A Review of Brydges Duty Counsel Services in Canada

2. THE BRYDGES DECISION AND THE RIGHT TO COUNSEL: A REVIEW OF THE CASE LAW

2.1 Introduction: The Brydges Decision

The right of arrested and detained persons to be informed by the state authorities of their right to seek the assistance of legal counsel has been entrenched in the Canadian Charter of Rights and Freedoms, section 10(b). In the landmark case of Brydges (1990), the Supreme Court of Canada attempted to fashion an interpretation of this fundamental right that is a meaningful one in light of contemporary developments in the provision of publicly funded legal aid services. In this respect, Justice Lamer noted in the majority judgment that,

… the right to retain and instruct counsel, in modern Canadian society, has come to mean more than the right to retain a lawyer privately. It now also means the right to have access to counsel free of charge where the accused meets certain financial criteria set up by the provincial legal aid plan, and the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status. These considerations, therefore, lead me to the conclusion that as part of the information component of s. 10(b) of the Charter, a detainee should 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, emphasis added]

The outcome of the decision of the Supreme Court of Canada in Brydges (1990) is, therefore, that any individual who has been arrested or detained has theright to be informed by the police of the availability of legal aid and duty counsel (Verdun-Jones and Tijerino 2001).

The failure of the police to discharge the informational component of their duty under section 10(b) may lead to severe consequences (Renke 1996(a) and 1996(b)). Indeed, in the Brydges case itself, the accused had been charged with murder. He was duly informed of his right to retain and instruct counsel, but he expressed a concern that he would not be able to afford a lawyer. The Supreme Court of Canada ruled that the trial judge had acted correctly when, under the provisions of section 24(2) of the Charter, he had excluded certain statements made by the accused to the police after this dialogue had taken place. The accused was acquitted by the trial court, and the Supreme Court of Canada set aside a subsequent ruling by the Alberta Court of Appeal (ordering a new trial) and restored Brydges' acquittal.

As Justice Lamer indicated in the judgment of the majority of the Supreme Court of Canada, the provision of meaningful information about the availability of legal aid and the existence of duty counsel schemes that are offered free of charge constitutes an essential component of the duty that is imposed on the police by section 10(b) of the Charter:

On the specific facts of this case, the court is faced with the following question: when an accused expresses a concern that his inability to afford a lawyer is an impediment to the exercise of his right to counsel, is there a duty on the police to inform him of the existence of duty counsel and the ability to apply for Legal Aid? In my view there is. I say this because imposing this duty is consistent with the purpose underlying the right to retain and instruct counsel. A detainee is advised of the right to retain and instruct counsel without delay because it is upon arrest or detention that an accused is in immediate need of legal advice. … One of the main functions of counsel at this early stage of detention is to confirm the existence of the right to remain silent and to advise a detainee about how to exercise that right. It is not always the case that immediately upon detention an accused will be concerned about retaining the lawyer that will eventually represent him at trial, if there is one. Rather, one of the important reasons for retaining legal advice without delay upon being detained is linked to the protection of the right against self-incrimination. This is precisely the reason that there is a duty on the police to cease question the detainee until he has had a reasonable opportunity to retain and instruct counsel. [pp. 342-343]

As a consequence of the ruling in the Brydges case, it is now clear that section 10(b) of the Charter will be interpreted by the courts as requiring that a police officer who arrests or detains a suspect must not only inform that person of his or her right to obtain legal representation, but must also:

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