R. v. Brydges [1990] 1 S.C.R. 190

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 (page 191) 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.

Lamer J at 217: Before concluding, it is my view that in light of the imposition of the additional duty on the police as part of the information component of the s. 10(b) caution, a transition period is appropriate. This transition period is needed to enable the police to properly discharge their new burden, more specifically to take into account the reality that police officers often use printed cards from which they read the caution given to detainees. In my view a period of thirty days from the date of this judgment is sufficient time for the police forces to react, and to prepare new cautions. I note, in passing, that the imposition of a transition period is not unusual. In Mills v. The Queen, [1986] 1 S.C.R. 863, for example, I stated that a transitional period was appropriate in the context of the application of the principles developed under s. 11(b) of the Charter. In addition, in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, this Court established a period of temporary validity for the Acts of the Manitoba Legislature, (page 218) in order to allow for the translation, re-enactment, printing and publishing of previously unilingual legislation.

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