A Review of Brydges Duty Counsel Services in Canada

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

2.2 Subsequent Decisions of the Supreme Court of Canada

2.2.1 The 1994 Decisions Interpreting Brydges

In a series of six cases decided in 1994, the Supreme Court of Canada carefully refined the nature and the scope of the duty of the police to provide the so-called “Brydges caution” to an arrested or detained person. Significantly, no fewer than five of these leading cases involved the interpretation of the right to counsel in the context of a demand that the accused submit to a breathalyzer test. In such cases, the accused is generally arrested or detained late at night or in the early hours of the morning and requires swift legal advice in response to a demand for the provision of a breath sample in the immediate future.

Perhaps the most important of the six cases is Bartle (1994). In this case, the accused had been duly informed of the right to retain and instruct counsel; that he had the “right to free advice from a Legal Aid lawyer,” and that, if he were charged with an offence, he would then have the right to apply for legal assistance from the Ontario Legal Aid plan. What the police failed to do was to inform Bartle of the 1-800 number that would have provided him with access to 24-hour legal advice from duty counsel. The Supreme Court of Canada ruled that, in light of the failure to provide this specific information, there had been a serious breach of section 10(b) rights of the accused and that an incriminating statement and the results of a breathalyzer test should be excluded under section 24(2) of the Charter.

The Supreme Court adopted the view that a detainee is entitled to be fully advised of the availability of legal aid and duty counsel services before being expected to exercise his or her right to counsel. As Chief Justice Lamer indicated (1994, p. 300), “a person who is 'detained' within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty.” In order to meet this need, the police must furnish the detained or accused person with basic information abouthow to access those free legal services that are available in any particular jurisdiction for the benefit of persons who have been arrested or detained (for example, by calling a toll-free number or by being provided with a list of the telephone numbers of lawyers who act as duty counsel). Speaking for the majority of the Court, Chief Justice Lamer took the view that,

…because the purpose of the right to counsel under s. 10(b) is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel. In my opinion, the purpose of the right to counsel would be defeated if police were only required to advise detainees of the existence and availability of legal aid after some triggering of the right by the detainee. [p. 302]

In this respect, it is particularly noteworthy that Chief Justice Lamer noted (1994, p. 307) that empirical research has suggested that “the more fully people are advised of their rights under s. 10(b), the more likely they are to exercise these rights.”

To similar effect are the decisions of the Supreme Court of Canada in Harper (1994) and Pozniak (1994). In Harper, the police duly informed the accused that he had the right to retain and instruct counsel without delay and that, if he could not afford a lawyer, legal aid was available to him. However, Harper was not informed of the existence of the 24-hour, on-call service that was maintained by Legal Aid Manitoba. For this reason, Chief Justice Lamer held that Harper's section 10(b) right to counsel had been infringed:

… a detainee is entitled under the information component of the right to counsel under s. 10(b) of the Charter to be advised of whatever system for free and immediate preliminary legal advice whatever system for legal advice which exists in the jurisdiction at the time and of how such advice can be accessed. [p. 427]

In Pozniak, the accused had been arrested for impaired driving at 4:00 a.m., and had been subjected to a demand for a breathalyzer test. The accused had been informed of the right of free advice from a legal aid lawyer but had not been told that there was a 24-hour, 1-800 Legal Aid number available in Ontario (even though the number was printed on the police officer's caution card). The Court ruled that Pozniak's section 10(b) rights had been infringed and concluded that the introduction of the evidence of a breathalyzer test - obtained as a consequence of this infringement - would “bring the administration of justice into disrepute” (p. 479).

In Cobham (1994), the Supreme Court of Canada dealt with the problem that distinctive types of Brydges duty counsel ” systems existed in different jurisdictions across the country. The Court, therefore, took the opportunity to clarify how the precise content of the informational duty, imposed by section 10(b) of the Charter, should be adapted by the police to suit the reality of the diverse patchwork of Brydges services that exists across Canada. Cobham had been arrested for impaired driving just after midnight and was subsequently charged with failing to comply with a demand for a breathalyzer test. It was ascertained that, at the time of Cobham's detention, there was no 24-hour, toll-free legal aid telephone number in operation in the jurisdiction concerned. However, each police force in Alberta maintained a list of local counsel who were willing to accept phone calls from detained or arrested persons outside of normal working hours. When he was advised of his right to counsel, Cobham was not informed of the existence of this scheme and, therefore, the Supreme Court of Canada ruled that his section 10(b) right had been infringed. As Chief Justice Lamer emphasized (p. 339), “ a detainee is entitled under the information component of s. 10(b) of the Charter to be advised of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction, if indeed one exists, and of how such advice can be accessed. ”

Finally, in Matheson (1994) and Prosper (1994), the Supreme Court dealt with the important question as to whether or not provinces have been placed under a constitutional duty to provide so-called Brydges services. In Matheson, the accused had been arrested for impaired driving at 1:00 a.m. and was informed by the police of his right to counsel prior to a demand being made for a breathalyzer test. Matheson was informed of his right to retain and instruct counsel without delay, and that he had the right to apply for legal aid. However, at the time of the alleged offence, there were no Brydges duty counsel services available in P.E.I. In delivering the judgment of the majority of the Supreme Court of Canada, Chief Justice Lamer noted (194, p. 439) that s. 10(b) of the Charter “ does not impose a positive obligation on governments to provide a system of Brydges duty counsel, or likewise afford all detainees a corresponding right to free, preliminary legal advice 24 hours a day. ” Given the fact that there was no “system of 24-hour, on-call duty counsel ” in place at the time, “ it was not necessary or appropriate to advise [Matheson] of any right to duty counsel. ” In these particular circumstances, the police had “ complied with the informational requirements ” articulated by the Supreme Court of Canada in the Brydges and Bartle cases.

Similarly, in Prosper (1994), the accused had been arrested in the late afternoon. He was arrested for car theft but was required to comply with a request for a breathalyzer test. He was subsequently charged with being in care and control while “over 80 ”. The accused had been informed of right to counsel prior to the breathalyzer demand. He was also told that he had the right to apply for free legal assistance through the provincial legal aid program. However, at the time of Prosper's arrest, there was no duty counsel system in the Halifax/Dartmouth area that would have made available “ immediate, although temporary, free legal advice after regular business hours ” (p. 361). The Supreme Court of Canada ruled that section 10(b) of the Charter does not impose a constitutional duty on governments to provide free and immediate preliminary legal services upon request. As Chief Justice Lamer stated:

… it is clear that s. 10(b) of the Charter does not, in express terms, constitutionalize the right to free and immediate legal advice upon detention. The right to retain and instruct counsel and to be informed of that right.is simply not the same thing as a universal right to free, 24-hour preliminary legal advice. Moreover, there is evidence that the framers of the Charter consciously chose not to constitutionalize a right to state-funded counsel under s. 10 of the Charter .

The Prosper case is also noteworthy insofar as the Supreme Court of Canada seized the opportunity to clarify the specific nature of “ Brydges services. ” According to the Court, it is of critical importance to note that “ Brydges services ” are quite different from the services that accused persons may obtain, when they are granted a legal aid counsel to represent them in court. “ Brydges services ” consist of the provision of purely temporary access to duty counsel (free of charge) or the opportunity to obtain “ instant ” legal information through the medium of a 1-800 telephone service. Indeed, in Prosper Chief Justice Lamer indicated that, in the (earlier) Brydges case, the Supreme Court of Canada had, in fact, drawn a clear distinction between legal aid and duty counsel:

The term “ duty counsel ” was used to refer to a specific subset of legal services which are provided to persons who have been arrested or detained, i.e. “ detainees ”. Duty counsel in this context refers to the provision of immediate and free preliminary legal advice by qualified personnel, whether staff lawyers from Legal Aid offices, lawyers from the private bar, lawyers specifically hired for the purpose of fielding calls from detainees, or otherwise. Since the release of Brydges, I note that this service has been called “ Brydges duty counsel ” to distinguish it from other forms of summary legal advice and assistance which are provided to accused persons, often irrespective of their means, and which typically include plea advice, arranging adjournments, speaking to bail and sentence and negotiating dispositions with the Crown. [p. 367]

The Supreme Court of Canada's decision inProsper undoubtedly rejected the view that the Charter imposed a duty on the provinces and territories to provide arrested or detained persons with Brydges duty counsel. However, it is of considerable significance that Chief Justice Lamer stated (1994, p. 368) that, “in jurisdictions where 'Brydges duty counsel' is in fact present, I believe that the interests of all participants in the criminal justice system, are served in the fullest, simplest and most direct manner and, therefore, that it is a service which governments and the bar are well-advised to implement and maintain.”

2.2.2 The Supreme Court Of Canada Decisions In Feeney (1997) And Latimer (1997)

In Feeney (1997), the Supreme Court of Canada reiterated the principle that the police must provide an arrested or detained person with specific information about the availability of Brydges services. The caution administered by the peace officer to Feeney did refer to the availability of a legal aid duty lawyer but it did not mention a toll-free number. The officer said, “You can call any lawyer you want. A Legal Aid duty lawyer is available to provide legal advice to you without charge and can explain the Legal Aid plan to you. If you wish to contact a Legal Aid duty lawyer, I can provide you with a telephone number.” (para. 9). In delivering the judgment of the majority of the Supreme Court, Justice Sopinka (para. 58) stated that the caution that the accused was ultimately given “did not satisfy the informational requirements of s. 10(b).” Apparently, the accused should have been specifically informed of the “opportunity to access immediate, free legal advice, such as the existence of a 1-800 telephone number”(para. 55). It is not sufficient for a police officer to inform an arrested or detained person that, should the latter wish to contact a legal aid lawyer, then the officer would provide a telephone number.

A new issue was raised before the Supreme Court of Canada in Latimer (1997). In this case, the accused asserted that his right to counsel, under section 10(b) of the Charter, had been infringed when the police did not inform him of the existence of a toll-free telephone number that would have provided him with access to immediate legal advice, provided by duty counsel. However, at the time of day when Latimer was arrested (during normal working hours), the toll-free number in Saskatchewan was not in operation and, in light of this particular circumstance, the Supreme Court of Canada ruled that the police were under no obligation to inform him of the number[1]. The Court also took into account the fact that Latimer had been made aware of the existence of the duty counsel service that was made available by the local Legal Aid Office. Latimer had been informed twice of the existence of the duty counsel service and, at the police station he had been sitting near a telephone that had the number for Legal Aid written on it. Although the police had not given Latimer the phone number for the local Legal Aid Office, the Supreme Court ruled that, “s. 10(b) did not require the arresting officers to take that extra step, under the circumstances of the case.” As Chief Justice Lamer noted, on behalf of the Court:

Where an individual is detained during regular business hours, and when legal assistance is available through a local telephone number which can easily be found by the person in question, neither the letter nor the spirit of Bartle is breached simply by not providing that individual with the local phone number. Mr. Latimer was perfectly capable of obtaining the number. [para. 37]

2.2.3 The Supreme Court o Canada and the Exclusion of Evidence Under Section 24(2) of the Charter

It is significant that the Supreme Court of Canada has taken the view that a failure to fulfill the informational requirements that constitute part of the right to counsel, under section 10(b) of the Charter, should be treated as a serious infringement of an arrested or detained person's constitutional rights. As a consequence, the failure to furnish such a person with the appropriate information about existing Brydges services may well lead to the exclusion at their trial of any evidence that has been obtained in contravention of the provisions of section 10(b) of the Charter (Pacioco and Stuesser 1999, and Sharpe and Swinton 1998). Indeed, there have been seven cases in which the Supreme Court of Canada has ruled that there had been an infringement of the accused's section 10(b) rights as a result of the failure of the police to include the appropriate information about the Brydges services that were available to the accused in his or her particular jurisdiction. In six of these cases,[2] the Court ruled that evidence obtained in violation of the accused person's section 10(b) rights should be excluded from consideration by the trial court because to admit it would “ bring the administration of justice into disrepute.” It is noteworthy that, in no fewer than five of this group of decisions by the Supreme Court of Canada, the results of a breathalyzer test were held to be inadmissible as evidence[3]. Harper (1994) constitutes the only case in which the Supreme Court of Canada ruled that, although there had been a violation of the informational requirements of section 10(b), evidence obtained following such a breach should nevertheless be considered admissible at the trial of the accused. As Chief Justice Lamer noted in the judgment of the majority of the Court (p. 430), he was satisfied that the Crown had proved on the balance of probabilities that “ the accused would not have acted any differently had the police fulfilled their informational duty ”. (For a summary of the aforementioned Supreme Court cases, please refer to Table 1.)

Table 1 Summary of the Review of the Case Law: Supreme Court Cases
Case Charge Time Issue Examined Considered a s. 10(b) Breach? Evidence Excluded
Brydges (1990) Murder After hours Accused not informed of the availability of legal aid or any duty counsel scheme that was available in the jurisdiction. Yes Yes
Feeney (1997) Murder After hours Accused informed of his right to free legal advice from a legal aid lawyer but was not informed of the existence of the 24-hour toll-free number A new trial order Yes
Latimer (1997) Murder Regular hours Accused not informed of the toll-free number for immediate advice from duty counsel. However, this number was not in operation during regular working hours. No N/A
Bartle (1994) Impaired driving After hours Accused informed of his right to free legal advice from a legal aid lawyer but was not informed of the existence of the 24-hour toll-free number Yes Yes
Cobham (1994) Refusing breathalyzer demand After hours Accused was informed of his right to counsel and to legal aid but was not informed of the availability of free legal advice from the 24-hour Brydges duty counsel. Yes Yes
Harper (1994) Assault causing bodily harm Time not stated Accused informed of right to counsel and to legal aid but was not made aware of the existence of the 24-hour toll-free Brydges duty counsel service. Yes Evidence admitted
Matheson (1994) Impaired driving After hours Accused informed of right to counsel and legal aid. No 24-hour Brydges services in PEI. Police are not required to provide further information. No N/A
Pozniak (1994) Impaired driving After hours Accused informed of right to counsel and of legal aid. Police did not inform of the availability of 24-hour Brydges duty counsel. Yes Yes
Prosper (1994) Impaired driving Weekend Accused informed of right to counsel and legal aid. However, no 24-hour Brydges duty counsel system was in place. Accused given list of home numbers of legal aid lawyers - no success in trying to contact lawyers. Police should hold off questioning. Yes Yes

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