funds), Hong Kong has put a rapacious price on the heads of those who dare to defy its will — and that of its mainland masters. Once a colonial outpost of the British crown, handed back to Beijing in 1997 with a promise of autonomy and democratization, this port city has since reincarnated itself as a vassal of the old Middle Kingdom.

Hong Kong’s chief executive, John Lee, boasted that these activists will be “pursued for life,” presumably to the death. In Beijing, where the draconian and anti-democratic National Security Law was first conceived and imposed from a distance, spokesperson Mao Ning accused Canada and other Western nations of “meddling” by “providing a safe haven for fugitives.”

Beijing once protested bitterly over the arrest of accused Huawei executive Meng Wanzhou at the Vancouver airport, per the terms of an extradition treaty with the U.S. Back then, China lambasted the arrest as an exercise in extraterritoriality, only to use its own territory for the incarceration of our two citizens as leverage for Meng’s eventual release.

Ottawa has already repudiated Hong Kong’s hostile act, saying it was “gravely concerned.” But there is more Canada can do.

And there is even more that one especially high-profile Canadian should do to help.

As a former chief justice of the Supreme Court of Canada, Beverley McLachlin is known as the “Right Honourable” — an honorific reserved for those who serve at the very highest levels. Upon her retirement in 2017 from Canada’s highest court, she leapfrogged across the Pacific to an appointment to Hong Kong’s highest court, the Court of Final Appeal.

Even at the time, it struck me as a curious cross-pollination of Canadian jurisprudence with Hong Kong’s intolerance. When I spoke briefly with McLachlin — after she accepted one of the innumerable awards conferred upon her for a distinguished career on the bench — she seemed unfazed by my prediction that she would soon find herself in an impossible position.

I told her I had covered Hong Kong’s struggling democracy movement for seven years, and later watched the narrowing margin of manoeuvre as Beijing went back on its written promises. Did she know what she was getting into?

McLachlin gave me a polite hearing, but she had already reached a career decision. Her verdict was not open to appeal.

The subsequent unravelling of Hong Kong’s system of law could not have been worse. What began as a crackdown followed by a suffocation has become an eradication of democracy.

Yet all these years later, McLachlin serves indefatigably — if not faithfully — on Hong Kong’s highest court, insisting that she is doing her duty to law and order even after the law has been weaponized and distorted into a tool of disorder and repression. Our retired chief justice argues she is a bulwark against arbitrary rule, yet in reality she is a fig leaf for autocracy.

Two other foreign judges recruited to a similar role on the high court have long since bailed out, concluding that the system was broken beyond repair. The two British judges resigned in early 2022 when the writing was on the wall.

McLachlin resisted, persisting in her view that “The court is completely independent and functioning in the way I am used (to) in Canada the courts functioning.”

That seems an awfully obtuse, legalistic and sophistic view of the reality of democracy inside and outside the courtroom. McLachlin seems oblivious to the way in which China and Hong Kong use the prestige of her position to camouflage their malfeasance on the streets of their territory — while imposing extraterritoriality on her home country of Canada.

Ottawa has traditionally opposed foreign overreach on our soil, and should single out this brazen overreach — which encourages bounty hunters to apprehend people on our territory. Other Western nations went further by singling out the “transnational” abuse of authority.

A more fitting riposte to such extraterritoriality would be to renounce extradition to Hong Kong once and for all. Canada suspended its extradition treaty when the national security crackdown began, but it should go further by abolishing it entirely.

There cannot be any pretence of legal co-operation with Hong Kong when there are such flagrant abuses of legal norms at home and abroad. Not when there is a lifetime bounty on Hong Kong’s expatriate democracy dissidents if they can be caught here, so soon after the “Two Michaels” were incarcerated by those who call the shots in Beijing.

That conclusion should be self-evident to Canada’s foreign ministry. That reality should also provoke self-reflection by Canada’s freelancing former chief justice.

Source: She’s a former chief justice of the Supreme Court of Canada. How can she be so oblivious?

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More indigenous judges needed in lower courts to develop skills for Supreme Court: Beverley Mclachlan interview

2016/08/12 Leave a comment

Valid points and hence the focus should be more on the yet to be formalized new process to appoint federally-appointed judges that better reflect Canada’s diversity, and the actual implementation by the government (for those who missed my analysis of the current baseline, see my Diversity among federal and provincial judges – Policy Options):

Canada’s top judge says the best way to one day see an aboriginal person named to the Supreme Court of Canada is for governments to appoint more indigenous judges to lower courts.

In an exclusive interview with the Star, Chief Justice Beverley McLachlin said the country’s highest court requires high-level judging and “considerable” judicial experience, and while she welcomes ethnic diversity and more aboriginal judges in the system, she suggested they must work their way up.

She said the challenge for aboriginal aspirants to the high court is the same that women faced three or four decades ago when there were “virtually no women on the bench. And so how did the government go about changing that to the point now where we’re four women on the Supreme Court of Canada? They started appointing people at the trial level.

“But the difficulty we have with racial minorities, indigenous people is that we’re just beginning this process of getting the judges in place on the trial benches and so on.”

The federal government has launched a new judicial selection process, striking an independent advisory board to recommend candidates to fill the top court vacancy announced in March by retiring Justice Thomas Cromwell, of Nova Scotia, who steps down at the end of August.

Trudeau wants the seven-member advisory board to recommend jurists “of the highest calibre” who must be functionally bilingual and “representative of the diversity” of Canada.

The new process has again shone a light on the lack of diversity in Canada’s judicial ranks.

McLachlin was consulted by the government as it devised the new selection process. She will also be consulted by the advisory board as it canvasses for Cromwell’s replacement. She was careful not to express an opinion on the government’s changes, saying reforms to judicial selection for greater transparency have been an ongoing project, and it is up to the government to set its criteria, including the bilingualism requirement. “I’m not about to comment on that because it’s not my business.”

 However, she did endorse the functional bilingualism prerequisite as “desirable” even though she herself was not fully, functionally bilingual when first appointed in 1989 to the Supreme Court of Canada by then-Prime Minister Brian Mulroney. That came after she actually started working in the law in French, she said.

Most of the judges at the top court are “completely bilingual now and those who might lack something are working very hard to improve their skill and the court works very well this way,” she said.

“Let me put it this way. It’s possible for the court to function without everyone being bilingual. We’ve done it in the past and I think we’ve done our job well. However, I believe that functional bilingualism is very helpful and desirable.”

But the question of diversity on the court is more complicated.

McLachlin pointed to her own experience. She was first appointed to the County Court of Vancouver “where I thought maybe that’s where I’d spend the rest of my days. And then I worked my way up through the trial court and through the court of appeal, and finally to the Supreme Court of Canada.”

Now women make up about 35 per cent of Canadian judges, she said. “We’ve been able to achieve a significant measure of diversity on the gender front and,” she stressed, “have judges who are reflective of this high calibre of judicial experience, intellectual experience and judgment and familiarity with the law and judging. So we’ve been able to have it all.”

McLachlin is encouraged by “a host of very accomplished indigenous lawyers and professors” who she said are the result of proactive programs in law schools and universities and better educational standards. However, she did not suggest any of those are in a position to be vaulted onto the top bench from the bar, as has been the case with some Supreme Court judges in the past: Suzanne Côté, Ian Binnie, John Sopinka.

Asked if there are any current sitting aboriginal judges that could sit on the high court, McLachlin dodged.

“I can’t say; I haven’t done a survey. We’ll see who applies, and what comes of it.”

Source: More indigenous judges needed in lower courts to develop skills for Supreme Court: Beverley McLachlin | Toronto Star

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