Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m O C T O B E R 2 0 1 7 7 A t the joint recommendation of the Crown prosecutor and defence counsel, a 32-year- old Newfoundland man has been sentenced to time served and 12 months' probation — in Alberta. Rely- ing on a little-used sentence of banish- ment, Gordie Bishop has agreed to leave the province, his associates and, it is hoped, his criminal past. The Supreme Court of Newfound- land and Labrador earlier this year found the St. John's native, who has a criminal record that spans 27 pages, guilty of several charges including break and enter and assaults on police officers. In an effort to avoid jail time, and perhaps to break a criminal pat- tern of behaviour, both sides in the case agreed the accused — who has never been outside Newfoundland — should be sent to another province rather than sent on the traditional path to probation. "This case was unusual. The accused asked for banishment," says Toby Goldbach, an assistant professor at the Peter A. Allard School of Law at UBC in Vancouver. Bishop's lawyer, Stanley MacDon- ald, a litigation lawyer with Patterson Law in St. John's, was quick to point out the intent was not to simply shuffle responsibility for Bishop else- where. "It is important to know that this is not designed to foist a criminal on another jurisdiction. It's designed to break a cycle of criminality," he told the court. While banishment is relatively rare in Canadian courtrooms, it has long been used as a form of penance. The British established penal colonies in North America and Australia as a means of punishing criminals and making towns and villages at home safer. Aboriginal communities also use banishment. Communities in New Brunswick, Nova Scotia and Saskatch- ewan, for example, have banished members trafficking in drugs. Banishment by indigenous peoples has two purposes, says Goldbach. First, it's meant to teach skills to the violator, such as self-sufficiency. Sec- ond, it may be intended to provide peace of mind for victims as well, especially in cases of domestic abuse or sexual assault. The rehabilitative benefits of ban- ishment are not well documented within mainstream judicial sentenc- ing. Canada's legal community will be watching with interest to see what impact the sentence will have on a Newfoundland man compelled to be away from home for the first time in his life. — DONALEE MOULTON REGIONAL WRAP-UP AT L A N T I C \ AT L A N T I C \ C E N T R A L \ N O RT H \ W E S T Newfoundland man banished to Alberta LONGEST DISCIPLINARY HEARING IN NOVA SCOTIA CONCLUDES T he longest disciplinary hearing in the history of the Nova Scotia Barristers' Society is over at last. After 66 hearing days that spanned a year and a half and produced 12,035 transcript pages, a three-member panel has unani- mously found Halifax lawyer Lyle Howe guilty of professional misconduct and professional incompetence. According to the 140-page decision, the history-making length of the hear- ing was due to a number of factors. First, there were multiple charges against Howe, an African-Canadian. These included being dishonest with clients and the court, taking on too many clients and collecting retainers without doing the required work. Many of the issues that had to be addressed were also "difficult and uncommon," the panel noted. These involved allegations of perceived con- flicts of members of the panel, which required three applications to address, and whether members of the judiciary were compellable as witnesses. Central to Howe's case, officially launched in May 2015, was the issue of sys- temic racism, differential treatment and discrimination. "[T]he Panel found that Mr. Howe must have the opportunity to show whether bias and discrimination impacted him. In our view, it would have been wrong to simply assume that if no evidence of discrimination was evident from evidence directly relevant to the charges that discrimination did not play a role in the matter," the decision states. The issues were not moot. The tribunal found that Howe, who has been suspended from practice since Sept. 1, 2016, did experience situations in his practice where race was a factor in decisions that affected him. These decisions were sometimes made by an individual and sometimes by institutional players. Evidence from the former was dismissed and the latter did not rise to the level of a Charter violation, the panel concluded. Howe will be sentenced later this fall. — DM

• Cover