This section has been considered by the Supreme Court of Canada in Therens (supra) and that judgment should be borne in mind in considering the earlier decisions of lower courts in a prison law context. Furthermore, the decisions of the Supreme Court of Canada in Cardinal and Oswald (supra) and Miller v R and Morin v National Special Handling Unit Review Committee et al should also be borne in mind, even though they involve circumstances arising prior to the Charter but were decided after the Charter came into effect and after the court's decision in Therens. These latter decisions are important because they hold that the remedy of habeas corpus is available to determine the legality of one's detention in solitary confinement (administrative segregation) or in special handling units. Such forms of detention are clearly recognized by the Supreme Court of Canada as constituting a further deprivation of liberty by the imposition of a particular form of detention distinct and separate from that imposed on the general inmate population of a prison. Bearing in mind the duty to act fairly and probably, s7 of the Charter principles of fundamental justice would require one to be informed of the reasons for such detention. Bearing in mind the entitlement to habeas corpus to determine the legality of such forms of detention there would appear to be no reason in principle why the right to retain and instruct counsel without delay and to be informed of that right upon such detention should not be applicable as well.

    In Latham v Solicitor General of Canada et al (supra), this section was held not to apply in circumstances other than initial arrest or detention. The court was of the view that to hold otherwise in the context of prisons would impose upon the authorities a continuing day-to-day duty to advise inmates of their right to counsel. This case involved a suspension and revocation of parole and the court found that s7 of the Charter required that a parolee should have every reasonable opportunity to be represented by counsel at such hearings and that sufficient time should be given a prisoner to make all reasonable efforts to obtain counsel.