R. v. Brydges [1990] 1 S.C.R. 190: Right to counsel -- Affordability of counsel -- Legal Aid and duty counsel -- Accused informed of his right to counsel -- Accused requesting information about Legal Aid and expressing concerns about being unable to afford a lawyer -- Accused not informed at that time of the availability of Legal Aid and duty counsel -- Whether accused's right to counsel infringed -- Whether police had the duty to inform the accused of the availability of Legal Aid and duty counsel -- Whether accused waived his right to counsel-- Admissibility of evidence -- Bringing administration of justice into disrepute

Present: Lamer, Wilson, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Constitutional law -- Charter of Rights -- Right to counsel -- Affordability of counsel -- Legal Aid and duty counsel -- Accused informed of his right to counsel -- Accused requesting information about Legal Aid and expressing concerns about being unable to afford a lawyer -- Accused not informed at that time of the availability of Legal Aid and duty counsel -- Whether accused's right to counsel infringed -- Whether police had the duty to inform the accused of the availability of Legal Aid and duty counsel -- Whether accused waived his right to counsel -- Canadian Charter of Rights and Freedoms, s. 10(b).

Constitutional law -- Charter of Rights -- Right to counsel -- Whether an accused has the right in all cases to be informed of the availability of Legal Aid and of duty counsel -- Canadian Charter of Rights and Freedoms, s. 10(b).

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Accused's right to counsel infringed -- Statements obtained in violation of the Charter -- Whether accused's statements should be excluded -- Canadian Charter of Rights and Freedoms, s. 24(2).

The accused, a resident of Alberta, was arrested in Manitoba in connection with a murder which took place in Edmonton. He was charged with second degree murder and informed without delay of his right to retain and instruct counsel. Upon arrival at the police station, the accused was placed in an interview room and, at the beginning of the interrogation, given a second opportunity to call a lawyer. The accused asked the investigating officer if they had Legal Aid in Manitoba because he could not afford a private lawyer. The officer, who was from Edmonton, answered that he imagined that they had such a system in Manitoba. The officer then asked the accused if he felt there was a reason for him to wanting to talk to a lawyer. The accused answered "Not right now, no". During the interrogation which followed, the accused made a number of statements. He later interrupted the questioning and requested a Legal Aid lawyer. The Legal Aid lawyer contacted by the police advised the accused not to say anything more and the interrogation ended. At trial, the judge found that, at the beginning of the interrogation, the accused essentially requested the assistance of counsel but that he was unsure if he could afford one. Because the police did not assist the accused in exercising his right to counsel by determining the availability of Legal Aid at that time, the trial judge held that the accused's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were violated, and the accused's statements were excluded pursuant s. 24(2) of the Charter. As a result, the accused was acquitted. A majority of the Court of Appeal set aside the acquittal and ordered a new trial.

Held: The appeal should be allowed.

The Court of Appeal erred in reversing the trial judge's finding that the accused was essentially requesting the assistance of counsel but felt that his inability to afford a lawyer was an impediment to the exercise of his right to retain one. This finding was supported by the evidence and should not have been disturbed.

Where an accused expresses a concern that the right to counsel depends upon the ability to afford a lawyer, it is incumbent on the police to inform him of the existence and availability of Legal Aid and duty counsel. This additional duty imposed on the police in these circumstances is consistent with the purpose underlying s. 10(b) of the Charter. A detainee is advised of the right to retain and instruct counsel without delay because it is upon arrest or detention that a detainee is faced with an immediate need for legal advice, especially in respect of how to exercise the right to remain silent. Here, the accused's s. 10(b) rights were violated. The failure of the police to inform the accused of the existence of Legal Aid or duty counsel at the time that he first indicated a concern about his ability to pay a lawyer, was a restriction on the accused's right to counsel in so far as the accused was left with an erroneous impression of the nature and extent of his s. 10(b) rights. While the investigating officer was from Alberta, and understandably was not aware of the specific provisions that Manitoba had set up in respect of duty counsel or Legal Aid, the information was readily at hand at the police detachment from the officers who were from Manitoba, and who were acquainted with the province's Legal Aid scheme.

The accused did not waive his right to retain and instruct counsel when he responded "Not right now, no" to the query about whether there was a reason for him to want to talk to a lawyer. The comment took place immediately after the accused requested information about Legal Aid and expressed his concern about being unable to afford a lawyer. The accused was left with the mistaken impression that his inability to afford a lawyer prevented him from exercising his right to counsel. In this context, the accused did not understand the full meaning of his right to counsel and was not in a position to carefully consider the consequences of waiving his s. 10(b) rights.

The evidence obtained as a result of the s. 10(b) violation was properly excluded by the trial judge. Under s. 24(2) of the Charter, there is no need for an accused to demonstrate a causal link between the Charter infringement and the evidence obtained thereby. A requirement of strict causation is inappropriate under that section. Section 24(2) is implicated as long as a Charter violation occurred in the course of obtaining the evidence. Here, the statements were obtained in the course of the violation of s. 10(b) of the Charter and the admission of this evidence would bring the administration of justice into disrepute. First, the fairness of the trial would be adversely affected since the admission of the statements would infringe on the accused's right against self-incrimination. Second, the Charter violation was a serious one. Although the conduct of the officer was not flagrant or blatant, it was a serious error not to inform the accused of the existence of Legal Aid or duty counsel especially when he explicitly raised the issue, and in light of the fact that such information was readily at hand. Third, in balancing the admission of the evidence against the exclusion of the evidence, the Crown conceded that the statements represented, at most, evidence of consciousness of guilt and admissions of recent possession of property stolen from the home of the victim. Finally, the mere fact that an accused is charged with a serious offence provides no justification for admitting the evidence where there has been a serious Charter violation and the admission of the evidence would affect the fundamental fairness of the trial.

Per Lamer, Wilson, Gonthier and Cory JJ.: As part of the information component of the constitutional guarantee under s. 10(b) of the Charter, a detainee should be informed in all cases of the existence and availability of the applicable systems of duty counsel and Legal Aid plans in the jurisdiction. It is consistent with the purpose underlying s. 10(b) of the Charter to impose such a duty on the police in all cases of detention. This additional duty imposed on the police, however, may have an effect on the consideration of what constitutes "reasonable diligence" of a detainee in pursuing the right to counsel. There would be a transition period of thirty days from the date of this judgment to enable the police to properly discharge their new burden and to prepare new cautions.

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