A Review of Brydges Duty Counsel Services in Canada
2. THE BRYDGES DECISION AND THE RIGHT TO COUNSEL: A REVIEW OF THE CASE LAW
2.3 Decisions of the Provincial Appellate Courts
As is the case with the Supreme Court of Canada jurisprudence concerning Brydges services, the majority of the decided cases in the provincial appellate courts involve the investigation by the police of impaired driving, and their demands for breath and/or blood tests. This means that the case law that directly addresses issues relating to Brydges services revolves around a narrow set of circumstances. This is important for Brydges duty counsel since arrest or detention for impaired driving and the issue of a demand for breath and/or blood samples frequently occur outside of normal working hours. (For a summary of the appellate cases that are examined in this section, please refer to Table 2.)
2.3.1 The Nature of the General Information that must be Furnished to the Suspect by the Police
The Supreme Court of Canada has clearly articulated the general nature of the information that must be imparted to a suspect, who has been arrested or detained. Indeed, in the case of Feeney (1997), Justice Sopinka, speaking for the majority of the Supreme Court, effectively summarized the combined effect of the Brydges (1990), Pozniak (1994) and Bartle (1994) cases, by stating that:
With respect to the informational component of a proper s. 10(b) caution … the detainee must be informed of the applicable duty counsel and legal aid systems available in the jurisdiction … [and] must be informed of any opportunity to access immediate, free legal advice, such as the existence of a 1-800 telephone number. [para. 55, emphasis added]
Various appellate cases have examined the adequacy of the right-to-counsel information that the police have presented to accused persons, at the time of their arrest or detention. For example, in Nickerson (2001), the police officer informed the accused of her right to instruct counsel without delay and of her right to apply for legal aid without charge. However, the accused was not made aware of the existence of the “ 24-hour Legal Aid duty counsel system ” that was available to her. The Nova Scotia Court of Appeal held that this omission by the police constituted a violation of the section 10(b) right of the accused to counsel. As Justice Saunders stated, in delivering the judgment of the Court, there is an “ important distinction between possibly qualifying for Legal Aid, or accessing immediate legal advice at no financial cost whatsoever ”
(para. 15). Saunders J.A. also took the opportunity to make the comment that:
It is disappointing so many years after the Supreme Court's decisions in R. v. Bartle and R. v.Brydges … , that concise, accurate, unambiguous wording cannot be printed on laminated cards for quick and easy reference by police officer when informing detainees of their right to counsel” [para. 16]
Similarly, in R. v. Ferguson (1997), the accused was detained for investigation of drunk driving. The police officer gave the accused a Charter caution based on memory, rather than reading a caution from a printed card. However, the officer failed to inform Ferguson of the availability of duty counsel or of the 24-hour, toll-free telephone number that was in operation in the province. Following this incomplete caution, the accused made some inculpatory statements concerning his driving and his state of intoxication. The B.C. Court of Appeal held that these statements should have been excluded from the trial because they had been obtained in violation of Ferguson's section 10(b) right to counsel.
However, in Genaille (1997), the Manitoba Court of Appeal emphasized that, if the suspect is detained or arrested during normal working hours, then the police do not have to inform him or her of the availability of duty counsel on a 24-hour basis. The Court held that it was sufficient for the police officer to have told the accused that he was “ entitled to free legal advice from duty counsel immediately ”
and that he had a right to “ representation by a lawyer of his own choice or through legal aid ”
(p. 468). This outcome reflects the decision made contemporaneously by the Supreme Court of Canada in Latimer (1997).
The failure to provide full information about the availability of Brydges duty counsel is not necessarily disastrous, particularly in the situation where the accused does nevertheless exercise his or her section 10(b) right by actually speaking to counsel. For example, in R. v. Moore(1995), the defendant had been convicted at trial of impaired driving. A police officer in Red Deer, Alberta, had given Moore a “ 1-800 ” telephone number, indicating that it would connect Moore with duty counsel. In fact, this number belonged to a Calgary lawyer who was not serving as duty counsel. It appears that the police had not informed themselves of the existence of a duty counsel system that had been established to deal with cases originating in Red Deer. Moore did speak to the private lawyer and received legal advice - although Moore stated at his trial that “ he was not especially satisfied with the advice that he received ”
“ (para. 3). Although Moore claimed that the police officer had infringed his section 10(b) right to counsel, the Alberta Court of Appeal found that there was ”
“ no breach of the substantive rights of the accused whatsoever ”
(para. 7). Hunt J.A. stated that Moore had consulted counsel and “ there was no suggestion from the evidence that he was misinformed about his legal rights ”
(para. 7). The Court of Appeal emphasized that Moore's situation was completely different from that of the accused in the Supreme Court of Canada cases of Cobham, Bartle, Prosper, and Pozniak (1994) - cases in which none of the accused actually contacted counsel, and in which the police had not informed them of the existence of duty counsel.
Likewise, in Mosher (1992), after the accused had been detained in connection with an investigation of impaired driving, the police officer issued a breathalyzer demand and informed Mosher that he had the right to retain and instruct counsel without delay, and that he also had the right to apply for free legal assistance through Legal Aid. Mosher immediately indicated that he wished to speak to his own lawyer and he was permitted to call this lawyer - in private - from a telephone located in the police station. It was contended at Mosher's trial that the police had not provided him with the information concerning duty counsel that was mandated by the Supreme Court of Canada's decision in Brydges (1990). The Appeal Division of the Nova Scotia Supreme Court ruled that there had been no breach of Mosher's section 10(b) rights because, after having been informed of the availability of legal aid, he had chosen to consult a private lawyer who did not work with Legal Aid.[4] As Chief Justice Clarke noted, “[Mosher] got him within a reasonable time, presumably obtained his advice and had him present to observe the tests' (p. 2).
2.3.2 Are the Police Required to Immediately Provide Suspects with the actual Toll-Free Number for Brydges Services, Where they exist?
A critical question that has been raised in the context of the implementation of the right to counsel under section 10(b) is whether the police are required, at the time of an arrest or detention, to immediately provide the suspect concerned with the actual toll-free number that will enable him or her to contact the 24-hours-a-day duty counsel? In this respect, the appellate courts have drawna sharp distinction between the undoubted duty of the police to immediately inform the suspect that a toll-free number exists and the more onerous requirement that the police immediately inform the suspect of the actual telephone number. Furthermore, the appellate courts have espoused the view that that it is not necessary for the police to furnish a suspect with the toll-free duty counsel number at exactly the same time as the section 10(b) caution is administered to him or her.
In Davis (1999), the accused had been informed of his right to retain and instruct counsel and that he could speak to counsel of his choice or to duty counsel. Davis was clearly notified that “ free legal aid was available on a 24-hour basis and that a legal aid number would be provided upon request in the event he wished to call counsel immediately ”
(para. 5). However, the officer did not provide Davis with the toll-free telephone number at that particular time. In any event, Davis declined to take advantage of the opportunity to contact counsel immediately, and he then made some self-incriminating statements. At trial, Davis was convicted of a number of serious offences (including kidnapping and sexual assault with weapon). The Ontario Court of Appeal rejected Davis' appeal against conviction. One of the issues raised by Davis' counsel was an alleged infringement of his section 10(b) right to counsel. However, the Court of Appeal took the view that the failure of the police officer to immediately provide Davis with the toll-free number did not constitute a breach of his section 10(b) right to counsel. Davis had chosen to waive his right to counsel after he had been informed that he would be given the relevant number to contact legal aid - should he wish to contact counsel immediately. In the view of the Court of Appeal, “ nothing more was required of the police ”
(para.5).
In a similar vein is the decision of the B.C. Court of Appeal in Poudrier (1998). At the time a demand for breath sample was made, the police informed Poudrier of his right to counsel. The officer indicated that legal aid was available on a 24-hours-a-day basis and that the telephone number was available at the RCMP station. Poudrier did not request the number when he arrived at the station. Poudrier was convicted of driving “ above 80 ” and sought to appeal on the basis that his section 10(b) right to counsel had been infringed. The B.C. Court of Appeal ruled that the police had satisfied the informational requirements that had been articulated by the Supreme Court of Canada in Bartle (1994) - namely, that it is sufficient for the police to tell “ a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away ”
(para. 14).
On the other hand, it is clear that the police must provide an arrested or detained suspect with the toll-free number at the moment when he or she wishes to take advantage of the right to contact the 24-hour duty counsel service. This principle was highlighted in the case of Chisholm (2001). Here, a police officer had provided information concerning the right to counsel from memory rather than reading from a printed card. Chisholm had been charged with refusing to provide a breath sample and with impaired driving. The trial judge acquitted the accused, after having excluded certain evidence on the basis that it had been obtained in violation of the right of the accused to counsel under section 10(b) of the Charter. The police officer who informed Chisholm of his right to counsel at the time of his arrest admitted that he had “lost the card from which he read when advising”
the accused, and that he could not be sure exactly what he said to Chisholm (para. 10). The trial judge found that the officer had notified the accused that “ a lawyer can be contacted on your behalf to provide legal advice immediately without charge ”
, but that the officer had failed to provide Chisholm with the number for the duty counsel who was available to provide advice and assistance (para. 18). The Nova Scotia Court of Appeal rejected an appeal by the Crown against Chisholm's acquittal at trial. The Court agreed with the trial judge that there had been a violation of Chisholm's section 10(b) right to counsel. Significantly, the Court of Appeal discussed the decision of the Supreme Court of Canada in Latimer (1997), and found a critical difference between the situation that had arisen in Chisholm's case and the circumstances that existed in the case of Latimer. In delivering the judgment of the Court of Appeal, Saunders J.A, emphasized that:
… The major distinguishing factor in Latimer… is that at the time of his arrest, Legal Aid counsel was available during normal business hours. Latimer was arrested at 8:32 a.m. Thus, once he had been advised of the availability of Legal Aid Counsel and that he could call counsel immediately, his right to counsel had been satisfied. The Court observed that the number for Legal Aid was readily available, both from the telephone book and from Directory Assistance. In fact, Latimer was seated in front of a telephone that had the number for Legal Aid on it.
Latimer was arrested during business hours whereas Mr. Chisholm's detention was after midnight. In this case, Mr. Chisholm could not have known the number for counsel on duty that night. He could not look it up in the telephone book. He could not obtain it from Directory Assistance. It was not written on the wall or the telephone in the holding room.
The crucial difference between Latimer and this case is the availability of that telephone number. In cases where available legal counsel are on duty, only the police can provide that telephone number to the detained person. [paras. 28-30]
Since the police officer had not provided Chisholm with the number of duty counsel, the Court of Appeal concluded that the accused had not been “clearly and fully informed of his right to counsel”
(para. 30).
If a detained or arrested suspect has been fully informed of his or her rights under section 10(b), and knowingly declines to pursue the opportunity to contact counsel, then it is clearly not necessary for the police to provide the specific toll-free number that will connect him or her with duty counsel. The Nova Scotia Court of Appeal applied this particular principle in the case of Wallace (2002). Here, the appellant had been convicted of refusing a breathalyzer demand and of impaired driving. Upon his appeal, Wallace argued that his right to counsel had been infringed. After requesting a breath sample, the police officer concerned had informed Wallace of his right to retain and instruct counsel without delay and of the immediate availability of duty counsel “without charge.” The officer did not provide the 1-800 number for duty counsel, but asked Wallace if he wished to call a lawyer, and the accused said that he did. Wallace was taken to the police station during normal working hours, and taken to the entrance of a room that contained a desk, chair and telephone. On the wall opposite to the chair were two notices: one of these notices displayed the names and telephone numbers of private lawyers, while the other displayed two numbers for contacting after-hours duty counsel as well as the numbers for reaching the Legal Aid offices during normal business hours. Wallace had not entered the room and, while standing in the doorway, he informed the officer that he had changed his mind about calling a lawyer, and that he just wished to go home. Wallace then refused to blow into the breathalyzer apparatus. The Court of Appeal rejected the appellant's argument that the police had failed to provide the necessary information about the right to counsel and how to access legal services. Saunders J.A. emphasized that Wallace's case was very different from that of Chisholm (2001):
Whereas, in Chisholm … the accused's detention occurred after midnight in circumstances where he could not have known the number for counsel on duty, could not have looked it up in the telephone book, nor obtained it from Directory Assistance, nor seen it written on any notice posted near the telephone, here Mr. Wallace was detained during regular business hours and was found to have been properly advised of his Charter rights and fully informed of the means necessary to access such legal advice. He chose not to enter the room where he might avail himself of that opportunity and instead simply stood in the doorway and repeated his decision to the police officer that he had changed his mind, that he did not wish to contact a lawyer, and that he wanted to go home. [para. 18]
Moreover, the Court firmly rejected the argument that the police officer should have provided Wallace with a specific telephone number at the time of his detention: “ it would have been pointless for the police to have imparted a telephone number or numbers to the detained at that stage ”
(para. 20). Wallace had been properly informed of his right to counsel and had been granted every opportunity to exercise it.” However, he had changed his mind and had effectively waived his right under section 10(b) of the Charter.
2.3.3 Are the Police Required to Ensure that a Suspect Contacts the Lawyer of his or her Own Choice?
Once a police officer has furnished an arrested or detained suspect with the necessary information concerning the right to counsel, the suspect may seek to immediately contact a private lawyer. If the suspect's own lawyer is not available (which may well be the case if the suspect has been arrested or detained outside of regular working hours), then the question arises as to whether the suspect's right to counsel has been violated if he or she is referred to duty counsel instead of the private lawyer of his or her own choice. The appellate courts have taken the view that there is no violation of the right to counsel if the suspect appears to have accepted the option of talking to duty counsel.
For example, in Littleford (2001), the accused had been arrested for impaired driving and was immediately advised of his right to counsel. Littleford indicated both that he understood the caution and that he already had his own lawyer. He was subsequently taken to a room in the police station in order to contact this lawyer. The arresting police officer called the number that was provided by Littleford. It was 12:53 a.m. and, since the officer contacted the lawyer's office, there was no answer, so he left a message on the answering machine. At trial, the police officer admitted that he had not offered to look up the lawyer's home number, nor had he provided the suspect with a telephone directory. The officer then contacted duty counsel and explained that, although Littleford had indicated that he did not wish to speak with duty counsel, he nevertheless was not able to contact his own lawyer. The officer then informed Littleford that duty counsel was on the line for him, and Littleford spoke with duty counsel. After speaking to duty counsel, the defendant agreed to take the breathalyzer test. He did not make any further request to contact his own counsel, and he did not make any complaint after speaking to duty counsel.
Ultimately, Littleford was convicted of driving “above 80,” and he appealed to the Ontario Court of Appeal on the basis that his section 10(b) right to counsel had been violated before he provided the breath sample. The alleged violation arose from the contention that Littleford had not been given a reasonable opportunity to contact his own lawyer. The Court of Appeal emphasized that the onus of proving the breach of his right to counsel was placed on Littleford, and that he had not satisfied this onus.
The difficulty with the appellant's position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The trial judge made a finding that speaking to duty counsel “seemed to satisfy him at the time.”
There was no basis on the record to disturb that finding. [para. 8]
The circumstances were significantly different - although the outcome was similar - in the case of Eakin (2000). Here, the accused was convicted of sexual assault and robbery. He was later declared a dangerous offender and sentenced to an indeterminate sentence. However, the accused appealed against his convictions to the Ontario Court of Appeal. One of the grounds for the appeal was the assertion that Eakin's right to counsel had been infringed by the police. Eakin had been duly informed of his right to counsel and had indicated that he wished to speak to his own lawyer. The accused was given a telephone directory but was unable to locate his lawyer's number, even though the lawyer's name and number were in the telephone directory (and the lawyer was available at the time). A police officer was also unsuccessful in locating the lawyer's telephone number. The police then placed a request for duty counsel and refrained from further questioning of the accused. Duty counsel did call a little while later, and Eakin spoke to him for about twelve minutes. Eakin did not complain about speaking with duty counsel, and he did not renew his request to speak to his own lawyer. He subsequently gave samples of hair, saliva and blood. At trial, Eakin contended that he had not been furnished with the information that was necessary for him to contact his own lawyer. The trial judge rejected this contention.
The Ontario Court of Appeal upheld the ruling that Eakin's right to counsel had not been infringed in the particular circumstances of his case. In the view of the Court, Eakin had been properly informed of his right to counsel, had been given a reasonable opportunity to exercise that right and had appeared to accept duty counsel as an alternative to his own lawyer. Charron J.A. emphasized that it was important to take into account the specific facts that had been found by the trial judge in this case:
Some of the critical findings include the facts that the appellant had merely thumbed through the telephone book in a manner that was carefree, that he had made no earnest attempt to locate [his lawyer], and that he never pursued this request. While counsel for the appellant is correct in his submission that the police could have made greater efforts to locate [the lawyer], this fact does not detract from the trial judge's findings with respect to the appellant's own lack of diligence in his attempts to consult with counsel of his choice. [para. 8]
In Eakin, therefore, the police were not placed under a duty to assist the accused in finding the lawyer of his choice, because the accused himself had demonstrated a marked lack of diligence in this regard.
An important issue that may arise in the context of an attempt to exercise the right to counsel is the relevance of the suspect's language. For example, in Girard (1993), the accused had been acquitted of a charge of impaired driving. The trial judge had excluded the results of the breathalyzer tests on the basis that Girard's section 10(b) right to counsel had been violated when the police had failed to provide him with the French-speaking lawyer that he had requested. Girard had been arrested at 1:15 a.m. and was given the standard police caution concerning his right to counsel. When he arrived at the police station, he was given a telephone directory and a list of legal aid lawyers. Girard then indicated that he wished to contact a French-speaking lawyer. The arresting police officer called a couple of legal aid lawyers, but was not successful in obtaining help for the accused. Subsequently, Girard was provided with a translator who read, in French, the police caution, his Charter rights and the demand for a breathalyzer test. Girard subsequently notified the police that he did not wish to speak to a lawyer, and took the breath test. The Nova Scotia Court of Appeal allowed an appeal by the Crown against Girard's acquittal and entered a conviction, because the results of the breathalyzer tests should have been admitted at the trial. The nub of the decision appears to be the finding that Girard himself showed a complete lack of due diligence in seeking to contact a French-speaking lawyer, and, therefore, the police were under no obligation to undertake exceptional efforts to assist Girard to follow up on his initial request. Indeed, Chipman J.A. stated that:
The evidence discloses no attempt on the appellant's part to find a French-speaking lawyer … His position was simply that the police had a duty to do all of this for him. The case of Brydges… is at most authority for the proposition that the Charter imposes upon the police the obligation to advise the accused what is available to him by way of legal service and give him a reasonable opportunity to seek the advice of counsel. The Charter does not impose upon the police the obligation to provide the services. In the circumstances here the police did all that was reasonably required of them. There may be cases where affording a reasonable opportunity to consult counsel imposes a duty on the police to do more, but this is not one of them.
The respondent has failed to establish that he was unable to contact a French speaking counsel. He had the opportunity but made virtually no effort to do so. He elected to take the [breathalyzer] test. In my opinion, he has failed to satisfy the onus upon him of proving a Charter violation. [p. 3]
It is noteworthy that the Court of Appeal seized the opportunity to emphasize that there may well be other cases in which the police would be expected to take some further action as part of their duty to furnish a suspect with a reasonable opportunity to consult with the counsel of his or her choice.
2.3.4 Are The Police Required To Take Further Action To Protect The Right To Counsel If The Accused Appears To Be Uncertain As To Whether Or Not He Or She Should Talk To A Lawyer?
Once the police have duly notified an arrested or detained suspect of his or her section 10(b) right to counsel, and provided the latter with the necessary information about access to legal aid and 24-hour duty counsel, the question arises as to whether the police are placed under a duty to provide any further assistance to the suspect, should he or she ask them for advice. This issue was addressed by the Saskatchewan Court of Appeal in Jutras (2001), a case in which the accused had been detained in connection with an investigation into impaired driving, and subjected to a breathalyzer demand. Jutras was fully informed of his section 10(b) right to counsel, and the investigating officer made it clear that Jutras could telephone a lawyer from the police station, and that there were lawyers on duty for that purpose even though it was around 3:00 a.m. When the investigating officer offered Jutras the use of a telephone at the station, the accused declined the offer, and he appeared to understand what he was doing. When a second officer was preparing to administer the breathalyzer test to Jutras, the latter asked him, “ What can a lawyer do for me? ”
and “ What can a family member do for me? ”
(para. 12). Jutras was referred back to the investigating officer who permitted the accused to call his father. Unknown to the police, Jutras suffered from Attention Deficit Hyper Activity Disorder and was confused as to what he should do. His father advised him to submit to the tests without bothering a lawyer. Jutras then took the breathalyzer tests without consulting counsel. The Court of Appeal rejected the contention that Jutras' section 10(b) right to counsel had been infringed by the failure of the police to help the accused to decide whether he should take advantage of the opportunity that had been provided to him to contact counsel. On behalf of the Court, Cameron J.A. stated (paras. 20-21) that:
… Constable Hesp properly informed Mr. Jutras of his right to counsel immediately upon demanding samples of his breath and then effectively afforded him an opportunity to exercise that right once at the police station. He did this at a time when Mr. Jutras was capable of understanding - and indeed understood - that it was open to him to take the advice of a lawyer before complying with the demand…
It was not for the constable, in meeting his duty of informing Mr. Jutras of his constitutional right or of aiding him in implementing that right, to give him advice about what he should or should not do. That was no part of the police officer's duty.
However, the police may be under a duty to provide additional help to an arrested or detained suspect if he or she has not clearly stated a decision as to whether or not to contact counsel. This was the situation that existed in the case of Wydenes (1999). The accused, who was being interrogated in custody in connection with a case of arson, was informed of his section 10(b) right to counsel. When the officer asked Wydenes if he wished to call a lawyer, the accused said, “ No, I guess not, I don't know. ”
Before the B.C. Court of Appeal, Crown counsel conceded that the accused's response was “ sufficiently uncertain that it required the police officer who was present to engage in further enquiries and to seek further amplifications and to offer additional help ”
(para. 6). The Court of Appeal treated this circumstance as one of three violations of the accused's section 10(b) rights that had taken place in the police station, and the Court set aside Wydenes' conviction, ordering a new trial.
In Small (1998), the accused was detained in connection with an investigation into an alleged sexual assault. The accused was read his Charter rights, and he indicated that he did not wish to contact counsel. This was later interpreted as a waiver of his section 10(b) rights. At first, Small was not given any details about the allegation of sexual assault. However, the accused was subsequently taken to an interrogation room and provided with specific details of the allegation (including the identity of the complainant). At this point, Small asked the interrogating officer, “ Do you think I should contact a lawyer? ”
(para.10). The officer actually suggested that “ maybe he (Small) should (do so) due to the fact that it was a serious offence ”
(para. 10). However, the officer did nothing further to follow up the suggestion, but proceeded to take a statement from the accused. This statement was then introduced as evidence at the accused's trial. Small appealed against his conviction to the Alberta Court of Appeal. It was contended by Small that his section 10(b) rights had been violated. One of the issues raised by Small's counsel was that, when Small asked the police officer in the interrogation room whether he should contact a lawyer, Small had withdrawn any waiver of the right to counsel that he may have made after receiving the initial caution from the police. The Court of Appeal allowed Small's appeal. It ruled that his right to counsel had been violated and that his statement should not have been admitted as evidence at his trial. The Court held that Small's question to the officer (“ Do you think I should phone a lawyer? ”
) constituted “ either a request for an opportunity to contact counsel or, at least [was] ambiguous as to whether or not the appellant wished to exercise his s. 10(b) right. ”
In the view of the Court:
… in the face of the appellant's question, the police officer was obliged to pursue this issue further and to either obtain a clear and unequivocal waiver or afford the appellant a reasonable opportunity to exercise his right to counsel. He did neither. Instead he proceeded to obtain the statement. [para. 34]
2.3.5 Are The Police Under A Duty To Inform A Suspect That He Or She Has The Right To Talk To Counsel In Conditions Of Privacy?
In Bartle (1994), the Supreme Court of Canada emphasized that, in addition to imposing a duty on the police to provide the requisite degree of information, section 10(b) of the Charter requires that the police actually facilitate the exercise of the right to counsel by a detained or arrested suspect. Once an arrested or detained suspect has expressed the desire to retain and instruct counsel, then the police are under a duty “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances)”
(p. 301).
In Kennedy (1995), the Newfoundland Court of Appeal ruled that an important component of the duty to implement the suspect's right to counsel is the provision by the police of “an adequate measure of privacy.”
The accused had been transported to a hospital emergency room after his car had collided with a utility pole. The police made a demand for blood samples. After being informed of his right to counsel, Kennedy initially indicated that he wished to contact counsel. He was directed towards a telephone at the entrance to the emergency room. Two police officers, a physician and a nurse were in the immediate vicinity of the telephone. At this point, Kennedy decided not to contact counsel after all. The Court of Appeal affirmed the trial judge's ruling that Kennedy's section 10(b) right to counsel had been violated because of the lack of privacy created by the presence of the individuals in the immediate
vicinity of the telephone (p. 185).[5]
Since the right to counsel under section 10(b) includes a reasonable expectation of privacy, the question necessarily arises as to whether a police officer is required to inform a detained or arrested suspect that he or she has a right to contact counsel in circumstances of privacy. In Parrill (1998), the Newfoundland Court of Appeal declined to provide a definitive answer to this question, but Wells J.A. did offer “some guidance for the future.”
In his judgment, Justice Wells stated that:
It may be beneficial and even desirable, in delivering a caution respecting the right to retain and instruct counsel, that police officers should advise arrested persons and detainees that should they decide to contact a lawyer they will be afforded an opportunity to do so in privacy, or at least in such privacy as the circumstances permit. It would involve little additional effort. It would be beneficial to the arrested or detained person in that any apprehensions the person might have about the right to consult a lawyer would be removed. It would also beneficial from a police point of view in that the police would no longer have to be concerned with assuring themselves that there is nothing in the circumstances that make it necessary for them to go further in explaining the s. 10(b) rights, at least with respect to possible concerns about privacy. These comments are not, however, to be construed as a finding that the law, as it stands at the moment, so requires. [para. 37, emphasis added][6]
2.3.6 Are the Police under a duty to repeat the Section 10(B) Caution to a Suspect who has been detained or Arrested and Subsequently Transported to a Police Station?
In Leedahl (2002), the accused had been arrested for impaired driving at 3:40 a.m. Leedahl was read his section 10(b) rights to counsel, and subjected to a breathalyzer demand at the scene of his arrest (a street in Saskatoon). The accused subsequently provided breath samples at the police station. The central issue in the case concerned the admissibility of the evidence of these breath samples, in light of the assertion of Leedahl's counsel that they had been obtained in violation of the requirements of section 10(b) of the Charter. At the scene of the arrest, the police officer had asked the accused whether he wished to “ call a lawyer now. ”
The arresting officer testified that - at the time of his arrest in the street - Leedahl had indicated that he understood his rights and that he did not wish to contact counsel. Some 15 to 20 minutes elapsed before Leedahl was transported to the police station. The police officer did not repeat the section 10(b) caution at the station. The Saskatchewan Court of Appeal ruled that there had been no violation of section 10(b), because there was no evidence that Leedahl had been misled into believing that he would be asked again if he wanted to contact counsel. Moreover, the Court stated that there is “ no general rule of law that says police officers must, in breathalyzer cases, where they've given the demand at the scene, specifically ask the accused if he wants to make a call when they get to the police station ”
(para. 9, emphasis added).
2.3.7 The Additional Duty Placed On The Police If The Suspect Has Changed His Or Her Mind About Contacting Counsel.
The Supreme Court of Canada has emphasized that the police may be placed under an additional duty to provide information to an arrested or detained suspect in the situation where the latter has initially indicated a desire to retain and instruct counsel, but has subsequently informed the police that he or she has undergone a change of mind and no longer wishes to contact a lawyer. Indeed, in Prosper (1994), Chief Justice Lamer stated (pp. 274-275) that:
In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had this opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up. [emphasis in original]
The nature of the additional informational duty that was imposed on the police by the decision of the Supreme Court of Canada in the Prosper case was further explored by the Ontario Court of Appeal in Smith (1999). In this case, two police officers went to Florida to interview Smith, who had been charged with first degree murder in connection with two homicides that had occurred in Ontario. One of the officers notified Smith of his right to counsel, and the caution contained specific information about the toll-free number that was available for the purpose of putting the accused “in contact with a legal aid duty counsel for free legal advice right now.”
At this point, Smith indicated that he wished to call that number and consult with duty counsel. The police officer indicated that he was not sure whether the 1-800 number would work in the United States, and that it might be necessary to call counsel in Ontario and request that
they call them back. However, the officer clearly stated that he would be obliged to terminate the interview should Smith wish to speak to counsel. The accused then indicated that he wished to continue the interview without a lawyer, and that he did not wish to contact one at that moment. Shortly after, the accused provided the police with a potentially incriminating statement and a blood sample. The accused was convicted of first degree murder and appealed to the Ontario Court of Appeal, which dismissed the appeal. The Court rejected the argument made by Smith's counsel, to the effect that the police had failed to comply with the “additional informational obligations” imposed on them by the Supreme Court of Canada in the Prosper case. Rosenberg J.A. highlighted the fact that this was not a case in which the accused had diligently attempted to reach counsel but had been thwarted in the attainment of his
objective. Indeed, only a very short period had passed from the moment that Smith had been fully informed of his section 10(b) ri ghts and the moment when he changed his mind, and indicated that he no longer wished to consult with a lawyer. Furthermore, the police had repeatedly indicated that the interview would be terminated should Smith wish to contact counsel. In the words of Justice Rosenberg:
[t]he circumstance of the detainee who has repeatedly attempted to access counsel and has been frustrated in that attempt over a significant period is entirely different from this case. Here we have an accused who changed his mind without making any attempt to be reasonably diligent and whom the judge had found to be “eager to broadcast” history. [para.26]
2.3.8 The Duty Of The Police To Provide A Reasonable Opportunity For The Suspect To Contact Counsel
If an arrested or detained suspect exercises a reasonable degree of diligence in asserting his or her right to counsel, then the police are undoubtedly required to provide a reasonable opportunity for the suspect to contact a lawyer and, in the meantime, to refrain from eliciting any evidence from the suspect. Furthermore, the police are required to inform the suspect of his or her right to be afforded a reasonable opportunity in which to contact counsel.
In Luong (2000), the Alberta Court of Appeal summarized the current jurisprudence in the following manner:
Once a detainee asserts his or her right to counsel and is duly diligent in exercising it (having been afforded a reasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is required to prove a valid waiver of the right to counsel. In such a case, the state authorities have an additional informational obligation to “ tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity ” (sometimes referred to as a “ Prosper warning”) … Absent such a warning, an infringement is made out. [para. 12]
The reasonable opportunity may well embrace a period during which the suspect may consult with more than one counsel, on more than one occasion. In Whitford (1997), for example, the accused was informed of his Charter rights after being arrested on a charge of sexual assault. At the police station, Whitford indicated that he wished to speak to a lawyer. The accused did talk to a lawyer by telephone and, “almost immediately thereafter,” he informed the police that he did not want to talk to them about the alleged offence “until I talk to legal aid”
(p. 58). However, the police continued their questioning, and Whitford made a statement that the Crown was later permitted to introduce at the trial in order to impeach the credibility of the accused on cross-examination. The Alberta Court of Appeal ultimately ruled that the statement should not have been admitted, since it had been obtained in violation of Whitford's
section 10(b) right to counsel. Berger J.A. noted (p. 59) that the only reasonable interpretation of Whitford's statement to the police - that he did not wish to be subjected to questioning “ until I talk to legal aid ”
- was that “ he still wished to pursue his s. 10(b) rights before he spoke to the police ”
and that “ it does not follow that because an accused has contacted a law office, he has exhausted his s. 10(b) rights. ”
In Justice Berger's view, Whitford had been reasonably diligent in exercising his right to counsel, and there was no rule of law that would restrict the section 10(b) right to one solitary phone call to a law office:
An accused who wishes to make two or three successive phone calls in the exercise and pursuit of his right to retain and instruct counsel must be permitted to do so unfettered by police questioning. The relevant inquiry after an initial phone call to a law office is not simply whether the accused did or did not speak to a lawyer. After all, the lawyer might tell the accused that he is too busy, too expensive, or simply not interested in acting for and advising the accused. He might even recommend that the accused contact Legal Aid. An accused is entitled to a reasonable opportunity to have meaningful contact and advice from counsel. [p. 59]
2.3.9 The Police May Proceed immediately with interrogation of a Suspect Who has unequivocally waived his Or her right to Counsel
If a detained or arrested suspect has unequivocally waived the right to counsel, the police are entitled to proceed immediately with questioning or the administration of a breathalyzer test (once the appropriate demand has been made). In McKeen (2001), for example, the accused had been detained (at 10:30 p.m.) in relation to an investigation of impaired driving. At the scene of his detention, McKeen had been given three “ complete Charter warnings, ” that met all the section 10(b) informational requirements that had been specified by the Supreme Court of Canada in Bartle (1994). At no time did McKeen indicate that he wished to exercise his right to retain and instruct counsel. In fact, he was being “ intentionally uncooperative ”
(para. 67). The police officer then issued a breathalyzer demand, which McKeen twice refused. After the accused had been transported to the cells at the police station, he asked to
contact counsel, which he was permitted to do. After a telephone conversation with counsel, McKeen informed the police officer that he had changed his mind and now wished to take the breathalyzer test. The officer indicated that he had already accepted his refusal to blow, and McKeen was subsequently convicted of refusing a breathalyzer demand, contrary to section 254(4) of the Criminal Code. Before the Nova Scotia Court of Appeal, McKeen's counsel asserted that there had been a violation of McKeen's section 10(b) rights because the police officer had not given him a reasonable opportunity in which to speak to counsel before accepting his refusal. The majority of the Court rejected this assertion. In the view of Flinn J.A.:
… I would agree that if the appellant had given the constable any indication that he wished to consult with a lawyer, the constable, in the circumstances of this case, should have taken the appellant to the detachment, given him a reasonable opportunity to consult with a lawyer, and refrain from giving the breathalyzer demand until the appellant had that reasonable opportunity. However, I know of no authority for the proposition that where, as here, the appellant repeatedly refused to invoke his right to counsel, that the constable is required to wait until he gets the appellant to the detachment before he gives the breathalyzer demand, or before the appellant has to give his response to a breathalyzer demand. [para. 72, emphasis added]
Similarly, in Gormley (1999), the accused had been charged with second degree murder. After having been advised of his right to retain and instruct counsel without delay, Gormley indicated that he did not wish to contact a lawyer immediately. However, after approximately one hour of questioning by the police, the accused asked for the opportunity to contact counsel. The police assisted Gormley in contacting the lawyer of his choice by telephone. The accused spoke to the lawyer - in private - for about three minutes. Counsel informed Gormley of his right to silence and recommended that he say nothing to the police. The police then resumed the interrogation of the accused, who told them that he had been told to say nothing and to wait for the arrival of his counsel at the police station. The accused, nevertheless, made some oral statements before his counsel arrived at the station. Gormley was convicted of second degree murder. During his appeal to the Appeal Division of the Prince Edward Island Supreme Court, his counsel asserted that his section 10(b) rights had been violated, insofar as he had been denied a reasonable opportunity to consult legal counsel. However, the Court dismissed the appeal. Chief Justice Carruthers emphasized that Gormley had been given every reasonable opportunity to contact counsel by telephone. At first, he had knowingly declined that opportunity, but later he availed himself of it and spoke to his lawyer for some three minutes. Carruthers C.J. also ruled that there was no violation of section 10(b) during the interrogation that took place following the phone call and prior to the arrival of Gormley's counsel at the police station:
The appellant exhibited a desire to talk to the police about certain matters despite the advice he had been given by [his lawyer]. There was no change in the circumstances that required the police to cease questioning the appellant until he had a further opportunity to consult with [his lawyer] when he arrived at the Detachment. The police did not employ any tactics to deny the appellant of his right of choice or to deprive him of an operating mind. There was, therefore, no violation of s. 10(b) of the Charter during the interrogation from the time of the call to [his lawyer] at 7:50 a.m. and [his lawyer's] arrival at the Detachment at 11:02 a.m. despite the fact that the appellant made several assertions during this period to the effect that he was not saying anything or that he had to wait for [his lawyer]. [para. 45]
2.3.10 The Police Must Inform Arrested Or Detained Suspects Of Their Section 10(B) Rights In A Timely Manner
In Brunczlik (2000)[7], the Ontario Court of Appeal emphasized the importance of the explicit section 10(b) requirement that an arrested or detained person be afforded the right to “ retain and instruct counsel without delay and to be informed of that right ”
(emphasis added). In this case, the accused, who apparently could communicate only in Hungarian, had been held in custody for almost five hours before he “ was finally informed of his right to counsel in a meaningful way. ”
The Court of Appeal accepted the finding of the trial judge that Brunczlik's section 10(b) right to counsel had been infringed:
The respondent had been held in custody and, because of the language barrier, held essentially incommunicado for an extended period of time. Had he been informed of his right to counsel in a timely way, he would have had a long period of time to consider whether to exercise his rights since the investigators did not intend to interview him for several hours. In our view, it is speculation that during this period the respondent would not have exercised his right to counsel and it was open to the trial judge to resolve this uncertainty in the respondent's favour. [para 6]
In Polashek (1999), the accused was arrested for possession of marijuana. However, the police did not inform him of his rights under section 10(b) of the Charter until thirteen minutes after the arrest had taken place. In the interim, the police conducted a search of the trunk of his car and found a quantity of drugs. The Ontario Court of Appeal swiftly found that this delay constituted an infringement of Polashek's rights under section 10(b). In support of this conclusion, Rosenberg J.A. referred to the decisions of the Supreme Court of Canada in Debot(1989) and Feeney(1997). In particular, Justice Rosenberg quoted (para. 27) a critical principle that had been articulated in the judgment of Lamer J. in Debot- namely, that, “immediately upon detention, the detainee does have the right to be informed of the right to retain and instruct counsel.”
[8]
2.3.11 The Duty Of The Police To Repeat The Section 10(B) Caution Where There Has Been A Significant Change In The Suspect's Legal Status
It is important for the police to bear in mind the need to provide an entirely new section 10(b) caution to a suspect if there has been a significant change in his or legal status. For example, in McIntosh (1999), the accused took a polygraph test even though, at this stage in the investigation, he was not a suspect in the homicide that had been committed. After being informed that he had failed the polygraph test, the operator reminded McIntosh of his Charter rights. In a post-test interview, McIntosh then confessed to having pushed the victim over a cliff. Only after questioning the accused for some time did the operator inform him that he was under arrest for first degree murder. McIntosh then repeated the confession to another officer and, at that point, he talked with duty counsel. The Ontario Court of Appeal held that, after McIntosh had admitted to killing the victim, his legal status had changed dramatically and he was then in a state of detention - therefore, at this precise moment, he should have been re-read his rights under section 10(b) of the Charter. The failure of the police to issue McIntosh with such a caution, at the time when his legal status had changed so significantly, meant that McIntosh's later statements to the polygraph operator had been obtained in violation of his right to counsel.
On the other hand, in the case of Boomer (2001), the accused was detained for impaired driving following a serious accident. He was informed that his wife (who had been a passenger in his car) had been seriously injured in the accident, and a police office read Boomer his section 10(b) right to counsel, from a printed card. Boomer indicated that he did not want to talk to a lawyer, and he admitted to drinking. After having been informed that his wife had died, Boomer provided breath samples. Boomer was convicted of impaired driving causing death. During his appeal against this conviction, he contended that he should have been re-advised of his rights under section 10(b) once the police learned of his wife's death. However, the B.C. Court of Appeal held that, since Boomer already knew that his wife was very seriously injured in accident, there was no change in his state of “jeopardy” and, therefore, there had been no violation of his right to counsel.
2.3.12 Exclusion Of Evidence Under Section 24(2) Of The Charter
Section 24(2) of the Charter furnishes Canadian courts with a considerable degree of discretion in reaching a decision on whether or not to exclude evidence that has been obtained as a consequence of a violation of an individual defendant's Charter rights (Stuart 2001, p. 456). More specifically, section 24(2) provides that such evidence “shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
In Collins (1987), the Supreme Court of Canada held that there are three sets of factors that should be given prime consideration in the application of the criteria articulated in section 24(2) of the Charter: (i) the fairness of the trial if the tainted evidence is admitted; (ii) the relative gravity of the Charter violation; and (iii) the effect that the exclusion of the tainted evidence may have on the reputation of the administration of justice (Stuart 2001, p. 492).
Where there has been a violation of an accused person's section 10(b) right to be fully informed of the availability of Brydges services in his or her locality, appellate courts have - in most cases - excluded any evidence obtained as a consequence of such a violation. For example, in Wydenes (1999), the accused was convicted of arson, and appealed against his conviction to the B.C. Court of Appeal. At the outset of his interview with the police, the accused had been informed of his right to counsel. However, the caution did not meet the informational requirements articulated by the Supreme Court of Canada in Bartle (1994). The Court of Appeal ordered a new trial on the ground that the trial judged should not have admitted certain statements made by the accused after his section 10(b) rights had been violated. Following the Supreme Court's judgment in Bartle, the B.C. Court of Appeal stated that an
important consideration in the application of section 24(2) of the Charter to a case of this nature is “ whether the accused would have acted any differently, ”
had there not been a violation of the right to counsel (para. 9). In allowing the appeal, Lambert J.A. emphasized (para. 12) that “ the burden on the Crown was not discharged to show that the present appellant would have acted in precisely the same way even his rights had not been breached ”
(para. 9).
A similar approach was embraced by the Nova Scotia Court of Appeal in Nickerson (2001), where the accused had been charged with failing to provide a breath sample, contrary to section 254(4) of the Criminal Code. The Court ruled that evidence of the accused's refusal should be excluded because she had not been informed of the Brydges services that were available to her. In delivering the judgment of the Court, Saunders J.A. (para.17) quoted a passage from Chief Justice Lamer's opinion in the Supreme Court of Canada's decision in Cobham(1994):
The direct connection between the incriminating refusal evidence and the offence creates a strong presumption that its admission would render the trial unfair. That is because the appellant may not have refused to take the breathalyzer test if he had been properly advised under s. 10(b) of his right to duty counsel.
Justice Saunders then proceeded to state that admission of the evidence of the accused's refusal would “bring the administration of justice into disrepute”
(para. 19).
In Whitford (1997), the question arose as to whether section 24(2) should be employed to exclude evidence that the Crown wished to use solely for the purpose of attacking the credibility of the accused. Whitford had been convicted of the offence of sexual assault, and he subsequently appealed against his conviction to the Alberta Court of Appeal. Following his arrest, Whitford had indicated his desire to speak to “legal aid” but, soon after this request was made, he provided the police with a statement which the Crown later used to impeach him on cross-examination at his trial. The Court of Appeal held that the police had undoubtedly infringed Whitford's section 10(b) right when they failed to refrain from interrogating him before providing him with a reasonable opportunity to contact legal aid. In ordering a new trial for the accused, the Court held that the statement should not have been admitted. Speaking for the majority of the appellate court, Berger J.A. ruled (p. 62) that “incrimination evidence” and “ impeachment evidence” should be treated in exactly the same manner for the purpose of deciding whether such evidence should be excluded under section 24(2) of the Charter. Justice Berger then applied this principle to the case in hand:
I conclude that the Crown's strategic choice at trial to use the evidence only for impeachment purposes does not lessen the standard for admissibility. Acceptance of a lesser standard would encourage Charter breach in order to achieve tactical advantage at trial. A statement obtained in breach of the Charter for impeachment purposes, it would be thought, is better than no statement at all. In the case at bar, the trial focus on the credibility of the complainant and the Appellant leads me to conclude that it would be unfair to admit the evidence for purposes of cross-examination. [p. 62]
There are relatively few cases in which evidence has been considered admissible at the accused's trial even though it was obtained in violation of the duty of the police to inform him or her of the availability of Brydges services, where they exist. In Fowler (1996), the accused had been convicted on a charge of refusing to comply with a demand for a breathalyzer test. The accused had refused twice in response to demands from two different police officers. The first officer had advised the accused of his right to counsel, but had failed to inform him of the availability of legal aid. The accused refused to submit to a breathalyzer test, and indicated that he “wished to contact someone”
(para. 3). Fowler was then permitted to use a telephone in private for approximately five minutes. The second officer, the breathalyzer technician, then made a demand for a breath sample and, again, the accused refused. Although
the second officer informed the accused “ informally ” of his right to counsel, no mention was made of the accused's right of access to duty counsel or to legal aid. The trial judge convicted the accused on the basis of the second refusal. In the view of the trial judge, although the failure to inform Fowler of the right to contact free duty counsel and to apply for legal aid constituted a violation of section 10(b) of the Charter, the evidence of the accused's failure to provide the breath sample should not be excluded, because “ he did avail himself of his right to counsel by making use of a telephone that was presented to him ”
(para. 5). Marshall J.A., of the Newfoundland Court of Appeal emphasized that, insofar as the applicability of section 24(2) of the Charter was concerned, the “ telephone call is central to that inquiry and at the very nub of this appeal ”
(para. 15). The Court of Appeal held that it was reasonable for the second police officer to assume that Fowler had exercised his right to counsel, since he had taken advantage of the opportunity to use t he telephone immediately after having been informed of his right to counsel. The police were under no duty to inquire whether the accused had, in fact, contacted counsel. It was sufficient if they had informed him of his right to counsel and had afforded him the opportunity to contact counsel in private (para. 5).
Justice Marshall warned that the purpose of the Charter was “ not to provide a minefield or web of technicalities facilitating escape from responsibility to account for alleged potential acts of criminal activity ”
(para. 29). In his view, the purpose of section 10(b) is to assure that a suspect who has been detained is granted the opportunity to exercise the right to counsel. In supporting the decision of the trial judge to admit the evidence of the second refusal, Marshall J.A. stated (para. 33) that:
Having concluded that the finding at trial that Mr. Fowler had availed of his counsel right in the circumstances of this case is a sustainable inference to have been drawn and a redressment of the Charter breach in this case, the holding that the s. 10(b) infringement did not merit the evidence's exclusion under s. 10(b) must be accepted as reasonable.
Similarly, in Dimic (1998), the Ontario Court of Appeal ruled that the violation of the accused's section 10(b) right to counsel was “ a minor one. ” Although Dimic had not been informed of the 1-800 number for legal aid assistance, he had been told by police that a call to a free lawyer could be arranged. Furthermore, the Court of Appeal stated that “ the appellant did not wish to consult a lawyer but wanted to give his side of the story ”
(para. 3). The Court took the view that “ the police's failure to fully comply with the informational requirements under s. 10(b) did not affect the appellant's behaviour ”
(para. 3) and held, therefore, that admission of his statement would not affect the fairness of the trial.
In Russell (1996), the accused had been advised of his right to counsel, but not his right to legal aid or the services of duty counsel. Surprisingly, the Saskatchewan Court of Appeal regarded this as only a “ technical breach ” of the duty mandated by the Supreme Court of Canada in the Brydges case (1990).[9] In rejecting Russell's appeal against conviction for arson, the Court of Appeal ruled that the trial judge had been correct in concluding that she should not apply section 24(2) of the Charter so as to exclude the statements made to the police after the “technical violation” of Russell's rights under section 10(b). On behalf of the Court, Gerwing J.A. stated that:
The appellant continued to speak voluntarily to the police, after being informed of his rights, save the existence of Legal Aid. He almost certainly, and probably to the knowledge of the investigating officers who were fully aware of his circumstances, would not have qualified for Legal Aid. Further, he was acquainted with a lawyer in the judicial centre, and because the telephone had been offered and the Charter violation took place during normal working hours, this lawyer was immediately accessible to him. This is confirmed by his subsequent conduct, when he did conclude he ought to call a lawyer, in, without hesitation, contacting that counsel. [para. 21]
…
… One must consider the fairness of the admission of the evidence and the seriousness of the Charter violation with the exclusion on the integrity of the judicial process to conclude the effect this would have on the repute of the administration of justice. It would appear that the admission would have little or no effect on trial fairness and the Charter violation is trivial, the relevant evidence is frequently admitted. [para. 24]
| Case | Charge | Time | Issue Examined | Considered a s.10(b) Breach? | Evidence Excluded |
|---|---|---|---|---|---|
| Nickerson (2001) | Failing to provide breath sample | After hours | Police did not inform accused of 24 hr. Brydges system. | Yes | Yes |
| Ferguson (1997) | Impaired driving | After hours | Police did not inform accused of Brydges duty counsel or the 24-hr toll-free number. | Yes | Yes |
| Genaille (1997) | Robbery | Regular hours | Police did not inform accused of Brydges duty counsel. | No | N/A |
| Moore (1995) | Impaired driving | No time stated | Police provided the 1-800 number of private lawyer to whom accused actually spoke rather than the Brydges services number. | No | N/A |
| Mosher (1992) | Impaired driving | No time stated | Police did not inform accused of Brydges services since accused requested to speak to his own lawyer. | No | N/A |
| Jones (1993) | Impaired driving | After hours | Police did not inform accused of Brydges services since accused requested to speak to his own lawyer. | No | N/A |
| Davis (1999) | Kidnapping Sexual assault Robbery | No time stated | Police advised accused of existence of 24-hr toll-free number, and that if he wished to contact duty counsel, he would be given the number at police station. | No | N/A |
| Poudrier (1998) | Impaired driving | No time stated | Police advised accused of existence of 24-hr toll-free number but did not furnish the number. | No | N/A |
| Chisholm (2001) | Impaired driving | After hours | Police did not properly inform accused about duty counsel being free or provide number to contact counsel - therefore accused thought he would have to pay. | Yes | Yes |
| Wallace (2002) | Impaired drivingRefusal | Regular hours | Police advised of existence of free duty counsel but did not provide the 24-hr toll-free number. | No | N/A |
| Littleford (2001) | Impaired driving | After hours | Police assisted accused in contacting Brydges duty counsel but made no extra efforts to contact accused private lawyer. | No | N/A |
| Eakin(2000) | Sexual assaul Robbery | No time stated | Police assisted accused in contacting Brydges duty counsel but made no extra efforts to contact accused's private lawyer. | No | N/A |
| Girard(1993) | Impaired driving | After hours | Police assisted accused in contacting Brydges duty counsel but could not find a French-speaking lawyer. | No | N/A |
| Jutras(2001) | Impaired driving | After hours | After police properly informed accused of Brydges services, police did not further assist accused in determining whether or not to call counsel. | No | N/A |
| Wydenes(1999) | Arson | Regular hours | After police properly informing accused of Brydges services, police did not further assist accused in determining whether or not to call counsel. | Yes | Yes |
| Small(1998) | Sexual assault | After hours | After police properly informed accused of Brydges services, police did not further assist accused in determining whether or not to call counsel. | Yes | Yes |
| Kennedy(1995) | Impaired driving | After hours | Police did not provide privacy, therefore accused did not contact counsel. | Yes | No |
| Parrill(1998) | Impaired driving | After hours | Police did not inform accused of the right of privacy. | No | N/A |
| Leedahl(2002) | Impaired driving | After hours | Police properly advised accused of Brydges services, but did not repeat caution at the police station. | No | N/A |
| Smith(1999) | First degree murder | Regular hours | Police provided proper Brydges caution, but after accused asserted his rights and then changed his mind, police did not further assist accused in reaching Brydges counsel. | No | N/A |
| Luong(2000) | Impaired driving | Regular hours | Accused was given proper caution but did not call lawyer during a period of 15 minutes - police then asked to take breathalyzer test.. | Sent for a new trial | N/A |
| Whitford(1997) | Sexual assault | Regular hours | Accused spoke to a lawyer, but stated that he wanted to further wait to talk to a legal aid lawyer before talking to the police - Police did not hold off questioning.. | Yes | Yes |
| McKeen(2001) | Refusal to provide breath sample | After hours | Accused informed of duty counsel and offered 1-800 number to contact counsel - officer then made a breathalyzer demand. | No | N/A |
| Gormley(1999) | 2nd Degree murder | After hours | Accused spoke with counsel. Accused made self-incriminating statements before his counsel arrived at the police station. | No | N/A |
| Brunczlik(2000) | No charge stated | Time not stated | Police failed to properly advise accused of s.10 (b) rights until five hours later. | Yes | Yes |
| Polashek(1999) | Possession of marijuana | Time not stated | Police failed to promptly inform accused of s. 10(b) rights. In the meantime, police conducted a search of his car and confiscated evidence. | Yes | Yes |
| McIntosh(1999) | 1st Degree murder | Regular hours | Police failed to repeat caution after there was a significant change in the nature of the charges. | Yes | Yes |
| Boomer(2001) | Impaired driving causing death | After hours | Police failed to repeat caution after the victim of the car accident died. | No | N/A |
| Fowler(1996) | Refusal to provide breath sample | No time stated | Accused not informed of legal aid or Brydges services - accused made a telephone call - police assumed accused contacted lawyer. | Yes | No |
| Dimic(1998) | Charge not stated | Time not stated | Accused not informed of toll-free number but was told that a call to a free lawyer could be arranged. | Yes | No |
| Russell(1996) | Arson | Regular hours | Accused not informed of existence of legal aid. | Yes | No |
| Noel(2001) | 1st Degree murder | Regular hours | Did the accused have the capacity to understand? | No | N/A |
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