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....