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Crown disputes bar society's finding that race a factor in lawyer's treatment

Last Updated Oct 23, 2017 at 4:00 pm PST

HALIFAX – Nova Scotia’s prosecution service is firing back at a ruling from the province’s bar society, saying race played no role in how Crown lawyers treated a black lawyer.

The Nova Scotia Barristers’ Society disbarred Lyle Howe on Friday and fined him $150,000 after a disciplinary panel ruling that said the defence counsel repeatedly misled the courts and committed other acts of professional misconduct.

The disciplinary panel commented “race played a role in how he (Howe) was dealt with by some members of the Crown office in Dartmouth,” but added that this wasn’t “significant” when they considered how he ran his practice.

In a news release Monday, the public prosecution service said it doesn’t agree with the panel’s comment on its treatment of Howe.

The service says it believes the reference — which wasn’t fully explained in the penalty ruling — was to the practice that Howe was to be escorted when he was in their offices.

In addition, in the July 17 decision finding against Howe, the panel said female Crowns were told they wouldn’t have to meet with Howe when they were alone.

The press release issued Monday says these practices were instituted because Howe was suing a prosecutor for malicious prosecution at the time, leading a member of the Crown lawyer’s union to send an email advising caution in their dealings with him, and that Howe was the subject of sexual assault charges. Those charges were eventually dropped against Howe.

“The Public Prosecution Service neither tolerates nor engages in discriminatory practices with respect to African Canadians or any other minority group,” said Martin Herschorn, director of public prosecutions.

“Mr. Howe’s treatment in the Dartmouth Crown Attorneys’ Office at the time in question was a direct result of his behaviour and no other factor.”

A spokesman for the Nova Scotia Barristers’ Society was unavailable for comment on the criticisms.

Howe said in an interview on Monday that he disagrees with the prosecution service’s statements, and says he feels there was broader racial discrimination against him by the Dartmouth prosecutors.

“They’re confounding race being a factor with just the policy, but it’s my understanding that race is a factor insofar as I’m treated more broadly speaking than just that policy,” he said.

“There were numerous incidents of mistreatment upon myself by the Crown that I’ve demonstrated.”

Howe, who said he is planning to request an appeal of the panel decision and penalty, added that from his recollection there were other emails and comments made that “relied on racial stereotypes.”

The panel decisions rejected Howe’s argument that the society had violated his charter rights under section 15, which guarantees equality before “the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

However, there were comments in the original panel decision raising issues about his treatment by the Dartmouth Crown office.

For example, in terms of the practice requiring an escort at the Dartmouth Crown office, the panel said, “the Crown office’s approach to addressing Mr. Howe’s situation allowed suspicion, speculation and surmise to attach directly to Mr. Howe — as a black male, and as a potential threat of physical or sexual violence to Crown employees.”

Howe said the equity committee of the barristers’ society should look further into these and other comments about how race played into his case.

“They haven’t done anything to help me since the findings,” he said of the equity committee.

“Many of the allegations against me, including the double booking and over booking, I demonstrated that many if not most white criminal defence lawyers behave exactly the same way, and I haven’t heard of another individual being investigated or brought before a hearing panel,” he said.