A Review of Brydges Duty Counsel Services in Canada

4. THE CAPACITY OF AN ARRESTED OR DETAINED SUSPECT TO UNDERSTAND THE CONTENTS OF A POLICE CAUTION

4.1 Introduction

Many of the individuals who are arrested or detained by the police are significantly impaired by the use of alcohol and/or other drugs, mentally disordered, developmentally disabled, or of limited education. Furthermore, the very process of arrest or detention is one that is likely to engender strong emotions, fear and - for many - a sense of disorientation. An arrest may involve the use of force (e.g., handcuffs) and a suspect may feel physically uncomfortable or may even have received injuries. Finally, the process of arrest may well generate a sense of profound embarrassment on the part of the suspect. In these circumstances, it is not entirely clear whether suspects have the capacity to fully comprehend the contents of a police statement about the availability of legal aid and access to duty counsel. Even if the right to counsel is restated by a peace officer in the confines of a police station, the effects of drug impairment, mental disorder, developmental disability, limited education, fear or disorientation may still be operating in a manner that renders it unlikely that the suspect will be capable of processing the information in a meaningful way. In particular, there is always a strong likelihood that a suspect who is involved in heavy substance abuse will suffer from amnesia and be unable to recall all - or parts - of any police caution delivered to him or her.

An important theme in the present study is the need to recognize that, even if there is absolute compliance by the police with the informational requirements of the Brydges caution, the right to counsel means very little in practice if a suspect does not adequately comprehend the contents of the warning read to him or her by the police. This chapter, therefore, examines the relevant Canadian jurisprudence and then proceeds to explore the empirical literature that bears on this critical issue.

4.2 The Canadian Jurisprudence

In the leading case of Evans (1991), the Supreme Court of Canada ruled that the police must inform suspects of their right to counsel in terms that they can understand. In Evans, the accused was “ hampered by a mental deficiency bordering on retardation, ” and the psychiatric evidence indicated that “ the accused was easily influenced ” (1991, p. 304). Although the police were aware of the accused's mental condition, they failed to make reasonable efforts to ensure that he actually understood when - and how - he was entitled to exercise his right to counsel. The Supreme Court of Canada ruled that the accused's section 10(b) rights had been infringed and, therefore, certain incriminating statements made to the police were excluded by virtue of section 24(2) of the Charter. In the words of Justice McLachlin:

A person who does not understand his or her right cannot be expected to assert it. The purpose of s. 10(b) is to require the police to communicate the right to counsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told. … But where, as here, there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that understanding. [p. 305]

This approach was later reinforced in the majority judgment of the Supreme Court of Canada in Bartle (1994), in which Chief Justice Lamer emphasized that the “ authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights ” whenever they are aware of “ circumstances which suggest that a particular detainee may not understand the information being communicated to him or her ” (p. 302). However, this ruling has been interpreted as meaning that it is only when the police are actually cognizant of a defect in the capacity of a suspect to understand the information conveyed to them that they are under a duty to go beyond the mere articulation of a prescribed formula. For example, in Kennedy (1995), the accused had been taken to a hospital following a motor vehicle accident. A police officer made a demand for samples of Kennedy's blood, and she simultaneously informed him of his right to counsel. The accused indicated that he understood this communication and gave the required sample. The attending physician indicated that he believed that Kennedy was “ "lucid at the time ” and “ knew what was being asked of him ” (p. 176). However, there was also evidence to the effect that the accused complained of head injuries and his blood sample revealed a blood-alcohol concentration of 240 mg of alcohol in 100 ml of blood. For his part, the accused claimed that he had “ no precise recollection of what transpired ”after the police arrived at the scene of the accident. He stated that he had “ a lot of pain in my head ” and asserted that he could remember neither the demand for a blood sample nor the advice as to his right to counsel (p. 176). The trial judge dismissed the charge of “over 80 ” - in part - on the basis that the accused did not have an “ adequate appreciation or understanding of his right to contact counsel ” (p. 177). The Newfoundland Court of Appeal ultimately allowed an appeal by the Crown and ordered a new trial.

On behalf of the majority of the Court of Appeal, Marshall J.A. ruled that the trial judge had erred, insofar as he had focused exclusively on the question of the nature and extent of Kennedy's understanding of the communication made by the police in relation to his right to counsel, rather than on the issue of whether the police officer had adequately performed her duty to inform the accused “ in comprehensible terms of the essential substance of his right to counsel. ” According to Justice Marshall:

The detainee's right, therefore, is to be properly informed. There is no absolute protection against a lack of appreciation of the information conveyed. The fulfillment of the informational component of the right to counsel does not hinge upon whether the detainee understood the communication but whether the essential elements of the right were adequately communicated. It is not therefore, so much a question of whether the message was comprehended, but if it was comprehensible. [p. 181, emphasis added]

Justice Marshall did proceed to state that a suspect's comprehension may be a “ relevant factor ” in determining whether the police had fulfilled their “ informational obligation. ” However, it should not be taken into account unless there are indications that should alert the police to the likelihood that the suspect has “ not sufficiently understood or appreciated ” the right to counsel. In his view, “ in the absence of signs of lack of comprehension, however, adequate communication will satisfy the requirements ” (p. 182). Given the incontrovertible facts that the accused was severely intoxicated and complaining of a head injury, it is interesting to speculate how obvious the symptoms of impairment must be to the police before they are placed under an obligation to ensure that a suspect fully understands the nature of his or her rights to counsel under section 10(b) of the Charter.

It is also important to bear in mind that the Supreme Court of Canada has set a comparatively low threshold for the purpose of determining whether accused persons or suspects have sufficient understanding to exercise or waive their right to counsel under section 10(b) of the Charter. The leading case in this respect is Whittle (1994). Although Whittle was suffering from schizophrenia and experienced auditory hallucinations that drove him to make incriminating statements to the police, he was nevertheless considered to have the “ limited cognitive capacity ” that is required for a making a valid waiver of the right to counsel. The so-called “ limited cognitive capacity ” test had first been articulated by the Ontario Court of Appeal in Taylor (1991), a case raising the issue of the accused's fitness to stand trial. However, in delivering the judgment of the Supreme Court of Canada in Whittle, Justice Sopinka ruled that judges should apply the same standard in determining whether accused persons have the mental capacity to exercise or waive any of their pre-trial rights (including the right to counsel). In the words of Justice Sopinka:

The operating mind test … includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying. This includes the ability to understand a caution that the evidence can be used against the accused.

In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is not in the accused's best interest. It is not necessary that the accused possess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must have an operating mind as outline above. [p. 31, emphasis added]

In essence, provided there is an “ operating mind, ” it does not matter that the accused may act irrationally because of a mental disorder or may be lacking in the ability to analyze situations with any degree of mental acuity because of a developmental disability or brain damage. He or she will, nevertheless, be considered competent to waive the right to counsel. If the reasoning in the Whittle case is applied to the context of a police caution concerning the accused person's right to retain and instruct counsel and the right to access whatever Brydges services are available, then it is clear that any duty that may be placed on the police, to ensure that the accused understands the contents of the caution, is not a particularly onerous one. In this respect, it is significant that an eminent Canadian legal authority, Don Stuart, has suggested (2001, pp. 287-288) that, in cases such as Bartle (1994), the Supreme Court of Canada should have grasped the opportunity to expand the scope of the duty to require the police to “ take steps to ensure that the detainee truly understands ” the information communicated to him or her.

An instructive example of the consequences of setting such a low threshold for capacity to understand a police caution is provided by the case of Noël (2001). Here, the accused was charged with first degree murder. Before making incriminating statements to the police, Noël had been informed of his rights under section 10(b) of the Charter, and had declined to seek the services of counsel. The evidence was that Noel could neither read nor write, and even a Crown witness asserted that Noël had a “ borderline ” IQ of 75 (para. 102). The Québec Court of Appeal, nevertheless, upheld the trial judge's finding that Noël had “ sufficient cognitive capacity to understand the warning, ” and that “ he did understand and knowingly decided not to consult a lawyer before giving his statements ” (para. 47).

There is an interesting suggestion in the judgment of Chief Justice Lamer in the Supreme Court decision in Latimer (1997), to the effect that that there may be certain circumstances in which the police should be required to provide more specific information to an accused or detained person who manifests special needs. In this respect, the Chief Justice pointed to the examples of a visually impaired person or an individual, “ whose facility in the language of the jurisdiction is not sufficient to understand the information provided about duty counsel ” (para. 38). However, the Chief Justice did not appear to extend this duty to those suspects who have a developmental disability or a mental disorder. It might well be argued that the Supreme Court of Canada should move towards adoption of the legal principle that the precise extent of the duty of the police to provide information should vary with the ability of the accused to take advantage of the information provided. If such a principle were to be adopted, then the police would need to obtain the necessary training to ensure that disabled persons, and those who do not speak the language used by the police, fully understand the nature and scope of the Brydges services that may be available to them in any given jurisdiction.

In Chapter 3, the point was made that the Supreme Court of the United States had discussed the possibility of requiring police officers to ask “ clarifying questions ” whenever there is any doubt about the true intentions of a suspect who is apparently prepared to waive his or her right to counsel. There is undoubtedly some value in exploring the advantages and disadvantages of requiring the police in Canada to ask such clarifying questions whenever there is some uncertainty as to whether or not the accused fully understands the information conveyed by the police in the Brydges caution. It would certainly be open to the courts to expand the scope of the duty of police officers to provide suspects with information about their rights under section 10(b) of the Charter. A review of the empirical literature inexorably leads to the conclusion that the issue of an arrested or detained suspect's capacity to understand a police caution is one that should by no means be taken lightly.

4.3 Review Of The Empirical Literature

4.3.1 Impact Of Substance Abuse

Substance abuse is considered to be one of the most common problems experienced by those who come into conflict with the criminal justice system. Indeed, the abuse of alcohol and other drugs may well cause neurological deficits that facilitate aggression and increase the risk that these individuals will commit acts that require the intervention of agents of the criminal justice system (Boland, Henderson and Baker 1998). Furthermore, if an individual engages in substance abuse and assumes care and control of a motor vehicle, then he or she is committing a serious criminal offence that is considered to be a major target for law enforcement operations in Canada.

The extent of substance abuse among offenders in Canada has been demonstrated to be consistently high. For example, a study conducted by Boland, Henderson and Baker (1998) found that at least two thirds of the federal inmate population in Canada suffers from substance abuse problems. Likewise, Brink et al. (2001) found that 75.7 percent of a sample of recently admitted federal inmates in Canada had a life-time history of substance abuse, and similar findings have been reported by Bland et al. (1990) and Roesch (1995) in relation to inmates of provincial correctional facilities in Canada.

Alcohol is the drug that is most likely to have been ingested by offenders immediately prior to the commission of a criminal offence (Pernanen et. al. 2002, p. 15), although it is important to recognize that alcohol is often taken in combination with other drugs - both legal and illegal (Pernanen et al. 2002, p. 72). The prevalence of alcohol use was examined by Pernanen et al. (2002), who found a high incidence (79 percent) of alcohol use among newly arrived federal inmates during a six-month period prior to arrest, while illicit drug use was found to have taken place to a lesser, but by no means insignificant, degree in 52 percent of the inmates in the sample (Pernanen et al. 2002, p. 49). Likewise, Brink et al. (2001, p. 349) found that, in their sample of newly-admitted federal inmates, 59.4 percent had experienced life-time alcohol abuse dependence, 31.7 percent cocaine dependence, and 10.9 percent opiate dependence.

Although there is a paucity of Canadian studies that have examined the prevalence of intoxication use among accused persons at the point of their arrest or detention, there is a recent Canadian study that has examined the issue in some depth. This study, conducted by Pernanen et al. (2002) examined a sample of individuals who had been arrested or detained in 26 communities across Canada during a one-month period (May to June 2000). The study involved questioning police officers as to whether specific arrestees were abusers of alcohol or other drugs. The researchers discovered that some 40 percent of male arrestees and 33 percent of female arrestees were considered to be alcohol abusers (Pernanen et al. 2002, p. 72). The following table briefly outlines the findings of the study:

Arrestees in 14 Canadian Cities:

Proportions Assessed to be Abusers of Drugs or Alcohol by the Arresting Police Officer
Assessed to be abuser of… Males (1,544) Females (334) TOTAL (1,878)
Alcohol only 25 17 23
3Drugs and Alcohol 15 16 16
Drugs only 15 15 15
Not assessed to be abuser 45 53 46
TOTAL 100% 101% 100%

* Based on assessments by the arresting police officer. The questions asked were “ Is the arrestee an abuser of alcohol? ” and “ Is the arrestee an abuser of one or more illicit drug? ”

Source: Pernanen et al. 2002, p. 72.

This study underscored the relationship between the significant number of impaired driving cases and the high percentage of alcohol abusers reported by the police (Pernanen et al. 2002, p. 73). In terms of the effects of alcohol, it is critical to recognize that it is well established in the literature that amnesia is a frequent symptom of intoxication (Coles and Jang 1996; Cunnien 1986; Wilkinson 1997). In light of the empirical knowledge that exists in relation to alcohol and drug abuse, it is certainly questionable whether a suspect who is impaired by alcohol and/or other drugs has the present mental capacity to understand the contents of the police caution. Equally concerning is the fact that it is highly unlikely that the suspect will be able to fully understand the legal advice provided by Brydges duty counsel. Clearly, this is of critical relevance, since the review of the Canadian case law, in which the Brydges caution constitutes a major issue, demonstrated that the majority of the cases involved suspects who were being investigated for impaired driving - cases that revolved primarily around alcohol abuse.

4.3.2 The Impact Of Mental Disorder

Another significant characteristic of the criminal justice system in Canada is the high rates of life-time mental disorder that have been discovered among prison inmates (Arboleda-Florez 1998; Bland et. al. 1998; Brink, Doherty and Boer 2001; Ministry of Public Safety and Solicitor General 2001; and Zapf, Roesch and Hart 1996). It is also noteworthy that research has established that the rates of serious mental disorder are much greater among prison inmates than among members of the general population (Bland et al. 1998, p. 278 and Brink, Doherty and Boer 2001, p. 353)[15]. Similar findings have emerged in relation to the female inmate population in Canadian prisons (CSC 1998 cited in Mason 2001, p.135).

Considerable concern has been expressed about the increase in the number of mentally disordered individuals who are entering the Canadian correctional system (Bland et al. 1998, p. 277 and Porporino 1994, p.1). It appears that this increase is, in part, a result of the decrease in the availability of beds in those institutional facilities that provide ongoing hospital care to psychiatric patients (Bland et al. 1998, p. 277 and Endicott 1991, p. 8). Consequently, many of the persons who have been displaced from these institutional facilities may now be accessing mental health resources through the criminal justice system, although it has been suggested that the so-called “ criminalization hypothesis ” constitutes only a partial explanation for the fact that correctional facilities are housing significant number of seriously mentally disordered individuals (Bland et al. 1998, p. 277; Brink et al. 2001; and Teplin 1990 and 2000, p. 12). Vitelli (1993, cited in Zapf, Roesch and Hart 1996, p. 436) has described the nature of the “ criminalization hypothesis ” in a succinct and forthright manner:

The correctional system may be acting as a gateway to medical, dental, and psychological services that are unavailable to the homeless, resulting in their developing a dependence on the criminal justice system to receive these services.

Motiuk and Porporino (1991) found a high national prevalence rate of mental disorders among federal offenders in Canada. Their study revealed the following DIS lifetime prevalence rates for the following major categories of mental disorder: “ 'organic' (4.3 percent); 'psychotic' (10.4 percent); 'depressive' (29.8 percent); 'anxiety' (55.6 percent); 'psychosexual' (24.5 percent); 'antisocial' (74.9 percent); 'substance' (52.9 percent); and 'alcohol' (69.8 percent). ”

Offender -National Prevalence Rates According to the DIS

Using Wide Criteria (Weighted)
Disorder Lifetime Within One Year Within Two Weeks
Organic 4.3 n/a n/a
Psychotic 10.4 6.8 4.6
Depressive 29.8 15.6 9.1
Anxiety 55.6 34.8 15.4
Psychosexual 24.5 n/a n/a
Antisocial 74.9 n/a n/a
Substance 52.9 16.8 4.2
Alcohol 69.8 13.1 0.6

Source: Motiuk and Porporino (1991)[16]

Brink et al. (2001) found that the rates of current mental disorder were significant among their sample of newly admitted federal prison inmates. Indeed, 3.5 percent were actively psychotic, 17.3 percent were suffering from current anxiety disorders, and 8.4 percent were experiencing active mood disorders. Since most of these individuals had been tried and sentenced to federal institutions after a lengthy period had passed since they were arrested, it is likely that there was an even higher rate of current mental illness among these individuals at the moment of their arrest by the police.

The undoubted traumatic effects of arrest and the increased levels of stress generated by detention in police custody or local jails may exacerbate the mental health problems experienced by many suspects (Blaauw, E., Kerkh of, A. and Vermunt, R. 1998, p. 85). Persons with mental disorders may find jails to be a terrifying place (Nami 2002, p.2). The physiological impact that a traumatic event (such as arrest and detention) may have upon an individual has been briefly described by Herman (1992, p, 36, cited by McDonald 2000):

They have an elevated baseline of arousal: their bodies are always on the alert for danger. They also have an extreme startle response to unexpected stimuli associated with the traumatic event.

Moreover, the physiological symptoms that an individual may experience when being subjected to a traumatic event are key factors that may well hinder the capacity to understand even relatively straightforward information that is presented to him or her (McDonald 2000):

An individual may experience panic attacks, including faintness, dizziness, shaking or feeling out of control and flashbacks to the trauma itself or to the feelings that the trauma caused…. This concern may distract or prevent the individual from learning. Finally, there may be health problems, such as depression, or physical problems. Trauma can affect one's physical health as well. Any of these effects may make it difficult or impossible to learn and trauma should be recognized as a potential source of learning disabilities.

4.3.3 Impact of disabilities

The capacity of a suspect who is held in police custody to adequately comprehend a police caution may also be impaired by various disabilities. For example, intellectual disabilities are more prevalent among the inmates of Canadian prisons than among the population at large (Endicott 1991, p. 20). It has been theorized that “ handicapped ” persons are more highly represented in correctional facilities because they are “ more easily apprehended, more prone to confess, more likely to be convicted, and will probably be incarcerated longer than the [non-handicapped] offender ” (Allen 1968, p. 25 cited in Endicott 1991).

Unlike mental disorders, which may be temporary or cyclical in nature, intellectual disabilities generally involve a permanent learning handicap (Endicott 1991, p. 16). According to Santamour and West (1982, cited in Endicott 1991), some of the more noticeable traits that are associated with intellectual disabilities include:

  • low frustration tolerance
  • inability to delay gratification
  • poor impulse control
  • low level of motivation
  • anxiety to be accepted
  • demanding of attention
  • easily persuaded or manipulated

Significantly, an extensive empirical study conducted in the United States confirmed that mentally handicapped persons frequently do not understand the legal warnings that they are given by the police - in this particular study, the Miranda warning (Cloud et al. 2002, p.4).

One particular form of intellectual disability has given rise to intense scrutiny in recent years - namely, fetal alcohol syndrome (Boland, Henderson and Baker 1998). Fetal alcohol syndrome may impair learning ability, which, in turn, may mar the capacity of individuals to understand the consequences of their conduct or to control their impulses (Boland et al. 1998, p. 16).Consequently, fetal alcohol syndrome is another factor that needs to be taken into consideration when assessing the capacity of a suspect to understand a Brydges caution. Although there are currently no national data that can lay the basis for an informed estimate as to the extent or prevalence of this condition, some researchers have estimated that there are tens of thousands of adults who suffer from this syndrome and continue to go undetected (“ FAS: From Awareness to Prevention, ” 1992; Donovan 1992, cited in Boland, et al 1998, p. 10).

Finally, a suspect may suffer from a physical disability that may restrict his or her ability to understand a police caution and the legal advice given by Brydges duty counsel. For example, hearing impairment may prevent a suspect from being able to process information provided by the police and/or counsel at the time of arrest or detention. Indeed, Vernon, Steinberg and Montoya (1999) have demonstrated that many deaf suspects may lack the linguistic ability to understand the Miranda warnings. They contend (1999, p. 508) that between 85 and 90 percent of “ prelingually ” deaf persons lack the level of comprehension required to understand a written statement of their rights. Since “ the average deaf person understands only about 5 percent of what is said to him by lipreading, ” it would not be feasible to administer the Miranda cautions verbally (1999, p. 508). While educated deaf persons may be able to understand a caution delivered by American Sign Language, an illiterate accused or one who reads below the level of grade six, will not be able to fully understand a caution (1999, p. 508). Vernon, Steinberg and Montoya (1999, p, 510), therefore, recommend that all administrations of the Miranda cautions to deaf defendants should be videotaped, and standardized tests should be employed to ascertain the degree to which the accused has the capacity to understand the Miranda cautions. Undoubtedly, similar considerations apply to the administration of Brydges cautions in Canada.

4.3.4 Impact of Language Barriers

There is little doubt that language barriers pose a serious problem, since a suspect who cannot properly understand English or French is highly unlikely to have the ability to fully understand a police caution and/or the legal information provided by Brydges duty counsel. Indeed, a Canadian study conducted by Currie[17](2000, p. 12) concluded that, in cases where the accused person lacks basic fluency in English or French, it is essential that the appropriate legal services are delivered in the person's own language.

4.3.5 The “ Appropriate Adult ” Procedure as a Potential Mechanism to Protect the Section 10(b) Rights of Suspects Whose Capacity to understand a Police Caution maybe Severely Impaired

In England and Wales, specific steps have been taken to ensure that suspects in police custody who are mentally disordered or “ mentally handicapped ” are provided with the support of an independent person, known as the “ appropriate adult ”. Studies undertaken in England and Wales have suggested that anywhere between 10 percent and 26 percent of persons detained by the police have mental disorders or developmental disabilities (Bucke and Brown 1997, p. 7). The appropriate adult delivers immediate assistance to a suspect in the police station itself. Under the Codes of Practice associated with the Police and Criminal Evidence Act 1984 (PACE), the police are legally required to provide an “ appropriate adult ” for “ mentally disordered or mentally handicapped detainees ” (Bucke and Brown 1997, p. 5).

It was found by Bucke and Brown (1997, p. vii) that 2 percent of detained suspects in their sample were initially treated as being mentally disordered or handicapped, and appropriate adults were present in approximately two-thirds of these cases. The authors also note that, of those appropriate adults who attended the police station, 60 percent were social workers, with the remainder consisting of friends/neighbours, parents or guardians (at p. 8). The appropriate adult is placed under a duty to ensure that the suspect comprehends the police caution that is administered and to request a legal advisor, if the suspect has not already done so on his or her own behalf (Nemitz and Bean 2001, p. 600). The appropriate adult is also required to monitor the propriety and fairness of any police interview and to “ facilitate communication ” with the suspect being interviewed (Nemitz and Bean 2001, p. 601).

The “ appropriate adult ” provisions clearly operate in conjunction with the duty solicitor scheme that ensures that suspects in police custody in England and Wales have access to a lawyer who attends the police station. Ideally, the appropriate adult and the duty solicitor may collaborate to ensure that the specific needs of mentally disordered and developmentally disabled suspects are addressed when they are detained by the police. In particular, the appropriate adult may ensure that the suspect is duly provided with legal assistance, and that sufficient care and attention are paid to the need to ensure that the suspect fully comprehends any information presented to him or her by the police. Where the suspect appears to lack such capacity, the appropriate adult may be in a position to ensure that an appropriate mental health professional assesses the mental condition of the suspect before the police may proceed with interrogation (Medford, Gudjonsson and Pearce 2000). Conversely, the duty solicitor should take care to ensure that, if there is any uncertainty concerning the mental status of a client, then he or she should initiate the procedures for appointment of an appropriate adult, if none has already been assigned. In addition, the duty solicitor should take the necessary steps to seek an assessment from the appropriate medical or mental health professional.

It is not clear that the current procedures associated with the “ appropriate adult ” scheme in England and Wales are completely effective (Medford, Gudjonsson and Pearce 2000). For example, Nemitz and Bean (2001, p. 604) have commented that “ mentally disordered offenders in police stations are rarely identified or afforded treatment, let alone given the form of protection necessary. ” A similar cautionary note has been struck by Laing (1996), who reports that the police have repeatedly expressed the concern that there has been a continuing increase in the number of mentally disordered suspects who land in their custody. Laing also suggests that there are insufficient numbers of trained mental health professionals who are capable of working in police stations to screen suspects for mental disorders and developmental disabilities. The presence of well-trained - and highly skilled - mental health professionals in the police stations could well prevent many such suspects from being trapped in the “ revolving door ” of homelessness, mental disorder, and incarceration within the criminal justice system. Laing (1996, p. 7), therefore, suggests that there should be “ duty-psychiatrists, ” charged with the task of assessing detained persons in the police station. In order to meet the needs of mentally disordered and developmentally disabled detainees, it would be highly desirable for the duty solicitor to work effectively with the appropriate adult and the duty psychiatrist (if such a position were to be established in the future).

The combination of an “ appropriate adult ” scheme with the equivalent of the duty solicitor program that operates in England and Wales may provide the basis for a model that might be adopted in Canada to address the needs of those suspects who are in police custody and whose capacity to exercise their section 10(b) rights is impaired by various forms of disability. In the Canadian context, the appropriate adult might well be a social worker (Littlechild 1996) and duty counsel might be assigned to specific, high-volume police stations. The duty counsel would play a critical role in ensuring that, if the specific needs of their clients have not already been addressed by the police, proper medical and mental health assessments are carried out before police interrogation commences. Similarly, if an appropriate adult has not yet been assigned, duty counsel would be responsible for locating such an individual to assist the suspect. In high-volume police stations, duty psychiatrists would be available to conduct rapid assessments of suspects who appear to be suffering from mental disorder. Other forms of disability would need to be addressed by the appropriate professionals (hearing impairment by medical practitioners, intellectual disability by clinical psychologists, etc). Duty counsel might play a critical role in “ channeling ” the appropriate services to their clients and, to this end, it would be desirable for lawyers, who undertake this role, to receive appropriate training in the recognition of different forms of disabilities and the appropriate forms of intervention that should be made by external agencies and professionals.


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