Lyle Howe sexual assault appeal heard by province's highest court
Suspended lawyer appealing conviction for sexually assaulting 19-year-old woman in 2011
Nova Scotia’s highest court heard the appeal of suspended Halifax lawyer Lyle Howe Wednesday, but is reserving its decision on whether to overturn his conviction for sexual assault.
Howe was convicted of sexually assaulting a 19-year-old woman in March of 2011. He was sentenced last May to three years in prison, but has been free on bail pending the outcome of this appeal.
Howe was charged after the woman accused him of raping her while she was blacked out in her Fairview apartment. He was also accused of administering a stupefying substance, but the jury acquitted him of that charge.
At the time of his sentencing in the Supreme Court of Nova Scotia, Howe said he was embarrassed.
"I'm certainly not proud of what I did," Howe said. "I'm embarrassed by it. I am remorseful."
But Howe maintained the sex was consensual, and that is — in part — what his appeal is based on.
CBC's Blair Rhodes is live blogging from court.
Howe's defence team includes prominent Toronto lawyer Brian Greenspan and Phil Star of Yarmouth.
Basis of appeal
In the one-day hearing, Greenspan argued that the trial judge, Chief Justice Joseph Kennedy, erred “in refusing to instruct the jury with respect to the issue of honest but mistaken belief in consent.”
The lawyers also say Kennedy failed to properly review evidence with the jury that supported the defence contention that the woman was consenting to the sexual activity and that she was not too impaired to do so.
Greenspan said Kennedy was dismissive of evidence from Howe's friend Jeff Brown who corroborated Howe's version of what happened that night. Brown was with Howe at the woman's apartment.
The woman testified that she had very little recollection of that night and felt she may have been drugged.
Howe was acquitted of a charge of administering a noxious substance. But during appeal arguments, Crown prosecutor Mark Scott said it is possible Brown could have drugged the woman without Howe's knowledge.
Scott contends she was too impaired to consent to what happened that night. And if the court accepts that her level of impairment was obvious, then Howe's argument about mistaken belief in consent would not work.
Scott admitted that Kennedy's charge to the jury was not perfect. But he told the three-judge appeal panel it was adequate to support the conviction.
'The learned judge erred'
Howe took the stand in his own defence at his trial, and was subject to aggressive cross-examination by Crown prosecutors. Howe’s new defence team says the judge should have addressed that cross-examination in his charge to the jury.
“The learned trial judge erred,” the lawyers wrote, “in failing to dispel the potential prejudice which had resulted from the suggestion by the Crown in cross-examination of the appellant that his evidence was suspect and that he had 'tailored his testimony' to fit the disclosure.”
If Howe is to win an acquittal or a new trial, it can only be if his lawyers can convince the Court of Appeal that the trial judge made a serious mistake in how he conducted the case. The jury verdict itself cannot be questioned.
Shortly after he was convicted, the Nova Scotia Barristers’ Society suspended Howe’s licence to practice law. His wife, Laura McCarthy, has taken over the practice he used to run and many of the clients he used to represent.
Debate on social media
In addition to the prison sentence, Howe's name will go on the national sex offender registry. He must also give a DNA sample and faces a 20-year weapons ban.
Howe's conviction touched off heated debate on social media. He is black. His victim is white. Some of his supporters who packed the courtroom throughout his trial, and even marched on the courthouse days after the sentencing, suggested race played a role in his conviction.
"During this trial, there was no relevance, it was never raised at any point that race was at all a relevant factor in this case, by defence or Crown," Dan Rideout, one of two prosecutors who carried the case against Howe, said at the time.
One of Howe’s supporters, David Sparks, broke the publication in the sexual assault trial by naming the victim on a Facebook page created by some of Howe’s supporters. Sparks is to be sentenced later this month. He attended today's Court of Appeal hearing.
The Court reserved its decision on Howe's appeal.