It’s axiomatic that legal professionals must be competent. But is it also axiomatic that lawyers must be culturally competent? A recent case from the Nova Scotia Court of Appeal suggests that it might be.
In June 2008, Antoine Fraser was charged with sexually touching a young person contrary to s. 151(a) of the Criminal Code. Fraser was a teacher and the complainant a student.
Fraser retained a very senior lawyer, Lance Scaravelli, to defend him. Fraser was convicted after a trial by judge and jury. He received a sentence of nine months in jail followed by one year of probation and 50 hours of community service.
On appeal, in a direct and hard-hitting decision, Justice Jamie Saunders, writing for a unanimous court, overturned the conviction on the basis that Scaravelli’s legal advice and representation were ineffective.
Saunders found that Scaravelli’s incompetence was so extreme that Fraser had been denied his constitutional right to full answer and defence and that the conviction was a miscarriage of justice.
Saunders catalogued a plethora of incompetencies by Scaravelli:
The fecklessness of his declared defence strategy.
His refusal to consider the importance of Fraser’s wife as a material witness.
His failures to effectively challenge the Crown’s case on material issues.
His failures to interview and call potentially effective defence witnesses.
A misguided s. 276 application.
A failure to seek an adjournment when facing last-minute information.
At first blush, these omissions and failures appear to be race neutral. But in reading the decision, there’s also a strong sense that the court felt that Scaravelli didn’t pay any real attention to the fact that his client was a black Nova Scotian.
This is most obvious in the court’s criticisms of Scaravelli’s failure to advise his client of his right to challenge prospective jurors for cause on the basis of potential racial bias.
The result was an all-white jury. The court found that Scaravelli had announced that there was “nothing we can do about it” and that Fraser shouldn’t “worry about it, I got lots of black guys off with all-white juries before.”
Scaravelli’s purported justifications that he “had his own way of selecting juries” and that he “did not find challenges for cause particularly helpful and more of a waste of time than anything else” were unsuccessful before the court.
Indeed, the court even went as far as casting doubt on Scaravelli’s knowledge of the R. v. Parks case.
“He seemed confused as to whether he had read it before or after the appellant’s trial, first saying that he had not read it beforehand, and then changing his evidence to say that he had read it before the appellant’s trial.”
In light of these findings on the issue of the challenge for cause, all of the other omissions and failures by Scaravelli may take on a different hue.
How could such a senior lawyer in Nova Scotia get it so wrong? Is it that he didn’t really care or might it be because of his cultural incompetency?
Although the Nova Scotia Court of Appeal doesn’t explicitly use the exact phrase, the tone and substance of the decision indicate that cultural competency requires knowledge, skills, and attitudes and that the failure to be culturally competent isn’t just insensitivity but can result in a miscarriage of justice and a wrongful conviction.
The unfortunate thing is that this isn’t news. The cultural incompetence of lawyers was one of the core messages coming out of the Donald Marshall inquiry more than two decades ago.
This ongoing failure calls out for solutions. Two starting points might be a greater focus on education about cultural competency in law schools and mandatory training in the newly minted continuing professional development programs launched by law societies across the country.
Leaving it up to the courts is way too little and way too late.
Richard Devlin is a professor of law at Dalhousie University’s Schulich School of Law.
