Is TWU referendum democracy or shirking of responsibility?

Is a referendum on Trinity Western University’s law school an exercise in democracy or a failure of leadership by the benchers of the Law Society of British Columbia? Either way, B.C. lawyers will have a chance to weigh in on the controversial law school during a vote this month.

The referendum will take place as soon as possible with the results posted by Oct. 30. To be binding, at least one-third of law society members must vote with at least two-thirds of them voting in favour of a resolution passed at a special general meeting in June against accreditation of the law school.

“The results of the [special general meeting] were historic, they were overwhelming, and they cannot be ignored,” said Bencher Tony Wilson, a proponent of the referendum option during Friday’s meeting at which the law society considered the issue.

At Friday’s meeting, benchers considered three options: declare the proposed law school not an approved faculty of law; hold the referendum; and hold off resolving the matter until after the courts have weighed in on the various challenges filed on the Trinity Western issue in three provinces. In proposing the referendum, Wilson said he didn’t want to wait to decide the issue given the strong message sent during the special general meeting in June.

“Waiting makes us look unresponsive, undemocratic, and indifferent,” he said, adding a vote this month was the best option given that thousands of lawyers either chose not to or weren’t able to participate in the June meeting at which B.C. lawyers sought to overturn the benchers’ previous decision in favour of accreditation.

“So let’s fix that,” said Wilson of his reluctance to disenfranchise those who didn’t participate earlier. “Let’s have a binding referendum.”

But some B.C. lawyers feel the law society benchers simply should have made a decision to accredit or not on Friday. “I think it’s disappointing that the benchers couldn’t reach a decision on their own,” says University of British Columbia Faculty of Law Prof. Margot Young.

“It’s important to take a principled stance and show some courage on these issues,” she adds. “It does default to the membership.”

Another B.C. law professor, Emma Cunliffe, also would have preferred a more fulsome decision on Friday based on her reading of the Legal Professions Act that says it’s the “responsibility of benchers under the statute to govern and decide.”

“I feel the better course would be to seek expert advice and make a decision,” says Cunliffe, adding the Trinity Western issue isn’t a question of majority rule but rather one of competing rights.

Victoria lawyer Michael Mulligan, who led the efforts to have the special general meeting in June, is also critical of the referendum. “One of the natural attractions would be to avoid responsibility for the matter,” he says of the referendum option. The decision, he adds, represents a “substantial failure of leadership and it may be unlawful.”

In raising doubts about the legality, Mulligan cites the law society’s duty to act fairly and in accordance with the principles of natural justice, in particular by making a decision after allowing both sides to present their cases. “They may have breached their obligations in that respect,” he says, comparing the referendum approach to a court or tribunal simply taking a poll of the gallery after listening to submissions. As a result, he fears Friday’s move may be vulnerable to a judicial review application.

Mulligan, of course, wanted the benchers to select of the first option of simply rejecting accreditation on Friday in line with the special general meeting in June.

In his arguments for rejecting accreditation immediately, Bencher Jamie Maclaren noted the dilemma over whether the law society must follow the Supreme Court of Canada’s previous decision on Trinity Western University in relation to teachers. While he noted the weight of such precedent, he also said the Supreme Court has suggested the rule of law operates with respect to other values such as fairness and human dignity. “That’s to say that the rule of law is dynamic and must respond to changing circumstances within society,” he said.

And Bencher David Mossop, a proponent of waiting for the courts to weigh in, asked why there’s a rush to decide the matter this month. “Why it has to be Oct. 30 is beyond me,” he said.

“If the members are going to vote on this in a referendum, they should have all the possible information in front of them,” he added, noting the court matters will be going forward this year.

When it comes to the referendum itself, Mulligan is fairly confident in the result despite the two-thirds threshold given the strong message lawyers sent at the June meeting.

Young, however, says it would be “galling” if a vote against accreditation passes a simple majority threshold but not the required two-thirds. “I have a concern about the rights of minorities being put to a majority vote and then putting that to a super majority amplifies that.”

The controversy around Trinity Western, of course, relates to gay and lesbian rights at the Christian-focused law school set to open in 2016. The school’s community covenant agreement includes a statement about abstaining from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

For its part, Trinity Western also expressed disappointment at the move to hold a referendum and cited a legal opinion that suggested if the benchers still believe their original decision to accredit the school was legally sound, “it could not make a legal difference that a large number of members of the law society may be of a different opinion.”

“The referendum cannot be binding on the benchers,” said school of law executive director Earl Phillips. “We agree with the legal opinion received by the benchers and feel it is a waste of time and resources to go through this referendum process.”

And despite the benchers’ move to resolve the issue on Friday, there remain several questions about the outcome of the vote. What happens, for example, if voters reject accreditation by a simply majority but not at the two-thirds threshold? “That question really wasn’t addressed by anybody at the meeting on Friday,” says Cunliffe, noting benchers would then have to decide what to do.

And despite the results of the special meeting in June, Cunliffe notes they may be quite different in the referendum. Because the June meeting required lawyers to be physically present, she says it’s reasonable to suspect a lot of rural members wouldn’t have voted. “The value of this referendum is that those lawyers won’t be disenfranchised,” says Cunliffe.

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