170 V O L . 8 0 P A R T 2 M A R C H 2 0 2 2 THE ADVOCATE
two women, alongside Baroness Brenda Hale, who was at that time the president
of the United Kingdom’s Supreme Court) to be appointed.
McLachlin was originally appointed to the HKCFA in 2018,1 soon after her
December 2017 retirement from the Supreme Court of Canada. In July
2021, McLachlin was reappointed to the HKCFA for a second three-year
term. By contrast, Hale chose not to return for a further term. Hale cited
personal reasons (the challenge of travel) for her decision, though it was
speculated that also weighing on her was the 2020 introduction of the Law
of the People’s Republic of China on Safeguarding National Security in the
Hong Kong Special Administrative Region (the “National Security Law”),
which is described in Michael Blanchflower, S.C.’s article starting on page
185 of this issue. (See also “From Our Back Pages” starting on page 299 of
this issue for a perspective from 1985 on how matters might unfold.) Hale
remarked publicly that while the Hong Kong legal system “is functioning in
accordance with the rule of law, at least as far as commercial law is concerned”,
“the jury is out of course” on the effect of the new legislation.2
Earlier, in September 2020, an overseas NPJ from Australia, the Honourable
James Spigelman, had resigned from the HKCFA with reference to concerns
about the National Security Law.
Should McLachlin also have either resigned or declined reappointment?
Certainly some observers strongly believe that the answer is “yes”. In February
2021, Chi-Kun Shi (a Toronto lawyer, mediator and bencher) asked
that the Law Society of Ontario request McLachlin to resign from the
HKCFA immediately. Seventeen benchers voted in favour of the motion
and 28 against, with four abstentions. Some benchers saw the subject matter
as being outside the Law Society’s proper role. One bencher worried
that, as regulator, in making the proposed request to McLachlin, the Law
Society would be “effectively interfering with judicial independence, which
is offensive to do, especially to a sitting judge. McLachlin will make whatever
decision she deems appropriate. She doesn’t need our help.”3 In
December 2021, the Toronto Association for Democracy in China, the Vancouver
Society in Support of Democratic Movement, and the Movement for
Democracy in China (Calgary) called for McLachlin to step down immediately
from her position with the HKCFA. These organizations claimed that
“since the passage of the National Security Law on July 1, 2020, Hong
Kong Government has engaged in political persecution by arresting democracy
activists on trumped-up charges and leaving them languishing in jail
for months without a trial date in sight”, that “such persecution is aided by
a judicial system which has lost any semblance of independence and transparency”
and that McLachlin’s “continuing presence on Hong Kong’s high-