Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Where is innovative action on pensions? to media reports, the survey by Towers Watson noted its pension index fell to 72 per cent by the end of the year. At the beginning of 2011, that number was 86 per cent. The index, The Globe and Mail reported, tracks pension plan assets versus their liabilities. Also noteworthy are reports that employers continue to make P efforts to scale back those liabilities, including public-sector entities. The City of Saint John, N.B., for example, is moving to end index- ing of its pensions for municipal employees in a bid to address a $165-million shortfall. Other municipal governments are facing similar challenges as the public sector remains one of the last bas- tions of widespread use of defined-benefit pension plans. It's a good time, then, to review the state of Ontario's pension rules. While employers may try to enact or negotiate changes such as raising the retirement age or increasing employee contribution rates in order to address their liabilities, a 2008 report on pensions by former York University president Harry Arthurs offered a num- ber of reforms that could address the problems more generally. In particular, he recommended that the government change the rules to encourage so-called target-benefit pension plans in which the ultimate payout an employer would have to make depends ensions are once again back in the news. Reports earlier this month noted that pension plan funding was down last year, largely as a result of turmoil in the mar- kets as well as increasing liabilities on employers. According COMMENT January 16, 2012 • Law Times on the performance of the fund's investments. The scheme would be somewhat of a hybrid of de- fined-benefit and defined-contribution plans by more evenly spreading the risk between employers and em- ployees. The proviso is that target-benefit plans would require joint governance with employees of single en- tities. That type of arrangement is already common in some sectors that group several employers together. While the province, which commissioned Arthurs' report, has moved on some of his recommendations, it has yet to take action on this one beyond preliminary changes and a commitment to explore target-benefit plans as an option for single employers. It arguably in- volves more innovation and potential controversy than many other recommendations, but given that we're once again in funding difficulties and looming uncer- tainty, it's time to act more boldly. — Glenn Kauth BY RICHARD DEVLIN For Law Times gests that it might be. In June 2008, Antoine Fraser was charged with I 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 aſter 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. Saun- ders found that Scaravelli's incompetence was so ex- treme that Fraser had been denied his constitutional right to full answer and defence and that the convic- tion 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 Law Times t's axiomatic that legal professionals must be competent. But is it also axiomatic that law- yers must be culturally competent? A recent case from the Nova Scotia Court of Appeal sug- u SPEAKER'S CORNER case on material issues. • His failures to interview and call potentially effec- tive 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 chal- lenges 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 Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 905-841-6481 • Fax: 647-288-5418 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... 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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 be- cause 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 re- quires 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 wrong- ful conviction. The unfortunate thing is that this isn't news. The cul- tural incompetence of lawyers was one of the core mes- sages 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 continu- ing professional development programs launched by law societies across the country. Leaving it up to the courts is way too little and way too late. LT uRichard Devlin is a professor of law at Dalhousie University's Schulich School of Law. Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 905-841-6481 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and US$265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Eman Aboelsaud at ......416-609-5882 or fax: 905-841-6786 eman.aboelsaud@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................647-288-8018 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com T ime to train lawyers on cultural competence

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