Does a police officer need to remain with the accused while counsel is giving instructions?

Counsel for the accused has also made reference to Regina v. Levy (1973), 1973 CanLII 1338 (NS PC), 21 C.R.N.S. 292, 11 C.C.C. (2d) 521 (N.S.). In that case counsel was not permitted to take instructions unless a police officer remained with the accused. In those circumstances it would not have been possible for the accused to communicate in confidence with his lawyer. In effect, the police officers insisted, in the words of Prowse J.A. in the Balkan case, “in being in a position to overhear the communication between them.” That is not the situation in the instant case.

In Regina v. Penner, Hall J.A. concluded his judgment with the following statement [p. 96]: “What circumstances short of complete privacy would not constitute a substantial interference with the right of an accused to retain and instruct counsel need not be decided. It is sufficient to say that in the present case privacy could and should have been granted and failure to do so affords ‘reasonable excuse’ for refusal to comply with the demand.”