A Review of Brydges Duty Counsel Services in Canada


8.9 Potential Obstacles To Change

The results of the present research project strongly suggest that there may well be significant resistance to the call for the implementation of alternative measures. Indeed, the majority of the criminal justice officials interviewed - and, in particular, lawyers - declined to offer any suggestions for the development of alternative measures for the delivery of Brydges services. It may be inferred from this finding that respondents of this project favoured maintenance of the status quo. Consequently, it may reasonably be anticipated that any proposals for the introduction of reforms to the existing system for the delivery of legal aid services will encounter some fairly stout opposition (Currie 1999, p. 4). Undoubtedly, many of the major players in the criminal justice system have vested interests of one kind or another in maintaining the existing legal aid régime (2000, p. 4).

Certain parallels may be drawn with the circumstances examined in a study undertaken by McDonald (2000). Indeed, the following quotation neatly illustrates the manner in which professional self-interest may influence lawyers' perceptions of the needs of their clients:

I suggest that many lawyers do not question their practices. Lawyers who represent disadvantaged people, while aware of and sensitive to their powerless position, will assume that, as their clients have acted upon their own volition to arrive at the lawyers' offices, they will also act to maximize their own interests while there. I also believe that there is a general paternalistic attitude towards these clients and the lawyers genuinely believe that they know best. The lawyers are not explicitly aware of the dominance, nor the dependency created in the lawyer/client relationship, or else if they do recognize the damage it inflicts, they have come to accept it as a necessary evil that is part of doing their job.

Moreover, McDonald later asserts that:

Because of legal training, public image and the profession's investment in the law, the law is accordingly predominant in lawyers' initiatives for social justice.

On the other hand, it is important not to exaggerate the impact of professional self-interest on the evolution of legal aid policy and practice. This view has certainly been emphasized by commentators on the legal aid system in England and Wales. Indeed, Wall (1996, p. 549) has suggested that, in that jurisdiction, the reforms to the legal aid system that occurred in the mid-1990's were fuelled by the misguided notion that the lawyers themselves were primarily “ responsible for inflating both the overall level of demand for legally aided services and also expenditure on legal aid through, for example, over-billing.” However, according to Wall, “the business dynamics of private lawyering” are not the only source of rising legal aid costs and he warns (1996, p. 564) that any proposals that are primarily designed to “ control the delivery of legally aided criminal services threaten even (the) minimal functions of legal aid and threaten to throw criminal justice into a greater legitimation crisis than already exists. ” Ultimately, for some commentators, there is an ever-present danger that the popular values of “ consumerism ” and “ efficiency ” may ultimately trump the more traditional values of due process and justice. As Raine and Wilson (1996, p. 507) have emphasized, “it is vital that consumerist considerations, or those of administrative convenience, do not (and are not perceived to) take precedence over those of justice and public responsibility.”

8.10 The Model Implemented In England And Wales For Delivery Of 24-Hour Legal Aid Services

The newly minted model implemented in England and Wales for the delivery of 24-hour legal aid services undoubtedly furnishes a useful starting point for modifying the various 24-hour duty counsel systems that currently exist in Canada. The main features of note are:

  1. Significantly expanded role of duty counsel, choice for the client, and an independent call centre:

    • Legal aid services are provided, on a national basis, 24 hours a day.
    • Duty solicitors increasingly provide Brydges-typeservices by attending in person at the police station.
    • Duty solicitors routinely attend police interrogation of their clients.
    • Suspects may access a private lawyer of their choice or a duty solicitor - free of charge.
    • The police contact an independent call centre that assigns a duty solicitor from a rota or panel.
  2. Additional assistance is made available to suspects with disabilities

    • A police surgeon routinely visits police stations and determines whether or not a person is capable of understanding his or her legal rights and is competent to undergo interrogation.
    • “Appropriate Adult” legislation has been implemented. This provides for the attendance of a social worker, family member or friend, to be present during police interrogation of a mentally disordered or intellectually impaired suspect, to monitor what transpires in that process, and to generally assist the suspect.
  3. Alternative measures have been implemented:

    • Legal advice and assistance may also be provided by “legal representatives”, who are not solicitors.
    • Legal representatives are required to pass through a rigorous training and accreditation process operated by an independent agency.

8.11 Conveying Information About Charter Rights To Suspects In Custody

The present research project has raised troublesome questions concerning the efficacy of the methods the police use to convey legal information to suspects who have been recently arrested or detained. It may well be the case that particular attention should be paid to the development of more effective and innovative methods for conveying legal information to suspects who are being held in police custody.

In light of the evidence that many accused persons suffer from conditions that may impair their capacity to understand an oral caution by the police, it might be useful to explore the possibility of showing suspects a video in which the legal caution is fully explained in simple terms. The advantage of this option would be that detained or arrested persons could listen to the video at their own pace and replay passages that are unclear on a first hearing. A less “high-tech” approach might involve providing the accused with a printed card that explains his or her Charter rights in plain language. Both the video and printed card could be presented in different languages.

These alternative techniques for conveying information about the right to counsel may be readily employed in the context of the police station. Clearly, they would not be applicable to a caution given in a police cruiser or on the street. Wherever feasible, however, it would constitute sound policing practice to repeat the caution once the suspect has been transported to the police station. At this location, the video or printed card options could be employed within a brief period after the suspect's arrival.

Following the basic elements of the 24-hour legal aid system that has been implemented recently in England and Wales, it might be appropriate to explore whether it might be feasible - in the Canadian context - to deploy duty counsel in a manner that would ensure that they attended high-volume police stations in person, and that they offered legal advice and assistance on a face-to-face basis with their clients. Another issue that should be considered is whether or not duty counsel should be expected to be present during police interrogation of their clients (a common occurrence in England and Wales).

As a general issue of social policy, it might be appropriate to undertake a program that is designed to educate as many of the members of the public as possible about their legal rights and obligations. If citizens acquire a degree of familiarity with the nature and scope of their legal rights, they should be able - other things being equal - to make use of that knowledge if they are arrested or detained by the police. For example, information about the right to counsel and access to legal aid and 24-hour duty counsel may be widely distributed through use of the Internet. The B.C. Legal Services Society (2002/2003, p. 14) has proposed, for example, the establishment of a public Web site, which would enable members of the public to browse through self-help materials, to locate community services, and to access self-help clinics (however, at present, this proposal is limited to the area of family law). Another innovative project, sponsored by the B.C Law Courts Education Society, involves “ assisting self-represented accused ” by handing them - in the court house - written materials that explain, in simple terms, such concepts as arraignment, diversion, bail hearings, etc (Verdun-Jones and Tijerino 2001).

In the specific context of the Brydges decision, it might be considered beneficial to print “user-friendly” pamphlets that explain a suspect's section 10(b) rights to counsel in a simple and clear manner. Furthermore, these pamphlets could include the numbers for gaining access to the relevant legal aid offices as well as the 24-hour toll-free numbers (where such a service is in place). Police should grant suspects a reasonable opportunity in which to read - and absorb - the contents of such a pamphlet before proceeding with their investigation. Finally, another potential advantage of distributing such a pamphlet is that it could be made available in a number of different languages.