Turmoil continues at the Nova Scotia Barristers’ Society

I am writing to provide my notice of resignation from [the Bar Society] Council, effective immediately. I am resigning as a result of the direct and systemic racism and discrimination that I have experienced during my time on council. The racism and discrimination have largely been directed at [the Racial Equity Committee] and its members, including me. It has occurred both inside council meetings and outside of council meetings. It has become so relentless — culminating in yesterday’s council meeting — that I cannot bear it any longer.

— Josie McKinney
Nova Scotia Barristers’ Society

The hemorrhaging inside the Nova Scotia’s Barristers’ Society continues.

At 9:14 am on November 13, the Saturday morning after a Friday meeting of the bar society’s governing council, Josie McKinney — an Indigenous lawyer, Nova Scotia’s first fulltime human trafficking prosecutor and the co-chair of the society’s racial equity committee — tendered her resignation. (Text of email)

Less than five hours later, Dr. Rod Wilson — a former president of the Nova Scotia College of Physicians and Surgeons who once practised at the Northend Community Clinic and was a volunteer public representative on the council — quit too. (Text)

“Regrettably,” he wrote:

… my experience at NSBS has been one shit show after another for the last two years. Having sat on many governing boards over the last 25 years, NSBS has been by far the most dysfunctional organization and least rewarding. This is not what I expected and [is] disappointing.

In case you’re counting, McKinney and Wilson are the fourth and fifth key resignations from the society so far this year.

• Jim Rossiter, the council’s president, quit early in 2021, less than seven months into his one-year term, vaguely noting that the stress of the job had become more than he “could bear.”
• The second vice-president, Denise Mentis-Smith, quit early too, without publicly explaining why.
• The society’s executive director, Tilly Pillay, the first person of colour to hold the position, also resigned after less than three years on the job.

What’s going on here?

It is difficult to know all the specifics, or what exactly triggered these latest resignations. Neither McKinney nor Wilson would comment, and the society’s responses to my questions about them offered all the clarity of a salty fog in a winter blizzard. But there is no disputing that the society has been grappling with issues of race and racism for years. And still is.

In April 2021, in fact, the society appointed Doug Ruck, a former provincial ombudsman and a well-respected labour and human rights lawyer, to head up what it called “a comprehensive ​external, independent ​review of our regulatory policies and processes to identify and address any areas of systemic discrimination that exist within the ​society.”

If you’re looking for ground zero for where we are now, you could do worse than start with the longest, most expensive and most polarizing hearing in bar society history. That inquiry into professional misconduct allegations against Lyle Howe (“Who is Lyle Howe? And Why Are So Many People Saying Such Nasty Things About Him?” Part I and Part II) resulted in his disbarment in 2017.

Howe, an African Nova Scotian, claimed — still claims — he was a victim of racism.

While the white-only hearing panel acknowledged it could indeed see some “connection” between Howe’s perception of a system biased against him and “historic and systemic racism” in Nova Scotia, it concluded there was “little evidence of actual, discriminatory attack” against Howe.

The society disbarred Howe for at least five years, even initially insisting he fork over $150,000 to the society before it would consider reinstating him.

Questions about systemic discrimination in the society’s treatment of Howe have festered, however, in part because Howe himself continues to challenge his disbarment in court and also, in no small part, because the society keeps putting its foot in it.

In the early summer of 2020, for example, the society issued a self-serving, self-satisfied response to the murder of George Floyd by US police. The society claimed it had been “deeply committed to addressing issues of systemic racism, including anti-Black racism in the justice system” for more than 30 years and would “lead Nova Scotia’s legal profession by example.”

That, not surprisingly, generated a fiery response from Laura McCarthy, Howe’s life partner and one of his lawyers before the NSBS:

The NSBS has demonstrated to me that they are like many other institutions within the justice system and institutions across North America, using the law as it suits them whilst holding down Blacks. The NSBS cannot move into a new chapter of trust and equality with their marginalized members and the public when there is so much discrimination dirt still under their rug.

The Howe case — and the society’s avowed commitment to equity — resurfaced yet again this fall because of the society’s kid-glove treatment of a white lawyer accused of a laundry list of bad behaviour similar to Howe’s.

The Howe case is not the only — or necessarily most significant — flashpoint, of course. Though details are sketchy, racialized members of the society allege they have often faced racist behaviour from their white counterparts. McKinney, in her letter of resignation, notes that when equity-promoting committees like hers attempted to bring under-represented voices to the society’s table…

… this work has almost always been met with resistance at council, and at times, dismissiveness and hostility. [We] have been told we are slowing things down, pushing an inappropriate agenda, and detracting from the real work of council. It has been my experience that this often occurs outside of council meetings and is not visible to all of council… Publicly, council has said it is committed to the work of diversity and inclusion, to cultural competency, and to equity. It is in our policies, our strategic plan, and in public statements. [But] council’s words are meaningless if we are not prepared to take the time to listen to voices from equity-deserving communities and to truly commit to the hard work of equity, no matter how uncomfortable it makes us feel.

I wanted to speak to the society’s current president, Tuma Young — an assistant professor in Indigenous Studies and Political Science at Cape Breton University and himself the first Mi’kmaq-speaking lawyer in Nova Scotia — about these latest resignations. In response, I got a bland statement attributed to him:

We fully appreciate the seriousness of the matter and have assured the members of Council that it is being addressed. Our 1st vice president has reached out to members of the equity committees to schedule meetings at the earliest opportunity.

We know there is more work to be done to improve relationships amongst these committees and council. This is a continuing commitment and the executive committee and I will continue to take actions to foster cooperative and respectful relationships going forward…

Additionally, Council has passed a resolution to make cultural competency training mandatory for all practising members, the Society has hired a new Equity Manager and added an additional full-time position in the Equity Office.

When I followed up in writing with more specific questions, Collette Deschene, the society’s communications advisor, sent me responses she described “as provided by our council executive.”

My questions and the executives’ answers follow:

Does the NSBS accept McKinney’s allegation that she has endured “direct and systemic racism and discrimination?”

Josie McKinney has been a valued volunteer with the NSBS, both as a member of council, and as a member and current co-chair of the Racial Equity Committee.  She has worked tirelessly to ensure the issue of systemic discrimination is finally being addressed. We are very concerned that she has indicated that she has experienced direct and systemic discrimination during her time as a volunteer with the society and we are committed to addressing her allegations.

How is it being addressed beyond the meetings you mentioned [in the initial response]? 

We see the meetings with the Equity Committees as an important first step. As well, the next regularly scheduled meeting of Council takes place in a week and this will be on the agenda. And Doug Ruck QC, who is undertaking the independent review, has been made aware of these allegations and they will be addressed as part of his work.

We are committed to listening and connecting with first voices. These issues precede the current leadership at the NSBS and we want to ensure we have a full understanding of how we arrived here. This current council, in place since June 2021, is the most diverse in the history of NSBS. We have an Indigenous president for the first time in history, and for that matter, of any law society in Canada. We want to work together with the committees to determine the next steps to ensure that we are not misguided in our approach to resolving these issues.

Will there be an investigation into any specific allegations McKinney raised? 

Most assuredly, these allegations are being taken very seriously. As mentioned, the next regularly scheduled meeting of Council takes place in a week and this will be on the agenda.  As well, Doug Ruck QC, who is undertaking the independent review, has been made aware of these allegations and they will be addressed as part of his work.

If it is found that concerns raised by racialized members of council have merit, are there sanctions that could be imposed on those involved?

We would like to allow the process of review to consider this matter. And we’d like to allow for a fulsome discussion at council meeting.  So, while it’s too early to provide an answer to this question, generally speaking, all parties would be held accountable for their actions.

Wilson, one of the public representatives on the council, concluded that the status quo appears to be desired and candid conversations are not encouraged. What will you do to change that perception?

By way of context, council members are elected or appointed for two-year terms. The current council term began in June 2021. NSBS is privileged to be working with the most diverse council in the organization’s history, with representation from 2SLGBTQ+, Indigenous and racialized lawyers and public members. It is important to have this diversity of voices at the council table as we move forward. It takes time to get know and understand one another and it will take patience to learn to adapt to the many changes we have made.  The current leadership has made it a priority to increase transparency and we are working to ensure that everyone is as eager to listen as they are to be heard. Rather than impose a process, we are working together with patience and understanding to ensure that the NSBS more appropriately meets the needs of members.

Given the number of resignations and the clear turmoil within the Bar Society, can you wait for the Ruck report before making significant changes?

We will continue to respond to issues as they arise and do not intend to wait to take action where it is needed. That said, the important work that Mr. Ruck is undertaking will continue. We are anticipating both interim and final recommendations as part of that work. A Liaison and Implementation Task Force has been established by Council to address those recommendations once they’ve been received.

What changes has the society made so far in response to the concerns raised by these and other resigning members?

We’ve just received these concerns.  We are addressing them at an upcoming Council meeting, and we look to Mr. Ruck to consider and provide counsel as part of his ongoing review. We’ve also had a process of governance review and reform underway for several months; this will help guide improvements we want to make.

You say: “We know there is more work to be done to improve relationships amongst these committees and Council…” What specifically has the council or the executive done to improve relationships to this point?

We have set up meetings with the committees; we are committed to taking the time needed for listening and discussion to take place.

With the review underway by Mr. Ruck, we will be expecting both interim and final recommendations. A Liaison and Implementation Task Force has been established by Council to address those recommendation once they’ve been received. We won’t wait until there is a final report in place to begin to make change. We know we can do better and we will.

So… there you have it. We still don’t know the details of what’s really been going on inside the Nova Scotia Barristers’ Society. But we certainly know the privileged self-governing organization that “regulates Nova Scotia’s legal profession…  [and exists] to uphold and protect public interest in the practice of law” is in turmoil.

And that’s not a good thing for any of us.