A Review of Brydges Duty Counsel Services in Canada

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

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:

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

Chapter 4: The Capacity of the Suspect to Understand the Contents af a Police Caution

Legal Analysis

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:

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:

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

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

The complete absence of Brydges services may benefit the accused:

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

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).