Improving cultural awareness and competency
How to improve the Model Code to help lawyers better understand the role of competency in their work
In a nutshell
CBA Sections generally support the proposed changes to the Model Code regarding cultural competency. However, they recommend including more information on the role of competency and ethical practice in reconciliation. This would help lawyers better understand the importance of cultural awareness and competency in their profession.
Tweaking the language
The CBA Sections Subcommittee makes several recommendations to make the language in the Model Code as precise as possible. One key recommendation is to remove the reference to demonstrating an openness to learning about other cultures. “Requiring lawyers to ‘demonstrate’ openness shifts the focus to performative actions rather than genuine openness,” they say.
Another concern is that listing specific topics or a curriculum may create the false impression that cultural competency is a one-time achievement rather than an ongoing process. The goal should be continuous learning, not simply checking off a list.
The lawyer as advocate
Given their ethical obligation to advocate for their clients, lawyers may be unclear as to where the line is between their duty to their clients and their duty to engage honourably and fairly.
“While it is important to situate ‘resolute advocacy’ within the context of reconciliation, it is necessary to frame this clearly for lawyers. Otherwise, lawyers may believe they’re placed in the impossible position of having to ‘advance every argument and ask every question, however distasteful…’ while avoiding those arguments and questions that could be interpreted as ‘exploitative’ and as reinforcing ‘systemic discrimination or stereotypes based on grounds protected by human rights legislation.’”
Family law
The submission highlights a stark reality: although Indigenous children make up only 7.7 per cent of the child population in Canada, they represent 53.8 per cent of children in foster care (2021 Census). The CBA argues that the Model Code should explicitly acknowledge the role of lawyers in family law.
"As participants in the family law justice system, every lawyer must be mindful of the Truth and Reconciliation Calls to Action, in particular, Calls to Action 1-4,” the Sections write.
“Family law legislation, the court system, lawyers, and judges have participated historically and currently in the child welfare system. This system contributed to the establishment and continuation of the residential school system, the establishment of the Truth and Reconciliation Commission, and the ongoing discrimination of Indigenous parents and children.”
Read the submission.
