Court ‘loathe to intervene’ with order to subpoena Crown lawyers

A Nova Scotia judge has said he will not interfere with a decision to subpoena seven Crown attorneys to a lawyer’s disciplinary hearing.

The Nova Scotia Public Prosecution Service had made an application to quash a Nova Scotia Barristers’ Society hearing panel’s authorization to subpoena the Crown attorneys in the case of criminal lawyer Lyle Howe.

“I do not propose to interfere with the hearing panel’s decision to issue the subpoenas. Indeed, the court is loathe to intervene at this stage in this interlocutory challenge to the hearing panel’s authority,” said Supreme Court of Nova Scotia Justice James Chipman in the decision this week.

Howe, who has a complicated history with the courts and the barristers’ society, is facing a number of professional misconduct allegations, including failure to be honest with clients and discharge his responsibilities “honourably and with integrity.” Previously, he was stripped of his licence to practise law after he was convicted of sexual assault before being re-instated as a lawyer when his conviction was overturned on appeal.

Howe, a black man, has in the past told Canadian Lawyer he feels the lack of black and aboriginal judges in Nova Scotia poses issues of bias and discrimination. In his current disciplinary matter, Howe asked the hearing panel to subpoena a number of Crown attorneys, and the hearing panel granted much of his request.

The PPS argued the subpoenas would be unnecessary and that Howe is on “a fishing expedition.” But the hearing panel said the Crown lawyers’ testimony could help in its consideration of bias and unlawful discrimination in Howe’s case.

“On the point of relevance, the PPS did not acknowledge that issues of bias and unfair discrimination were relevant to this hearing. Mr. [Glenn] Anderson, speaking on behalf of the PPS, stated that the only things relevant to the hearing were matters related to the charges,” the hearing panel wrote in a July 25 written decision cited in Chipman’s ruling. “It would seem by his answers that the PPS takes the position that bias and unlawful discrimination should not be considered as issues necessary to a full consideration of the charges against Mr. Howe.”

Chipman said the hearing panel conducted “a fulsome” analysis before issuing the authorization for subpoena. In any case, he said the PPS application is premature because no subpoena has been issued yet. “The matter for which the PPS seeks judicial intervention is not ripe and I must therefore decline their request for the court to intervene,” Chipman said.

He added: “If the Crown attorneys are called and if evidence is elicited that offends the Crown prerogative or prosecutorial discretion or is irrelevant and if the panel fails to intervene, it may then be appropriate for the PPS to then consider judicial intervention.”

Neither counsel for Howe nor counsel for the PPS responded to a request for comments.

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