The Right to Consult Counsel in Private


It is settled law that the right to retain and instruct counsel, under s. 10(b) of the Charter, includes a corollary right to consult in private. Without the requisite degree of privacy, the constitutional right to counsel becomes illusory.

In theory, a frank exchange between an accused and counsel may require the making of incriminating statements if uttered in the presence of the police. Without privacy, the law presumes that an accused was unable to converse freely, thereby affecting his or her ability to obtain advice and make an informed decision as to what should be said or done.

R. v. O'Donnell, 2004 NBCA 26 (CanLII), at para. 6.

There is no obligation on the part of the detainee to request or inquire as to the right to consult counsel in private.

Failure to advise the accused of their right to instruct counsel in private does not amount to a breach of a right of an accused:

R. v. Haudegand (1989), 1989 CanLII 4686 (SK QB), 77 Sask.R. 280 at 280-82 (Q.B.); and R. v. Rudolph (1986), 1986 CanLII 1749 (AB QB), 32 C.C.C. (3d) 179 at 182-84 (Alta. Q.B.).

It is the accused who bears the burden of establishing, on the balance of probabilities, that her Charter right has been violated. 

In my opinion, a breach of the right to consult counsel in private may occur in two different ways. [FN]

1.   Actual invasion of privacy

While the amount of privacy need not be great, at a minimum, an accused must be able to converse with his or her lawyer without the conversation being overheard. Moreover, those who exercise their right to counsel are not required to request privacy or greater privacy than what the police are willing to provide. Furthermore, the right to consult in private extends to legal advice that is sought over the telephone and it matters not whether the advice sought is of minimal scope (for instance, whether to provide breath samples).

The Legal Test       The proper test asks whether it was more probable than not that the police did or could overhear the accused’s privileged conversation. In turn, the word “could” is to be interpreted to mean a “real” or “substantial” possibility.

R. v. O'Donnell, at para. 31.

2. Reasonable belief that the accused could not consult with counsel in private

In cases where there is no actual invasion of privacy, there may still be a breach of section 10(b) where the accused establishes that he or she believed that he or she could not retain and instruct counsel in private and further, that such a belief was reasonably held in the circumstances.

R. v. Cairns, 2004 CanLII 17588 (ON CA), at para. 10

[Without more, the mere presence of a video camera in the holding cell area from which the accused contacted counsel was not enough to found either a breach in fact, or a reasonable belief in a breach].





FN: though see R. v. Coaster, 2014 MBCA 108 (CanLII).








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