Lyle Howe, Halifax lawyer, has sex assault conviction overturned

Lyle Howe, a defence lawyer in Halifax who was suspended after he was convicted of sexual assault, has won the right to a new trial.

A decision released Friday by the Nova Scotia Court of Appeal overturns Howe's conviction on a charge of sexual assault.

"We're very, extremely pleased with the decision from the Nova Scotia Court of Appeal," Phil Star, Howe's lawyer, told CBC News.

"We're in the process of getting the necessary preparation done so we can gear up to the new trial if and/or when it's initiated by the Crown."

The Crown is still studying the appeal court ruling.

Howe was convicted of sexually assaulting a 19-year-old woman in March 2011. He was sentenced in May of last year 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."

Disciplinary hearing to start Nov. 2

But Howe maintained the sex was consensual, and that is — in part — what his appeal was based on.

The Court of Appeal agreed with Howe's defence team.

"The failure to instruct the jury with respect to honest but mistaken belief was an error," Justice David Farrar wrote on behalf of the three judge panel.

"I would allow this ground of appeal and order a new trial."

Farrar went on to write: "Her evidence was that she voluntarily and consensually kissed Mr. Howe and that, as she could not remember any other events, she could not say whether she had consented, or whether she had acted as if she had consented to the rest of the sexual activity." 

​Whether there is a new trial would depend, in large measure, on whether the woman is prepared to subject herself to another stint on the stand.

In the preliminary inquiry and again during the jury trial, the woman was subjected to gruelling direct and cross-examination about what she remembered of the night in question.

The Crown may try to appeal the ruling to the Supreme Court of Canada.

"If an appeal is initiated, it would be initiated by the Crown — not by us," said Star.  

"They would have to seek what's called leave to appeal. I've been involved in discussions today with the Crown and we're waiting for that decision to be made before everything goes ahead with the potential new trial."

Even if there is not another trial, Howe is still facing problems with his legal practice.

The Nova Scotia Barristers' Society has scheduled what is expected to be a lengthy disciplinary hearing starting Nov. 2.

Howe is facing eight counts of professional misconduct, including that he failed to act with honour and integrity in dealing with clients, the courts and other lawyers. The allegations do not relate to the sexual assault case.