Other Benchers said such an action would be outside the LSO's proper role
A motion to write to former chief justice of Canada Beverley McLachlin and ask that she immediately resign her position at the Hong Kong Court of Final Appeal failed at the Law Society of Ontario Convocation Thursday.
Moved by Chi-Kun Shi, a lawyer and mediator in Toronto, and seconded by John Fagan, the motion earned 17 votes in favour and 28 opposed, with four abstentions.
McLachlin is an overseas non-permanent judge of the Hong Kong Court of Final Appeal. Since the passing last year of the Law of the People’s Republic of China for Safeguarding National Security in the Hong Kong Special Administrative Region, also known as the National Security Law, the former British colony has become increasingly repressive against dissent, says Shi. In January, the lawyer Daniel Wong Kwok-tung was among ten others arrested for allegedly assisting 12 Hong Kongers flee to Taiwan. The arrests came after those of 55 pro-democracy activists and supporters earlier in the month.
The presence of foreign judges on the court are a “fig leaf” used by the Chinese Government to maintain the illusion of legitimacy amid increasing oppression, said Shi’s notice of motion.
“With the National Security Law, the Hong Kong court of final appeal has basically become an arm of the Chinese communist government,” says Shi.
“There's been a lot of commentary recently about the role of retired Supreme Court Justices, for instance, giving advisory opinions, things of that nature. It's quite clear that the bar considers them to be part of the leadership of our profession,” says Dr. Ryan Alford, a Bencher and an associate professor at the Bora Laskin Faculty of Law at Lakehead University.
A letter to McLachlin would amount to “collegial advice” to a leader in the profession and would fall under the “core mandate” contained within the oath sworn by every lawyer in Ontario, to promote the rule of law, both individually and collectively, he says.
“So given the fact that we need to promote the rule of law, we need clarity about the rule of law, we need lawyers to understand the importance of upholding the rule of law, giving that collegial guidance, I think, falls squarely within our mandate,” says Alford.
But other Benchers said the Law Society would be stepping outside of its proper role if it were to try to advise McLachlin on whether she should resign from the court.
“With respect, this motion is entirely inappropriate and irresponsible,” said Bencher Jonathan Rosenthal at Convocation. “… What we are really doing, as a regulator, is effectively interfering with judicial independence, which is offensive to do, especially to a sitting judge. She will make whatever decision she deems appropriate. She doesn’t need our help. This is an embarrassing motion.”
“Let’s face it guys,” said lay Bencher Seymour Epstein. “We don’t really know what is going on underneath this whole public thing. She may be making a lot of headway in making changes there. I think it would be a mistake and perhaps very embarrassing for us to assume that we have such wide, detailed knowledge that we can tell her what to do.”