Canadian Lawyer

48 M A Y 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m 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 jus- tice of the Supreme Court of Nova Sco- tia, do you have any problem with the fact that you don't have any black or aboriginal judges in your whole build- ing, yet you sentence black and aborigi- nal people all the time?'" Comments like that aren't likely to win Howe any friends inside Nova Sco- tia's courts, or with its small, predomi- nantly 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 "defi- nitely" 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 commu- nities. 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 prac- tice) — 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 hon- est but mistaken belief in consent. The Crown, after consulting with the com- plainant, decided not to undertake a sec- ond trial, bringing the matter to an end. Howe knows that some who've fol- lowed his case suspect he is raising the race question as a diversion to win sym- pathy and cast himself as a victim. One of his prosecutors, asked after the acquit- tal about Howe's claims of racial unfair- ness, noted that Howe never made any objections about the colour of the jury, or introduced any evidence on race dur- ing 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 sup- porters from the same gritty, working- class north-end Halifax neighbourhood where Howe grew up appeared out- side court with placards claiming racial unfairness in the Nova Scotia courts. Diversity in the courts is a nation- al problem. Supreme Court of Canada Chief Justice Beverley McLachlin has long spoken out about the need to diver- sify the colour and gender of a Canadian I WAS FIVE YEARS OLD WHEN THE MARSHALL INQUIRY WAS DONE. SINCE THAT TIME, WHAT HAVE THEY DONE? WE STILL HAVE ZERO BLACK JUDGES. . . . LYLE HOWE L E G A L R E P O RT \ F O R E N S I C S & C R I M I N A L L AW

• Cover