In 2012, less than two years into his fledgling career as a criminal defence lawyer, Lyle Howe found himself in a Halifax courtroom, one minute representing a client on fraud charges, then moments later appearing in his own defence, before the same judge, on charges that he drugged and sexually assaulted a 19-year-old woman.
“It’s a first for me,” quipped the then-27-year-old Howe at the time.
Over the next four years, things turned even more surreal.
Howe was convicted in the sexual assault case — following a graphic, high-profile trial — stripped of his licence to practise law, sentenced to three years in prison, acquitted on appeal, and reinstated as a practising lawyer. He was then brought before the Nova Scotia Barristers’ Society on a raft of professional misconduct accusations unrelated to the criminal case, ranging from double-booking his time to trying to steal other lawyers’ clients to the attempted extortion of a Crown witness.
The NSBS hearings, at first public, were abruptly moved behind closed doors in January this year after Howe, acting in his own defence, threatened to subpoena a few judges whom he accused of mistreating him in their courtrooms because he is black.
If most young, ambitious lawyers hope to launch their careers on a smooth upward trajectory — by not making waves within the profession, by following its rules, and getting along with senior practitioners (not to mention the judiciary) — Lyle Howe is the radical exception. Since joining the Nova Scotia Bar in 2010, Howe has become one of the best-known and most photographed lawyers in the province, perhaps for all the wrong reasons. And his notoriety isn’t about to wane.
Since his acquittal, Howe has poked a sharp stick at a place where the justice system and the legal profession in Nova Scotia have long been vulnerable. He claims his troubles are the result not of his own behaviour but of a system that’s biased against blacks, aboriginals, and other minorities. “I came before 10 judges [in the course of his criminal trial and appeal] and every single one was white,” Howe said in an interview with Canadian Lawyer. “Where are the black decision-makers in the criminal justice system?
I think Chief Justice [Joseph] Kennedy should be asked: ‘As chief justice of the Supreme Court of Nova Scotia, do you have any problem with the fact that you don’t have any black or aboriginal judges in your whole building, yet you sentence black and aboriginal people all the time?’”
Comments like that aren’t likely to win Howe any friends inside Nova Scotia’s courts, or with its small, predominantly white criminal bar. Howe knows this and is therefore tiptoeing a fine line: He’s reluctant to openly call Kennedy, the courts, or the prosecution service racist. He actually says the majority of judges and counsel he’s personally dealt with have treated him fairly as both a black defence lawyer and a black accused.
Instead, he says the system is grossly unrepresentative of minorities, and this creates the troubling perception among non-white defendants of racial bias, real or imagined — the sense that things are generally stacked against people of colour who get in trouble with the law.
Howe also says the jury that found him guilty of sexual assault would “definitely” have delivered a different verdict had there been at least a handful of black Nova Scotians on the panel.
About three per cent of Nova Scotians are black, and many have deep roots in the province going back to the 18th century. Halifax itself has no shortage of black neighbourhoods and communities. Yet Howe says that on his jury pool of more than 200 people, there wasn’t a single black Nova Scotian. His empaneled jury had one black member, an immigrant from Africa whom Howe says wouldn’t have the same cultural background and sensitivities as a black person raised in Nova Scotia.
Meanwhile, the judges Howe came before were all white, as were the three Crown attorneys who dealt with his case.
At his 2014 trial, Howe was found guilty of sexually assaulting a 19-year-old white woman following a night of drinking in 2011 with the woman and a male friend. Howe — who had a young child at the time with Halifax lawyer Laura McCarthy (they are still together, and they also share a small law practice) — admitted to having sex with the 19-year-old complainant, but he said it was consensual.
Kennedy, who presided at the trial, told Howe during sentencing that his actions were “despicable” because he used his status as a lawyer to win the trust of and “seduce a teenage girl.” But Howe, who spent a total of 18 days in prison, says he committed no crime. Last September, the Nova Scotia Court of Appeal overturned his conviction, saying Kennedy had failed to adequately review the defence’s evidence or to properly instruct the jury on the issue of honest but mistaken belief in consent. The Crown, after consulting with the complainant, decided not to undertake a second trial, bringing the matter to an end.
Howe knows that some who’ve followed his case suspect he is raising the race question as a diversion to win sympathy and cast himself as a victim. One of his prosecutors, asked after the acquittal about Howe’s claims of racial unfairness, noted that Howe never made any objections about the colour of the jury, or introduced any evidence on race during the trial. Howe says that his (white) lawyers cautioned him not to, for fear of offending the judge or the jury. He says his counsel told him: “‘This is a weak case, we’re miles away from a conviction.’ But they underestimated,” says Howe, “what a white jury can do to a black man.”
At Howe’s sentencing, and later at his appeal, a protest group that included supporters from the same gritty, working-class north-end Halifax neighbourhood where Howe grew up appeared outside court with placards claiming racial unfairness in the Nova Scotia courts.
Diversity in the courts is a national problem. Supreme Court of Canada Chief Justice Beverley McLachlin has long spoken out about the need to diversify the colour and gender of a Canadian bench made up mostly of what she once described as “middle-aged white men in pinstriped trousers.” However, this issue is especially acute in Nova Scotia.
Three decades ago, the province was shaken by the wrongful murder conviction and 11-year imprisonment of Mi’kmaq Donald Marshall Jr. That travesty included an eventual acquittal judgment — which blamed Marshall for his own misfortune. Ten years later, in 1989, a federal Royal commission concluded that Marshall was, in fact, blameless and that incompetence and racism at every level in the province’s criminal justice system had led to the debacle. Among the commission’s recommendations were the appointment of more visible minority judges and prosecutors.
Howe wants to know what has changed since then. Nova Scotia has only a handful of black and aboriginal provincial court judges, and none on its appeal court or superior court — the very court that wronged Donald Marshall. However critics might question Howe’s motives in raising the race card regarding his troubles, it’s hard to dispute the picture he paints of the court system: “I was five years old when the Marshall inquiry was done. Since that time, what have they done? We still have zero black judges on the Supreme Court of Nova Scotia and zero black judges on the Court of Appeal.
“The inmates at the Burnside correctional facility [in Halifax] are close to 40 per cent black would be my guess. If you go to Dartmouth Provincial Court, you see numerous accused black people appearing before judges, but what you don’t see is blacks adequately represented as participants in the criminal justice system.”
Canadian Lawyer asked numerous Nova Scotia lawyers to comment on Howe’s claims of racial unfairness in the system — including senior criminal defence counsel who practise in Halifax, members of the judiciary, Dalhousie University law professors, and members of the NSBS governing council. None would agree to an interview. Among those who declined were John Bodurtha, co-chairman of the Barristers’ Society Racial Equity Committee, and Michelle Williams, a professor at Dalhousie University’s Schulich School of Law and director of its Indigenous Blacks & Mi’kmaq Initiative.
In February, Nova Scotia Justice Minister Diana Whalen addressed the issue with reporters, saying the provincial government recognizes the problem and wants more diversity in the province’s courts. “In every appointment we make, we look for diversity on the list of candidates that we have for any positions on the bench,” she said.
Howe says politicians, and leaders in the legal profession, have been saying the same thing in Nova Scotia for the past quarter-century, ever since the release of the Marshall commission report. “You know how many lawyers make money every day off black people in trouble with the law? Where are these white lawyers, making money off black clients — why aren’t they coming out and addressing this problem? What the hell has been done lately? Nothing, nothing has been done. Same for the Barristers Society; they’ve done nothing.”