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Joanna Baron: Why this former Supreme Court Justice needs to finally quit Hong Kong’s top court

Commentary

In a March 2023 podcast interview, after a 45-minute discussion about her distinguished career, the purpose of equality rights, the role of appellate judges, and other standard fare, former Supreme Court Chief Justice Beverley McLachlin finally faced the elephant in the room. That elephant had become particularly awkward on the heels of Robert Fife’s astonishing reporting for the Globe on multiple CSIS leaks about China’s attempts to interfere with the Canadian electoral process. So why, exactly, was McLachlin still a sitting judge on the Hong Kong Court of Final Appeal?

McLachlin responded hesitantly, “I understand their concern. But just because people are suffering under diminution of rights, it doesn’t logically follow that you get rid of the courts…The courts have stood up to governments from time to time and said ‘No!’ Leaving the court would lead people to say, ‘See? She doesn’t think it’s a good court!’ and I don’t want to make that statement.”

The Hub’s editor-at-large Sean Speer said the quiet part out loud last week when he pointed out that one meaningful reading of the Johnson Report was a portrait of how Canada’s ruling class views China and the disastrous miscalculation of their “China consensus.” A portion of Canada’s mandarins have, at best, buried their heads in the sand as to the realpolitik of Beijing’s ambitions, and at worst been actively instrumental in its efforts to bring Canada into its circle of influence.

McLachlin is carrying an increasingly heavy and unconscionable load in Beijing’s refutation of criticisms of its growing control over Hong Kong and its judiciary. Take, for example, a recent piece in the state-run China Daily:

The Hong Kong Court of Final Appeal oversees the legal system and comprises distinguished local judges and eminent global jurists. They include two former chief justices of Australia, a former chief justice of Canada and two former presidents of the United Kingdom’s Supreme Court. This makes it very difficult for China’s antagonists to claim the city’s rule of law is on its last legs [..].

Hong Kong’s High Court, which forms part of the same judicial system to which McLachlin continues to generously lend her prestige and credibility, just rejected an application to terminate a national security trial against media tycoon Jimmy Lai. If convicted under 2020’s national security law, which forbids openly promoting democracy, Lai could spend the rest of his life in prison. The national security judges are appointed directly by Hong Kong’s chief executive John Lee, with almost no transparency. The court also blocked Lai’s British lawyer from representing him, a longstanding practice that has been viewed as helpful in insulating counsel against coercive practices and covert political threats.

Last year, former U.K. Attorney General Robert Buckland initiated a government review of Hong Kong’s judicial system. The report, which was signed by an international coalition of eminent jurists, including former Canadian Attorney General and human-rights expert Irwin Cotler, paints a bleak picture of a court that has been stripped of meaningful independence. It details that the PRC has issued its own interpretations of Hong Kong’s Basic Laws which are taken as binding by the Hong Kong court’s judges, as well as the presence of escalating threats from Hong Kong MPs to reduce the jurisdiction of the court if pro-regime judgments are not issued.

This state of affairs is no secret; it is openly trumpeted by CCP officials. Zheng Yanxiong, the director of the CCP’s Office for Safeguarding National Security, said the rule of law was an “important tool” in Hong Kong and a “source of [its] charm”, but that the independent power of the judiciary was ultimately authorised by the National People’s Congress.

Buckland’s report led former U.K. PM Liz Truss to announce that UK judges would no longer sit on Hong Kong’s court of final appeal. Two British Supreme Court judges resigned immediately following the release of Buckland’s report. Others, including McLachlin, agreed to stay on.

The most likely outcome under the court’s emaciated autonomy is that McLachlin will be assigned Potemkin dockets curated to dodge politically contentious issues, allowing her to remain under the delusion that her presence is in any way protective of the rights of Hong Kongers and the regime to continue siphoning off Canada’s brand image.

McLachlin’s assertion that her presence acts as a bulwark against the further erosion of rights beggars belief. The rule of law and the application of legal rules cannot be divorced from ultimate questions of power and enforcement. Moreover, Canada’s situation vis-a-vis China is now too explicitly fraught for McLachlin’s bromides about resisting China’s rights abuses to be entertained. Legal theorist Carl Schmitt famously claimed that “the specific political distinction…is that between friend and enemy.”

To be clear, the PRC is now explicitly no friend of Canada. It has detained innocent Canadian citizens, threatened the family of a distinguished parliamentarian in an effort to intimidate and silence him, and built well-established networks of funding for sympathetic MPs in the hopes of advancing its ambitions. Johnston’s report does absolutely nothing to diminish these allegations; it just demonstrates a level of inconceivable dysfunction and disorganization on the part of Canada’s ruling class (”significant governance shortcomings”, in Johnston’s parlance).

Beverley McLachlin is a fine jurist and her good intentions are no doubt held sincerely. But the calculus has changed in light of this year’s revelations of the extent of China’s lack of regard for the rights of both its own citizens and that of Canadians. It’s time to come home.

Franklyn Griffiths: Our big-city leaders need a serious plan to deal with increasing urban violence

Commentary

Living near the Art Gallery of Ontario, I greatly enjoy walking in the neighbourhood and viewing the scene. Not long ago, standing at the corner of Phoebe Street and Spadina, I saw a down-and-out young man turn onto Phoebe and start to flail about in what looked to be a fury. He was twisting, bending, and pounding down on an imaginary person hard enough to pulverize him. 

After a while he looked up and noticed me. Crossing the street, he approached and, a few metres away, said, “I am going to kill you.” There was no time to think and I replied, “Go ahead. Kill me.” He stopped for a moment, shook his head, and said, “No, that wouldn’t be good. I can’t do that.” I reacted, “Those are good ideas. You should hold on to them.” He then turned slowly, shuffled away, and left me to consider what had just happened.

A totally unexpected death threat concentrates the mind and leaves a vivid memory. 

A feeling of relief came first. Being in my late eighties and in no position to fight or flee, it seemed I had talked my way out of a disaster. Then it struck me that in talking to an on-coming assailant I had acted instinctively. I didn’t know what I was doing. I had disrupted an attack by weirdly supporting the attacker’s intention, daring him to kill me, and implying he was a good person. Somehow deflating the bubble he was in, I had deflated a threat that could have been lethal. The outcome was good, but I had taken a big and unnecessary risk. 

These days in Toronto we can be stabbed to death while sitting on a subway bench. In my case the attacker might have been carrying a knife. He could have taken my words as a challenge and tipped into dead-set determination to kill. More aware of possibilities such as these, I might have started shouting, making a scene, and scaring him off. But my personal inclination in dealing with opposition is to begin by negotiating, if I can. So, I spoke normally when I should also have considered trying to freak him out.

How then are Torontonians to protect themselves from random killing in public places?

The question should be answered by citizens aided by professionals. As a professional who happens to know something about security, I believe that effective responses are more likely when we identify and get at the underlying forces and factors. These are the harmful variables that produce unpredictable death, wounding, the suffering that follows, and the decline we all experience in the quality of life in this city. They are best dealt with not in instant individual reaction but in collective proaction based on public understanding and engagement.

Right now, we are in the midst of a mayoral election. Our would-be leaders ought to tell us not only what should be done to increase personal security in Toronto, but how they would build a coalition to make it happen if elected. To demonstrate a capacity for coalition-building, they should consult with constituents and get together in a public commitment to create a city panel on harms control, once the mayor is chosen.

By harms control I mean collaboration to reduce the likelihood of urban violence, its severity should it occur, and the costs of living with it. Policing plays a part but not the leading part here. Rather than take threats of violence as givens and seek to suppress them, a harms control panel should generate consensual knowledge both of the situations that gives rise to violence and of best practices in lessening them.

Is the overall situation one that has us on a slope leading to big-city massacres as in the United States? If so, how do we change direction? If not, how do we guard what works and make it better? Random violence is not the only peril or deprivation we face. But in singling it out and dealing with it we can enhance our ability as a community to deal strategically with all the rest.

We need to think as well as talk together.