A Review of Brydges Duty Counsel Services in Canada


3.1 Introduction

The decision of the Supreme Court of Canada in Brydges (1990) established that the police have a duty to inform detained or arrested suspects not only of their right to retain and instruct counsel, but also of their right to gain access to legal aid and 24-hour duty counsel (where such a program exists). In addition, the Brydges case established that a failure by the police to provide this information constituted a violation of a suspect's right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms and, as a consequence, it was open to the courts to hold that any evidence obtained by means of such a violation could be excluded from the suspect's trial, under section 24(2) of the Charter. The underlying approach adopted by the Supreme Court of Canada in Brydges is strikingly similar to that which was espoused by the U.S. Supreme Court in the well-known case of Miranda v. Arizona (1966). Therefore, in order to develop a more complete understanding of the potential impact of the Brydges decision on law enforcement practices within Canada, it is necessary to undertake a brief examination of the American experience with the implementation of the Miranda decision over the past thirty years or so.

3.2 The Miranda Decision

In the case of Gideon v. Wainwright (1963), the Supreme Court of the United States established the right of accused persons, under the Sixth Amendment to the United States Constitution, to have counsel appointed for them if they are too poor to hire a lawyer for themselves (Jacobs 2001; 10; Pitts 2001; Uelmen 1995). Just three years later, in Miranda v. Arizona (1966), the Supreme Court turned its attention to the Fifth Amendment guarantees against self-incrimination, and established the right of persons who are in police custody to be specifically informed of their right to consult a lawyer, and of their right to have a lawyer appointed for them should they not have the financial means to hire one for themselves (Crawford 1995). The Miranda decision required that the police inform a suspect who has been arrested or detained of four key issues: the right to remain silent; the principle that anything the suspect says may be used in evidence against him or her in a court of law; the right to a lawyer; and, if the suspect cannot afford a lawyer, the right to have a lawyer appointed before an interrogation commences.

The Miranda decision represented a significant departure from the previously established jurisprudence concerning police interrogation. Before Miranda, confessions were ruled inadmissible only if they had been obtained involuntarily (by threats, coercion, or promises). After Miranda, confessions have generally been excluded as evidence if the appropriate warnings have not been given to the suspect (Hendrie 1997). Miranda is undoubtedly one of the most widely known decisions ever made by the Supreme Court of the United States. Indeed, in Dickerson v. The United States (2000), Chief Justice Rehnquist stated (at p. 443), that Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Furthermore, it would seem that police officers in the United States routinely comply with the requirements articulated in the Miranda decision. For example, in one study, Leo (1996) found that detectives provided the necessary Miranda warnings in every case in which they were legally required to do so.[10] Furthermore, Leo (1996) has suggested that the Miranda decision has led to an increasing degree of professionalization of the police in the United States[11] (see also, Leo 2001; Thomas and Leo 2001). The findings in the present study suggest that police officers in Canada believe that the Brydges caution is administered appropriately in all cases of arrest and detention, although suspects themselves may assert that the degree of compliance with the Supreme Court of Canada's requirements is somewhat less than universal.

3.3 The Miranda Requirements As Constitutional Imperatives

In Dickerson v. United States (2000), the Supreme Court of the United States ruled that the Miranda warnings constituted constitutional requirements that could not be overruled by an Act of Congress. As Chief Justice Rehnquist stated at the beginning of the opinion of the Supreme Court (at pp. 431-432):

In Miranda … we held that certain warnings must be given before a suspect's statement made during custodial interrogation could be admitted in evidence. In the wake of that decision, Congress enacted 18 U.S.C. 3501, which in essence laid down a rule that the admissibility of such statements should turn on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.

Petrowski (2001) has asserted that the Dickerson case will have little impact on law enforcement practices in the United States since the nature of the Miranda warnings has remained unchanged. Furthermore, he also suggests that, after Dickerson, those law enforcement officers who intentionally violate the Miranda requirements will now render themselves vulnerable to civil suits alleging a violation of rights under the federal Constitution. Nevertheless, it is noteworthy that, in both Canada and the United States, the highest court of the land has ruled that the police are required to furnish arrested or detained persons with certain, prescribed information about their right to counsel and that these requirements are constitutional imperatives.

3.4 Differences Between The Canadian And U.S. Jurisprudence

McCoy (2000, p. 635) has suggested that the warnings given to suspects in Canada, after the Brydges (1990) and Bartle (1994) cases, are “ more expansive than Miranda warnings, ” and that “ the Canadian warnings are more clear in informing the suspect of their right to telephone a lawyer. ” More specifically, the Canadian warnings include the question of whether a suspect wishes to call a lawyer “ right now, ” whereas the Miranda warnings “ end with a suggestive question asking whether the suspect will answer questions without an attorney ” (McCoy 2000, p. 635).

It is not entirely clear whether there is a significant difference in practice between the Canadian and U.S. jurisprudence, in relation to the thorny issue of whether an infringement of the right to counsel should be followed by the exclusion of any evidence that has been garnered as a consequence of such a violation. In the United States, it was initially believed that the violation of an accused person's right to counsel under the Fifth Amendment should result in the automatic exclusion of any statements obtained thereby.[12] However, over time, a number of exceptions have been recognized to this principle, and it is by no means certain that a violation of the Miranda caution will prompt a trial judge to exclude statements obtained thereby (Philips 2001; Stuckey, Roberson and Wallace 2001, p. 62). On the other hand, in Canada, it is clear that the trial judge has a discretionary power, under section 24(2) of the Canadian Charter of Rights and Freedoms, as to whether or not to exclude evidence obtained in violation of the accused's right to counsel (Harvie and Foster 1992). In general, it appears that Canadian courts are strongly inclined to exclude statements and other forms of “ conscripted ” evidence (such as breath and blood tests) where they have been obtained in violation of the accused's section 10(b) rights.[13]

It is important to recognize that the federal right to counsel in the United States “ does not apply to blood or breath tests that take place before the initiation of adversary judicial proceedings ”[14] (Latzer 2000, p. 158). However, under section 10(b) of the Canadian Charter of Rights and Freedoms, an individual who has been detained for the purpose of being subjected to a demand for a breath test, is considered to be “detained” within the meaning of the section and is, therefore, encompassed by the Charter right to counsel without delay (R. v. Therens, 1985).

3.5 Miranda and Clarifying Questions about the Waiver of the right to Counsel

In Davis(1994), the U.S. Supreme Court ruled that, where suspects are equivocal in indicating whether or not they want a lawyer, there is no requirement that the police cease questioning the suspect. However, in delivering the opinion of the Court, Justice O'Connor stated (1994, pp. 461-462) that:

… when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. … Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.

While the United States Supreme Court has apparently rejected the option of imposing a constitutional requirement that police officers ask “clarifying questions,” when there is some doubt as to whether a suspect wishes to waive his or her right to counsel, the Court clearly recognizes that such questions constitute an important element of sound police practice. One of the findings of the present study is that, as far as Canada is concerned, there is some uncertainty as to whether suspects genuinely understand the Brydges caution, which is issued to them by the police at the time of their arrest or detention. The use of clarifying questions may well provide a basis for police officers to ensure that suspects have sufficiently comprehended the contents of the warning that is administered to them. For example, it is open to Canadian courts to establish a legal requirement that clarifying questions should be asked by the police - whenever there is any reason to apprehend that a suspect is severely impaired by drugs and or alcohol, developmentally disabled, mentally disordered, lacking fluency in English or French, or hearing-challenged.

3.6 Impact of Miranda on Law Enforcement

The impact of the Miranda decision on the effectiveness of law enforcement practices has been open to some debate (Leo 1996; Thomas and Leo 2001). For example, Crawford (1995, p. 27) has suggested that, from a practical point of view, the consequence of administering a Miranda warning is that the police may be precluded from initiating any further interrogation of a suspect without the presence of counsel. In this respect, it is significant that a study by Leo (1996) reported that almost 25 percent of the suspects chose to invoke their Miranda rights, and thereby brought police interrogation to a close or prevented it from taking place altogether.

Cassell and Fowles (1998) have asserted that that the decision in Miranda effectively “ handcuffed the police by imposing restrictions on their methods of interrogation.” They point to a sustained fall in the national crime clearance rates as empirical evidence in support of this view. Furthermore, Cassell and Hayman (1996, p. 871) reported that the confession rate fell from between 55 and 60 percent, prior to the Miranda decision, to 33.3 percent after Miranda.

In Canada, the impact of the Brydges decision on actual police practices and on clearance rates has not been subjected to empirical analysis. However, in the present study, it is significant that respondents did not refer to Brydges as an event that has placed onerous restrictions on the ability of the police to enforce the law. Part of the explanation for the absence of critical views of the Brydges case almost certainly lies in the fact that the right to be informed of the right to retain and instruct counsel without delay was entrenched as a constitutional right with the enactment of the Canadian Charter of Rights and Freedoms in 1982. The Brydges decision merely modified the content of the informational requirements imposed on Canadian police officers by the Charter. On the other hand, prior to the Miranda decision, the United States Supreme Court had not imposed a legal requirement that the police would provide suspects with specific information about the right to counsel before they attempted to interrogate them (Stuckey, Roberson and Wallace 2001, p. 60). It is scarcely surprising, therefore, that unlike the Brydges case, Miranda v. Arizona was widely perceived as bringing about a sea change in police practices in relation to the interrogation of suspects across the United States.