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The benchers of B.C.'s law society (of which I am one) voted last week to conduct a binding referendum of all B.C. lawyers on whether the proposed faculty of law at Trinity Western will be recognized by our law society.

We effectively voted to approve TWU's proposed law school in April, despite a covenant that requires students and faculty to refrain from sex other than in a traditional marriage between a man and a woman. This covenant essentially prohibits sex within a gay marriage, gay marriage being lawful in Canada. The Supreme Court of Canada upheld TWU's right to have an accredited education faculty in 2001 despite a similar covenant. It ruled that there should be a balancing of rights. So the majority of benchers followed what we believed was the law, and effectively approved TWU's law school.

Many B.C. lawyers were not happy with that decision. The main argument is that the covenant discriminates against gay law students (particularly gay married students), and a law school that discriminates against anyone is not in the public interest. And that is a valid argument. But isn't discrimination against a religious organization for its beliefs still discrimination? It's a complicated issue.

A special general meeting (SGM) was held in June on this issue at 12 different locations in B.C, and 3,215 lawyers of a membership of 13,115 voted against the approval of the faculty of law for the purposes of the society's admission program. Only 968 supported our decision to accredit TWU.

We had three options. One was to wait for a decision in one of the lawsuits between TWU and the other law societies that have refused to accredit it. I was opposed to that because the results of the SGM were unprecedented. Waiting could make us appear indifferent and unresponsive to our members.

Another option was to implement the results of the SGM and revoke our approval, even though the resolution was nonbinding. Many lawyers from across B.C. told me they did not vote in June because they were in court, out of town, lived too far from a place where they could vote, or relied on the vote being nonbinding and stayed at work. About 9,000 lawyers fell into this category.

Others have dismissed the non-binding nature of the resolution, arguing that those who were "invested" in the issue voted, and those who did not vote did not deserve another chance. "Who cares about them," more than a few lawyers told me. "They should have voted."

Well, I care.

I was not comfortable turning a nonbinding vote into a binding one and effectively disenfranchising 9,000 lawyers, especially those in rural B.C. who were far from a place where they could vote in June. I argued that we should expedite the binding referendum process in our legislation that allows every lawyer to vote on this issue without leaving their offices. The resolution passed 20 to 10. The results of the mail-in referendum are due by Oct. 30.

Rather than taking credit for pushing the benchers to initiate a referendum, the most vocal critics condemned it.

Victoria lawyer Michael Mulligan is quoted as calling the decision a "substantial failure of leadership" and "a disappointing abdication of responsibility."

Lawyer barbara findlay is quoted as saying a member-wide referendum is a "slap in the face of the legal profession" and that disrespecting "the overwhelming majority vote at the largest lawyer meeting in B.C. history is breathtaking."

But is it really a "slap in the face" to include the entire legal profession in a democratic mail-in vote on the accreditation of TWU's law school?

And is it really a "lack of leadership" to ensure that the 9,000 B.C. lawyers who counted on the nonbinding nature of June's SGM are not disenfranchised?

I am betting most of the 9,000 lawyers who did not vote are far happier with the decision to hold a referendum than with the haughty protests of those who do not want one. It is puzzling how lawyers so opposed to discrimination are so against an all-inclusive democratic referendum.

As Winston Churchill said: "Democracy is the worst form of government, except for all the others." Perhaps the critics should embrace the referendum, get their vote out and read their own press. I'm not sure it plays well in Peoria.

Tony Wilson is a Vancouver lawyer, a bencher of the Law Society of British Columbia and a regular business columnist with The Globe and Mail. His opinions do not reflect those of the law society or any other organization.

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