Unmet Need for Criminal Legal Aid: A Summary of Research Results

A Framework for Understanding Needs for Criminal Legal Aid (cont'd)

A Framework for Understanding Needs for Criminal Legal Aid (cont'd)

Unmet Needs That Flow From Legal Aid Intake

In the experience of the court assistance workers in the un-represented accused project, many out-of custody accused suffer from the disabilities described above[18] and, as a consequence, may have a great deal of difficulty accessing legal aid. They have difficulty approaching legal aid offices, they have problems with the application process and with keeping subsequent appointments.

Recent immigrants may experience other barriers to accessing legal aid. They may be unfamiliar with the Canadian legal system, with legal aid, and how to apply for it A poor facility in English or French will make the acquisition of knowledge about legal aid difficult. Immigrants often have to find a friend or relative to accompany them to make an application for legal aid. Immigrants from some countries may be deeply mistrustful and suspicious of the justice system and by extension legal aid as a part of that system. These suspicions are often rooted in negative experiences with repressive justice systems in their countries of origin, or sometimes from their experiences in Canada. According to some respondents, suspicion and mistrust may result in a reluctance to reveal personal information in the application process, resulting in unnecessary delays in receiving service or in denial of service altogether. Respondents expressed the view that special efforts to accommodate these legal aid clients may be necessary.

The respondents in the study of Aboriginal people and legal aid identified similar accessibility problems. Many Aboriginal people have a poor knowledge of the mainstream justice system and of legal aid. Particularly, in some rural and remote regions, many Aboriginal people may also have a poor understanding of English or French. Traditional Aboriginal cultures are not characterized by formal social structures and typically do not rely heavily on paper transactions. Therefore, bureaucratic legal aid application processes may be very difficult for poorly educated individuals with low levels of literacy. Much like non-indigenous minorities, the respondents reported that Aboriginal people may not apply for legal aid even though they would be eligible or may have difficulties when they do.

Overall, the results of the qualitative interviews suggest that accused persons may have difficulty accessing legal aid for a variety of reasons. Some of the factors that give rise to accessibility problems are disproportionately present among the criminal accused population generally. Some barriers to accessibility are more unique to particular segments of the accused population, such as Aboriginal people, recent immigrants and members of certain minority groups. Respondents felt that barriers to accessibility create unmet needs at the intake stage of legal aid service that are often overlooked. The respondents felt that the needs that flow from the barriers to accessibility at the intake stage are legal aid needs as much as the needs that flow from the criminal change and court appearances.

Unmet Needs That Flow from Arrest and Detention

One study series focused on the provision of legal advice to persons detained by the police.[19] In Canada, this is called Brydges duty counsel. The Supreme Court of Canada decision in Brydges[20] places the police under the obligation to inform detainees of their right to speak to a lawyer and about the legal aid services may be available in the particular province or territory. The Supreme Court of Canada did not impose a constitutional obligation on provincial and territorial governments to provide legal advice upon arrest[21] However, most legal aid plans have implemented some form of service to provide advice to persons who are under arrest and who may be interrogated by the police. The essence of the right to Brydges duty counsel is that a detainee must be advised of his right to retain and instruct counsel without delay because it is upon arrest and detention that an accused is in immediate need of legal advice. One of the main functions of duty counsel at this stage is to advise the individual of his or her right to remain silent and how to exercise that right. This is an important mechanism for the exercise of the right against self-incrimination.[22]

The study used a variety of methods to examine the nature of Brydges duty counsel service and its possible shortcomings.[23] Within the time frame and budget constraints of this research it was not possible to study the operations of the existing Brydges duty counsel systems in detail or to undertake an extensive study of detainees in police cells.

Seven provinces use a centralized 24-hour telephone system to provide advice to persons detained by the police. Two provinces employ systems in which a roster of available lawyers and their telephone numbers is posted in police stations. One province does not provide a formal system for providing legal advice for detained persons.

When asked for their general assessment, the approximately 90 respondents representing the judiciary, the police, prosecutors, legal aid lawyers and legal aid administrators felt that the Brydges duty counsel system was functioning adequately overall. One difficulty reported by some respondents was accessibility of the service. Legal aid lawyers and Crown prosecutors who were interviewed reported that Brydges service was not always available in a timely manner. Long call back times were reported for the centralized services and the roster systems. Difficulties in contacting a lawyer at all in some instances were reported for the roster systems.[24] The Brydges study recommended, as a minimum, that centralized 24-hour advice systems be implemented in all jurisdictions, and that they should have adequate capacity to avoid delays in call backs and be adequately staffed with people who speak the predominant languages in the region.

Police force respondents uniformly reported that detainees were always informed of their constitutional right to speak with counsel. However, according to the in-custody accused who were interviewed, 40 per cent indicated that the police did not advise them of their right to counsel.[25] Further, 55 per cent indicated that the police did not inform them specifically about the right to immediate access to Brydges duty counsel.[26] Because of the small samples, this apparent discrepancy cannot be generalized. Nonetheless, it does raise questions about the extent to which accused receive Brydges service at all.

The report raised a more basic issue regarding the ability of accused to comprehend the advice provided over the telephone. Based on the literature review, the researchers observed that accused suffer disproportionately from a variety of impairments that might limit their comprehension. A recent Canadian study found that 40 per cent of accused persons at the point of their arrest and detention were found to be abusers of either alcohol or drugs.[27] Studies of prison inmates indicate that inmates have high rates of mental disorders, and that these are higher than in the general population.[28] Intellectual disabilities are more prevalent among prison population than the general population[29] and therefore are no doubt more prevalent among people who are arrested. An extensive empirical study conducted in the United States demonstrated that mentally handicapped persons frequently do not understand the Miranda warning issued by the police.[30]

In certain parts of Canada with large immigrant populations there are larger numbers of detainees who do not speak English or French well. Lack of facility in English or French can thus present a significant barrier to the ability of a person to understand advice not provided in his or her mother tongue.[31] The study of barriers to the accessibility of legal aid services by immigrants and members of visible minority groups also pointed specifically to the problem that immigrants who do not speak English or French may have in comprehending legal advice provided by telephone.[32] SSimilarly, the study of legal aid needs and service delivery gaps pointed to problems experienced by Aboriginal people receiving legal advice by telephone.[33]

The Brydges study argues that legal advice provided over the telephone that is poorly understood or not understood at all may be more damaging to the legal position of the detained person than no advice at all. If the police fail to allow the detainee to contact a lawyer any evidence gathered in an interrogation may later be placed in jeopardy. However, a perfunctory contact with a lawyer that satisfies the formal legal requirement can work to the disadvantage of the accused. With the Brydges requirement satisfied in a purely mechanical way, the police may proceed to interrogate the accused person regardless of his comprehension of any legal advice that may have been given. As the research suggests, this may involve intoxicated persons who may have difficulty even remembering the advice provided by the lawyer. Detainees who suffer from mental disorders or learning disabilities can be highly suggestive and possibly vulnerable to persuasive interrogation techniques.[34] These vulnerabilities may be exacerbated when under arrest because of confusion, fear, and the use of physical force. This raises questions about detainees jeopardizing their right against self-incrimination and the role, if any, of Brydges duty counsel.

The Brydges study suggests that changes should be introduced to improve the system of advice for detainees. Most respondents underscored the need to implement accessible, centralized telephone-based Brydges duty counsel systems in jurisdictions where they do not presently exist.[35] In all jurisdictions, these services need to be staffed at a level sufficient to assure timely response. In areas where required access to multilingual lawyers, or possibly appropriately trained, accredited and supervised paralegals should be made available. The manner in which the Brydges legal advice is provided should not place the client at a potential disadvantage by allowing the interrogation to proceed in circumstances that involve diminished capacities of some clients. Even using a telephone format, advice lawyers might be able to ask questions of the detained person that might allow an assessment of the person's condition and vulnerability. If the advice lawyer suspects the presence of an impairment that would jeopardize the detainee's legal position the police could be advised against interrogation until the capacity of the accused is properly assessed. Thinking beyond the implementation of conventional centralized telephone-based Brydges services, Verdun-Jones and Tijirino consider alternative models that might better serve the needs of detained persons. They suggest that duty counsel lawyers, possibly assisted by paralegals, could be assigned to high volume local jails to provide on-site advice services. This would allow more effective communication with detained individuals who suffer the disadvantages discussed above.[36] On-site duty counsel services at police lock-ups might have further potential. According to Verdun-Jones and Tijirino:

If the role of duty counsel were to be expanded, lawyers could be assigned to specific police stations and lock-ups not only to provide legal advice and assistance but also to assist accused persons in contacting community services that may be of benefit to them. Such an expanded role for duty counsel would reflect a client-centered approach. Indeed, legal aid services should focus on a more holistic approach towards clients who are held in police custody. [37]

The Brydges study raises an important issue regarding the capacity of the current approach to advice for detainees to meet their needs. This hinges on assuring that advice is comprehensible, given the characteristics of in-custody accused and the stressful circumstances surrounding the arrest.

In the Evans case[38] the Supreme Court of Canada ruled that the police must inform suspects of their right to counsel in terms they can understand.[39] In that case Chief Justice McLachlin stated:

the police cannot rely on their mechanical recitation of the right of the accused, they must take steps to facilitate that understanding.[40]

If this is the standard for the police providing information about the right to legal advice then on logical grounds, should the standard for legal aid not also insist on legal advice that is comprehensible to the detained person? If an advice lawyer is not entirely satisfied that the detainee is fully cognizant of his or her rights and fully able to exercise them, should there be some mechanism to inform the police that interrogation should not proceed? This might require special training and special questioning protocols by Brydges advice lawyers.

Brydges duty counsel can have two different objectives. One is meeting a Constitutional requirement. The other is providing substantive assistance. The implication of the Brydges study is that the emphasis in Canadian legal aid is presently largely on the former. The Brydges study calls for more of a balance between these two objectives.

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