Race Discrimination Alleged In Nova Scotia Bar Discipline
A Hearing Panel of the Nova Scotia Barristers Society denied a petition to rescind or vary a 2017 order of discipline.
The original sanction
After a 66-day hearing this Panel rendered a unanimous decision on July 17, 2017, finding that some of Mr. Howe’s conduct constituted professional misconduct and professional incompetence within the meaning of the Act: The Nova Scotia Barristers’ Society v. Lyle Howe, 2017 NSBS 3.
On October 20, 2017, this Panel issued its decision on sanction:The Nova Scotia Barristers’ Society v. Lyle Howe,2017 NSBS 4. The Panel found that the most significant misconduct engaged in by Mr. Howe related to a “concerted scheme of dishonesty” which included repeatedly lying to judges and courts (see paragraph 53).
In that decision on disposition,the Panel concluded that the appropriate disposition was to disbar Mr. Howe for a period of 5 years, following which he would be eligible to re-apply for admission to the Bar with an up-to-date psychiatric evaluation to ensure that there were no underlying mental health issues that could impede his ability to ethically serve the public. He was also ordered to pay costs of $150,000 before re-application.
On appeal
On October 24, 2019, the Court of Appeal rendered its unanimous decision (Howe v. Nova Scotia Barristers’ Society, 2019 NSCA 81), dismissing the first three grounds of appeal. As referenced earlier, with the agreement of the Society, the Court of Appeal allowed the fourth ground in part, amending the Order such that Mr. Howe was not required to pay the $150,000 in costs as a precondition to his reapplication to the Bar. Instead, Mr. Howe and the Society were to agree upon alternative terms and conditions for repayment if Mr. Howe applied for re-admission to the Bar.
The present application
In his application and initial brief, Mr. Howe noted the Society’s acknowledgement of the existence of systemic discrimination in our justice system and within the Society. He also pointed to the Society’s recognition of the need for action and education to address these underlying problems. He referenced a variety of initiatives that have become steps in the prolonged process that will address this problem at the Society, as well as those discriminatory practices that have embedded themselves in the historical culture of the legal profession in Nova Scotia.
Mr. Howe then asserts that the Society disciplines white members of the bar less severely than black lawyers. He endeavours to show, by specific case references, that his disposition was disproportionate when compared with dispositions imposed on white lawyers for similar, if not worse, behaviour. Mr. Howe puts forward three examples: The Nova Scotia Barristers’ Society v. Rodgers, 2021 NSBS 1The Nova Scotia Barristers’ Society v. Nash Brogan, 2022 NSBS 2The Nova Scotia Barristers’ Society v. TJ McKeough, 2022 NSBS 1. None of these cases are, in our view, similar to that of Mr. Howe in terms of the nature and scale of the misconduct, or the process by which a resolution of the complaints were reached.
Conclusion
The current application provides no reference to altered personal circumstances on the part of Mr. Howe which would be relevant to the disposition imposed upon him in October 2017. In that respect, we are inclined to dismiss and do dismiss the current application without prejudice to Mr. Howe’s entitlement, still under s.45(4)(m) of the Act, to re-apply for a variation or recission of our previous disposition on appropriate grounds.
Dissent of Panel Chair MacDonald KC
In summary form, Mr. Howe is not arguing that the Panel should reconsider its decisions due to a change relevant to his personal circumstances or the circumstances relevant to the Panel’s findings. Rather, he is saying that due to systemic or real discrimination, since the date of the Panel’s sanction, there is evidence that the Society takes a different approach when dealing with White lawyers than it did with him as a Black lawyer.
Simply put, Mr. Howe believes we should change the sanction because the Society took a harsher position with him because he is Black, or a more lenient position with other lawyers because they are White, or a combination of the two.
Concerns merit consideration
I appreciate the points made by the majority that they have reviewed the cases put forward by Mr. Howe where he argues that White lawyers have been treated more leniently by the Society. In so doing the majority have concluded that those cases are readily distinguishable from Mr. Howe’s situation, and thus do not demonstrate any potential for racial discrimination.
However, to date the Panel has only heard from the Parties on matters of process, regarding how Mr. Howe’s application should be heard. The Panel has not addressed the substantive issues, and importantly we have not had the opportunity to hear from Mr. Howe as to why he says those cases demonstrate what he says they do. We have also not given Mr. Howe an opportunity to bring forward any other evidence to support these propositions, which he says he wishes to do. We can not know whether there may be evidence beyond the decisions in the other cases that may be quite relevant. For example, perhaps these other cases may have involved other potential charges against a particular lawyer that were not pursued by the Society, or perhaps a case could be made that Mr. Howe’s investigation was pursued more diligently that a White lawyer’s. That evidence would be very relevant to a consideration of Mr. Howe’s position. As of yet, the Panel has not given Mr. Howe the opportunity to call such potential evidence.
In my view, procedural and substantive fairness requires us to give Mr. Howe that opportunity, in particular given the nature of his allegations. Indeed, it would be somewhat ironic were we, a Panel of three white men, to conclude that there is no potential for Mr. Howe to demonstrate systemic racism, which is insidious in nature, without giving him the opportunity to be heard completely on those points.
(Mike Frisch)