R. v. Brydges (1990), 103 N.R. 282 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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William Brydges (appellant) v. Her Majesty The Queen (respondent)
(20583)
Indexed As: R. v. Brydges
Supreme Court of Canada
Lamer, Wilson, La Forest, L’Heureux-Dubé, Gonthier, Cory and McLachlin, JJ.
February 1, 1990.
Summary:
The accused was acquitted of second degree murder following a directed verdict to the jury. The trial judge excluded an inculpatory statement from evidence under s. 24(2) of the Charter of Rights and Freedoms, because the accused’s s. 10(b) right to counsel had been denied. The Crown appealed.
The Alberta Court of Appeal, Harradence, J.A., dissenting, in a judgment reported 84 A.R. 259, allowed the appeal and ordered a new trial. The court held that the accused’s right to counsel had not been denied, therefore, the statement should not have been excluded. The accused appealed.
The Supreme Court of Canada allowed the appeal and restored the acquittal.
Civil Rights – Topic 4601
Right to counsel – Purpose of – The Supreme Court of Canada stated that the right to counsel was aimed “at fostering the principles of adjudicative fairness”, one of which was “the concern for fair treatment of an accused person” – See paragraph 13.
Civil Rights – Topic 4604
Right to counsel – Denial of – What constitutes – A 22 year old accused arrested for murder was advised of his right to counsel – The trial judge found as a fact that the accused was interested in exercising his right, but felt that his inability to afford a lawyer impeded his right to obtain one – The Supreme Court of Canada agreed with the trial judge that the accused did not fully understand his right to counsel; he mistakenly believed his right to counsel was contingent on his ability to pay – The court stated that the accused did not waive his right to counsel; that the police should have informed him of the availability of duty counsel and Legal Aid – The court held that the accused’s inculpatory statement was taken in violation of his right to counsel under s. 10(b) of the Charter and was to be excluded from evidence under s. 24(2) to avoid bringing the administration of justice into disrepute.
Civil Rights – Topic 4609
Right to counsel – Duty to explain right to counsel – The Supreme Court of Canada stated that “s. 10(b) of the Charter imposes at least two duties on the police in addition to the duty to inform the detainee of rights. First the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, and second, the police must refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity. The second duty includes a bar on the police from compelling the detainee to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the right to counsel” – See paragraph 13.
Civil Rights – Topic 4609
Right to counsel – Duty to explain right to counsel – The Supreme Court of Canada stated that “it should be part of the information component of the constitutional guarantee under s. 10(b) that accused persons should be told as a matter of routine in all cases of arrest or detention of the existence and availability of duty counsel and Legal Aid plans. In my view, it is consistent with the purpose underlying s. 10(b) of the Charter to impose that duty on the police in all cases of detention” – The court stated that since a new duty was imposed on police in advising accused of their rights under s. 10(b), a transition period of 30 days from the date of judgment was appropriate and sufficient to allow police to react and prepare new cautions – See paragraphs 20 to 27.
Civil Rights – Topic 4612
Right to counsel – Waiver or abandonment of – The Supreme Court of Canada stated that “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” – The court stated that any alleged waiver “is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process” – See paragraph 14.
Civil Rights – Topic 4620.4
Right to counsel – Duty of accused to act diligently – The Supreme Court of Canada stated that “the rights set out in the Charter are not absolute. Indeed, this court has held that the right to retain and instruct counsel must be exercised diligently by the detainee. If the detainee is not diligent, then the correlative duties on the police are suspended” – See paragraph 14.
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – [See Civil Rights – Topic 4604 above].
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Exclusion of evidence – The Supreme Court of Canada stated that “a requirement of strict causation is not appropriate under s. 24(2). Rather, s. 24(2) is implicated as long as a Charter violation occurred in the course of obtaining the evidence” – See paragraph 19.
Civil Rights – Topic 8550
Canadian Charter of Rights and Freedoms – Interpretation – Bring the administration of justice into disrepute – [See Civil Rights – Topic 4604 above].
Practice – Topic 8800
Appeals – Duty of appellate court regarding fact findings by trial judge – A trial judge made a fact finding that an accused advised of his right to counsel was interested in obtaining counsel, but felt his right was contingent on his ability to pay – The Court of Appeal reversed the fact finding – The Supreme Court of Canada stated that the trial judge’s fact finding was supported by the evidence and, accordingly, should not have been reversed – See paragraph 7.
Cases Noticed:
R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R.(3d) 289, refd to. [para. 12].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 27 B.L.R. 297; 33 Alta. L.R.(2d) 193; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641; 2 C.P.R.(3d) 1; [1984] 6 W.W.R. 577; 41 C.R.(3d) 97; 84 D.T.C. 6467, refd to. [para. 13].
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481, refd to. [para. 13].
R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 13].
R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 13].
R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C 93, refd to. [para. 14].
R. v. Parks (1988), 33 C.R.R. 1, refd to. [para. 17].
R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 19].
R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 19].
Miranda v. Arizona (1965), 384 U.S. 426, refd to. [para. 20].
R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481, refd to. [para. 27].
Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 27].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 10(b), sect. 24(2).
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(3)(d) [para. 23].
Authors and Works Noticed:
Wilkins, James, Legal Aid in the Criminal Courts (1975), p. 12 [para. 17].
Counsel:
Richard A. Stroppel, for the appellant;
Jack Watson, for the respondent.
Solicitors of Record:
Brimacombe, Sanderman & Stroppel, Edmonton, Alberta, for the appellant;
Attorney General for Alberta, Edmonton, Alberta, for the respondent.
This appeal was heard on November 10, 1989, before Lamer, Wilson, La Forest, L’Heureux-Dubé, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada.
On February 1, 1990, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
Lamer, J. (Wilson, Gonthier and Cory, JJ., concurring) – see paragraphs 1 to 28;
La Forest, J. (L’Heureux-Dubé and McLachlin, JJ., concurring) – see paragraph 29.
