Court of Feminine Appeal

March 28, 2018 10:40
The appointment of Canada’s longest-serving Chief Justice Beverley McLachlin (inset, top) and the UK Supreme Court’s Baroness Hale of Richmond bring a special luster to our Court of Final Appeal. Photo: Bloomberg / Reuters / University of Salford (Flickr)

If Hong Kong’s Court of Final Appeal had a glass ceiling, it has just been smashed to smithereens.

The appointment of Canada’s longest-serving Chief Justice Beverley McLachlin and the UK Supreme Court’s Baroness Hale of Richmond bring a special luster to this remarkable court. Two ladies who have reached the pinnacle of their profession and who will now illuminate issues which come before them in Hong Kong.

Ever since its establishment, the CFA has issued invitations to some of the most outstanding judges from the UK, Australia and New Zealand.

It has often struck me how generous these jurisdictions have been in lending their outstanding jurists to Hong Kong. This judicial comity has, in turn, been reflected in the international standing of CFA judgments.

In determining the law for Hong Kong, in some respects, the CFA has adopted and progressed beyond the mantle of the Judicial Committee of the Privy Council insofar as its decisions reflect not only the common law as developed in Hong Kong via the British Commonwealth but also considers the various civil law systems which apply in other jurisdictions across the world.

For a long time I have quietly advocated for the addition of Chief Justice McLachlin to the CFA. Perhaps her retirement as chief justice in December 2017 created sufficient time for her to accept such an invitation.

She was Canada’s longest-serving chief justice, taking office in January 2000 and retiring when she reached the mandatory retirement age of 75 in December 2017.

Her tenure of office has been marked by her steadfast defense of virtually the entire ambit of fundamental rights guaranteed in the Canadian Charter of Rights, which mirrors Magna Carta.

Illustrations that spring to mind include the Bedford decision which held that laws preventing vulnerable sex workers from taking steps to protect themselves, violated the Charter-guaranteedright to life, liberty and personal security.

In a more recent case, Chief Justice McLachlin’s court ruled against the imposition of mandatory minimum sentences. These, it held, prevented judges from imposing a sentence which had regard to all the particular circumstances of the case. Only by allowing the judges to make these decisions could the Charter guarantee against cruel and unusual punishment be maintained.

What prompted my personal admiration, in particular, was her judgment in the case of Bazley v Curry in June 1999. This was a claim for damages by an ex-resident of a children’s care home, brought against the foundation responsible for the home as a result of the sexual abuse to which the child had been subjected while under its protection.

Making an employer liable for the acts of the employee is termed vicarious liability. In this case, the foundation argued that as it had committed no fault in hiring or supervising Curry, it was not legally responsible.

Madam Justice McLachlin analyzed the law and looked at the policy behind vicarious liability. Historically, she said, the concept represented a compromise between two policies: the social interest in providing an innocent victim with recourse against a financially responsible defendant and concern not to foist undue burdens on business enterprises.

She made the bold assertion that vicarious liability should be frankly recognized as having its basis in a combination of policy considerations.

Ordinarily, the courts fight shy of policy, regarding it as the monopoly of the legislature, and always adhering to an approach to issues on the basis of legal principle. But, said McLachlin J., where changes have been taking place in areas of jurisprudence in response to policy considerations, the best route to sound legal principle may well lie through policy.

She identified one of the main justifications for enlarging the ambit of vicarious liability as the law’s response to the creation of risk. Whosoever creates a risk must bear the responsibility when the risk becomes reality.

It was her courageous judicial candor and pragmatism that marked out this judgment as a watershed decision.

The clarity of reasoning in the judgment stands as a model of how the courts should bend to the exigencies of change in society.

The decision in Bazely v Curry was the lynchpin for the CFA’s decision in Ming-An Insurance Company Ltd. v Ritz-Carlton in which the hotel was held liable for the injuries caused to innocent pedestrians when one of its parking jockeys was driving one of the courtesy cars off to collect a night snack.

Lady Hale, the other new addition, brings yet another dimension onto the CFA bench, a judge who openly identifies herself as a feminist. She is conscious of her position as a woman, a mother and grandmother and considers that these qualities should inform her decisions.

Lady Hale is different in other respects, she practiced for very much less time than any of her fellow judges, coming onto the bench from academia.

But unsurprisingly for one who regards Lord Bingham as the greatest judge of his generation, she is fearless in making known her sympathies. In the case of R (on the application of Gentle) v the Prime Minister in 2008 she openly sympathized with the families seeking an independent inquiry into the invasion of Iraq.

“If my child had died in this way, that is exactly what I would want, I would want to feel that she had died fighting for a just cause” and if that had not been the case, she continued, “…then someone might be called to account.”

Nor is she afraid to stand alone against the other eight judges in the Supreme Court, as she did in Radmacher (formerly Granatino) v Granatino, the case regarding enforcement of a prenuptial agreement in which she noted "a gender dimension to the issue" under consideration.

Dissenting judgments at this level often provide the blueprint for later judicial development as did Lord Hoffman’s dissenting opinion in Cheng Yuen v Royal Hong Kong Golf Club in 1996.

Lady Hale is outspoken on the subject of children being allowed to give evidence in family court cases. As she says, “If they can do it in the criminal courts, why can’t they do it in the family courts?”

She is also trying to persuade judges not to refer to children by a single “soulless initial” such as “T” in order to preserve their anonymity. When she writes a judgment she always invents a name. “Try and make it a plausible name, right gender, right ethnicity, but not their own, then the child really leaps out of the page in a way that they don’t if they are just an initial.”

In complimenting Chief Justice Geoffrey Ma for his inspired, groundbreaking invitations to these outstanding jurists, I would not want it to be thought that I am denigrating the other permanent and non-permanent judges of the CFA. Far from it, but even the finest symphony can yield an even greater performance if superbly talented musicians are added to the orchestra.

Nor should it be long before one of our own Lady Justices takes her rightful place in our highest court.

One final note: the mandatory retirement age for Canada’s chief justice is 75 whereas in Hong Kong it is 65. The government in its elephantine laggardness is talking about extending it to 70. I suppose it really is too much to remind Exco that “fortune favors the bold” and hope for a visionary extension which would secure the talents and experience of our most senior judges for another decade?

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Queen's Counsel