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Legal Aid Research Series SERVING CANADIANS LEGAL AID RESEARCH SERIES A REVIEW OF BRYDGES DUTY COUNSEL SERVICES IN CANADA A Review of Brydges Duty Counsel Services in Canada Simon Verdun-Jones and Adamira Tijerino Department of Justice Canada Research and Statistics Division rr03-la4e The views expressed in this report are those of the authors and do not necessarily reflect the views of the Department of Justice Canada. TABLE OF CONTENTS EXECUTIVE SUMMARY ................................................................................................................................i 1.0 INTRODUCTION......................................................................................................................................1 2.0 THE BRYDGES DECISION AND THE RIGHT TO COUNSEL: A REVIEW OF THE CASE LAW..........3 2.1 Introduction: The Brydges Decision.................................................................................................3 2.2 Subsequent Decisions Of The Supreme Court Of Canada .............................................................4 2.3 Decisions Of The Provincial Appellate Courts...............................................................................10 3.0 THE MIRANDA CAUTION IN THE UNITED STATES: AMERICAN EXPERIENCE WITH THE MODEL ADOPTED BY THE SUPREME COURT OF CANADA IN THE BRYDGES CASE...............33 3.1 Introduction ...................................................................................................................................33 3.2 The Miranda Decision ...................................................................................................................33 3.3 The Miranda Requirements As Constitutional Imperatives............................................................34 3.4 Differences Between The Canadian And U.S. Jurisprudence.......................................................35 3.5 Miranda And Clarifying Questions About The Waiver Of The Right To Counsel...........................36 3.6 Impact Of Miranda On Law Enforcement ......................................................................................36 4.0 THE CAPACITY OF AN ARRESTED OR DETAINED SUSPECT TO UNDERSTAND THE CONTENTS OF A POLICE CAUTION ................................................................................................39 4.1 Introduction ...................................................................................................................................39 4.2 The Canadian Jurisprudence ........................................................................................................39 4.3 Review Of The Empirical Literature...............................................................................................43 5.0 THE DUTY SOLICITOR SCHEME IN ENGLAND AND WALES: AN ALTERNATIVE MODEL FOR DELIVERING LEGAL ADVICE AND ASSISTANCE TO SUSPECTS IN POLICE CUSTODY............51 5.1 Introduction ...................................................................................................................................51 5.2 Description Of The Duty Solicitor Scheme In England And Wales................................................52 5.3 Empirical Research and the Duty Solicitor Scheme ......................................................................53 6.0 METHODOLOGY...................................................................................................................................57 6.1 Procedure......................................................................................................................................57 6.2 The Two Phases Of The Project ...................................................................................................58 6.3 The Respondents..........................................................................................................................59 6.4 Selection of the Respondents .......................................................................................................59 6.5 Statistical Analysis ........................................................................................................................60 6.6 Ethics Approval .............................................................................................................................60 7.0 MAJOR FINDINGS OF THE RESEARCH PROJECT...........................................................................63 7.1 Positive Views Concerning Brydges Services...............................................................................63 7.2 Gaps/Disadvantages In The Delivery Of Brydges Services ..........................................................64 7.3 Impact Of Gaps/Disadvantages ....................................................................................................66 7.4 Suggestions And Alternatives .......................................................................................................67 7.5 Apparent Discrepancies Between The Perspectives Of In-Custody Accused Persons And Police Officers – Tentative Findings........................................................................................................69 8.0 DISCUSSION AND CONCLUSIONS.....................................................................................................71 8.1 Impact Of The Brydges Case On Provincial Legal Aid Services ...................................................71 8.2 The Impact Of The Brydges Caution On Police Officers ...............................................................72 8.3 The Impact Of Brydges Services On Arrested Or Detained Suspects...........................................73 8.4 The Need To Ensure Continuity In The Delivery Of Legal Aid Services........................................74 8.5 The Need To Enhance The Levels Of Funding For Legal Aid Services ........................................74 8.6 Resolving The Problem Of Language ...........................................................................................74 8.7 Education And Training.................................................................................................................75 8.8 Alternative Models For The Delivery Of Brydges Services............................................................75 8.9 Potential Obstacles To Change.....................................................................................................77 8.10 The Model Implemented In England And Wales For Delivery Of 24-Hour Legal Aid Services.....78 8.11 Conveying Information About Charter Rights To Suspects In Custody ........................................78 REFERENCES ............................................................................................................................................81 TABLES Table 1 – Summary of the Review of the Case Law: Supreme Court Cases................................ 12 Table 2 – Summary of the Review of the Case Law: Appellate Court Cases............................... 33 Table 3 – Participants of this Project during Phase I .................................................................... 64 Table 4 – Participants of this Project during Phase II................................................................... 64 Table 5 – Advantages of Brydges Services................................................................................... 70 Table 6 – Gaps/Disadvantages of Brydges Services ..................................................................... 70 Table 7 – Impact of Gaps/Disadvantages of Brydges Services..................................................... 72 Table 8 – Suggestions/Alternatives............................................................................................... 74 Table 9 – The provision of Brydges Services: A Provincial Outlook........................................... 77 APPENDICES Appendix A – Summary of Major Findings ................................................................................. 97 Appendix B – Informed Consent by Subjects to Participate in a Research Project or Experiment...................................................................................................... 115 Appendix C – Information Sheet for Participants....................................................................... 117 Appendix D – Subject Feedback Form ....................................................................................... 119 A Review of Brydges Duty Counsel Services in Canada i EXECUTIVE SUMMARY Chapter 1: Introduction The overarching purpose of this research project is to conduct a comprehensive analysis of the nature and scope of the Brydges services that are currently available to arrested or detained persons across Canada. Chapter 2: The Brydges Decision And The Right To Counsel: A Review Of The Case Law This chapter reviews the legal principles articulated by the Supreme Court of Canada in the Brydges case and examines the case law that has subsequently interpreted and developed these principles. The review of post-Brydges cases focuses on decisions made by the Supreme Court of Canada and the various provincial and territorial courts of appeal. Supreme Court of Canada • The police must inform an arrested or detained suspect of the existence and availability of the relevant systems of duty counsel and legal aid that are in operation in the jurisdiction concerned (Brydges). • The police must provide an arrested or detained suspect with basic information about how to access the free legal services that are provided in the jurisdiction concerned. In particular,
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