It came to my notice that my last post on the British Columbia Law Society’s handling of the accreditation of Trinity Western Law School may have appeared at odds with a prior entry encouraging a negotiated solution. In the September 26 post, “B.C. Law Society abdicates self-governance in favour of non-governance,” I stated that the decision to refer the decision to a referendum before the expiry of a statutory 12-month period was an abdication of the Law Society’s duty to govern the affairs of the legal profession. Further, the referendum option can only be invoked by a petition from the membership, not the governing benchers.
It should also be noted that the Law Society handed the decision over to the governed members, with regard to a matter that does not affect them internally as members, but rather a matter of external public policy over prospective members. In regard to such external policy, only the governors should be considered to have original jurisdiction and expertise, not the governed. The benchers should have stuck to their decision to accredit, or should have reconsidered it. If they maintained their accreditation, they would nevertheless owe the public a duty to work with the university to find accommodation for those who suffer exclusion. If they reversed their decision and adopted the Ontario position against accreditation, they would owe a duty to the university to work toward an accommodation of religious freedom.
In the June 12 item, “End the Trinity Western Law School Deadlock without Litigation,” I urged the Law Society ought to consider the 12-month period as a time to negotiate a wording of the controversial Community Covenant that accommodates religious freedom and equality rights.
From comments and tweets readers have kindly provided, I have connected the dots and see these posts, combined, define a categorical imperative for the bar in Canada to negotiate a resolution. B.C.’s governing body deserves criticism over its September 26 decision. In Ontario and Nova Scotia, it is up to the university to suspend the judicial review proceedings to allow the Law Society of Upper Canada and the Nova Scotia Barristers Society to open a channel of communications. It is really time for the Canadian legal profession to stop the “lofty and passive” approach and show the Canadian public that lawyers can do what the public expects us to do: peacefully resolve seemingly intractable differences and enable both freedom and equality in the nation’s civic affairs. If we do not do this, or at least fail trying very hard, we do not deserve the privileged and independent position we hold in Canadian society.