A Review of Brydges Duty Counsel Services in Canada
7.0 MAJOR FINDINGS OF THE RESEARCH PROJECT
In general, the respondents to the questionnaires expressed favourable opinions concerning the provision of Brydges services. The following main themes were identified:
7.1.1 Accused Persons Acquire Basic, Yet Invaluable Knowledge
Most respondents suggested that accused persons acquire invaluable knowledge about the criminal justice process as a consequence of speaking with a Brydges duty counsel. More specifically, the respondents indicated that accused persons receive basic information concerning their legal rights, the structure and operation of the court process, the nature of the criminal investigation, and the important elements of their own cases. Most significantly, accused persons gain some rudimentary knowledge about the legal implications of the alleged offences and the desirability of giving statements to the police.
7.1.2 A Simple And Convenient Way To Obtain Quick And Timely Access To Legal Advice
Many respondents made reference to the fact that having the opportunity to access Brydges services enabled accused persons to obtain legal advice in a quick and timely manner. Additionally, many respondents observed that, since Brydges services are free, convenient and simple to access, accused persons have the ability to contact duty counsel as soon as possible at any time of the day or night.
7.1.3 The Provision Of Brydges Services Ensures That Charter Requirements Are Met And That Due Process Is Followed
A critical issue identified by the respondents concerns the legal rights of the accused that are entrenched in theCanadian Charter of Rights and Freedoms. In this respect, several interviewees asserted that that the availability of the Brydges duty counsel system enabled criminal justice officials to fulfill Charter requirements.
7.1.4 Admission Of Evidence And Collection Of Evidence Following Access To Brydges Services
Several participants stated that, once Brydges services have been provided to the accused, the police are thereby empowered to proceed with their collection of evidence, and are able to undertake this task without facing the risk that such evidence might subsequently be declared inadmissible at trial.
7.1.5 Brydges Services Are Available On A 24-Hour Basis
A number of participants emphasized the importance of the fact that Brydges services are offered on a 24-hour basis. Accused persons may, therefore, access duty counsel at any time during the day or night, including during weekends and holidays. This also enables duty counsel to provide relevant assistance and advice at the most appropriate moment.
A significant proportion of the respondents (approximately 42 percent) stated that they did not believe that there were any gaps or disadvantages in the provision of Brydges services. However, others identified several issues of concern.
7.2.1 Delays In Reaching Brydges Duty Counsel
A considerable number of the participants asserted that the main gap/disadvantage in the provision of Brydges services consists of the lengthy delays experienced by those arrested or detained individuals who are trying to make contact with duty counsel - most particularly, after hours. In some cases, these delays stem from difficulties in locating an on-call duty counsel. In other cases, the delays may be traced to the lengthy call-back period that the arrested or detained person experiences before being contacted by the counsel working in connection with the 1-800 Brydges number.
7.2.2 Inadequate Numbers Of Duty Counsel
One of the main reasons identified for the significant delays is that there are not enough Brydges duty counsel to meet the needs of arrested and detained persons for legal advice and assistance.
7.2.3 Financial Constraints
Some of the legal aid providers identified inadequate levels of funding as a focal issue of concern. The costs associated with the provision of Brydges services have increased, yet, the service providers are nevertheless constrained to work within the confines of a limited budget.
7.2.4 Accused Persons' Lack Of Understanding Of Their S. 10 (B) Rights
Some interviewees expressed the concern that there are many accused persons who may lack the capacity to fully understand the police caution and the legal advice given by Brydges duty counsel. The most common example, referred to by the respondents, involves a scenario in which the suspect is severely intoxicated, and, therefore, cannot fully understand the nature and parameters of the right to counsel. Other examples that were mentioned by respondents involved language barriers or physical disabilities.
7.2.5 Inexperienced Brydges Duty Counsel
Several respondents expressed their disquiet in relation to the assignment of junior counsel to the task of providing Brydges services. Indeed, some respondents stated that lack of experience not infrequently translates into situations in which the Brydges duty counsel provide inaccurate information to their vulnerable clients.
7.2.6 Brydges Services May Be Perceived As Being More Useful To The Police Than To Accused Persons
Some of the respondents advanced the view that the provision of Brydges services may prove to be a more significant benefit to the police than to the accused persons themselves. This situation arises because, in many cases, once the accused has finished talking to the Brydges duty counsel, the police are, in effect, given a green light to continue with the investigation. The most common example involved a scenario in which a heavily intoxicated suspect does not fully understand the legal advice given, and yet, once he or she has completed the phone call to duty counsel, the police then proceed to interview him or her without any fear that the evidence that they collect may be ruled inadmissible at trial. Tables 4 and 5 present this information about the advantages and gaps in Brydges service in summary form.
As noted above, a significant number of respondents declined to identify any gaps/disadvantages in connection with the provision of Brydges services. Consequently, the views reported in this section were advanced by the relatively small number of respondents who actually listed any impacts that were associated with the perceived gaps/disadvantages of Brydges services.
7.3.1 Impact Of Delays
Delays May Benefit the Accused
Some of the respondents made the interesting observation that a number of the gaps/disadvantages that were identified may, in some fashion, provide benefit to accused persons, especially in relation to the delays that may be experienced before the accused makes contact with Brydges duty counsel. The accused benefits from such delays when the police are not able to complete an investigative procedure (e.g,. a two hour limit for a breathalyzer test) within the prescribed time limit.
Delays May Hinder Police Investigations
From a police officer's perspective, the delays may prevent them from administering certain tests within a prescribed time. Moreover, some police officers expressed their concern that long delays in reaching duty counsel may slow down their work in general. Instead of returning swiftly to their normal duties, officers are tied up waiting for the call to duty counsel to go through.
7.3.2 Impact When Accused Persons Do Not Receive Brydges Services During Bail Proceedings
Respondents indicated that only one significant problem may occur during a bail hearing when an accused person has not received any advice or assistance from Brydges duty counsel. The judge may adjourn the hearing until the accused person has been afforded the opportunity to speak with duty counsel.
7.3.3 Impact On Subsequent Court Proceedings When Accused Persons Do Not Receive Brydges Services
The participants identified a number of problems that may occur when accused persons do not receive Brydges services. There may be an increased need to exclude evidence. There might be an increased number of appeals, and more court time spent dealing with this issue. However, it is also interesting to note that several participants stated that the aforementioned impacts may actually benefit accused persons, by reducing the chance of convictions. Table 6 summarizes the impact of gaps in delivery of Brydges services and the disadvantages.
It is important to recognize that approximately 45 percent of the respondents did not offer any suggestions. Significantly, the majority of the individuals who fell into this category were police officers and accused persons in custody. Fully 70 percent of the police respondents declared that the Brydges services are working well, and declined to offer any suggestions for modifications. Similarly, 50 percent of the accused persons asserted that they did not wish to offer any suggestions for changes to be made. There is a degree of irony in this because the police and the detained accused constitute the two groups who are most directly affected as a result of any gaps in the provision of Brydges services. Insofar as the respondents in the other groups are concerned (Crown counsel, duty counsel, judges, and legal aid service providers), it is worthy of note that 65 percent of them offered some suggestions for change. The following is a list of the main suggestions that were identified by the respondents.
7.4.1 Enhancing The Quality Of Brydges Services
In general, the principal theme running through the various suggestions offered by the respondents is the need to enhance the quality of Brydges services. The respondents targeted duty counsel as the main area for improvement of these services. Some of the suggestions involving duty counsel are as follows:
- Hire duty counsel with specific experience in Criminal Law.
- Hire bilingual or multilingual duty counsel.
- Provide better training programs for duty counsel.
- Provide a handbook describing regional practices.
7.4.2 Recommendations For Procedural Reforms
Some of the respondents made recommendations that would entail significant modifications to the existing procedures and practices associated with the delivery of Brydges services. The following constitutes a list of some of the procedural reforms that interviewees felt would significantly enhance the quality of Brydges services:
- Pass on feedback received from Brydges duty counsel to the lawyer(s) providing the client with other forms of legal aid service.
- Provide continuity of service (for example, the initial duty counsel representing the client at subsequent court appearances).
- Provide a guaranteed call-back time.
- Provide more interview time.
- Offer a regionalized service.
7.4.3 Structural Recommendations For Structural Reforms
Respondents revealed considerable diversity in their recommendations for structural reform. This is scarcely surprising given the differences in the provision of Brydges services across Canada. For instance, in provinces where there is no formal Brydges service, the recommendation was to implement a formal 24-hour Brydges system. In provinces where a formal system of Brydges services does exist, but only embraces a system whereby private lawyers are on-call by means of contacting a private telephone line, the recommendation was to implement a 1-800 toll-free number across the province in order to simplify the process. Finally, in provinces where a 1-800 toll-free number is in existence, there were suggestions to deploy duty counsel at every police station, hire multilingual duty counsel, and provide a regionalized service.
7.4.4 Modifications To Police Practices
Some respondents made the suggestion that police officers need to ensure that accused persons can actually access Brydges services. It is significant that a considerable proportion of those respondents who discussed police practices were drawn from the category of in-custody accused persons. The recommendations for modifications to police practices included the following:
- Police should provide more information about legal aid.
- Police should use clearer language when defining what the accused person's rights are.
- Police should provide this information in a timely manner.
- Police should not obtain a confession before reading a suspect his or her rights.
- Police should call duty counsel themselves (as is the case in England and Wales).
- Better Quality of Service
- Hire Brydges duty counsel who are more experienced in Criminal Law.
- Hire bilingual or multilingual Brydges duty counsel.
- Provide better training for Brydges duty counsel.
- Provide a handbook describing regional practices.
- Procedural Recommendations
- Pass on the feedback received by Brydges duty counsel to lawyers providing other legal aid services.
- Provide continuity in assistance by encouraging Brydges duty counsel to represent the client at subsequent stages of the court process.
- Establish a guaranteed call-back time.
- Provide more interview time.
- Offer a regionalized service.
- Structural Recommendations
- Provinces with No formal Brydges service:
- Implement a formal Brydges system.
- Provinces with a formal Brydges service, but no toll-free number:
- Implement a 24-hour 1-800 toll free number.
- Provinces with a 1-800 #:
- Have duty counsel at every police station.
- Hire bilingual Brydges counsel.
- Provide regionalized services.
- Provinces with No formal Brydges service:
7.5 Apparent Discrepancies Between The Perspectives Of In-Custody Accused Persons And Police Officers - Tentative Findings
7.5.1 Provision Of Information
The police respondents consistently stated that they always give accused persons the requisite information about the right to counsel and access to legal aid (including Brydges services). However, according to the in-custody accused persons who were interviewed, they did not all receive the prescribed information about their legal rights. In the present study, only 60 percent of the in-custody accused persons indicated that the police had advised them of their right to counsel. Furthermore, only 45 percent of them stated that the police had informed them specifically about the existence of Brydges duty counsel.
Nevertheless, these findings must be interpreted in light of the fact that 10 percent of the in-custody accused respondents claimed that, owing to their state of severe intoxication at the relevant time, they could not remember if they were given any information about their legal rights. Moreover, it is important to take into account that there are some apparent contradictions among the responses made by the in-custody accused persons who were interviewed. For example, 10 percent of those accused who stated that they were not given any information about their rights also stated that the police had given them access to a phone in order to contact duty counsel.
7.5.2 Amenities Available - Opportunity To Contact Duty Counsel
Not only is it vital that accused persons receive the requisite information concerning their right to counsel, it is equally critical that they be afforded an effective opportunity to contact duty counsel. As a result, access to a telephone is imperative - clearly: Brydges duty counsel may only be contacted by this means. In-custody accused persons and police officers were asked if there were any amenities available for accused persons to contact duty counsel. According to the in-custody accused, 35 percent did not have access to a telephone. However, all of the police officers stated that all those suspects who expressed a wish to contact duty counsel were offered access to a telephone, and use of a private room for this specific purpose. These findings highlight significant discrepancies between the responses of in-custody accused persons and police officers.
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