A Review of Brydges Duty Counsel Services in Canada

8. DISCUSSION AND CONCLUSIONS (continued)

8.5 The Need To Enhance The Levels Of Funding For Legal Aid Services

According to many of the participants in the present study, there is a need to increase the levels of funding to legal aid service providers. Other studies have confirmed this observation. For example, some studies have found that an increasing number of lawyers are declining to work for the legal aid system in Canada, as a consequence of acute funding problems (Bala 1998; and B.C. Legal Services Society 2002/2003, p. 9). It is increasingly the case that only junior lawyers are willing to accept low legal aid fees, while more experienced counsel are choosing not to work for the government legal aid plan (Bala 1998). Consequently, it has been asserted that the quality of legal representation is being compromised, in exchange for reduced costs (Bala 1998).

8.6 Resolving The Problem Of Language

Participants In The Present Study Suggested That Problems Of Language Could Be Addressed By Hiring Lawyers Who Have The Capacity To Provide Legal Advice In Several Languages. This Recommendation Has Also Been Advanced By Durno (1994, P. 3), Who Has Ventured The Observation That The Brydges Telephone Line Should Be Organized So As To Compile A List Of Duty Counsel Who Speak More Than One Language, And Who Could Be Called Upon When Required.

8.7 Education And Training

It has been suggested that criminal justice officials at all levels need education related to the various health problems, mental disorders and disabilities that may affect suspects who have just been taken into police custody (Boland et al. 1998). Certainly, police officers require special training regarding the incidence and nature of mental disorders, so that they may make appropriate referrals of suspects to the mental health system (Nami 2002, p. 1 and Teplin 2000, p. 13). However, they also need to receive some training designed to assist them in identifying those individuals who may lack the capacity to understand a police caution and to encourage them to delay interrogation of such persons until any uncertainty about their mental status has been reviewed by an expert in the appropriate field. Expecting police officers to ask “clarifying questions,” when it is unclear whether a suspect is competent to waive the right to counsel, should become a routine aspect of sound police practice in Canada.

8.8 Alternative Models For The Delivery Of Brydges Services

Since local jails and police lock-ups constitute the entry point into the criminal justice system, these institutional facilities constitute a pivotal location for both the identification of the needs of accused persons and the coordination of the various agencies that might address these needs through the provision of services in relation to mental health, housing, substance abuse, and corrections (Nami 2002, p.1; and Zapf, Roesch and Hart 1996, p. 439). In particular, the delivery of legal services at local jails and police lock-ups might well be integrated with these other services. Duty counsel might be deployed more frequently at the jail or police lock-up and assume the responsibility of ensuring that their clients are swiftly assessed by an appropriate professional if there is any question concerning their mental health or medical status. In addition, duty counsel may assist in the coordination of the response to their clients' needs by different health, mental health, criminal justice and social agencies (Buckley 2000, p. 80). Finally, through more frequent attendance at the location where their clients are held in custody, duty counsel might be expected to more actively protect clients who suffer from mental disorders or intellectual disabilities from over-zealous investigative activities on the part of the police.

Naturally, increasing the expectations that are placed on the shoulders of duty counsel would necessitate significant changes in the system of legal education and, perhaps, the development of specific training programs for lawyers who wish to develop an officially recognized expertise in the delivery of duty counsel services. In addition, the system of legal aid would need to be modified to reflect a client-centred, rather than a lawyer-centred approach (Currie 1999, cited in Buckley 2000, p. 72). Indeed, legal aid service providers would be delivering “Holistic Justice Services,” insofar as they would be collaborating closely with other agencies that deliver community services to which accused persons could be referred (Currie 1999, p.33). This approach is succinctly captured in a quotation from Griffiths (1980, cited in Johnsen 1999):

We do not rectify legal problems by legal services alone. Law merely constitutes one of the several problem strategies available.

For example, the goal of achieving a greater degree of coordination between the activities of different service providers might well be accomplished by hiring a social worker, who would be located in local jails or lock-ups, and who would coordinate the delivery of mental health and correctional services for detained persons who are affected by mental disorders and other social problems (Zapf, Roesch and Hart 1996, p. 429). Duty counsel could play a critical role in facilitating the work of such a social worker by supporting the latter in advocating for the provision of critical services to his or her client, and by assisting in the resolution of the legal problems that may complicate access to such services. Over time, it is possible that a new breed of professionals will emerge as advocates for those who find themselves in police custody. As Cahn and Cahn (1972 cited in the National Council of Welfare 1995, p. 3) have noted:

Not every injury requires a surgeon; not every injustice requires an attorney. We need what is, in effect, a new profession - a profession of advocates for the poor made up of human beings from all professions, committed to helping others who are in trouble. That job is too big - and I would add, too important - to be left only to lawyers.

In light of the profound difficulties associated with the need to satisfy increasing demands for legal aid services, at a time when most jurisdictions are attempting to restrict any growth in expenditures, it is certainly an opportune time to explore alternative models for the delivery of such services across Canada. One such model involves hiring paralegals to provide - at lower cost - some of the basic services that are currently offered by lawyers. In addition, since it is frequently difficult to persuade lawyers to offer services in remote northern areas, paralegals may be drafted in to fill this unfortunate vacuum (National Council of Welfare 1995, p. 2).

The provinces of Saskatchewan and Ontario have employed paralegals to perform legal tasks that were previously undertaken solely by lawyers (Lancaster 1999, p. 7; and interview with legal aid provider, June 2002.). However, neither Ontario nor Saskatchewan currently employ paralegals to provide Brydges duty counsel services. Another alternative measure has been implemented in Manitoba, where articling students have been deployed to fulfill some of the functions of a fully certified lawyer. Most significantly, these articling students have been hired to provide 24-hour Brydges services in those areas where they are needed (interview with legal aid provider, June 2002.).