There’s a wonderful scene in the third season of
Sherlock, where Benedict Cumberbatch, playing Sherlock Holmes, explains to Phillip Anderson, a Scotland Yard forensic expert, how the BBC’s favourite sleuth faked his own death.
“That’s not how I would’ve done it,” said Anderson, incredulously.
“Everyone’s a critic . . .” sighed Sherlock.
Reading comments by some lawyers chastising the Law Society of British Columbia benchers’ decision to hold a member-wide, binding referendum on the approval of Trinity Western University’s law school, I feel a little like Sherlock Holmes in that scene. Everyone’s a critic.
I’ve been reluctant to wade into this on these pages, because I’m a B.C. bencher, and I have to make it clear at the outset that I don’t speak for the law society on this or any other matter.
But I was one of those who read
Trinity Western University v. British Columbia College of Teachers and seemed to think an 8-1 decision by the Supreme Court of Canada that supported the accreditation of TWU’s education faculty was equally applicable to a proposed law school at TWU,
mutatis mutandis.
I think everyone has to admit, it’s not an easy issue when fundamental rights collide, and to be fair, much has changed since the teachers case was decided in 2001. This was apparent by the special general meeting held in June in response to the benchers’ decision to “approve” TWU’s law school.
Out of a total membership of 13,115, 4,183 B.C. members voted in 12 different locations around the province at the SGM, and 3,215 came to a totally different conclusion than I did. They resoundingly voted against the decision to approve TWU’s law school, with only 968 votes in favour of accreditation.
The benchers had three options.
One was to wait for the courts to make a decision in one of the ongoing lawsuits respecting TWU, the province of B.C., and the law societies of Upper Canada and Nova Scotia. I had a problem with that because the 3,215 members who voted against accreditation of TWU’s law school wanted action. The SGM was an historic, unparalleled, and unprecedented meeting and could not be ignored. Waiting for the Supreme Court of Canada to make a final decision could take years.
One of my bencher colleagues said: “The law society is a leadership organization, not a waiting-around-for-someone-else-to-make-a-decision organization.” I think she’s right.
Another option was to implement the results of the SGM and reverse the decision to accredit TWU’s law school. But the resolution passed at the SGM was nonbinding. Everyone who voted knew it was nonbinding. And anyone who suggests that the vote was binding is being disingenuous, or hasn’t read our legislation. Or both.
After the SGM, there were dozens of lawyers from across B.C. who contacted me to say they couldn’t vote in person because they were in court, or out of town, lived too far from a place where they could vote, or they simply relied on the vote being nonbinding and stayed at work that day. Approximately 9,000 B.C. lawyers fell into this category, which is just under three quarters of the profession.
A lawyer I know in Quesnel wasn’t prepared to drive two hours to Williams Lake or two hours to Prince George to vote in person at one of the 12 voting locations across the province. There were lawyers in Vancouver County who told me they were too busy to spend an afternoon driving into town to listen to a lot of speeches before they could actually cast a vote. (If that isn’t reason enough why electronic voting should be adopted, I don’t know what is.)
Oddly, when I started talking about a binding referendum to include the 9,000 who didn’t (or couldn’t) vote in person at the SGM, I was bluntly told: “Only those ‘invested enough’ in the issue voted at the SGM, and if they couldn’t be bothered to vote that day, they obviously weren’t invested enough in the issue.”
“Who cares about them . . . they should have voted,” a prominent litigator in my office told me.
Well I care. I argued for a province-wide binding referendum, (expediting a process already permitted under our legislation), so every lawyer in B.C. could vote on this issue from the privacy of their offices without having to give up an afternoon at work, attend a meeting somewhere else, or listen to any more speeches. The benefit of the referendum is that every lawyer in B.C. would know his or her vote would count, no one would be disenfranchised, and there would be no excuse not to vote.
The referendum motion passed 20-10 at the September bencher meeting. Ballots have been out for weeks but must be received by Oct. 29 to be counted, so if you’re entitled to vote, then do so.
I have no horse in this race and I don’t care how you vote. I just want to ensure as many B.C. lawyers as possible vote on this issue so that no one is disenfranchised by geography or by their work or holiday schedules.
It’s not a 50+1 referendum. It’s based on s. 13 of our act, which requires one third of the membership to vote and two thirds of those who vote, to vote in favour of the resolution to “disapprove” TWU. The resolution is worded to simply implement or not implement the results of the SGM.
The referendum hasn’t pleased everyone. I’ve received numerous e-mails telling me: “You should’ve stayed the course,” arguing that the majority shouldn’t dictate minority rights by way of a referendum.
From the other side, I’ve been accused of “gerrymandering,” although I’m not sure how a democratic referendum that includes every lawyer in B.C. could be considered “gerrymandering” in any sense of the word. Sadly, some people just get caught up in their own hyperbole and don’t read dictionaries often enough.
One leading critic told the media the decision to hold a referendum was a “substantial failure of leadership” and “a disappointing abdication of responsibility.” Another said a democratic referendum was 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.”
Ironically, we’ve also been accused of “completely disregarding” the results of the SGM, notwithstanding the fact that if we really wanted to “completely disregard” those results, we would have done absolutely nothing at all.
And just last week, a mass e-mail was sent around the province encouraging members to vote (a good thing), but which contained this little zinger: “The benchers refusal to change their decision on TWU in light of [the SGM] vote is profoundly disrespectful of the profession.” Good grief.
Forgive me, but I find it mystifying that some lawyers who profess to be against discrimination have been so opposed to an all-inclusive democratic referendum, and that it’s somehow “disrespectful to the profession” for us to want to include all our members in this important decision; especially the 9,000 who didn’t or couldn’t vote in person at the SGM.
Rather than taking credit for pushing the benchers to initiate the referendum and “basking in media glory” (which clearly, I would have suggested if I had been in their PR department), the critics continue to deride the referendum, even though they might well prevail on the basis that the referendum, like the tide, could “float all boats.” I wonder what horrible things they’ll say about it (and those of us who authorized it) if they actually win?
As for the accusations that the referendum is “a slap in the face of the legal profession,” “a lack of leadership,” “a disappointing abdication of responsibility,” and “profoundly disrespectful of the profession” (etc., etc., etc.), it strikes me that leadership is so much more than cheap shots, sound bites, grandstanding, and spin.
It took real leadership to remember that almost three quarters of our membership didn’t or couldn’t vote in person at the SGM and to find a way to include them. I’d say that was profoundly respectful to the vast majority of our members, particularly those outside Vancouver and Victoria.
It took real leadership to say: “This will be binding” and mean it.
And it took real leadership for a number of benchers who originally voted in favour of not accrediting TWU, to come on board the referendum resolution when their’s failed, indicating to me that the referendum, although not perfect, was the most democratic and inclusive way of dealing with a divided bar. I take my hat off to them.
I’ve since learned that many of the 9,000 lawyers who didn’t vote at the SGM are quite happy with our decision. Indeed, I’ve been monitoring social media and fielding a lot of phone calls, e-mails, and one-on-one discussions. It’s summed up by that lawyer in my own office who told me: “Who cares about them. . . . They should have voted.”
This tough as nails, take no prisoners litigator, who has repeatedly challenged me on the original decision to accredit TWU, took me aside and said. “You know Tony, that’s not only the best decision you could have made, it’s the only decision you could have made. You guys did good.”
I took the comment charitably and did not correct his grammar.
Tony Wilson is a franchising, licensing and intellectual property lawyer at Boughton Law Corp. in Vancouver and a bencher of the Law Society of British Columbia. His opinions do not reflect those of the Law Society of British Columbia or any other organization.
