“There’s something happening here,” Stephen Stills once wrote. “What it is ain’t exactly clear.”
Here in this case is inside the traditionally somnambulant corridors of the Nova Scotia Barristers’ Society, the august and privileged self-governing body, which “regulates Nova Scotia’s legal profession… [and exists] to uphold and protect public interest in the practice of law.”
For more than a year, the society has been in quiet turmoil. The turmoil has been quiet because — except for the online news site allnovascotia.com, which has provided ongoing coverage for its business-and-politics insider audience — media outlets rarely pay much attention to what goes on inside this organization that plays an outsized role in our justice system.
That began to change a month ago after the Society posted an apology on the front page of its website. “We acknowledge and regret the existence of systemic discrimination in our justice system and within the society,” it began.
… We not only acknowledge and regret the existence of systemic discrimination within the justice system and the society, but also recognize the need for action and education to address it. The society is committed to reducing barriers created by racism, unconscious bias, and discrimination. We are committed to continuing our efforts to learn, to adapt, to improve our processes and to lead Nova Scotia’s legal profession by example. In collaboration with our members, the legal entities we regulate, stakeholders, and justice system partners, we will work diligently towards eliminating all forms of discrimination in the justice system and in the society.
At the same time, the society announced it had appointed of former provincial ombudsman Douglas Ruck, a well-respected labour and human rights lawyer — not to forget only the sixth Black person admitted to the bar in Nova Scotia — to head up what it calls “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.” The society acknowledged the process “will take some time” and promised an interim as well as final report, which will include “solutions and changes required to eliminate or mitigate systemic discrimination in the society and encourage an organizational culture free of bias.”
What really is the something happening here?
There are a number of backward-wending answers to that.
Start first back on June 30, 2020, just 10 days after a white police officer in Minneapolis, MN, murdered a Black man named George Floyd by kneeling on his neck for what only seemed like forever. The incident triggered worldwide protests — but also reflection. Corporations, politicians, communities, organizations suddenly came forward to acknowledge their own systemic, institutional racism and promised to do better.
The bar society almost did that. It said in a statement, again on its website, that it was “saddened by the recent tragedies.” Claiming it has been “deeply committed to addressing issues of systemic racism, including anti-Black racism in the justice system” since publication of the Marshall inquiry report 30 years before, the society acknowledged the need for continued “action and education” on the issue. It promised it would “lead Nova Scotia’s legal profession by example.”
Laura McCarthy read that statement. McCarthy is a member of the Nova Scotia bar society, a lawyer, a Black lawyer. Her life partner, and former legal partner, Lyle Howe, is a former Black lawyer who was disbarred by that same society in 2017 after the longest, most expensive and controversial hearing in the society’s history. (You can read the backstory to the case in the Examiner’s series “Who is Lyle Howe? And Why Are So Many People Saying Such Nasty Things About Him?” Part I and Part II.)
In the end (though there do seem to be endless appeals working their way through the judicial system), the society’s 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. But it nonetheless concluded there was “little evidence of actual, discriminatory attack” against Howe and proceeded to disbar him for at least five years, even initially insisting he fork over $150,000 to the society before it would consider reinstating him.
Less than a month after the society’s George Floyd moment, McCarthy fired off a broadside in response, declaring herself “deeply offended” by the bar society’s “empty words” about anti-Black racism.
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.”
Though McCarthy’s letter was neither answered nor even acknowledged, it appears to have dropped like a bomb in the bar society cloister. Jim Rossiter, the society council’s president, quit early this year, 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. And, even before appointing Ruck last month, the society had formed what it called a “Race, Diversity and Safe Space Task Force” to deal with the “current distress.” Although it may be — probably is — unrelated, the society’s executive director, Tilly Pillay, the first person of colour to hold the position, also recently resigned.
In an interview soon after her appointment in 2018, Pillay acknowledged the optics of the Howe case. “We can appreciate an all-white panel with an African-Nova Scotian lawyer facing that panel might seem daunting,” she told CBC reporter Sherri Borden-Colley, adding the society had learned from the Howe case, “even before the matter went to a hearing” and had begun recruiting more diverse panels. But, she noted, “this is something that we will have to work on conscientiously, focused and intentional for a long time.”
The real question is, can the society ever really move forward until it circles back and finally comes to terms with its Lyle Howe legacy?
Will anything really happen here?
Update: Thanks to a columnist brain cramp, I misattributed the author of the lyric quoted at the beginning of this column. It has now been fixed. Back to the sixties!
There is an assumption here that Mr Howe was disbarred, not because the evidence indicated that was the correct decision but because he was black. A reading of the full decision indicates he was not prepared to take advice about judicial expectations, was often unprepared when attending court, did not respond in a timely manner to opposing counsel etc….This behaviour would not be tolerated from a white lawyer. So, unfortunately, occasionally a person of colour who exhibits these behaviours will be held accountable.