Bad legal advice led convicted Calgary murderer Phuc Nguyen to miss his window of opportunity to commence a faint hope bid to reduce his parole ineligibility, he testified Thursday.
But that didn’t amount to a breach of his Charter rights, Justice David Labrenz ruled, in denying the killer’s request to file his application outside of the period allowed under the Criminal Code.
Defence lawyer Alexandra Seaman, who was fired by Nguyen before proceedings concluded in Calgary Court of King’s Bench after a falling out with her client, had argued Correctional Service Canada employees didn’t do enough to ensure the killer was aware when he must file his bid.
But Labrenz agreed with Crown prosecutor Carla MacPhail that CSC wasn’t the cause of Nguyen’s decision to not file his application for a judicial review of whether he was a suitable candidate for a hearing before a Calgary jury.
Under the Criminal Code, murderers still entitled to faint hope applications, which were abolished on Dec. 2, 2011, have 90 days from the 15th anniversary of their incarceration to commence the judicial process.
MacPhail said for Nguyen to successfully prove his liberty right under the Charter was breached, he’d have to establish “the harm complained about was caused by a state agent. Because if not, the Charter does not apply.”
Nguyen, under cross-examination by MacPhail, admitted that from the outset correctional officials indicated his first date of eligibility to initiate a faint hope application was Oct. 3, 2021, exactly 15 years to the day of his arrest for fatally stabbing his wife’s lover.
But Nguyen said after applying to Legal Aid on Sept. 22, 2021, he was ultimately assigned a lawyer who incorrectly told him his eligibility date was in 2023, 15 years from the date of his June 20, 2008, conviction for first-degree murder in the Oct. 2, 2006, death of Benny Nguyen, no relation.
Seaman said CSC had obligations under the Corrections and Conditional Release Act to ensure her client was aware of his right to pursue an application.
Labrenz found Nguyen’s evidence, both under cross-examination, conducted via video link from the Williams Head Institution on Vancouver Island, and in a sworn affidavit, contained unreliable information.
He also determined that bad legal advice provided by a non-state agent could not amount to a breach of the offender’s Charter rights.
“I agree with the argument put before the court from the Crown that even if what Mr. Nguyen said in his testimony and his affidavit was reliable and credible, the difficulties he’s suffered from in terms of applying for parole does not rise from a state action or inaction,” Labrenz said.
The judge also noted Nguyen was given an opportunity to adjourn his application to expand it to include an argument ineffective counsel resulted in a miscarriage of justice, but he declined that offer.
“As such, that issue is not presently before me,” Labrenz said.
Because it’s been nearly five years since his first window of opportunity closed, Nguyen is entitled to commence a judicial application for a jury hearing on Jan. 3, 2027, but must do so within 90 days of that date.
He’s currently serving a life sentence without the right to seek parole for a minimum 25 years.
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