Read Part I: Marjorie Hickey and Practising With Conviction — Revisited
Whose public interest?
Part II asks a more specific question.
What did the Nova Scotia Barristers’ Society already know about racism when it required Lyle Howe to prove it?
The answer matters because Hickey represented the Society throughout Howe’s disciplinary proceeding. And when the Hearing Panel eventually considered the extraordinary length and cost of that proceeding, it concluded that some of the evidence Howe was required to call should never have been necessary.
The Society, the Panel said, should have made admissions.
Racism Was Not an Abstract Issue
Howe’s allegations of racism did not arise years later.
Race, differential treatment and systemic discrimination were litigated throughout the disciplinary proceeding.
The Panel ultimately rejected Howe’s claim for a Charter remedy. But that did not mean it found there was no discrimination.
To the contrary, the Panel expressly found that Howe’s “race played a role in how he was dealt with by some members of the Crown office in Dartmouth.” That finding matters when considering how the Society itself responded to Howe’s concerns.
In its Summary of Findings, the Panel expressly found that Howe “did experience some situations in his practice where race was a factor in decisions that affected him.” It said those decisions were sometimes made by individuals and “sometimes by institutional players,” and referred specifically to “institutional decisions where Mr. Howe’s race, cultural location and ethnicity were a factor.”
Victoria Rees, then the Society’s Director of Professional Responsibility, became one of the institutional actors involved.
Contemporary reporting by journalist Stephen Kimber recounts that after Howe’s confrontation with Crown prosecutor Michelle James, Howe contacted Rees and raised the possibility that he had been perceived as threatening because he was a Black man.
Howe asked whether he should complain. According to the reported testimony, Rees advised that although he was free to do so, it would be better to find a way to work with opposing counsel. Howe did not complain. A complaint concerning Howe subsequently came from the other side.
Rees later acknowledged that she had not given James or her supervisor the corresponding advice to “find a way to work better” with Howe.
That does not, by itself, prove discrimination.
But it illustrates why systemic discrimination cannot be examined only by looking for explicitly racist decisions. It can also require asking how discretion operates:
Who is encouraged to complain? Who is encouraged to resolve things informally? Who receives institutional protection? And who becomes the subject of institutional scrutiny?
“Bring the Hood Into Practice”
There is another episode that deserves closer examination because it concerns not simply how Howe was regulated, but how a senior Society official involved in that regulation appears to have understood him.
As concerns about Howe’s practice accumulated, the Society required him to participate in counselling with Robert Wright, an experienced African Nova Scotian social worker and consultant.
Contemporary reporting reproduces an email attributed to Victoria Rees, then the Society's Director of Professional Responsibility, concerning Howe's “background and cultural issues” and their possible relationship to his behaviour.
The email reportedly included this description:
"As Dr. Wright aptly has said, he’s often seen problems when professionals “bring the 'hood into practice.'”
The phrase takes on greater significance in light of Howe's subsequent Human Rights complaint. Howe alleged that Rees's use of “'hood'” reflected a racial stereotype. According to his complaint, Rees testified that she did not know what neighbourhood Howe came from and that the reference to “hood” concerned him being Black.
If Rees did not know what neighbourhood Howe came from, what exactly did “hood” mean?
The question matters because Rees was not an outside observer commenting casually on Howe. She was the Society's Director of Professional Responsibility - a senior official within the regulatory institution investigating and responding to him.
Howe’s Human Rights complaint alleges that the Society’s approach reflected stereotypes portraying him as criminal, dangerous and violent. The “hood” language is significant in that context because it suggests that the Society’s consideration of Howe’s “background and cultural issues” may itself have been informed by racialized assumptions about what that background meant.
That is particularly important to the role of counsel representing the Society.
Marjorie Hickey was acting on instructions from the institutional client. The record presently before us does not establish which individual gave Hickey particular litigation instructions, and it would therefore go too far to say that Rees personally instructed her to take any particular position. But Rees was a senior Society official involved in the institutional response to Howe.
That creates a deeper question than whether Hickey personally held any racial stereotype.
What happens when counsel acts for a regulator whose own decision-makers may have approached the person being regulated through racialized assumptions?
The Society was examining whether Howe’s culture and background affected his professional conduct. Yet the “hood” language raises the inverse question: were racial stereotypes also affecting the institutional actors who were examining him?
That question becomes even more important when placed beside the Hearing Panel’s eventual findings. The Panel found that Howe experienced situations in which race was a factor in decisions affecting him, including decisions by institutional players. And in the costs decision, it concluded that the Society should have made admissions concerning actual, systemic and historical racism and "obvious" differential treatment.
The Admissions the Society Should Have Made
The most important passage may be found not in Howe’s submissions, but in the Hearing Panel’s own decision on sanction and costs.
Howe had called numerous witnesses to testify about actual, systemic and historical racism.
The evidence consumed substantial hearing time.
But when considering responsibility for the resulting costs, the Panel said this:
“Given the experience available to the Society through its relationship with Mr. Robert Wright, and some of the obvious facts that showed a differential treatment within the Crown office in Dartmouth, we believe the Society should have made admissions in this regard.”
The Panel went further, it said those admissions:
“would have reduced the need for many witnesses.”
And then came perhaps the most significant observation:
“Such admissions would have been consistent with the Society’s commitment to equity.”
That finding changes the way the 66-day hearing should be remembered. Howe was not simply insisting upon calling unnecessary evidence about racism. The Panel concluded that the Society already possessed experience through Wright and faced “obvious facts” demonstrating differential treatment.
It could have admitted those matters. It did not.
Howe was therefore required to prove matters the Panel believed the Society should have conceded.
Who Was Responsible for the 66 Days?
The Society ultimately sought between $450,000 and $600,000 in costs against Howe.
Yet the Panel found that the Society itself had contributed to the scale of the proceeding as approximately 15 allegations were not proven. Among the allegations that were not proven was the allegation of intimidation of a justice system participant.
The Panel said the Society “should have anticipated” that several dismissed charges would be dismissed. It described part of the prosecution as an “over-reach.”
And on the racial evidence specifically, it found that appropriate admissions would have reduced the number of witnesses Howe needed to call.
This mean the extraordinary length of the proceeding cannot fairly be discussed without acknowledging the Panel’s criticism of the regulator that prosecuted it.
What Was the Public Interest?
This brings the issue back to Hickey.
In the 2017 CBA National Magazine profile discussed in Part I, Hickey described professional regulation as repeatedly returning to the same question:
“What is in the public interest?”
The Howe costs decision provides an unusually concrete test of that principle.
When counsel represents a public-interest regulator facing allegations of systemic racism, is the public interest served only by defeating the legal claim?
Or does the public interest also require the regulator to acknowledge what it already knows, admit facts that should not genuinely be contested, and avoid forcing a racialized lawyer to prove institutional realities that the regulator is already equipped to understand?
The decision does not establish who personally determined the Society’s litigation position or why particular admissions were refused. But it establishes something important: the Panel believed the Society should have made them. And it said doing so would have been consistent with the Society’s own commitment to equity.
The Cost of Raising Race
The Panel ultimately reduced the costs sought by the Society dramatically, ordering Howe to pay $150,000 rather than the $450,000 to $600,000 requested.
Its reasoning on race was remarkable.
Although Howe had largely failed to establish that racism excused or mitigated his misconduct, the Panel said the racial issues nevertheless “had to be fully explored.”
Seven Years Later
In 2024, the Society released Douglas Ruck, K.C.’s Regaining Trust report.
The Society accepted all 21 recommendations. It acknowledged the harmful effects of systemic discrimination and apologized for its past failure to address systemic discrimination within the Society and Nova Scotia’s justice system.
That later acknowledgment does not retroactively establish Howe’s Charter claim. But it makes the 2017 costs finding impossible to dismiss as merely a historical footnote.
Years before Regaining Trust, a Hearing Panel had already concluded that the Society possessed enough knowledge and faced sufficiently obvious evidence of differential treatment that it should have made admissions about racism. Those admissions would have reduced the evidence. They would have shortened the proceeding. And, in the Panel’s words, they would have been consistent with the Society’s “commitment to equity.”
So perhaps Part II of the story returns to the same public-interest question with which Part I began.
Except now it is more specific:
If the Society’s commitment was to equity, why did Lyle Howe have to prove what the Hearing Panel said the Society should have admitted?
Earlier in this series: Part I — Marjorie Hickey and Practising With Conviction: Revisited