R. v. Brydges

[1990] 1 S.C.R. 190



What should the accused be informed in lieu of his right under section 10(b) of the Charter of Rights?



This Court has on numerous occasions stated that the proper approach to interpreting the meaning of the rights and freedoms guaranteed by the Charter is to adopt a purposive analysis: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. In respect [page203] of s. 10 of the Charter, this Court has made clear that the right to counsel is, to cite the words of Wilson J. in Clarkson, supra, at p. 394, aimed "at fostering the principles of adjudicative fairness", one of which is "the concern for fair treatment of an accused person". � There is a duty then, on the police to facilitate contact with counsel because, as I stated in R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43: �The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. ... For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence.� (Para 13); A detainee may, either explicitly or implicitly, waive his right to retain and instruct counsel, although the standard will be very high where the alleged waiver is implicit. (Para 14); In my view then, these policy concerns in respect of making police officers' duties under the Charter clear and of ensuring that all detainees are made aware of the existence of duty counsel and Legal Aid, complement each other, and support the view that information about the existence and availability of duty counsel and Legal Aid plans should be part of the standard s. 10(b) caution upon arrest or detention. (Para 20) This brief overview of Legal Aid and duty counsel systems reveals the extent of Canada's recognition of the importance of the right to counsel for all persons detained in connection with criminal offences. This recognition extends beyond our own affirmation of the right in the Canadian Bill of Rights, R.S.C., 1985, App. III, and the Charter to our international commitments. For example, Canada is a signatory to the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, which contains the following provision: Article 14 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (d) To be tried in his presence and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (Para 23) Indeed, if the purpose of s. 10(b) is to assist initially persons upon their being detained as regards their rights and as regards their exercise thereof, we might well have to put time limits, not on access to counsel, but on access to counsel of one's choice. (Para 25)