Reckoning with racism

Following the death of George Floyd, the Nova Scotia Barristers’ Society joined much of the rest of the world in declaring itself against anti-Black racism. But the society now must grapple with its own recent history and what lawyer Laura McCarthy calls the “discrimination dirt still under their rug.”

Lyle Howe arrives at court with his partner Laura McCarthy.

On June 3, 2020, the Nova Scotia Barristers’ Society released an unremarkably remarkable statement. It happened 10 days after cellphone cameras captured white police officers in Minneapolis, Minnesota, gruesomely killing an unarmed Black man named George Floyd by kneeling on his neck. His death had triggered protests in cities across North America and prompted a long-overdue, better-late-than-never beginnings of a reckoning with the systemic racism on which much of our world has been built. The NSBS statement begins:

The Society is saddened by the recent tragedies in both the United States and Canada that resulted in the loss of Black lives.

As the regulator of Nova Scotia’s legal profession, we continue to be deeply committed to addressing issues of systemic racism, including anti-Black racism, in the justice system since the release of the Marshall Inquiry recommendations nearly 30 years ago.

Our regulatory objectives specifically call on us to promote the rule of law and the public interest in the justice system; and promote diversity, inclusion and substantive equality and freedom from discrimination in the delivery of legal services and the justice system. (emphasis in the original)

Together with the collaboration of our members, stakeholders, and justice system partners, we will work diligently towards eliminating racism, sexism, and other forms of discrimination in the delivery of legal services.

We acknowledge the existence of systemic discrimination in our justice system and the need for action and education to address it. We will continue our efforts to learn, to adapt and improve our processes and to lead Nova Scotia’s legal profession by example.

At one level, the statement may seem — is — unremarkable.

At the time, entertainers, athletes, corporate executives, government leaders, professional and civic organizations were all rushing to microphones to own their own racial wea culpas. George Floyd’s murder had captured public attention like none before, but the reasons reflected the era’s zeitgeist more than reality. After all, can you say Eric Garner, Michael Brown, Tamir Rice, Walter Scott, Alton Sterling, Philando Castle, Stephon Clark, Breonna Taylor, all Black people shot by US police in the half-dozen years before Floyd George; or name any of the 29 Canadian Black, Indigenous and other people of colour whom the writer Desmond Cole has identified as having been killed by police in this country in that same time period?

That said, acknowledgements like those from the bar society, traditionally a socially conservative and mostly white organization, seemed to indicate a societal seismic shift.

Except… There was — is — another context. “We will continue our efforts to learn, to adapt and improve our processes,” the bar society statement declared, “and to lead Nova Scotia’s legal profession by example.” (my emphasis)

But the society’s own most recent example shows how difficult that reckoning will be, and how far from reckoned the society currently is.

The council’s statement prompted a blistering rebuttal from Laura McCarthy, a Black lawyer and former legal partner, as well as life partner of Lyle Howe.

Howe, of course, is the Black lawyer the society disbarred in a controversial 2017 decision after the longest, most expensive hearing in the society’s history.

The three-member panel found Howe guilty of professional misconduct and incompetence. But its decision was more complex and nuanced than a simple bald recitation of its conclusions can encompass. Howe had argued the case against him was rooted in systemic racism. Although the panel found “little evidence of actual, discriminatory attack” against Howe, it did find a “connection” between Howe’s perceptions and “historic and systemic racism.”

Mr. Howe provided the Panel with a powerful explanation of his behaviour: in summary form, he stated that his background experiences with personal racism, and the impact of systemic and historical racism have made him, at times, respond to situations as a ‘warrior.’ When he is under attack by persons and a system he sees as his oppressor, his response is to attack back. He inherently had a feeling in his mind that the system and those in it were out to get him. Thus, his response was to aggressively push back.

Despite that, the panel ordered Howe disbarred for at least five years, and declared — later successfully appealed — that he be required to fork over to the society $150,000 before it would even allow him to apply for reinstatement.

Howe has since filed suit against the society for what he calls racial basis and launched a complaint with the Nova Scotia human rights commission.

I’ve written extensively about the Howe case for the Examiner, including a two-part series entitled, “Who is Lyle Howe? And why are so many people saying such nasty things about him.” You can read Part I here and Part II here.

Perhaps unsurprisingly, McCarthy, who also helped represent Howe in his case before the bar society, saw the society’s “Statement Against Anti-Black Racism” as hypocritical. Noting that she’d already voiced her concerns to the organization, she wrote, “so it should be no surprise that I am deeply offended by the pronouncement that the NSBS takes a stance against anti-Black racism…” She notes that, when it was dealing with Howe, the organization saw systemic racism very differently:

Through these proceedings, counsel for the NSBS litigated, presumably with instructions from the NSBS that race was not a factor in his treatment by members of the NSBS or other members of the bar. The integrity of the NSBS is substantially discredited by their empty words of being against anti-Black racism. If this is true, their recent past is evidence that this stance against anti-Black racism only lasts until they are in litigation against one of its Black lawyers. 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.”

Although McCarthy herself has never received a response to her July 12 letter, that doesn’t mean her cruise missile of correspondence didn’t land. It did. “Response to L. McCarthy next steps”was on the bar society council’s agenda at least twice this fall. According to the minutes of the council’s Nov. 27 meeting, council considered a “detailed memo” about the issue and recommended next steps, though the minutes don’t include details of those next steps.

According to the subscription website — the only news outlet that has so far followed the story — McCarthy’s letter has created chaos in the ranks of the council. Two members of the council’s executive — president Jim Rossiter and second vice president Denise Mentis-Smith — have resigned without public explanation “well in advance of their terms ending.” And the society itself has formed a Race, Diversity and Safe Space Task Force to deal with what is described as the “current distress.”

“We have concluded that, given that we have lost executive members and visible discomfort has occurred, not to mention the time that has been invested with no seeming resolution in the offing, we must address it now,” concludes the task force report.

The bad news is that the bar society is still coming to terms with this issue.

The good news is that the bar society may be finally coming to terms with its own racism issue.

A version of this column originally appeared in the Halifax Examiner

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