Court of Appeal for Ontario

Date: 2018-02-06 Docket: C61350

Judges: Juriansz, Watt and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Trung Van Duong and Chanthone Louangrath Appellants

Counsel

Daniel C. Santoro and Andrew Furgiuele, for the appellants

Jennifer Conroy, for the respondent

Heard

February 1, 2018

Appeal Information

On appeal from the convictions entered on November 6, 2015 and the sentences imposed on December 3, 2015 by Justice Bruce Durno of the Superior Court of Justice, and the ruling on a pre-trial Charter application by Justice Antonio Skarica of the Superior Court of Justice, dated June 18, 2014.

Reasons for Decision

Facts and Background

[1] The appellants obtained possession of a secluded residential property by means of an elaborate fraud, paying a substantial premium to an intermediary to ensure that there was no paper trail connecting them to the property. They immediately converted the house for use as a methamphetamine lab. One month later, when discovered by police executing a search warrant, the appellants attempted to flee and were arrested. The house is irremediably contaminated and must be demolished.

Charter Applications

[2] The appellants were charged with various offences related to the production and possession of methamphetamine. They brought a pre-trial application to exclude the evidence seized from the house, claiming a violation of their right to be free from unreasonable search and seizure under s. 8 of the Charter. They also claimed a violation of their rights under s. 7.

[3] The application judge determined that the appellants had no standing to bring a s. 8 claim, and dismissed the application on that basis. He also dismissed the application under s. 7 as having no factual basis. The appellants appealed both findings and their resulting convictions. Mr. Van Duong has since abandoned his conviction appeal, and it is accordingly dismissed.

Court of Appeal Decision

[4] Mr. Louangrath's appeal from conviction is also dismissed. As we explain below, the application judge made no error in concluding that the appellants lacked standing to bring a s. 8 claim, and that there was no factual foundation for a s. 7 claim.

Standing Under Section 8

[5] In determining whether the appellants had standing under s. 8, the application judge applied the non-exclusive criteria set out in R. v. Edwards, [1996] 1 S.C.R. 128. Mr. Louangrath argues that the application judge erred in his application of this test by treating one factor – the fact the appellants obtained possession of the property by fraud – as conclusive, and by not engaging in the full contextual analysis required by Edwards.

[6] We do not agree. The application judge canvassed all the applicable factors from Edwards, and concluded that they overwhelmingly led to the conclusion that the appellants lacked standing. Although the appellants had possession and control of the house, the significance of this was undermined by the elaborate fraud used to obtain possession. With respect to historical use of the property, the appellants' use of the house, for the month that they had possession, was not as a residence, but a meth lab, to be later discarded. The appellants' ability to regulate access to the property was limited: although they had the physical ability to admit and exclude others, they had no legal right to do so. Instructively, Mr. Van Duong testified that if others had arrived, insisted on staying, and calling the police, he would have fled.

Subjective Expectation of Privacy

[7] Although the application judge found that the appellants had a subjective expectation of privacy, even this seems too generous to the appellants. Allowing the appellants a subjective expectation of privacy, in this instance, would confuse the relevant sense of expectation with desire. "Expectation" can be ambiguous between two meanings, only one of which is relevant to s. 8 analysis. In the first sense, a person has an expectation of privacy where he desires privacy and believes it is unlikely, as a matter of fact, that he will be disturbed. In the second sense, a person has an expectation of privacy where she believes she will be undisturbed because she is entitled to be left undisturbed. In s. 8 jurisprudence, subjective expectation is used in this latter sense. Here, although the appellants had the desire for privacy, Mr. Van Duong's evidence that he would flee the property if confronted, suggests that the appellants did not have even a subjective expectation of privacy, even though they very much desired to be left alone and went to some considerable trouble to achieve that end.

Objective Reasonableness

[8] Even if the appellants had a subjective expectation of privacy, it could not have been objectively reasonable. The application judge did not err in concluding that there can be no reasonable expectation of privacy in circumstances where the appellants' connection to the property is so tenuous.

Section 7 Claim

[9] With respect to the s. 7 claim, Mr. Louangrath did not identify any error in the application judge's reasons.

Disposition

[10] Given the foregoing, there is no need to address the balance of the issues raised by Mr. Louangrath on his conviction appeal. The appeal is dismissed.

[11] The appellants provided no written or oral submissions in respect of their sentence appeals. Leave to appeal sentence is therefore denied.

R.G. Juriansz J.A.

David Watt J.A.

B.W. Miller J.A.