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I-CONnect Symposium on “The Legacy of Chief Justice Beverley McLachlin”–Part VI: Chief Justice McLachlin and Hong Kong

[Editor’s Note: This is the sixth and final entry in our symposium on “The Legacy of Chief Justice Beverley McLachlin.” We are grateful to our six symposium participants for their contributions to this special series of reflections on Canada’s retiring Chief Justice. The introduction to our symposium is available here. Part I of our symposium is available here, Part II is available here, Part III is available here, Part IV is available here and Part V is available here.]

–P.Y. Lo, Barrister-at-law, LLB (Lond.), PhD (HKU), Visiting Fellow, Centre of Comparative and Public Law, Faculty of Law, The University of Hong Kong (2017‐2018) [pylohk@gmail.com]

Chief Justice McLachlin was invited to give the inaugural Hochelega Lecture at the University of Hong Kong on 4 June 1999. The lecture, entitled “Criminal Law: Towards an International Legal Order” (1999) 28 Hong Kong Law Journal 448, explored the inadequacy of the traditional national territorial notion of criminal law in the light of the developments of crimes transcending international boundaries and of international norms of minimum standards of state behaviour. These developments, which McLachlin CJ termed the globalization of crime, presented the world with either the undesirable option of “a crisis‐ driven system of responses” or the challenge of “moving criminal law beyond the boundaries of sovereign states and onto the world stage. The rule of law must become international”.

McLachlin CJ clearly favoured the latter and devoted a substantial portion of the lecture to the proposal of constructing a viable international criminal system, noting that the hitherto enforcement mechanisms of sanctions and war were both unsatisfactory and unpredictable. “History shows that, all too often, the world proceeds before it has articulated clear goals. It is time to define our objectives and to do so in an explicit manner. What the world needs now is an international rule of law; not merely the rule of law as we have conceived it in the past, as the emanation of sovereign national states, but as a supranational rule of law. It needs an internationally accepted canon defining conduct that will not be tolerated because it offends the very essence of what it is to be a human being”, said McLachlin CJ.

Reading this lecture 18 years later, one finds not only the forward looking approach of McLachlin CJ then but also the sad fact that not much has been accomplished in the years between, as Amal Clooney’s recent speech at the UN calling for the investigation and prosecution of the crimes against humanity committed ISIS can testify. This “long term project” to move criminal law into “world consciousness” has to continue.

McLachlin CJ was known to the Hong Kong legal community at least in name before she came in 1999 to deliver the inaugural Hochelega Lecture.

The first citation of a judgment of Justice McLachlin of the Supreme Court of Canada appears to be in a ruling of the District Court on 21 August 1991 in DCCC 101/1991, where Deputy District Judge Ching Y Wong cited McLachlin J’s minority judgment in R v Keegstra (1991) 61 CCC (3d) 1 on whether placing the burden of establish the truth of a specified matter related to the criminal offence on the defendant violated the presumption of innocence protected under the Canadian Charter of Rights and Freedoms. Those were the days when Hong Kong looked to Canadian Charter jurisprudence to assist the interpretation and application of the Hong Kong Bill of Rights, which came into operation in June 1991.

The next judgment of McLachlin J that the courts of Hong Kong found to be of assistance was the dicta in her majority judgment in Re Kindler and Minister of Justice (1991) 84 DLR (4th) 438 making the distinction at 488 between the extradition process and the criminal trial process, with the former founded on reciprocity, comity and respect for differences in other jurisdictions. Judges in Hong Kong cited this passage in five extradition related habeas corpus proceedings, underlining and agreeing with the point made by McLachlin J that “the law of extradition must accommodate many factors foreign to our internal criminal law”.

The Hong Kong Court of Final Appeal first cited a judgment of McLachlin J in 2002 when it considered the test for holding an employer vicariously liable for the employee’s tort committed during an unauthorized course of conduct in Ming An Insurance Co (HK) Ltd v Ritz­ Carlton Ltd (2002) 5 HKCFAR 569. Bokhary PJ, writing the principal judgment, referred to with approval the principles McLachlin J set out in

Bazley v Curry (1999) 174 DLR (4th) 45, which adopted a broader approach towards this question. Other judges of the HKCFA were less direct and referred to the House of Lords’ decision in Lister v Hesley Hall Ltd [2002] 1 AC 215, where Lords Steyn and Millett acknowledged the assistance they got also from Bazley v Curry.

In the next 15 years, the Hong Kong courts had cited judgments of McLachlin CJ in no less than 40 occasions in civil law topics including the imposition of a duty of care, the degree of disclosure required of an agent, the implying of a term in an employment contract relating to the manner of dismissal, the circumstances for the arising of a discretionary constructive trust, the undertaking of a fiduciary obligation attracting liability of equitable compensation, and the application of the ex turpi causa principle; in criminal law topics including the exclusion of evidence obtained by entrapment of a state agent, the privilege of an informer’s identity from disclosure, the adequacy of reasons for verdict given by a judge in a criminal trial; and in public law topics including the significance of the judicial oath of office, the privileges of the legislature, the disenfranchisement of convicted criminals, the determination of the accrual of a tax benefit, the maintenance by self‐regulating professions of a code and standards professional ethics, and the circumstances for making a protective or advance costs order.

Special discussion is reserved to the citation by the Hong Kong courts of two influential judgments of McLachlin CJ, namely: MacMillan Bloedel v Simpson [1996] 2 SCR 1048 and RJR­-Macdonald Inc v Attorney General (Canada) [1995] 3 SCR 199.

MacMillan Bloedel v Simpson was cited by the Court of Appeal in November 2014 in the course of rejecting the application for leave to appeal against the injunction granted by Au J on the application of a minibus operator against demonstrators occupying several streets in Mongkok as part of the Occupy or Umbrella Movement between September and December 2014. The Court of Appeal then specifically quoted paragraphs 34 to 36 of McLachlin J’s judgment to rebut the submission that the courts should leave to the Secretary for Justice to discharge his public interest duties and therefore should not make injunctive orders to protect private interests which all must obey on the pain of contempt. The subsequent enforcement of the injunction by court bailiffs and the police on the streets of Mongkok led to the arrest and prosecution for contempt of 20 protestors, including the now well known leaders of Joshua Wong, Lester Shum, and Wong Ho-ming. At the time of writing, Andrew Chan J has given judgment on liability finding the protestors guilty of contempt but has reserved judgment on the sentence to be imposed on the majority of them, including the three leaders above.

McLachlin J’s judgment in RJR­-Macdonald Inc v Attorney General (Canada) had been of significant assistance to the courts of Hong Kong in shaping the proportionality test to be applied in determining whether a restriction to a fundamental right guaranteed in the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China is a violation of that fundamental right. While it was this judgment and the subsequent judgment in Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567 that persuaded the Hong Kong Court of Final Appeal to adopt as part of the proportionality test the fourth stage or step of “proportionality stricto sensu” in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, it needs to be pointed out that the Hong Kong judges could have been selective in applying RJR­-Macdonald Inc v Attorney General (Canada), with more occasions applying the part of the judgment that is concerned with deferring to the legislative or executive authority’s choice of the measure addressing the relevant legitimate objective at the stage of satisfying “minimal impairment” (at §160) than applying the part of the judgment that underlines the duty of the court to “insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement” (at §129). It would be the obligation of counsel to continuously remind the Hong Kong judges this quotation from McLachlin J at §136:

[Care] must be taken not to extend the notion of deference too far. Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament’s choice falls within the limiting framework of the constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting Parliament’s view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.

As this author noted in Impact of Jurisprudence beyond Hong Kong (Chapter 22), in Simon Young and Yash Ghai (eds), Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong (Cambridge University Press, 2013) pp 579-607, there is an interflow of jurisprudence between the Hong Kong Court of Final Appeal and the courts of final adjudication in other common law jurisdictions. In R v Boulanger [2006] 2 SCR 49, the Supreme Court of Canada, presided by McLachlin CJ considered and endorsed the Hong Kong Court of Final Appeal’s restatement of the elements of the common law offence of misconduct in a public office in Shum Kwok Sher v HKSAR (2005) 5 HKCFAR 381, done in an effort to meet the constitutional and international human rights law requirements of legal certainty.

Since 1999, McLachlin CJ has visited Hong Kong on several occasions, the last of which was in 2016. When news came of McLachlin CJ’s scheduled retirement in December 2017, some Hong Kong lawyers of Canadian origin have expressed the speculative thought that McLachlin CJ might be invited to sit in the Hong Kong Court of Final Appeal as a Non‐permanent Judge from a common law jurisdiction outside Hong Kong. If this invitation were to be extended and accepted, and the proposed appointment made and endorsed, then McLachlin CJ could become a trailblazer once again: The first female judge of the Hong Kong Court of Final Appeal.

Suggested Citation: P Y Lo, I-CONnect Symposium on The Legacy of Chief Justice Beverley McLachlin–Part VI: Chief Justice McLachlin and Hong Kong, Int’l J. Const. L. Blog, Dec. 9, 2017, at: http://www.iconnectblog.com/2017/12/Lo-on-Chief-Justice-Mclachlin

Dated: 1 October 2017

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Published on December 9, 2017
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