A Review of Brydges Duty Counsel Services in Canada

1. INTRODUCTION

The decision of the Supreme Court of Canada in the Brydges case (1990) marked a significant watershed in the evolution of the right to counsel that is guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms.   The Supreme Court ruled that an individual, when arrested or detained by the police, has the right to be informed of the “existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel” (p. 349).   Where such information is not provided by the police at the time of arrest or detention, there is a violation of section 10(b) of the Charter, and any evidence obtained thereby may be excluded from a subsequent trial by virtue of the exercise of the discretionary powers that the courts have been granted by section 24(2) of the Charter.

The Brydges decision has undoubtedly had a significant impact on police practices, on the nature and structure of free legal services in Canada, on the admissibility of evidence at criminal trials, and on the treatment of arrested or detained suspects by the police and the courts.   More dramatically, the Brydges decision focused attention on the delivery of 24-hour duty counsel services to suspects in the period immediately following their arrest or detention.   In every jurisdiction, accused persons have long been entitled to apply for legal aid services.   Whether or not they receive such services depends on a variety of factors, including the seriousness of the charge(s) and the size of their income.   However, where 24-hour duty counsel services exist, they are provided immediately and without the need for an application.   Furthermore, they are made available free of charge to all arrested or detained suspects, without regard to their ability to pay.   These 24-hour duty counsel services became known as Brydges services, following the decision of the Supreme Court of Canada in the case that bears the same name.

“ Brydges services ” differ fundamentally from the other legal aid services that may be accessible to the accused.   First, “ Brydges services ” consist of the provision of purely temporary access to duty counsel through the medium of 24-hour telephone service (including evenings, weekends, and holidays).   Second, as previously noted, accused persons do not have to apply to receive this service, since it is provided free of charge and without reference to their income.

In Matheson (1994) and Prosper (1994), the Supreme Court of Canada ruled that the Charter did not impose a constitutional obligation on the provincial and territorial governments to provide Brydges services.:   However, the Court did place the police under a constitutional duty to inform arrested or detained suspects about these services, if they exist in their respective jurisdictions, and to provide the necessary assistance to those suspects who indicate a desire to contact Brydges duty counsel.

Most provinces have implemented a formal system for the delivery of Brydges services across Canada.   However, the implementation of Brydges services has by no means been uniform across the country.   Therefore, the overarching purpose of this research project is to conduct a comprehensive analysis of the nature and scope of the Brydges services that are currently available to arrested or detained persons across Canada.   In order to carry out the aforementioned objective, the researchers undertook the following:

  1. Gathered basic descriptive data concerning the types of Brydges services that are available upon arrest/detention in each jurisdiction across Canada.
  2. Conducted an extensive legal analysis of Supreme Court of Canada and provincial and territorial appeal court cases that have interpreted, developed and applied the decision in the Brydges case (1990).
  3. Prepared a review of the literature that focuses on: (i) the parallel experience of the United States in relation to the landmark decision of Miranda v. Arizona (1996) and its relevance to the Canadian context; (ii) the capacity of arrested/detained persons to fully understand the contents of a police caution; and (iii) the nature and scope of the system for delivering 24-hour duty counsel services that has been implemented in England and Wales, and its potential to serve as a model for reform of the existing system of delivering  Brydges services in Canada.  
  4. Conducted an extensive empirical analysis of the impact of the provision of Bridges services upon the following groups of persons:
    1. legal aid service providers
    2. police officers
    3. Crown counsel
    4. defence counsel
    5. judges
    6. arrested/detained persons.
  5. Identified and discussed any perceived gaps in the current system for the provision of Brydges services.
  6. Discussed and analyzed potential suggestions that may alleviate/resolve the gaps in Brydges services that were identified by various interviewees who participated in this project.

This report has been organized into eight chapters.   Chapter One consists of a brief introduction and overview of the entire research project.   Chapter Two offers an extensive analysis of the case law that has been generated by the Supreme Court of Canada and the various provincial and territorial courts of appeal in relation to the issues raised by the decision in Brydges (1990).   Chapter Three examines the experience of the United States in connection with the landmark decision of Miranda v. Arizona (1996). It demonstrates how this experience may be of considerable value in the process of understanding the impact of the Brydges decision both on police practices in Canada and on the courts, which have the discretionary power to exclude evidence that has been obtained in contravention of an accused person's constitutional rights to counsel.   Chapter Four furnishes a review of the literature that addresses the question of the capacity of arrested or detained suspects to fully comprehend the contents of a police caution or to decide whether or not to waive their right to contact legal counsel.   Chapter Five discusses and analyzes the system of 24-hour duty solicitors that has been implemented in England and Wales and indicates the extent to which it may serve as a potential model for reforming the existing system for delivering Brydges services in Canada.   Chapter Six documents the methodology that was employed in the present study, while Chapter Seven presents the major findings generated by this project.   Finally, Chapter Eight concludes the report with a discussion of key issues, and the articulation of tentative conclusions concerning the provision of Brydges services at the present time in Canada.

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