Regulating by Referendum

The latest in the series of Trinity Western University (TWU) cases indicates that statutory bodies cannot regulate by referendum. TWU is a Christian university that has a code of conduct students must sign agreeing to only engage in sexual relations with one’s spouse of the opposite (it assumes there are only two) gender. Law Societies have been struggling to determine whether to recognize graduates of the school. Last week’s decision by the British Columbia Court of Appeal struck down the Law Society of British Columbia’s refusal to recognize the school: Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423.

The major concern of the Court was that the Law Society decided to be bound by the results of a referendum by its members on the issue. The profession voted 74% to deny recognition of the school and the Law Society accepted those referendum results. The Court concluded that the regulator had to balance the competing interests and not fetter its authority by way of the referendum results. The Court said: “the adoption of a resolution not to approve TWU’s faculty of law would limit the engaged rights to freedom of religion in a significantly disproportionate way — significantly more than is reasonably necessary to meet the Law Society’s public interest objectives.”

The Court concluded:

A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.

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