A Review of Brydges Duty Counsel Services in Canada

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EXECUTIVE SUMMARY

Chapter 1: Introduction

The overarching purpose of this research project is to conduct a comprehensive analysis of the nature and scope of the Brydges services that are currently available to arrested or detained persons across Canada.

Chapter 2: The Brydges Decision and the right to Counsel:   A Review of the Case Law

This chapter reviews the legal principles articulated by the Supreme Court of Canada in the Brydges case and examines the case law that has subsequently interpreted and developed these principles. The review of post-Brydges cases focuses on decisions made by the Supreme Court of Canada and the various provincial and territorial courts of appeal.

Supreme Court of Canada

• The police must inform an arrested or detained suspect of the existence and availability of the relevant systems of duty counsel and legal aid that are in operation in the jurisdiction concerned (Brydges).
• The police must provide an arrested or detained suspect with basic information about how to access the free legal services that are provided in the jurisdiction concerned. In particular, they must inform the suspect of the opportunity to call a toll-free number or to consult a list of the telephone numbers of duty counsel (Bartle, Harper, Pozniak).
• The nature and extent of the informational duty imposed on the police will vary from one jurisdiction to another, depending on the specific duty counsel and legal aid programs that are made available at any given time and place (Cobham).
• There is no constitutional duty imposed on provincial and territorial governments to provide free and immediate legal services upon request (Matheson, Prosper).
• So-called “Brydges services ” consist solely of the provision of purely temporary access to duty counsel (free of charge) or the opportunity to obtain “instant” legal information through the medium of a 1-800 telephone service (Prosper).
• The police must specifically inform an arrested or detained suspect of the opportunity to access immediate, free legal advice (as from, for example, a 1-800 number). It is not sufficient to inform the suspect that, should he or she wish to contact duty counsel, the police officer will supply a telephone number (Feeney).
• The police do not have to inform the accused of a 1-800 number if the suspect is arrested or detained during regular working hours and is made aware of a local number that will contact the local legal aid office (Latimer).
• In six of the seven cases in which the Supreme Court found that there was a violation of section 10(b) of the Charter, the evidence obtained thereby was excluded under section 24(2).
• The majority of the cases in which the Supreme Court dealt with issues surrounding Brydges services involved impaired driving (five cases out of a total of nine).

Provincial and Territorial Courts of Appeal

The appellate courts have applied and interpreted the principles articulated by the Supreme Court of Canada in relation to Brydges services. The emerging case law incorporates the following principles:

• The majority of cases that raised issues concerning Brydges services involved charges related to impaired driving.
• The failure to provide specific information about the availability of Brydges services does not constitute a violation of section 10(b) if the accused person exercises the right to counsel and actually speaks to counsel.
• The police need provide an arrested or detained suspect with the actual toll-free number only at the moment when he or she wishes to take advantage of the right to contact the 24-hour duty counsel service.  
• If an arrested or detained suspect has been fully informed of his or her rights under section 10(b) and knowingly waives the opportunity to contact counsel, it is not necessary for the police to provide him or her with the specific toll-free number.
• If a suspect in police custody is unable to contact the lawyer of his or her own choice and, instead, contacts duty counsel, there is no violation of section 10(b) - provided the suspect appears to accept the option of contacting duty counsel, and does not repeat the request to speak with counsel of his or her own choice
• If a detained or arrested suspect is diligent in seeking to make contact with the lawyer of his or her own choice, the police must provide the suspect with a reasonable opportunity to do so and must refrain from asking questions during this period.
• The police are not under a duty to help a suspect decide whether or not he or she should contact counsel.
• If a suspect does not give a clear answer to the question as to whether or not he or she will exercise the right to contact counsel, the police have a duty to delay questioning until they can obtain an unequivocal answer from the suspect. In such circumstances, they may be required to make further inquiries of the suspect and to offer additional assistance.
• While the police are under a duty to ensure that a suspect has the opportunity to contact counsel with “an adequate measure of privacy,” it is not clear whether the police are also under a duty to inform the suspect of his or her right to a reasonable degree of privacy.
• Where a suspect has been detained outside of the police station, and the police officer has informed the suspect of his or her section 10(b) rights, the officer may then issue a breathalyzer demand. If the suspect clearly indicates no desire to exercise the right to counsel, the police may transport the suspect to the police station and proceed to take the breath sample without repeating the section 10(b) caution.
• An additional informational obligation is imposed on the police when a suspect, who has previously expressed the wish to contact counsel, indicates a change of mind and states that he or she no longer wishes to exercise the right to counsel.
• The police are under a duty to provide a suspect who is in their custody with a reasonable opportunity to contact counsel, and to refrain from eliciting any evidence from the suspect in the interim. If a suspect is reasonably diligent in requesting counsel, then he or she must be informed of the right to be granted a reasonable opportunity to do so.
• When a suspect in custody has unequivocally waived the right to counsel, the police are entitled to proceed immediately with interrogation or the administration of a breath test, etc.
• The police must inform arrested or detained suspects of their right to counsel in a timely manner.
• If there has been a significant change in the legal status of a suspect in police custody, the police must repeat the section 10(b) caution before proceeding with their investigation.
• When the appellate courts have determined that there has been a violation of an accused person's section 10(b) rights, the most likely outcome is exclusion of some - or all - of the evidence that has been obtained thereby.

Chapter 3: The Miranda Caution in the United States: American Experience with the Model Adopted by the Supreme Court of Canada in the Brydges Case

The landmark decision by the United States Supreme Court, in Miranda v. Arizona (1966), had a significant impact upon police practices in the United States. The Miranda decision imposed an informational duty on the police to inform an arrested or detained suspect of his or her right to counsel. If this duty is not performed, any evidence obtained by means of the violation of the suspect's rights may subsequently be excluded from his or her trial. In Dickerson v. The United States (2000), the United States Supreme Court ruled that the so-called “Miranda warnings” constitute federal constitutional requirements that cannot be overruled by an Act of the U.S. Congress. The empirical evidence suggests that there is universal compliance by the police with the Miranda requirements.

The decision of the Supreme Court of Canada in Brydges (1990) is based on a constitutional model that is very similar to that which underlies the United States Supreme Court's ruling in Miranda.

There are some significant differences between the judicial application of the Miranda decision in the United States, on the one hand, and the Brydges decision in Canada, on the other. The Brydges warnings are “more expansive” in scope, and are more lucid in relation to the need to inform the suspect of the right to telephone a lawyer. In Canada, courts have a broad discretion, under section 24(2) of the Charter, to exclude or admit evidence obtained in violation of an accused person's section 10(b) right to counsel. In most cases, Canadian courts exclude such evidence. In the United States, it was once thought that exclusion of evidence obtained in violation of the Miranda rules should be virtually automatic. However, the federal courts have developed a number of significant exceptions to the principle of automatic exclusion (for example, it has been held that physical evidence obtained in violation of the Miranda rules may be admitted into evidence).

In Davis (1994), the United States Supreme Court held that the police are not under any constitutional duty to ask "clarifying questions," if suspects are equivocal when indicating whether or not they wish to contact a lawyer. However, the Court stated that it would nevertheless constitute "good police practice to do so". The notion that the police should ask clarifying questions, whenever there is some doubt as to the suspect's wishes or capacity to exercise the right to counsel, should be explored as a policy option that might be adopted in Canada.

In the United States, the impact of the Miranda case upon police officers has been most striking. In particular, when a suspect invokes his or her Miranda rights, police interrogations generally come to a halt. The Brydges case has not had a similar impact on police investigative practices in Canada.

Chapter 4: The Capacity Of The Suspect To Understand The Contents Of A Police Caution

Legal Analysis

In Evans(1991) and Bartle(1994), the Supreme Court of Canada ruled that, in those circumstances in which the police are aware that an accused person may suffer from a mental disorder, the police must ensure that the accused person actually understands his or her s. 10(b) rights.

The Supreme Court of Canada has, however, set a comparatively low threshold for the purpose of determining whether or not accused persons have the capacity to understand their s. 10(b) rights (Whittle (1994)). The appropriate test is one of "limited cognitive capacity". According to this test, it is sufficient when the accused has been shown to have "an operating mind" - rational comprehension is not one of the requirements for establishing that there exists sufficient capacity to understand one's s. 10(b) rights.

It would be open to the Canadian courts to impose a requirement that the police ask clarifying questions whenever there is a doubt concerning the capacity of the accused to understand a Brydges caution. However, to date, this approach has not been embraced by the appellate courts in Canada.

Review of the Empirical Literature

Offenders may suffer from a myriad of problems that might well affect their capacity to fully understand their legal rights. Empirical research conducted in Canada has found that some of the most prevalent problems are as follows:

1. Substance Abuse. A significant number of offenders have alcohol/drug dependence problems. Alcohol abuse is the most common drug problem. A Canadian study of arrestees found that the majority of the suspects were intoxicated at the time of their arrest and that a considerable number of charges were related to impaired driving. The mixing of alcohol with other drugs and the abuse of illicit drugs (such as cocaine) were also found to constitute a significant problem among the arrestees who were the subjects of this research. It is highly questionable whether suspects who are impaired by alcohol and/or other drugs have the capacity to understand the Brydges caution given to them by the police.    Further, it is highly unlikely that accused persons who avail themselves of Brydges services fully understand the legal advice given by Brydges duty counsel.
2. A significant number of offenders suffer from mental disorders. Moreover, the prevalence of serious mental disorders within the offender population is considerably higher than is the case for the general population. Studies have found that there has been an increase in the number of mentally disordered offenders who are entering the correctional system. Mental disorders may impair the capacity of suspects to comprehend their rights to counsel. Furthermore, the traumatic effects of arrest/detention may exacerbate the mental health problems that are experienced by offenders.
3. Intellectual disabilities are more prevalent among the prison population than is the case for the general population. Intellectual disabilities differ from mental disorders - they are permanent learning disabilities caused by brain damage. A significant example of an intellectual disability is fetal alcohol syndrome. Persons who suffer from fetal alcohol syndrome may not be able to understand the contents of a police caution. Although there are no national studies in which the incidence of this syndrome has been analyzed, it is estimated that there are thousands of individuals who suffer from this disorder, and who are likely to come into contact with the criminal justice system.
4. Language barriers may prevent suspects from fully understanding a police caution concerning their rights to counsel and/or the legal advice provided by Brydges duty counsel.
5. In England and Wales, there is a mandatory - “Appropriate Adult”- procedure that is designed to ensure that a mentally disordered or developmentally disabled suspect is provided with special assistance when he or she is taken to the police station. The appropriate adult monitors the fairness of police interrogation, and facilitates communication between the police and the mentally disordered or developmentally disabled suspect. The appropriate adult is generally a social worker or a family member, and is placed in a position where he or she can request an assessment by a mental health professional, should there be any doubt about the capacity of the suspect to understand his or her rights. The appropriate adult may work with the duty solicitor to ensure that the suspect's rights are fully protected.The Appropriate Adult procedure might well be examined as a possible model for law reform in Canada.

Chapter 5: The Duty Solicitor Scheme In England And Wales: An Alternative Model For Delivering Legal Advice And Assistance To Suspects In Police Custody.

The duty solicitor scheme in England and Wales serves as an alternative model for the delivery of free, 24-hour legal services to suspects who are being held in police custody. The main elements of the duty solicitor scheme in England and Wales are as follows:

• The duty solicitor scheme is national in scope.
• The duty solicitor scheme was established by legislation: the Police and Criminal Evidence Act 1984 (PACE), and its accompanying Codes of Practice.
• Since April 2001, all criminal legal aid services have been provided by the Criminal Defence Service, which is administered by the Legal Services Commission.
• All criminal legal aid services are provided in accordance with the “General Criminal Contract,” which contains measures that permit monitoring of the quality of the services provided.
• Legal advice and assistance are provided not only by solicitors, but also by “legal representatives.”
• Clients may choose free legal advice and assistance from their own solicitor, from a duty solicitor, or from a solicitor who is included on a list maintained by the police.
• Legal advice and assistance may be provided over the telephone and/or in person at the police station.
• A suspect is entitled to have a solicitor present during police interrogation.
• Where a duty solicitor is requested, the police must ring the Duty Solicitor Call Centre, which will allocate a lawyer from a rota or panel.
• In six jurisdictions, public defender offices have been established - on an experimental basis - to evaluate the performance of a “mixed model” of private and staff lawyers (the so-called “Canadian model”).
• There is a national system of accreditation for both duty solicitors and legal representatives.

Chapter 6: Methodology

A review of the Canadian jurisprudence and the empirical literature underscores the importance of the provision of Brydges services. Thus, the purpose of this report is to examine the extent and nature of the provision of Brydges services throughout Canada. The two major components of this study consist of (i) a literature review, and (ii) interviews.

The literature review   The first component of the literature review consists of an analysis of the relevant case law that has interpreted and applied the decision of the Supreme Court of Canada in Brydges (1990). The case law analysis is limited to decisions of the Supreme Court of Canada and the various appellate courts of the provinces and territories.

The second component of the literature review consists of an examination of both empirical and theoretical materials that discuss the Miranda caution and its impact in the U.S.A.; the various factors that may impair a suspect's capacity to understand a caution issued by the police; and the duty solicitor scheme in England and Wales.

Interviews   The empirical component of the present research project consists of 101 interviews with various actors in the criminal justice process in the 10 provinces of Canada. A total of six standardized questionnaires were specifically developed for administration to the following groups of criminal justice actors: (i) legal aid administrators; (ii) police officers; (iii) judges; (iv) Crown counsel; (v) defence counsel; and (vi) accused persons being held in custody. The researchers incorporated both quantitative and qualitative approaches within the design of the project by including both open-ended and closed-ended questions.

The research project was divided into two, distinct phases. Phase I consisted of interviewing legal aid providers in order to ascertain whether or not they collected data on the provision of Brydges services. Phase II consisted of the administration of the standardized questionnaires. Telephone interviews were the predominant method of administering the questionnaires. Where feasible, face-to-face interviews were conducted. Owing to the small number of respondents in each province, it was decided that a purposive sample would be appropriate.

The data collected from the questionnaires was coded and analyzed using the SPSS program. Finally, the researchers followed the ethical principles that were incorporated in a protocol that was approved by the Research Ethics Committee of Simon Fraser University.

Chapter 7: Main Findings

All of the provinces provide Brydges services during the day. However, the provision of Brydges services on a 24-hours-a-day basis has been implemented in only eight of the ten provinces. In Alberta, after-hours Brydges services are provided on an informal basis by a roster of volunteer lawyers who accept telephone calls. In Prince Edward Island, there is neither a formal nor an informal system for the provision of Brydges services after hours.

Almost all key informants felt that, in addition to meeting formal Charter requirements, Brydges duty counsel have the undoubted ability to provide detainees with valuable information. An arrested or detained suspect may potentially acquire information concerning:

• their legal rights
• the basic elements of the legal process
• the nature of the criminal investigation
• important elements of their own case
• the potential advantages and disadvantages of giving evidence to the police

There are two main disadvantages associated with the delivery of Brydges services:

• 1) Significant delays in reaching duty counsel - namely:
  • difficulties reaching on-call duty counsel
  • lengthy delays in call backs when 1-800 services are utilized

• 2) Accused persons may not fully comprehend the information that is provided to them by the police:
  • This observation applies particularly to those accused that are not released but retained in custody.
  • In-custody accused may have limited capacity to understand legal advice - because of intoxication, mental disability or similar problems, compounded by stress, fear and confusion related to an arrest.

Brydges services that provide legal advice promptly work to the advantage of the justice system:

• Police can proceed with interrogation of the suspect.
• There is less likelihood of a subsequent adjournment when the case enters the court system.

Delays in the delivery of Brydges services may hinder the progress of the police investigation and, paradoxically, work to the advantage of accused persons:

• There is a time limit for some procedures, such as breathalyser tests.

The complete absence of Brydges services may benefit the accused:

• In bail hearings, adjournments will be ordered until the accused can speak to duty counsel.
• At a subsequent trial, incriminating evidence may be excluded.

However, receiving prompt Brydges advice can work to the disadvantage of the accused:

• If the suspect is intoxicated and Brydges advice is swiftly received, the police may immediately proceed to interrogate the individual - possibly to his or her disadvantage because of the impairment caused by intoxication.

• Key informants made the following suggestions for improving Brydges duty counsel services:

  • Implement basic 1-800-number telephone services serving all jurisdictions.
  • In provinces where there are no formal Brydges services, implement formal 24-hour services.
  • In provinces where the services are provided by on-call lawyers, implement 1-800 services on a 24-hour basis.

• Other suggestions for improvement, assuming that basic 1-800 services are in place were:

  • Duty counsel should be assigned to specific police stations that have a high volume of arrests.
  • Assure that multilingual Brydges services are offered in appropriate areas.
  • Ensure that call-backs occur within a guaranteed minimum period.
  • Provide regionalized services.
  • Ensure closer coordination or linkage between advice and assistance at arrest and subsequent representation of the accused at plea, show cause, and trial proceedings.

• A more effective system should be developed in order to more accurately assess the capacity of detainees to fully understand legal advice, and to take appropriate measures.

Chapter 8:   Discussion And Conclusions

The impact of the Brydges case on provincial legal aid services   Although the Supreme Court of Canada has not imposed a constitutional duty upon the provinces to implement Brydges services, the findings of this project indicate that the overwhelming majority of the provinces have implemented 24-hour Brydges services on a formal basis. However, the province of Alberta only provides after-hours Brydges services on an informal basis, whereby lawyers volunteer to provide these services. The province of Prince Edward Island does not have either formal or informal after-hours Brydges services.

In general, the interviewees in this project underscored the need to formally implement Brydges services in every jurisdiction and to ensure that these services are accessible, province-wide, through a toll-free telephone number.

The impact of the Brydges caution on police officers   In Canada, it appears that police practices have been significantly altered by the Brydges case and subsequent court rulings. In general, police officers reported that they consistently fulfill the informational requirements imposed by the Supreme Court of Canada rulings. Moreover, police officers reported that they are well aware that failure to inform accused persons of the existence of Brydges services may operate to their disadvantage, since it may lead to the exclusion of incriminating evidence during subsequent trial proceedings.

The impact of Brydges services upon arrested/detained persons   The majority of the respondents in this study reported that providing Brydges services constituted a major benefit for those suspects who were being held in police custody. However, it is of critical importance to note that there is a wealth of empirical literature that suggests that a considerable number of offenders suffer from a myriad of problems - such as substance abuse, mental disorders, intellectual disabilities, fetal alcohol syndrome, hearing impairment, and language barriers. Therefore, it is doubtful whether accused persons who are affected by such conditions have the capacity to fully understand the contents of a police caution and/or the legal advice provided by Brydges duty counsel.

It is disconcerting that some respondents stated that, in certain cases, the provision of Brydges services may work to the disadvantage of the accused person. For example, once the police have fulfilled their informational duties and the accused person has contacted Brydges duty counsel, the police effectively have a “green light” to continue with their investigation - even though the accused person may be intoxicated and, therefore, may not clearly recall the contents of a police caution and/or the legal advice given by Brydges duty counsel.

The need to ensure continuity in the delivery of legal aid services was advocated both by interviewees in this project and by a number of articles that were examined in the literature review.

The need to enhance the levels of funding for legal aid serviceswas advocated by certain respondents and in a number of the articles that were examined in the literature review. Increasing the amount of funding would alleviate the shortage of lawyers who may be willing to work for legal aid programs.

The problem of languagecould be resolved, according to some participants in this project, by hiring multilingual lawyers who could be called upon when required.

The education and trainingof criminal justice officials should be enhanced in relation to the nature and impact of the various mental disorders, intellectual disabilities, and drug-related incapacities, which may afflict suspects in police custody.

Alternative models for the delivery of Brydges services   Local jails have the potential to play a pivotal role in meeting the needs of offenders. They could serve as points of liaison between community services, which address health, housing, and drug-related problems, and the correctional system. If the role of duty counsel were to be expanded, lawyers could be assigned to specific police stations and lock-ups in order, not only to provide legal advice and assistance, but also to assist accused persons in contacting community services that may be of benefit to them. Such an expanded role for duty counsel would ensure that the system of legal aid would reflect a client-centered approach. Indeed, legal aid services should focus on a more holistic approach towards clients who are held in police custody. This does not necessarily mean that legal aid plans should actually provide the expanded services. Partnering or liaison arrangements between legal aid and other service providers might be possible.

Another model for delivering legal aid services would involve hiring paralegals and/or articling students to provide - at a lower cost - some of the basic services that are currently offered by lawyers.

Potential obstacles to change   The overwhelming majority of the respondents did not offer any suggestions for the development of alternative measures for the delivery of Brydges services. Consequently, it may reasonably be anticipated that any proposals for the introduction of reforms to the existing system will encounter some fairly stout opposition.

The model implemented in England and Wales for the delivery of 24-hour legal aid services   It is noteworthy that the duty solicitor model that has recently been implemented in England and Wales has significantly expanded the role of duty counsel, by providing Brydges - type services at the police station. Suspects may - without any charge - access not only a duty solicitor, but also a private lawyer of their own choice

Additional assistance is made available in England and Wales to suspects with disabilities. In such cases, at the police station itself, a police surgeon assesses a person's competency to undergo police interrogation. Furthermore, “appropriate adults” are required, by legislation, to assist persons with mental disorders or developmental disabilities while they are being detained in police custody.

Conveying information about Charter rights to suspects in custody   The present research project has raised troublesome questions concerning the efficacy of the methods employed by the police in order to convey legal information to arrested/detained persons. Suggestions for improving the efficacy of the process of conveying legal information include the possibility of showing suspects a video in which the legal caution is fully explained in simple terms (and in different languages, where required).

In terms of the potential reform of the existing Brydges duty counsel system in Canada, it may be worthwhile to explore the 24-hour duty solicitor model that has been implemented in England and Wales - that requires, for example, duty counsel to attend high-volume police stations in person in order to provide legal advice on a face-to-face basis. Moreover, the education of the public at large about their legal rights could be greatly enhanced by making “Plain-language” legal resources more widely available on the internet and by providing easily understandable pamphlets to suspects (in different languages, where appropriate).

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