R. v. Luong (G.V.) (2000), 271 A.R. 368 (CA);
234 W.A.C. 368
MLB headnote and full text
Temp. Cite: [2000] A.R. TBEd. NO.090
Her Majesty the Queen (appellant) v. Giai Vu Luong (respondent)
(9903-0404-A; 2000 ABCA 301)
Indexed As: R. v. Luong (G.V.)
Alberta Court of Appeal
McClung, Berger and Fruman, JJ.A.
November 9, 2000.
Summary:
The accused was arrested for “driving while over .08”. He expressed a desire to contact counsel, but when provided a private room with a phone and all necessary information, it appeared that he did not attempt to contact anyone. The arresting officer waited 15 minutes before demanding a breath sample, which the accused provided. The accused was convicted, and he appealed on the basis that his Charter right to counsel had been violated.
The Alberta Court of Queen’s Bench, in a decision reported at 251 A.R. 144, allowed the appeal and entered an acquittal. The Crown appealed.
The Alberta Court of Appeal allowed the appeal and ordered a new trial.
Civil Rights – Topic 4604
Right to counsel – General – Denial of or interference with – What constitutes – The accused was arrested for “driving while over .08” – He expressed a desire to contact counsel, but when provided a private room with a phone and all necessary information, it appeared that he did not attempt to contact anyone – The arresting officer waited 15 minutes before demanding a breath sample, which the accused provided – The accused was convicted at trial – He successfully appealed to the Court of Queen’s Bench on the basis that his right to counsel had been violated – The Alberta Court of Appeal allowed the Crown’s appeal and ordered a new trial – The court stated that “questions of ‘reasonable opportunity’ and ‘due diligence’ are matters best left to the trier of fact” – The court provided guidance “for the assistance of trial judges charged with the onerous task of adjudicating such issues”.
Civil Rights – Topic 4605
Right to counsel – General – Denial of – Due to lack of time or opportunity – [See
Civil Rights – Topic 4604
].
Civil Rights – Topic 4609.1
Right to counsel – General – Duty of police investigators (incl. undercover officers) – [See
Civil Rights – Topic 4604
].
Civil Rights – Topic 4610
Right to counsel – General – Impaired driving – Demand for breath or blood sample – [See
Civil Rights – Topic 4604
].
Civil Rights – Topic 4612
Right to counsel – General – Waiver or abandonment of – [See
Civil Rights – Topic 4604
].
Civil Rights – Topic 4617.1
Right to counsel – General – Notice of – Sufficiency of – [See
Civil Rights – Topic 4604
].
Cases Noticed:
R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 12].
R. v. Smith (J.L.), [1989] 2 S.C.R. 368; 99 N.R. 372; 50 C.C.C.(3d) 308, refd to. [para. 12].
R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93; 37 C.C.C.(3d) 565, refd to. [para. 12].
R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129, refd to. [para. 12].
R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1, refd to. [para. 12].
R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353, refd to. [para. 12].
Counsel:
B.F. Taylor, for the appellant;
A. Fong, for the respondent.
This appeal was heard on October 3, 2000, by McClung, Berger and Fruman, JJ.A., of the Alberta Court of Appeal. Berger, J.A., filed the following reasons for the court on November 9, 2000.
