Howe v. Nova Scotia Barristers’ Society, 2019 NSCA 81

Nova Scotia Court of Appeal Citation: Howe v. Nova Scotia Barristers’ Society , 2019 NSCA 81 Date: 20191024 Docket: CA 470952 Registry: Halifax Between: Lyle Howe Appellant v. Nova Scotia Barristers’ Society and Attorney General of Nova Scotia Respondents Restriction on Publication: : pursuant to Confidentiality Order dated March 22, 2018 Judge: The Honourable Justice David P.S. Farrar Appeal Heard: April 3-4, 2019, in Halifax, Nova Scotia Subject: Code of Professional Conduct. Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia. Professional Misconduct. Disciplinary Proceedings.

Summary: Mr. Howe was charged with a number of counts of professional misconduct between 2011 and 2016. After a 66-day hearing, a Disciplinary Panel found Mr. Howe guilty of professional misconduct and disbarred him without eligibility to re-apply for a period of five years. It also ordered him to pay costs in the amount of $150,000.00 prior to being able to apply for readmission to the Bar. During the hearing before the Panel, Mr. Howe’s primary argument was the disciplinary process and investigation had been tainted by racism.

He said he was unfairly targeted because of his race and cultural background and that his s. 15 Charter rights had been violated. He asked that the evidence against him be excluded. He also argued that the Panel was biased against him. The Panel found that Mr. Howe’s s. 15 Charter rights had not been violated by the investigation and disciplinary process. It also dismissed his allegations of bias. Mr. Howe appealed.

Issues: The primary issues on the appeal were: (1) the Panel erred in failing to find a breach of s. 15 of the Charter ; (2) the Panel misinterpreted or ignored relevant evidence; (3) one of the Panel members, Donald Murray, Q.C., erred in failing to recuse himself on the basis of bias; (4) the penalty imposed was unfit and unjust.

Result: Appeal allowed, in part. The Panel did not err in finding that there had not been a breach of Mr. Howe’s Charter rights. It thoroughly reviewed the evidence and found that the Society’s investigation was not motivated by racial prejudice. Its findings of fact are not subject to review by this Court. Mr. Murray did not err in failing to recuse himself based on the allegation of bias. The argument was entirely without merit. The Panel also considered all of the evidence and it did not fail to consider or ignore relevant evidence.

With the consent of the Society, the ground of appeal relating to sentence was allowed, in part. It is no longer a condition precedent that Mr. Howe pay costs in the amount of $150,000.00 prior to being able to apply for readmission to the Bar. The parties sought permission, and were granted, the ability to make submissions on costs subsequent to this decision. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 58 pages. Nova Scotia Court of Appeal Citation: Howe v.

Nova Scotia Barristers’ Society , 2019 NSCA 81 Date: 20191024 Docket: CA 470952 Registry: Halifax Between: Lyle Howe Appellant v. Nova Scotia Barristers’ Society and Attorney General of Nova Scotia Respondents Restriction on Publication: pursuant to Confidentiality Order dated March 22, 2018 Judges: Farrar, Saunders, Oland, Fichaud and Bryson, JJ.A. Appeal Heard: April 3-4, 2019, in Halifax, Nova Scotia Held: Appeal allowed, in part per reasons for judgment of Farrar, J.A.; Saunders, Oland, Fichaud and Bryson, JJ.A. concurring; Counsel: Appellant in person and Laura A. McCarthy, for the appellant Marjorie A.

Hickey, Q.C. and Daniel Wallace, for the respondent, Nova Scotia Barristers’ Society Edward A. Gores, Q.C., for the respondent, Attorney General of Nova Scotia, not participating

Reasons for judgment: [ 1 ] On May 25, 2015, the Nova Scotia Barristers’ Society (the Society) charged the appellant, Lyle Howe, with professional misconduct and professional incompetence for allegedly violating provisions of the Code of Professional Conduct (the Code ) and the Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia , 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998) (the Handbook ), as well as the Regulations made pursuant to the Legal Profession Act [1] , S.N.S. 2004, c. 28 . [ 2 ] The hearing into Mr. Howe’s conduct commenced on December 10, 2015.

The hearing lasted for approximately a year and a half, with 66 hearing days, before a panel consisting of Ronald J. MacDonald, Q.C., Donald C. Murray, Q.C. and Dr. Richard W. Norman. They heard final arguments on April 19, 2017. On July 17, 2017, the Panel rendered its decision (Merits decision reported as 2017 NSBS 3 ). [ 3 ] The Panel found that Mr. Howe had been dishonest with the Court, made misrepresentations to the Court, demonstrated a significant lack of candour, was deliberately dishonest, failed to properly investigate client files, and failed to recognize conflicts of interest.

It concluded his behaviour constituted Professional Misconduct and Professional Incompetence (Merits decision, ¶575). [ 4 ] On October 20, 2017, the Panel disbarred Mr. Howe from the practice of law effective October 20, 2017 and ordered that he would not be entitled to apply for re-admission for five years from the date of the decision. It further ordered that if Mr. Howe wished to reapply, he would be required to pay costs to the Society in the amount of $150,000.00 prior to doing so (Sanction decision, reported as 2017 NSBS 4 , ¶109). [ 5 ] Mr.

Howe appeals from both the decision to disbar him and the sanction imposed. [ 6 ] On the appeal, Mr. Howe was represented by himself and Laura McCarthy; his spouse and former law partner. [ 7 ] For the reasons that follow, I would allow the appeal to the extent described in ¶215 and reserve on the question of costs until the parties have had an opportunity to make further written submissions. Background [ 8 ] Mr. Howe graduated from Dalhousie Law School in May 2009. He articled with Boyne Clarke in Dartmouth, Nova Scotia.

He was called to the Bar in June 2010. [ 9 ] Following his admission to the Bar, he worked as an associate with Bailey & Associates until November 2010. He left Bailey & Associates to become an associate at Bacchus & Associates Law Firm where he worked until July 2011. [ 10 ] In August 2011, Mr. Howe opened Howe Law as a sole practitioner focusing mainly on criminal defence matters. In June 2013, Ms. McCarthy joined the firm upon her admission to the Bar. [ 11 ] From June 2010 to October 2011, the Society received five complaints against Mr. Howe.

The Society’s Complaints Investigation Committee (CIC) was responsible for directing and reviewing the investigation of complaints. [ 12 ] On September 23, 2011, the CIC ordered a Practice Review of Mr. Howe and retained John Rafferty, Q.C. to conduct it. [ 13 ] Mr. Rafferty filed his report on November 21, 2011. [ 14 ] Mr. Rafferty’s report discussed his review of random files in Mr. Howe’s office as well as the complaints which had been made against him. According to Mr. Rafferty, Mr. Howe acknowledged that he needed to improve the way he conducted his practice and limit the number of files he accepted.

He also told Mr. Rafferty that he would no longer double book court dates. [ 15 ] Mr. Rafferty filed a supplemental report on November 23, 2011. Mr. Rafferty planned for the report to be a review of Mr. Howe’s conduct at a scheduled trial involving charges of driving under the influence. However, on November 21, 2011, Mr. Howe was charged with sexual assault and administering a noxious substance. As a result, the trial that Mr. Rafferty was to observe did not go ahead on the scheduled date. Mr. Rafferty’s supplemental report primarily addressed the impact the criminal charges had on Mr.

Howe’s practice. [ 16 ] On November 30, 2011, Victoria Rees, the Director of Professional Responsibility for the Society, wrote to Mr. Howe regarding the Practice Review enclosing a copy of Mr. Rafferty’s reports which had been reviewed by the CIC. In her correspondence Ms. Rees informed Mr. Howe that the CIC was urging him to reflect seriously on Mr. Rafferty’s comments and recommendations with respect to practise management improvement and scheduling issues. [ 17 ] In January 2012, Mr.

Howe voluntarily agreed to restrict his practice by not taking on any new files for clients charged with the same or similar criminal charges as those he faced at that time. [ 18 ] The CIC finished its investigation of the outstanding complaints by July 2012. The CIC dismissed all but one of the complaints which resulted in Mr. Howe being counselled for not taking sufficient care to avoid misleading the Court.

[ 19 ] On February 26, 2013, Provincial Court Judge Alanna Murphy telephoned Ms. Rees to express concerns about Mr. Howe’s conduct before the Court. One of the complaints was that Mr. Howe had been three hours late for a trial. [ 20 ] On September 9, 2013, Ms. Rees wrote to Mr. Howe as follows: Over the past year, concerns have again come to the Society’s attention with regard to your continuing to practice before the Courts in a manner which is disruptive, contrary to the interests of the proper and effective administration of justice, and contrary to the interests of some of your clients.

On the basis of these concerns, the Executive Director has determined that reasonable grounds for an investigation … have been established. [ 21 ] Ms. Rees went on to inform Mr. Howe that the Society had retained Elizabeth Buckle to assist with the investigation and requested that Mr. Howe attend at an interview with Ms. Rees and Ms. Buckle. [ 22 ] On September 19, 2013, [J.B.] made a complaint to the Society about Mr. Howe arising from Mr. Howe’s representation of him on a charge of impaired driving. Mr. [B.]’s complaints included: • Mr. Howe not calling him when Mr.

Howe could not be in court; • not providing him with any written documentation of any kind; • making court dates and not informing him; and • blaming him (Mr. [B.]) for not appearing when Mr. Howe never informed him of the dates. [ 23 ] On October 2, 2013, the Public Prosecution Service filed a complaint against Mr. Howe involving Crown Attorney Michelle James. In that complaint, the Public Prosecution Service alleged that Mr. Howe had made an inappropriate attempt to persuade a Crown witness from proceeding with a prosecution. [ 24 ] On October 3, 2013, the CIC ordered a second Practice Review.

The Society retained Stanley MacDonald, Q.C. to conduct this review. [ 25 ] On January 13, 2014, Mr. MacDonald issued his Practice Review Report. In that report, Mr. MacDonald identified several areas of concern with Mr.

Howe as gleaned from the outstanding complaints, including: • misleading the court; • failing to properly prepare for court; • failing to keep clients informed; • misrepresenting client instructions to the court; • threatening a Crown witness; • various appearances arising out of “overbooking” himself for various court appearances; and • misleading a client with respect to a retainer and the costs of legal services. [ 26 ] Mr. MacDonald expressed concerns about the manner in which Mr. Howe was conducting his practice: My concerns with respect to Mr.

Howe’s practice arise from the sheer volume of clients that he and Ms. McCarthy represent. In my experience, 280 to 300 clients is a very large caseload, even if it is split between two lawyers. In this case, one of those lawyers was admitted to the bar in 2013. Mr. Howe was admitted in 2010. Despite Mr. Howe’s own views regarding his experience, neither Mr. Howe nor Ms. McCarthy are “seasoned” lawyers. They are just beginning their careers. [ 27 ] Mr.

MacDonald then went on to identify what he observed from the files as follows: • no letters to clients; • no memos to file; • no documents reflecting instructions; • no documents containing any analysis of disclosure materials; • no opinions to clients with respect to their cases; and • no written instructions with respect to admissions. [ 28 ] Mr. MacDonald noted that those were just a few examples of what he considered to be deficiencies. [ 29 ] Despite these concerns, Mr. MacDonald was of the view that Mr. Howe was capable of competently conducting trials and other criminal proceedings.

[ 30 ] On February 10, 2014, Ms. Buckle and Ms. Rees interviewed Mr. Howe. The interview commenced at approximately 1:30 p.m. and concluded at almost 7:00 p.m. During the course of that interview, Ms. Buckle and Ms. Rees questioned Mr. Howe about a number of the complaints against him, as well as what steps he had taken to implement the recommendations in the initial Rafferty Report. [ 31 ] On February 21, 2014, the CIC met to consider the various outstanding matters involving Mr. Howe. The CIC invited Mr. Howe to attend a subsequent meeting with them to review matters.

In advance of that meeting the Society retained Robert Wright, a Registered Social Worker, to conduct an “Impact of Race and Culture Assessment”. In the Society’s letter to Mr. Wright dated March 5, 2014, it described Mr. Howe as follows: … Mr. Howe presents as a very intelligent, knowledgeable, capable, hard working and articulate young lawyer. The Society and the Complaints Investigation Committee (CIC) believe Mr. Howe has the potential to be a very good lawyer.

However, the complaints we have been investigating, and for which there is substantial evidence of serious ethical violations, alleged dishonesty and lack of integrity, poor communications and quality of service, failure to prepare for matters before the Courts, numerous significant conflicts of interest (usually by representing co-accused charged with the same or similar offences), and impairing the administration of justice through double and triple booking proceedings before various Courts. … Mr.

Howe admitted to having “trust issues”, which has impacted his interactions with his peers and others, and a belief that he has been and continues to be the subject of racial discrimination by lawyers, police and the Courts, which has also impacted his interactions and judgment. [ 32 ] After setting out the issues with respect to Mr. Howe, the letter continued: It is the CIC’s hope that with the benefit of your assessment, they will be able to better understand the range of factors contributing to Mr.

Howe’s conduct and poor judgment, to demonstrate cultural competency and sensitivity as appropriate, and take this into consideration when designing practice requirements, which will likely include the imposition of a practice supervisor. … [ 33 ] On March 28, 2014, Mr. Wright issued his Impact of Race and Culture Assessment. In that report, Mr. Wright suggested that Mr. Howe needed to address the internal forces that were driving his behaviours: Addressing the internal forces that drive these behaviours should be the focus of Mr. Howe’s attention.

When his work and life become manageable this issue will simply cease to exist. Though I have not set out to diagnose Mr. Howe, my review of this matter and my conversations with him have led me to believe that counselling issues that are substantially based in issues of race, class, and systemic discrimination are at the heart of his difficulties with his practice. Speculating around the diagnosis would have little value in the context of this report. What is important is that Mr.

Howe agree and acknowledge that he has some work to do in this area and to commit to a systemic plan and process to address his needs and for the barristers’ society to either acknowledge or reject that explanation and then craft practice restrictions that are designed to support Mr. Howe to practice better. [ 34 ] Mr. Howe did not follow-up on the suggestions contained in Mr. Wright’s report. [ 35 ] On April 10, 2014, Mr. Howe met with the CIC. At that time, the CIC outlined and discussed with Mr. Howe 20 proposed practice restrictions. Mr.

Howe agreed with the proposed practice restrictions and on April 17, 2014, he signed an Agreement for Practice Restrictions. [ 36 ] On May 31, 2014, Mr. Howe was found guilty of sexual assault. On June 2, 2014, he was suspended from the practice of law and Mr. Rafferty was appointed as Receiver for his practice. [ 37 ] Mr. Howe appealed his sexual assault conviction to this Court. [ 38 ] On June 12, 2014, Judge Anne Derrick (as she then was) wrote to the Society about Mr. Howe. In her letter, Judge Derrick expressed concerns about Mr.

Howe’s representation of three individuals and provided transcripts of the proceedings to show why she was concerned. [ 39 ] On June 30, 2014, [K.S.] made a complaint to the Society about Mr. Howe’s representation of her in criminal proceedings. Ms. [S.]’s complaint was very detailed. It took issue with the level of service provided by Mr. Howe, his failure to attend at court when she expected him to do so and the amount of money she had paid for his services. [ 40 ] On July 4, 2014, Peter Mancini, Service Delivery Director with Nova Scotia Legal Aid, wrote to the Society complaining about Mr.

Howe on behalf of a former client of Mr. Howe, [B.H.]. The Society laid charges against Mr. Howe arising from his representation of Mr. [H.]. [ 41 ] On July 29, 2014, Crown Attorney Bill Gorman, sent an email to the Society to advise of his concern that while Mr. Howe was suspended as a result of the sexual assault conviction he attended at a

summary conviction appeal with Ms. McCarthy and provided advice with respect to the conduct of that appeal [2] . [ 42 ] On September 11, 2014, Ms. Buckle finalized her Investigation Report arising from her review of court transcripts and her interview with Mr. Howe. After a lengthy review of the matters involving Mr. Howe, Ms. Buckle concluded: I believe the evidence suggests breaches of the C ode of Conduct relating to Competence, Quality of Service, Conflicts and Candour with the court arising out of the matters brought forward by the Court. … [ 43 ] The Society continued its investigation of Mr.

Howe’s conduct into 2014 and 2015. In late May, 2015, the CIC met to consider the investigation materials. It directed Ms. Rees to lay charges against Mr. Howe and on May 25, 2015, the Society issued charges and a Notice of Hearing to Mr. Howe. The charges included that Mr. Howe:

1. failed to carry on the practice of law and discharge all his responsibilities to clients, tribunals, the public, the Society and other members of the profession honourably and with integrity, and/or failed to be honest and/or candid with clients and inform them of all information known to him that may affect their interests; 2. failed to have and apply relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of his clients and the nature and terms of the engagements, and/or failed to provide competent, timely, conscientious, diligent and efficient quality of service to clients; 3. engaged in professional misconduct, in particular, by failing to follow the advice and guidance respecting his practice of law and ethical responsibilities provided by the Society’s Practice Reviewers; 4. continued to act for clients when there was a clear conflict of interest between his clients; 5. failed to treat the courts with candour, fairness, courtesy and respect by permitting himself to be scheduled for court proceedings for multiple clients in different courtrooms, different cities and towns at the same time; 6. knowingly asserted facts as true when their truth could not be reasonably supported by the evidence; 7. attempted to improperly dissuade and/or wrongfully influence a witness not to testify; 8. approached and/or communicated with a person who was represented by other counsel. [ 44 ] On September 4, 2015, this Court overturned Mr.

Howe’s criminal conviction (reported as 2015 NSCA 84 ). Mr. Howe applied for a lifting of his suspension. On September 15, 2015, the CIC lifted Mr. Howe’s suspension and permitted him to practice subject to various terms, conditions and restrictions including a requirement for a practice supervisor. The CIC subsequently amended those conditions on October 22, 2015. [ 45 ] Malcolm Jeffcock, Q.C. was appointed as Mr. Howe’s practice supervisor. [ 46 ] As noted earlier, the hearing into the complaints against Mr. Howe started on December 10, 2015.

However, in June and July 2016, while the hearing was in progress, the Society investigated three other complaints against Mr. Howe. [ 47 ] The CIC approved new charges against Mr. Howe arising from these complaints. The panel hearing the original charges allowed a motion to add the new charges to the ongoing hearing and on August 10, 2016 the Society amended the charges against Mr. Howe. [ 48 ] The amended charges related to Mr. Howe’s conduct in June and July 2016. The charges stated that Mr.

Howe: • failed to be honest and/or candid; • misled and/or made misrepresentations to the court in misrepresentations he made to Judge Derrick and Justice Cacchione about his ability to attend court appearances, in two different courts on June 17, 2016; • was unprepared to testify at a hearing where a former client was seeking to set aside guilty pleas on the basis of Mr.

Howe’s ineffective counsel; • failed to be honest and/or candid, misled the CIC and/or made misrepresentations with respect to a file he was involved in; • failed to ensure clients were appropriately served; • failed to follow the CIC’s order in relation to practice restriction; • used disparaging language toward and about lawyers and judges; • made unsupported or false allegations or representations; • failed to respond to communications from a representative of the Society; and • entered incomplete documents as exhibits. [ 49 ] On September 1, 2016, the CIC suspended Mr.

Howe as a result of information arising from another investigation. It approved additional, separate charges against Mr. Howe based on that investigation. These charges are being held in abeyance and are not the subject-matter of this appeal. [ 50 ] During the course of the hearing Mr. Howe brought numerous motions, one of which was to have Panel Member, Donald Murray, Q.C. recuse himself from the proceedings. That motion was dismissed (Recusal decision reported as 2016 NSBS 3 ). Mr. Murray’s failure to recuse himself is a ground of appeal in this proceeding. [ 51 ] At the hearing, Mr.

Howe argued that the Society’s investigation into his conduct was tainted by racism and breached his

Section 15 Charter rights. He asked that all of the evidence gathered by the Society be excluded. He also argued that he was not guilty of any of the charges laid by the Society. [ 52 ] The Panel concluded in its Merits decision that Mr. Howe had not proven a breach of s. 15 of the Charter and denied his request for a s. 24 Charter remedy.

[ 53 ] It found that the Society had proven some but not all of the charges. The Panel found that Mr. Howe’s breaches generally fell into three categories of behaviour: (1) integrity issues; (2) overbooking and failure to appear in Court; and (3) failure to follow practice and other directions from the Society. [ 54 ] The Panel found that, in several distinct factual circumstances over a number of years, Mr. Howe breached his duty to act with integrity in his communication to the Courts, the Society and his clients. In its factum, the Society has provided a helpful

summary of the Panel’s findings regarding Mr. Howe’s lack of integrity. The

summary correctly outlines the Panel’s findings and I repeat them here with some modifications: (

a) January 16, 2013 – Mr. Howe was not candid with the Court about Mr. [B.]’s absence from Court. The Panel found that Mr. Howe misled Judge Sherar because telling him the truth “would have meant admitting to the court that Mr. Howe had not been diligent enough in ensuring his client knew he was supposed to be in court that day” so “his version given to the court was a massaging of the facts to place blame on [Mr. [B.]]”. The Panel found that Mr. Howe “fudged” the facts to avoid responsibility (Decision ¶124-125) ; (

b) March 15, 2013 – in the DF/MS and RM matters, Mr. Howe was inaccurate in his comments to Judge Tax and Judge Hoskins. After providing a thorough analysis of the facts of this case, the Panel found: “the nature of the occasion on which Mr. Howe’s comments were made, the importance of the occasion with respect to his client’s timely trial interests, and his ineffective effort to deflect responsibility, combine to persuade us to conclude – regretfully – that Mr. Howe’s comments to Judge Tax and Judge Hoskins on March 15 were purposely false” (Decision ¶523); (

c) March 26, 2013 – Mr. Howe was dishonest with the Court and Mr. [B.] about the timing of the receipt of the therapist’s report. Mr. Howe negligently provided an unhelpful report to the Court without reviewing it with Mr. [B.]. The Panel found that the “only rational explanation for doing so is that Mr. Howe was scrambling to save face with the court and to gain a further adjournment, and thus he pulled the letter from the file and tendered it to the court” (Decision ¶140); (

d) April 9, 2013 – in the KS & KW and JC conflict matter, Mr. Howe misled the Court by stating that he had “waivers” and insinuating that the Society was in support of his position to stay on the file as counsel. The Panel found that “it was deceptive and misleading on the part of Mr. Howe to tell that he had spoken with the Society and could assure the Court that no issues were going to arise, given that he clearly knew the Society’s actual, and contrary, position” (Decision ¶496); (

e) April 16, 2013 – Mr. Howe deliberately lied to Judge Gabriel about what happened in Court that morning before Judge Murphy. After reviewing the facts behind this incident, the Panel found that, in an attempt to minimize his liability for not being prepared before Judge Murphy, Mr. Howe lied and was deliberately untruthful to Judge Gabriel. The Panel then noted: “What happened here is something we saw similar evidence of throughout the proceedings before us” (Decision ¶197); (

f) March 4, 2014 – Mr. Howe failed to act with integrity in his response to the Society regarding his receipt of the therapist’s report in the Mr. [B.] matter, and that he reviewed the matter with his client (Decision ¶147); (

g) June 5 – July 21, 2014 – the Panel considered three matters and found that following his suspension, “Mr. Howe deliberately and repeatedly violated the [Society’s Guidelines Respecting Lawyers’ Voluntary or Involuntary Cessation of Practice]” (Decision ¶374- 380); (

h) June 10, 2016 – Mr. Howe was dishonest with Judge Derrick when he indicated that he was available to attend court on June 17, 2016. The Panel found that Mr. Howe made a calculated decision and “ intentionally created a conflict to give him a reason to avoid either one or both sentencings the following week. This is significant misconduct” (Decision ¶235); (

i) June 12, 2016 – Mr. Howe inaccurately advised Justice Cacchione in a letter that he was “newly retained” in the Mr. [D.] and Mr. [K.] matters. Mr. Howe failed to advise Justice Cacchione that he was no longer available to attend the scheduled Court appearance for the afternoon of June 17, 2016. The Panel held that “this material non-disclosure in the correspondence to the Supreme Court on June 12 demonstrates a singular lack of candour.” (Decision ¶228); (

j) June 17, 2016 – Mr. Howe failed to attend Mr. [K.]’s sentencing hearing in the afternoon and failed to advise Justice Cacchione that he was unable to attend that afternoon even though he was before him in the morning. The Panel found that Mr. Howe “made a strategic decision not to raise the status of [K.]’s sentencing with either Ms. Driscoll or Justice Cacchione while they were assembled on the morning of June 17.” (Decision ¶226); The Panel found that Mr. Howe was “manipulating the Supreme Court through a lack of candour.

He was, frankly, attempting to play the Court.” (Decision ¶229); The Panel held that it was “regrettably plain and evident that Mr. Howe saw nothing wrong on June 17 with abusing the Supreme Court…Mr. Howe engaged in a cost-benefit analysis as to how candid to be with the Court…” (Decision ¶231); (

k) June 17, 2016 – Regarding Mr. Howe’s letter to Justice Cacchione, the Panel found that Mr. Howe gave a “deliberate falsehood” when he informed Justice Cacchione in a letter that he was “compelled” to testify by Judge Derrick. The Panel found that: “Even as he pretended an apology, he was endeavouring to escape responsibility for his own calculated behaviour.” (Decision ¶234); and (

l) July 8, 2016 – in the R. v. Domoslai matter, Mr. Howe told the Court that he was not “…up to speed with exactly why the discharge (of Ms. McCarthy) took place…” while he testified to the Panel that he was aware of the reason. This comment demonstrated that Mr. Howe was not honest and accurate with the court and thus again in breach of clause 17 of the practice conditions to be honest and accurate with the Court. (Decision ¶426). [ 55 ] As noted earlier, the Panel, in its Sanction decision, disbarred Mr. Howe for a period of five years commencing on October 20, 2017. He was also ordered to pay costs to the Society in the amount of $150,000.00.

[ 56 ] Mr. Howe’s appeals from the Merits and Sanction decisions were heard on April 3 and 4, 2019. During the appeal hearing, Mr. Howe raised the issue of the quantum of costs and the fact that he would be required to pay the costs prior to him being reinstated. At the conclusion of the hearing we asked the parties for submissions on whether we could vary the costs award as the issue was not raised in Mr. Howe’s Notice of Appeal nor his factum. [ 57 ] The Society consented to this Court varying the Panel’s Sanction decision to the extent it made the repayment of costs a condition precedent to Mr.

Howe’s reinstatement. [ 58 ] In July 2019, this Court identified another issue relating to the Sanction decision: in particular, whether Mr. Howe’s race, colour or ethnic background could be factors in mitigating sentence. We requested further submissions on that issue which were received in August and September 2019. [ 59 ] With this backdrop I will now turn to the issues on the appeal. I will add further factual context as necessary when addressing the individual grounds of appeal. Issues [ 60 ] Mr.

Howe’s Notice of Appeal raises seven grounds of appeal with a number of issues identified under each ground of appeal. In his factum he distils the grounds of appeal down to four grounds as follows: (

a) Has there been a violation of Mr. Howe’s s. 15 Charter rights; (

b) Is there a reasonable apprehension of bias of the panel, particularly the pecuniary interest of Murray; (

c) Have there been errors of law amounting to a violation of the Appellant’s substantive and procedural rights; and (

d) Has the panel ordered and imposed an unfit and unreasonably disproportionate sentence amounting to an error of law. [ 61 ] I would restate the grounds of appeal and review them in the following order: 1. Did the Panel err in concluding that there was no breach of Mr. Howe’s s. 15 Charter rights? Under this ground of appeal Mr. Howe identifies a number of sub-issues. I will also address some of those issues in this order: (i) “Bring the hood into practice”; (ii) There were no effective steps taken by the Society to address the systemic discrimination issue raised by Mr. Howe; (iii) Hypervigilance; (iv) R. v.

Le , 2019 SCC 34 ; 2. Did the Panel err in law or act in a procedurally unfair manner by allowing Mr. Murray to remain on the Panel; 3. Did the Panel err in law by failing to consider material evidence; 4. Did the Panel misinterpret the provisions of the Code of Conduct for Charge #6; and 5. Was the Panel’s sentence unfit and unjust? [ 62 ] I have attempted to address the arguments which Mr. Howe emphasized in his oral and written submissions.

However, at the outset I would comment that if I have not made reference to an argument it is not because I have not considered it, it is because it was not material to this appeal. Issue #1 Did the Panel err in concluding that there was no breach of Mr. Howe’s s. 15 Charter rights Standard of Review [ 63 ] Mr. Howe, in his factum, takes the position that the standard of review of the Charter issue is correctness; the Society says it is reasonableness. With respect, neither of those standards of review apply in these circumstances. As I will set out in more detail later, Mr.

Howe takes no issue with the Panel’s expression of the law which it must apply when determining the Charter issue. His concern is with the Panel’s findings that the facts of this case do not give rise to a Charter violation. [ 64 ] Mr. Howe has a statutory right of appeal pursuant to the Legal Profession Act : 49.

(2) A party may appeal to the Nova Scotia Court of Appeal on any question of law from the findings of a hearing panel, following the rendering of a decision pursuant to subsections 45(4) or (5) or from a decision of the Complaints Investigation Committee under

Section 37 or 38. [Emphasis added] [ 65 ] In Nova Scotia Liquor Corporation v. Nova Scotia (Board of Inquiry) , 2016 NSCA 28 , this Court was addressing an appeal from a Human Rights Tribunal decision. Section 36(1) of the Human Rights Act, R.S.N.S. 1989, c. 214 , as amended, like the Legal Profession Act , only allows an appeal “on a question of law”. Bourgeois, J.A., writing for the Court, explained the deference afforded to findings of fact on such an appeal. Although that case did not involve Charter considerations, it did involve quasi-constitutional provincial human rights legislation. The Court held:

[23] As will be expanded upon in the analysis to follow, some of the issues raised on this appeal challenge findings of fact made bythe Board. Given the scope of s. 36(1), this poses difficulty for those seeking to advance such arguments. In International Association ofFire Fighters, Local 268 v. Adekayode, 2016 NSCA 6, Fichaud, J.A. considered s. 36(1) and noted that the door to reviewing the factualfindings of a board of inquiry may only be cracked where there is no evidence upon which such conclusions could have been reached.He wrote: [42] This appeal also challenges the Board’s findings of fact.

Where, as here, the statutory right of appeal is limited to an issue oflaw, the Court may review a finding of fact only if there is no supporting evidence from which the finding may be made or theinference reasonably drawn. That is because a finding based on no evidence is arbitrary, and a tribunal errs in law by acting arbitrarilyin any aspect of its process, including fact-finding. The standard of review would be reasonableness (Dr. Q v.

College of Physicians andSurgeons of British Columbia, 2003 SCC 19 , [2003] 1 S.C.R. 226, paras. 34, 38-9, 42), though it is difficult to conceive how anarbitrary finding could be reasonable. Alternatively, if there is some evidence, then the tribunal’s factual findings and inferencesare not appealable under the statute, nor are assessments of credibility, meaning the standard of review is not anissue. Fashoranti v. College of Physicians and Surgeons of Nova Scotia, 2015 NSCA 25 , paras. 20-21, leave denied Sept. 3,2015 (S.C.C.); Fadelle v.

Nova Scotia College of Pharmacists, 2013 NSCA 26 , paras. 12-17, and authorities there cited. Seealso Nova Scotia v. Play it Again Sports Ltd., para. 50. [Emphasis in original] [66] The Court went on to state: [25] This is clearly an appeal of an administrative decision. However, the NSLC and Commission submit that Housen v. Nikolaisen,2002 SCC 33, applies to at least portions of their proposed standard of review analysis, saying that factual findings made by the Boardshould be reviewed for “palpable and overriding error.” [26] Such submissions miss the mark on two counts.

Firstly, factual findings or inferences drawn therefrom will not, absent thenarrow circumstances noted above, be the fare of appeals to this Court. Secondly, Housen has no place in the review of decisions from aboard of inquiry under the Human Rights Act, or any other administrative body. One instead looks to Dunsmuir v.

New Brunswick, 2008SCC 9, and the decisions which have followed therefrom, for the standard of review—it is correctness or reasonableness. [67] In conclusion on this point Bourgeois, J.A. held: [40] In challenging the Board’s conclusion [on discrimination under provincial human rights legislation], the NSLC has not suggestedthat there was no evidence upon which the factual conclusions could have been made, but rather the evidence was misinterpreted ormisapplied. With respect, unless an error of law is apparent elsewhere in the reasons, this Court cannot intervene. [68] Similar considerations apply in this case.

Mr. Howe is arguing that the Panel misinterpreted, misapplied or overlookedevidence in making its factual findings. We can only interfere if there was no evidence upon which the factual conclusions could havebeen made. Analysis [69] Mr. Howe’s allegation that s. 15(1) was breached was intertwined with his allegations of bias, discrimination and differentialtreatment. The Panel summarized his complaints as follows: 22. Mr.

Howe eventually consolidated his complaints in relation to race, racial bias, differential treatment, and lack of culturalsensitivity or awareness, into a specific position with his Notice of Charter Motion, dated February 27, 2017. That Notice has since gonethrough some proposed amendments, upon which we have ruled. Those allegations that remain to be adjudicated are that: 1. The Society “acted in a conflict of interest in the investigation and in the conduct of the proceeding and acted in a discriminatorymanner towards Lyle Howe from September 2011 to the present”; 2.

The Society “acted in a conflict of interest, and acted in a discriminatory manner and without transparency in the investigation ofthe PPS Complaint, interactions with Crown Attorneys providing information to” the Society, “and the information provided byDartmouth Provincial Court Judges”, and furthermore, (

a) relied upon double standards compared to other members of the Bar; (

b) used an unfair standard to justify the unprecedented scope of its investigation and perception of Mr. Howe’s conduct; (

c) failed to apply practice standards and norms present in the Halifax criminal defence context, which amounted to adverse impactdiscrimination; 3. The Society failed to disclose the retention of Elizabeth Buckle “and the reasons thereof, in a reasonable time”; 4. The Society “retained and instructed Agents, in particular Malcolm Jeffcock, practice supervisor, for an ulterior purpose”; 5. The Society “failed to investigate Lyle Howe in an [sic] manner that is objective and consistent with the Legal Profession Act andCharter Values”; 6.

The Society “failed to act in the public interest in the investigation. . . and in the conduct of the proceedings against Lyle Howe”. [70] In effect, Mr. Howe argued that he was subject to differential treatment because of his race resulting in an unfair investigation,unfair allegations and an unfair hearing. He argued that this amounted to a violation of his right to equality under s. 15(1) of the Charter,and that the proper remedy was to exclude or discount the evidence upon which the Society relied in the disciplinary hearing.

[71] Mr. Howe repeats these same arguments before this Court. [72] In International Association of Fire Fighters, Local 268 v. Adekayode, 2016 NSCA 6, this Court reviewed the authorities onwhat constitutes discrimination pursuant to s. 15(1) of the Charter. Fichaud J.A., writing for the Court, said: [64] In Quebec (Attorney General) v. A, 2013 SCC 5 , [2013] 1 S.C.R. 61, an authority missing from Local 268’s factum,Justice Abella, speaking for five justices on the meaning of discrimination in s. 15(1) of the Charter, said: 324 Kapp, and later Withler v. Canada (Attorney General), 2011 SCC 12 , [2011] 1 S.C.R. 396, restated these principles asfollows:

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create adisadvantage by perpetuating prejudice or stereotyping? (Kapp, at para. 17; Withler, at para. 30). As the Court said in Withler: The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historicalfactors concerning the group. [para. 39] 325 In referencing prejudice and stereotyping in the second step of the Kapp reformulation of the Andrews test, the Court was notpurporting to create a new s. 15 test.

Withler is clear that “[a]t the end of the day there is only one question: Does the challenged lawviolate the norm of substantive equality in s. 15(1) of the Charter?” (para. 2 [italics in Quebec v. A]). Prejudice and stereotyping aretwo of the indicia that may help answer that question; they are not discrete elements of the test which the claimant is obliged todemonstrate, as Professor Sophia Moreau explains: Such a narrow

interpretation will likely have the unfortunate effect of blinding us to other ways in which individuals and groups, thathave suffered serious and long-standing disadvantages, can be discriminated against. This would include cases, for instance, that do notinvolve either overt prejudice or false stereotyping, but do involve oppression or unfair dominance of one group by another, or involve adenial to one group of goods that seem basic or necessary for full participation in Canadian society. (“R. v. Kapp: New Directions for

Section 15” (2008-2009), 40 Ottawa L. Rev. 283, at p. 292) 326 Prejudice is the holding of pejorative attitudes based on strongly held views about the appropriate capacities or limits of individualsor the groups of which they are a member. Stereotyping, like prejudice, is a disadvantaging attitude, but one that attributes characteristicsto members of a group regardless of their actual capacities.

Attitudes of prejudice and stereotyping can undoubtedly lead todiscriminatory conduct, and discriminatory conduct in turn can reinforce these negative attitudes, since “the very exclusion of thedisadvantaged group ... fosters the belief, both within and outside the group, that the exclusion is the result of ‘natural’ forces, forexample, that women ‘just can’t do the job’” (Action Travail [Canadian National Railway Co. v.

Canada (Canadian Human RightsCommission), (SCC), [1987] 1 S.C.R. 1114], at p. 1139). ... 327 We must be careful not to treat Kapp and Withler as establishing an additional requirement on s. 15 claimants to prove that adistinction will perpetuate prejudicial or stereotypical attitudes towards them. Such an approach improperly focuses attention onwhether a discriminatory attitude [italics in Quebec v. A] exists, not a discriminatory impact, contrary to Andrews [Andrews v.

LawSociety of British Columbia, (SCC), [1989] 1 S.C.R. 143], Kapp and Withler. ... 329 ... prejudice and stereotyping are neither separate elements of the Andrews test, nor categories into which a claim fordiscrimination must fit. A claimant need not prove that a law promotes negative attitudes, [italics in Quebec v. A] a largelyunquantifiable burden. [Emphasis in original] [73] The authorities cited by Justice Fichaud established that there is “one question” under s. 15(1) of the Charter.

To paraphrase itto fit the circumstances of this case: did the actions of the Society violate the norm of substantive equality in s. 15(1) of the Charter? [74] The Panel referred to Adekayode in setting out its approach in determining whether Mr. Howe had experienced discriminatingimpacts: [39] Therefore, in approaching our task of determining whether there have in fact been discriminatory impacts to Mr. Howe, we willconsider whether race or colour or ethnicity could have been a factor, or could have been an influence, in the behaviour of others towardshim.

We believe that this approach is consistent with the approach to findings of discrimination pursuant to s. 15 of the Charter: …Adekayode… At the end of the analysis there is really only one question to be answered: Does the behaviour of the individual orinstitution violate the norm of substantive equality on a relevant ground? [Emphasis added] [75] Nowhere in his factum nor in his oral argument does Mr. Howe challenge the Panel’s expression of the legal test under s. 15 ofthe Charter. For good reason – the Panel properly identified the question it had to determine in assessing whether the Society violatedMr.

Howe’s rights. [76] The Panel made several factual findings in the course of its deliberations on the Charter issue. One key finding was that as ofMarch 5, 2014, the date the Society wrote to Mr. Wright to request the Race and Culture Assessment, Mr. Howe’s race, colour andcultural location were factors in every subsequent decision made by the Society about him: [68] By early 2014, the Society was considering what to do about various complaints and comments and reports relating to Mr.Howe’s behaviour as a lawyer. Mr. Howe was involved with Ms.

Rees and the Complaints Investigation Committee on a regular andongoing basis. The Society decided, with some initial adherence by Mr. Howe, to consider the preparation of a Race and CultureAssessment. We understand and believe that the assessment was initiated, at least by the Society, to assist in making decisionsabout how to move forward with Mr. Howe. While Mr. Howe quibbles with the legitimacy of some of the rationales outlined in the

letter of March 5, 2014: Ex.2, vol. I, Tab 47, and criticizes its focus on him being the problem to be managed, the relevance of the Race and Culture Assessment to us is different. For us it shows conclusively that from at least March 5, 2014, on, Mr. Howe’s race, colour, and cultural location, were factors in every subsequent decision made by the Society about him. [Emphasis added] [ 77 ] The Panel then asked itself whether the Society’s consideration of Mr.

Howe’s practice issues, in light of his race, had any discriminating impact: [69] We believe that it was at this stage, in March 2014, that the Society made a critical choice in relation to how it dealt with Mr. Howe. This was when the Society first explicitly considered that the practice issues being noticed might have something to do with Mr. Howe’s adjustment to the ways of the profession, and that this adjustment process might require some consideration, and perhaps accommodation, of his cultural and racial location.

From at least that point in time, race and colour and culture and ethnicity became explicit factors in the Society’s interactions with Mr. Howe. To pretend otherwise would be to be blind. The remaining question is whether any discriminatory impact resulted from this decision by the Society to consider Mr. Howe’s identified practice issues in light of his race, colour, and cultural location. [Emphasis added] [ 78 ] Not only did the Panel find that there was not any failure by the Society to accommodate Mr. Howe’s race, color or ethnic background, it found that the Society made a number of attempts to help Mr.

Howe with the management of his practice with limited success: [72] We do not believe that there was any failure by the Society to accommodate Mr. Howe’s racial, colour, or ethnic background. The evidence appears to us to demonstrate that the Society made several attempts to assist Mr. Howe with the management of the kind of practice that he wanted to develop – though these efforts met with limited success. The most obvious demonstration of these efforts from the Society’s point of view were the successive “practice agreements” signed between Mr. Howe and the CIC: … [ 79 ] The Panel expressly found that Mr.

Howe resisted offers of professional guidance and support with respect to a number of practice areas: [78] Mr. Howe has resisted offers of professional guidance and support from senior members of the Bar in terms of his practice location, client load (number), client scope (types of matters), and attitude (professional collegiality). Indeed, the palpable antipathy between Mr. Howe and some other members of the racialized Bar were obvious to us during this process – not only in the course of receiving evidence, but also explicitly in some arguments made to us by Mr.

Howe. [ 80 ] The Panel then directly addressed Mr. Howe’s arguments that the Society and individuals acting on its behalf were racially biased: [83] We also do not see race or colour or cultural location as factors in Elizabeth Buckle, Malcolm Jeffcock, the CIC, or the Society, giving advice to, or in exercising oversight of, or in formulating professional conduct charges against, Mr. Howe. Each of these actors or institutional players from time to time made decisions, or gave advice, or made reports, which disappointed Mr. Howe. Each was performing a legitimate statutory task or service.

Disappointment and disagreement by Mr. Howe with the conclusions of those persons or bodies are not the tests for whether something violates the aspirational value of equality in s.15 of the Charter . [ 81 ] The Panel concluded that Mr. Howe had not proven a material violation of s. 15 of the Charter in relation to the investigation or prosecution of these complaints (¶87). Although the Panel uses the adjective “material” violation of s. 15 of the Charter , nothing turns on their use of that word.

It is apparent from the Panel’s review of the law they cited, and the facts they found, there had been no violation of Mr. Howe’s s. 15 Charter rights. Bring the hood into practice [ 82 ] To address this issue some further background is necessary. Mr. Howe, in submissions before the Panel and this Court, repeatedly portrayed Ms. Rees as being the chief architect of what he perceived to be a racially-driven vendetta to drive him from the profession. [ 83 ] Mr.

Howe spent a considerable amount of time, in both his factum and his oral argument, addressing the “bring the hood into practice” comment, which he attributed to Ms. Rees. Her use of this term, he argued, was a blatant example of her racial profiling and prejudice toward him. [ 84 ] On February 26, 2014, Ms. Rees sent an email to Stan MacDonald and Elizabeth Buckle. She wrote to inform them of the Society’s proposal to have Robert Wright conduct a race-impact assessment on Mr. Howe. In the email, she made what has been referred to as the “bring the hood” into practice comment.

To put the comment into context, I will quote the full paragraph in the email: I have followed up with Emma Halpern, our Equity Officer, about a resource for the CIC on cultural competency. She has come up with a brilliant idea. Dr. Robert Wright is a public rep on our Race Equity Committee, a psychologist and an excellent facilitator of cultural competency training. He has developed a new Race Impact Assessment which was used in the criminal justice system twice last year. It is not unlike a PSR of sorts.

The purpose is to meet with the member, help them identify and understand their background and cultural issues and the potential impact these have on current behavior, and how to better cope with this. It is often enlightening and educational, both for the member, as well as the decision-makers in receipt of the report. As Dr. Wright aptly has said, he’s often seen problems when professionals “bring the hood” into practice . [Emphasis added]

(Although Ms. Rees refers to him as “Dr. Wright”, Mr. Wright is not a doctor). [ 85 ] In her evidence at the hearing, Ms. Rees indicated that she had spoken with Mr. Wright to discuss the purpose of the assessment. The email comment in question was her recounting the conversation she had had with Mr. Wright. She testified she was relaying Mr. Wright’s words in the quotation marks. [ 86 ] During his testimony, Mr. Wright was asked whether he recalled making that statement and he responded: A. I didn't initially but was reminded of it both in conversations I've had with Ms. Rees and with Ms.

Hickey, and in conversations I've had with you. I didn't initially remember it but then when I was reminded of it, I guess remembered and accepted that, yes, I probably said something to that effect. [ 87 ] In his report to Ms. Rees dated March 28, 2014, he discussed the great interpersonal struggles for professional blacks as follows: One of the great intrapersonal struggles for professional Blacks today is how they construct their racial identity.

Will they seek peaceful integration into the largely white professional class and run the risk of being perceived as and feeling like an “Uncle Tom” and race traitor, or will they seek to maintain their identity and solidarity with the still impoverished, marginalized, and criminalized elements of their community and run the risk of being perceived as too radical and unstable to be truly “a professional”, particularly by white members of the professional class of which they are a member? … [ 88 ] Mr. Wright was called by Mr. Howe’s counsel to give evidence before the Panel.

While being questioned about the “bring the hood into practice” comment, Mr. Howe’s counsel referred Mr. Wright to the

section of his Report which I have cited above. Mr. Howe’s counsel questioned Mr. Wright about the context in which he made the “bring the hood” comment. During the course of his testimony, Mr. Wright said the following: Q. … and if I could turn you to page five of the report, page 401 of the exhibit. And if you go to the second substantive paragraph … I’ll count down the lines; one, two, three, four, five, six where it begins with “Risk …” A. Yes. Q. Does that at all refresh your memory with respect to the context in which that comment was made? A.

Well, I think certainly the report … and I’ve gone back and forth between being reminded of the statement and this segment of the report. And this struggle of identity and the difference and the distance between life in the community and life in the professions, this kind of describes it fairly well. Risk of being perceived as too radical and unstable to be truly a professional .

That this distance that exists between the way a person lives within their community, life on the street, if you would, and their life in the professions for … you know, that this is the challenge that I’m speaking of here, which I suppose could be described there at that phrase, bringing the hood into practice, bringing … just recognizing the difference in those two locations. Q. And does recognizing the difference in those two locations, could that imply that it’s about a perception of bringing the hood as opposed to an actual bringing the hood into practice? A.

I’d say that the phrase “bringing the hood into practice” is certainly a more colourful phrase .

When I talk about the distance and the location from, you know, the … this … when I talk about the struggle of maintaining identity and solidarity with impoverished, marginalized, and criminalized elements in their community, and running the risk of being perceived as too radical and unstable to be truly a professional, that this fear of being perceived is what I’m speaking about here in the report. [Emphasis added] [ 89 ] In closing argument before the Panel, the Society’s counsel spent a considerable amount of time on this issue and asked the Panel to compare the language in Mr.

Wright’s report, which I have set out above, and Ms. Rees’ email, which contained the impugned comment. The Society invited the Panel to conclude that the wording was as Mr. Wright said – his words and not those of Ms. Rees. [ 90 ] Mr. Howe put much emphasis on the fact that the Panel did not address the comment directly in their decision. The Panel was obviously aware of the comment and its conclusion that it did not see race or colour or cultural location as factors in the Society “giving advice to, or in exercising oversight of, or in formulating conduct charges against Mr. Howe” (¶83).

The Panel, in coming to this conclusion, obviously disagreed with Mr. Howe that it was Ms. Rees’ comment or that it was evidence of racial stereotyping. [ 91 ] Mr. Howe, in his factum to this Court, spent a lot of time (approximately 65 paragraphs), reviewing the evidence pertaining to Ms. Rees, including a continued insistence that the comment “bring the hood” into practice were her words, not Mr. Wright’s. His attribution of the comment to Ms. Rees is simply not supported by the evidence. [ 92 ] Upon review of this evidence and Mr.

Howe’s arguments, the Panel concluded that race was not a factor in the Society’s oversight of Mr. Howe. [ 93 ] Although the Panel did not mention the comment in its decision, administrative tribunals do not have to consider and comment upon every issue or evidence raised by the parties in their reasons. [ 94 ] I do not consider the Panel’s failure to specifically mention this comment to have any impact on its ultimate conclusion. There were no effective steps taken by the Society to address the systemic discrimination raised by Mr. Howe [ 95 ] In his factum, Mr.

Howe alleges that the Society took no effective steps to address systemic racism (¶50).

[ 96 ] As earlier referenced, the Panel found that by early 2014 Mr. Howe’s race, color and cultural location were factors in every subsequent decision made by the Society. It retained Mr. Wright at its own expense and on its own initiative. The Panel found this was to allow the Society to consider and perhaps accommodate his cultural and racial location (Merits decision, ¶68-69). [ 97 ] Mr. Wright, who was called by Mr. Howe as an expert witness, was complimentary of the Society’s work in promoting racial equity: Q.

And indeed, is it fair to say from your experience, that the efforts being made by the Nova Scotia Barristers’ Society in equity initiatives places it as a leader among a variety of other professions even across the country? A. Yes, certainly a leader among other legal regulatory boards in Canada. The racial equity work here stands head and shoulders above the work that is happening in other parts of the country in that profession, yeah. [ 98 ] The Panel addressed Mr. Howe’s argument on this point, it was satisfied the Society took effective steps to address the issue of the impact of race on Mr. Howe’s behavior.

Hypervigilance [ 99 ] The Society’s alleged hypervigilance towards Mr. Howe was front and centre before the Panel and before us. The Panel described his argument as follows: 64. Mr. Howe argues that complaints about deficiencies in his practice are the result of specific and increased focus on him, and demonstrate that he is being held to a different standard than similarly situated lawyers. We understand that unless someone goes looking, or a client makes a specific complaint, the kind of things spoken about by Mark Bailey are unlikely to be noticed by the Society in anyone’s practice.

The fact that those kinds of things were noticed in relation to some of Mr. Howe’s clients does reflect the heightened level of scrutiny that was given to him. [ 100 ] Again, the Panel recognized Mr. Howe’s point regarding the Society’s alleged hypervigilance: 73. We certainly appreciate that from Mr. Howe’s point of view, the practice agreements were restrictive and likely felt paternalistic. They imposed obligations which, he believed, were unique to him. They demonstrated, in his view, an institutional hyper-vigilance towards his practice that was not applied to other lawyers of similar vintage at the Bar.

He attributes the hyper-vigilance to his race, colour, and cultural location. [ 101 ] The Panel disagreed with Mr. Howe’s attribution of the alleged hypervigilance to his race. It pointed out the flaw in Mr. Howe’s perspective and his complaint that the practice agreements he was required to enter into were restrictive and paternalistic: 74. The flaw in Mr.

Howe’s perspective about hyper-vigilance and the practice agreements is that the kind of expectations and obligations that they imposed are not substantially different than the obligations that any lawyer of less than 5 years at the Bar would expect if working within a firm under the supervision of more senior members of the Bar. Because Mr. Howe was operating his own firm at most of the relevant times, and was the senior lawyer in his firm at most of the relevant times, he did not have a more senior lawyer “in house” to do the supervising. [ 102 ] Mr.

Howe refers to unprecedented scrutiny and over-supervision from the Society. He states: “All of the dishonesty charges were investigated by the NSBS without a formal complaint of dishonesty from an outside source”. However, the matters before the Panel were the result of complaints or concerns expressed from a variety of sources: former clients ([J.B.], [K.S.], [B.H.]through his counsel Peter Mancini), the Public Prosecution Service, and two Provincial Court Judges). [ 103 ] The Panel found that by 2014, there were clear problems with how Mr.

Howe was managing his practice and they were too pervasive for the Society to ignore: 70. Regardless of how the information came to light, and regardless of their scope or volume, by 2014 there clearly were problems with how Mr. Howe was managing his practice. These problems were acknowledged by Mr. Howe, they were obvious on external observation, and they were too pervasive for the Society to ignore. Mr. Howe’s choice of how to behave was affecting the orderly functioning of the courts, other counsel, and the public. [ 104 ] The Society’s investigation of Mr.

Howe’s actions in June 2016 during the hearing only arose after the publication of media reports, including reports that Justice Cacchione was “furious” that Mr. Howe did not appear for a sentencing hearing. [ 105 ] There was significant scrutiny of Mr. Howe. However, the Society did not initiate its investigations without reason. The Society was responding to numerous complaints and concerns about Mr. Howe’s practice – concerns regarding behaviours that Mr. Howe earlier acknowledged and agreed to change but did not. R. v. Le , 2019 SCC 34 [ 106 ] Mr.

Howe requested and was granted permission to make submissions on the recent Supreme Court of Canada decision in R. v. Le , 2019 SCC 34 . The Society was given an opportunity to respond to those submissions but declined. [ 107 ] I have reviewed Mr. Howe’s submissions on R. v. Le and, with respect, they are inapplicable to this case. Mr. Howe simply uses R. v. Le to reargue points which I have already addressed under this ground of appeal. [ 108 ] Charter decisions are not made in a factual vacuum. Mr.

Howe conveniently avoids the significant volume of evidence that was before the Panel and that the Panel considered in making its decision. As explained earlier, it made findings of fact which provide no support Mr. Howe’s assertion that race was a factor in the Society’s investigation.

[ 109 ] I am not satisfied that Le has any application to the facts before us and it is not necessary to address it further. Conclusion on this Ground of Appeal [ 110 ] The Panel carefully considered Mr. Howe’s allegations of unequal treatment by the Society. It determined that race and background were not factors that led to or permeated the disciplinary proceedings: 77. We appreciate that there are ongoing issues of access and support for racialized lawyers in this province.

Lawyers from racialized communities can gain admission to the legal profession, but then bump up against barriers in terms of finding mentorship and securing practice opportunities. Based on the evidence, that has not been Mr. Howe’s experience. He has had the opportunity to practice in several supervised, private practice settings. He was offered mentorship by a senior lawyer from the numerically limited community of black lawyers. He has had the opportunity in his daily practice to interact with black legal adversaries and colleagues about issues that arise in his chosen field of criminal law. Mr.

Howe has largely spurned those opportunities for mentorship and supervision, or paid mere lip service to them. 78. Mr. Howe has resisted offers of professional guidance and support from senior members of the Bar in terms of his practice location, client load (number), client scope (types of matters), and attitude (professional collegiality). Indeed, the palpable antipathy between Mr. Howe and some other members of the racialized Bar were obvious to us during this process – not only in the course of receiving evidence, but also explicitly in some arguments made to us by Mr.

Howe. [ 111 ] The Panel concluded its findings by stating: 83. We also do not see race or colour or cultural location as factors in Elizabeth Buckle, Malcolm Jeffcock, the CIC, or the Society, giving advice to, or in exercising oversight of, or in formulating professional conduct charges against, Mr. Howe. Each of these actors or institutional players from time to time made decisions, or gave advice, or made reports, which disappointed Mr. Howe. Each was performing a legitimate statutory task or service. Disappointment and disagreement by Mr.

Howe with the conclusions of those persons or bodies are not the tests for whether something violates the aspirational value of equality in s.15 of the Charter . [ 112 ] The Panel properly set out the test for discrimination, examined and applied the evidence to the test, and determined that the test had not been met. [ 113 ] The above conclusion was premised on the detailed factual findings made by the Panel as outlined in the Merits Decision. Those factual findings are not questions of law subject to statutory appeal. [ 114 ] The Panel heard from approximately 40 witnesses.

There were 100 exhibits filed and both sides made extensive oral arguments. After considering all of the evidence, the Panel concluded that the Society’s investigation was not racially motivated. I cannot identify any error in its conclusion. Issue #2 Did the Panel err in law or act in a procedurally unfair manner by allowing Mr. Murray to remain on the panel? Standard of Review [ 115 ] In Nova Scotia (Attorney General) v.

MacLean , 2017 NSCA 24 , Saunders, J.A. succinctly set out the standard of review when there is an allegation of a reasonable apprehension of bias: [20] A reasonable apprehension of bias is an issue of procedural fairness and, where found, results in a loss of jurisdiction. Therefore, the complaint that such an appearance of partiality exists, is seen to raise a question of law. Accordingly, our review for bias (whether apparent or actual) is carried out on a correctness standard.

No deference is paid to the decision-maker’s ruling. [ 116 ] We must decide whether the Panel was correct when it held that a reasonable apprehension of bias did not arise in the circumstances and dismissed Mr. Howe’s motion to recuse Mr. Murray. Analysis [ 117 ] In his motion before the Panel, Mr. Howe raised four grounds upon which Mr. Murray could be seen to have a reasonable apprehension of bias. On this appeal, he limits the reasonable apprehension of bias to the pecuniary interests of Mr. Murray. In his factum Mr.

Howe says the following: [238] We ask the court to review the fresh evidence placed before the court wherein there is evidence of Murray’s criminal practice after the disbarment of the Appellant . This further supports the position that there was a pecuniary interest in this case that […] a reasonable member of the public would not view this situation as [bringing] the administration of justice into disrepute. [Emphasis added] [ 118 ] Although Mr. Howe contemplated bringing a fresh evidence application, he did not submit any fresh evidence and there was nothing for this Court to consider with respect to Mr.

Murray’s criminal practice after the disbarment of Mr. Howe. Therefore, I cannot comment on what the fresh evidence was or was intended to have shown. [ 119 ] I will focus on Mr. Howe’s argument that Mr. Murray’s bias was his pecuniary interest. [ 120 ] MacLean , supra , described the legal principles engaged when there is a reasonable apprehension of bias. They are as follows: [39] First, as a matter of law, there is a strong presumption of judicial impartiality, which is not easily displaced.

Second, there is a heavy burden of proof upon the person making the allegation to present cogent evidence establishing “serious grounds” sufficient to justify a finding that the decision-maker should be disqualified on account of bias. Third, whether a reasonable apprehension of bias

exists is “highly fact-specific”. Such an inquiry is one where the context, and the particular circumstances, are of supreme importance.The allegation can only be addressed carefully in light of the entire context. There are no shortcuts. See Wewaykum Indian Band v.Canada, 2003 SCC 45. [40] The “test” regarding what constitutes a reasonable apprehension of bias appears in the oft-quoted dissenting judgment of deGrandpré, J. in Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369 at ¶40: ...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information, that test is “what would an informed person, viewing the matter realistically andpractically— ...conclude? Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, wouldnot decide fairly. [41] In relation to what constitutes the “reasonable person”, the qualifications are not limited to just being “reasonable”.

The lawrequires a fully informed “reasonable person”. That is: ...a person who approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualizedunderstanding of the issues in the case. The reasonable person understands the impossibility of judicial neutrality, but demands judicialimpartiality. [R. v. S.(R.D.)( R.D.S.), (SCC), [1997] 3 S.C.R. 484] [Emphasis in original] [121] In the Recusal decision, the Panel addressed Mr. Howe’s argument about Mr. Murray’s pecuniary interests at pp. 5-6: 3. Mr. Murray has a pecuniary interest because if Mr.

Howe is not able to practice that will increase Mr. Murray’s potentialclientele. Mr. Howe is suggesting that Mr. Murray, who has accepted this position of sitting in judgement of a fellow lawyer, would use that to hisadvantage to effectively rid himself of that lawyer to increase his chances of gaining more clients. One answer to this argument would be that if that were a reason for recusal it would effectively bar any lawyer from ever being involvedin any case, as decreasing the pool of lawyers will always help other lawyers by that logic.

Another answer to that argument is that the impact of reducing the pool of criminal lawyers by one would have such a minimal impact onthe number of clients for Mr. Murray as to be insignificant. This cannot form the basis of a reasonable apprehension of bias by areasonable person. [It] cannot form the basis to rebut the presumption of impartiality. But most importantly is that the suggestion completely ignores any possibility of good faith by a lawyer hearing such a case.

Thesuggestion such a lawyer would take action to rid himself of another lawyer for the minimal chance of personal gain is anathema toeverything that this profession stands for. A reasonable and well informed person does [not] automatically think the worst of people, butthinks the best of a profession that deserves to be thought of in that way. Lawyers are honourable people, and are able to act honourablywhen asked to judge their fellow lawyer. We find this suggestion by Mr. Howe to be untenable as a reason to rule that Mr.

Murray should be recused from this hearing. [122] I agree with the analysis and reasons of the Panel. Mr. Murray’s status as a practicing member of the criminal Bar in Nova Scotiadoes not come close to rebutting the presumption of impartiality. Further, Mr. Howe presented no evidence, other than mere speculation,that would establish “serious grounds” sufficient to justify a finding that Mr. Murray should be disqualified on account of bias. [123] In Pearlman v.

Manitoba Law Society Judicial Committee, (SCC), [1991] 2 S.C.R. 869, the Supreme Courtconsidered an argument of bias related to the Law Society’s potential pecuniary interests arising from its authority to collect costs indisciplinary proceedings. It was alleged that the provisions of the Law Society Act, R.S.M. 1987, c. L100 authorizing a judicialcommittee to award costs against a member created a reasonable apprehension of bias because the costs went to the Law Society. TheCourt rejected that argument and, in doing so, commented on the very argument Mr.

Howe raises in this case at pp. 891-892: Secondly, any pecuniary interest that the members of the Judicial Committee might be alleged to have is far too attenuated andremote to give rise to a reasonable apprehension of bias. Costs recouped pursuant to s. 52(4) become the property of the Law Society asa whole, and in no way do they accrue to the individual members of the committee who determined that the charge of misconduct was infact well-founded. As such, there is no personal and distinct interest on the part of the Judicial Committee members.

Just as it isspeculation to suggest that a disciplinary committee deciding that a lawyer should be disbarred is tainted because it is thereby marginallyreducing the competition for the committee's members, it is also speculation to suggest that the Law Society would apply these recoupedcosts in such a manner as to reduce the practising or non-practising fees of Law Society members by some small amount.

Theserecouped costs, which are after all just reimbursements for expenses already incurred, might equally well be allocated by the Executiveand Finance Committee to any other of the numerous educational or promotional endeavours of the Law Society. [Emphasis added] [124] The Panel committed no error when it rejected Mr. Howe’s argument that Mr. Murray should recuse himself on the basis of hispecuniary interests. [125] I would dismiss this ground of appeal. Issue #3 Did the Panel err in law by failing to consider material evidence?

[126] Although this is not listed as a ground of appeal in Mr. Howe’s factum, it is addressed in some detail within it. His position istwo-fold: (1) the Panel misinterpreted evidence; and (2) the Panel failed to consider evidence. Standard of Review [127] I have already set out the standard of review for the Panel’s factual findings underpinning its Charter decision. Similarconsiderations apply to this ground of appeal. [128] The Legal Profession Act limits the right of appeal to this Court from a panel’s decision to questions of law.

Section 49 states: Appeal of order or decision 49(1) Subject to this Section, every order or decision of a Complaints Investigation Committee or a hearing panel is final and shall notbe questioned or reviewed in any court.

(2) A party may appeal to the Nova Scotia Court of Appeal on any question of law from the findings of a hearing panel, followingthe rendering of a decision pursuant to subsections 45(4) or (5) or from a decision of the Complaints Investigation Committee underSection 37 or 38. [129] In Fadelle v.

Nova Scotia College of Pharmacists, 2013 NSCA 26, Fichaud, J.A. reviewed the limited role of this Court where thegoverning statute restricts the scope of appellate review to errors of law: [12] Before superimposing the administrative standard of review, the Court isolates the threshold grounds of appeal that are permittedby the statute: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339, para 36; RoyalEnvironmental Inc. v. Halifax (Regional Municipality), 2012 NSCA 62, para 39. Section 58(1) of the Pharmacy Act permits an appeal tothe Court of Appeal on “any point of law”.

There is no appeal on issues of fact. [13] Ms. Fadelle’s grounds allege errors in assessing credibility, apprehending and weighing evidence, drawing inferences andmaking findings of fact. [14] In Young v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2009 NSCA 35, paras 17-25, this Court reviewed theauthorities respecting when an error in an administrative tribunal’s fact finding process may constitute an appealable error of law. [15] Put simply, a finding based on no evidence is arbitrary.

Tribunals are not supposed to act arbitrarily in any aspect of theirprocess, including fact finding: Toronto (City) Board of Education v. O.S.S.T.F., (SCC), [1997] 1 S.C.R. 487, para 44,per Cory, J. for the majority, referring to Douglas Aircraft Co. of Canada v. McConnell, (SCC), [1980] 1 S.C.R. 245, at277. So an arbitrary finding, based on no evidence, is an error of law. I add that a fact finding tribunal is entitled to draw inferences,meaning the evidential foundation need not be direct evidence.

Further, I am not commenting on judicial notice, which has no applicationto this appeal. [16] If there is evidence, then a submission that the tribunal gave the evidence either too much weight and wrongly preferredit over other evidence, or too little weight and wrongly discounted it compared to other evidence, raises an issue of fact: Toronto(City) Board of Education, paras 44-45, 48; Young, para 22. Whether the tribunal should draw an inference from the evidence is aquestion of fact: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, paras 19-25.

Similarly, “[a]ssessments of credibilityare quintessentially questions of fact”: Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 , [2003]1 S.C.R. 226, para 38. [17] In short, Ms.

Fadelle’s factual grounds are beyond this Court’s appellate jurisdiction, that is confined to errors of law under s.58(1) of the Pharmacy Act, except insofar as they suggest that the Hearing Committee made an arbitrary finding based on no evidence. [Emphasis added] [130] This Court does not have the ability to consider the Panel’s assessment of credibility, factual findings or inferences drawn fromthe facts – unless they are arbitrary and based on no evidence (see also, Fashoranti v. College of Physicians and Surgeons of NovaScotia, 2015 NSCA 25 at ¶26). [131] Mr.

Howe, commencing at page 60 of his factum through to page 73, reviews the evidence in some detail in re-arguing what wasargued before the Panel below. In ¶156 of his factum he says: [156] … We will explain that the several interactions that the Appellant was involved in that the NSBS characterized as “dishonesty,candor and integrity” violations were unfair categorizations considering the context of the investigation, a plain language reading of thestatements, the circumstances of the Appellant and the norms for inaccuracy that were simply noted during the hearing. [132] Mr.

Howe then goes through a number of factual findings made by the Panel. He refers to these as: • Interaction #1, relating to misleading the court with respect to [J.B.]; • Interaction #2, misleading the court regarding the advice he received from the Society; • Interaction #3, that he was dishonest with the court when he said t

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