A Review of Brydges Duty Counsel Services in Canada
8. DISCUSSION AND CONCLUSIONS (continued)
In theBrydges (1990) case (and the subsequent cases that clarified it), the Supreme Court of Canada significantly altered police practices by imposing a constitutional duty upon police officers to inform accused persons of the availability of 24-hour duty counsel or similar resources, wherever they exist. In essence, police officers are now required to inform accused persons of the following section 10(b) rights:
The findings of the present study indicate that police officers reported that they consistently fulfilled the informational requirements mandated by the Brydges decision. In fact, police officers reported that, in order to ensure full compliance with this constitutional duty, they routinely read this information from a printed card. Moreover, the officers stated that they were cognizant of the fact that a failure to satisfy these informational requirements would ultimately work to their disadvantage. For example, they indicated that they were well aware that, if there has been a violation of a suspect's section 10(b) rights, then it is very likely that - should the case go to trial - the court will exclude some or all of the evidence obtained thereby.
In the United States, the empirical literature suggests that the invocation by suspects of their Miranda rights frequently brings the police investigation to a halt. However, Canadian police officers reported that the conscientious fulfillment of their duty to properly inform suspects of their rights to counsel actually facilitates their investigation. For example, once the police officer has fulfilled the various informational requirements and the suspect actually contacts duty counsel, or unequivocally waives his or her right to counsel, the police officer are effectively given a “green light” to proceed with their investigation.
The majority of the respondents in the present study expressed the opinion that the provision of Brydges services constituted a major benefit for suspects who were being held in police custody. Nevertheless, it is important to recognize that, if suspects are to gain access to “Brydges services and to fully benefit from this service,” they need to fully understand the contents of the police caution and the legal advice given to them by Brydges duty counsel. In this respect, it is highly germane to refer to the extensive body of empirical literature that examines those characteristics of offenders that affect their capacity to comprehend information that is presented to them. A considerable number of studies have found that accused and convicted persons may suffer from a myriad of problems, such as substance abuse, mental disorders, intellectual disabilities, fetal alcohol syndrome, hearing impairment, and language barriers. Any or all of these conditions may prevent individuals from fully understanding the nature and scope of their legal rights. In addition, the traumatic circumstances surrounding an arrest or detention may well serve to exacerbate underlying mental health problems, and they may rapidly escalate into acute episodes of mental disorder. It is certainly noteworthy that the majority of accused persons interviewed in the context of the present research project asserted that they did not recall having been informed by the police about the existence of Brydges duty counsel.
Furthermore, the review of the Canadian jurisprudence emanating from the decision of the Supreme Court of Canada in Brydges (1990) suggests that many of the cases that raiseBrydges issues involve charges of impaired driving or refusal to provide a breathalyzer sample. This circumstance suggests that these cases, by definition, involve accused persons who were seriously impaired by alcohol at the time of their arrest or detention. Alcohol can interfere with the capacity of an individual to understand even simple information and, in many cases, has the effect of inducing either full or partial amnesia - thus making it impossible for the individual to recall all - or part - of any Brydges caution. In circumstances of this nature, the Brydges caution may work to the distinct disadvantage of the accused - because a conscientious reading of the accused's rights effectively gives the police the green light to continue with their investigation, and to collect incriminating evidence. The fact that, by virtue of severe intoxication, the accused is incapable of fully comprehending the police caution and/or the legal advice given by Brydges duty counsel has somehow been overlooked by the courts.
While it may well be the case that police officers consistently fulfill the informational requirements mandated by the Supreme Court of Canada in Brydges and subsequent cases, it is nevertheless clear that many of those suspects who are held in police custody lack a complete understanding of their rights to counsel. Furthermore, it stands to reason that individuals whose capacity to understand a police caution is impaired are less likely to avail themselves of Brydges services. Equally concerning is the fact that, in cases where suspects avail themselves of the legal advice provided by Brydges duty counsel, their understanding of such advice may be quite limited.
Participants in the present project also asserted that continuity in the delivery of services may well improve the quality of the legal advice and assistance provided to accused persons: this viewpoint is shared by the Ontario Legal Aid Plan Report (1998, p. 15). According to proponents of this perspective, the duty counsel who first comes into contact with an accused person routinely collects relevant information during the first interview and might well be able to represent the accused in court, if the case is relatively simple in nature. Alternatively, there could be better transfer of information between the lawyer providing Brydges service and the lawyer who appears for the accused in court, particularly in cases where significant issues about interrogation arise. It has been suggested that such an expanded role for duty counsel would enhance the quality of not only the client-lawyer relationship, but also the relationship of duty counsel with the Crown (Ontario Legal Aid Plan 1998, p. 17). Although this particular suggestion refers to the “regular” duty counsel system, which operates within the courts during the day, it would certainly be feasible to consider expanding the proposal so as to include the Brydges duty counsel services that are operated outside of regular working hours.
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