COURT FILE NO.: Crim J (F) 45/M

DATE: 20180608

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DUNG LE AND TUAN NGUYEN

Defendants/Applicants

H. Akin for the Crown

G. Orr, Q.C. for the Defendant Tuan Nguyen

S. O’Neill for the Defendant Dung Le

HEARD: June 4, 2018

ENDORSEMENT ON APPLICATION FOR RE-HEARING

Ricchetti, J.

THE CHARGES

[1] Mr. Nguyen and Mr. Le are charged with:

a) Possession of marijuana plants for the purpose of trafficking; and

b) Production of marijuana.

[2] The Defendants are scheduled to proceed to trial on July 18, 2018.

THE BackGround

[3] The Defendants brought a s. 8 Charter application regarding the police search and seizure of 2677 Credit Valley Rd, Mississauga (“Property”) where the police found marijuana plants growing in a residential home. The police had obtained a search warrant prior to their entry on the Property.

[4] The s. 8 Charter application was heard by Justice Sproat on March 21, 2017.

[5] Oral reasons dismissing the s. 8 Charter application were delivered in court on March 22, 2017. Justice Sproat dismissed the Defence application because, in essence, the Defendants did not have standing to bring the s. 8 Charter application, having failed to establish they had a reasonable expectation of privacy with respect to the Property.

The Position of the Defendants

[6] The Defendants submit that the law on standing was changed as a result of the Supreme Court’s decision in R. v. Jones 2017 SCC 60, [2017] 2 S.C.R. 696. The Defendants submit that the Jones decision would grant the Defendants standing to bring the s. 8 Charter application because the court should have accepted that the Crown’s allegations of possession included “knowledge” and “control”.

The Application for a Re-Hearing was Dismissed

[7] After hearing submissions from counsel, this court dismissed the Defence application for a re-hearing of the s. 8 Charter application. This court advised that written reasons would follow. These are those reasons.

THE LAW

Edwards

[8] Prior to Jones, the applicable test for reasonable expectation of privacy was set out in R. v. Edwards 1996 CanLII 255 (SCC), [1996] 1 SCR 128 at para 45:

In my view, they may be summarized in the following manner:

1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.

2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra.

3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. See Pugliese, supra.

4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra.

5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256.

7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

[9] In Edwards, the accused was charged with drug possession for the purpose of trafficking. The issue was whether the accused had standing to bring a s. 8 Charter application when the drugs were found in his girlfriend’s apartment. Applying the above analysis, the court determined that the accused had not demonstrated he had a reasonable expectation of privacy in his girlfriend’s apartment.

[10] The Edwards analysis has been applied by the courts for more than 20 years.

[11] In the past, expectation of privacy was considered in the context of either “territorial” claim of privacy (i.e. a place) or “personal” claim of privacy (i.e. on the person).

[12] Since Edwards, the courts have had to deal with the digital era, where electronic documents are created, produced and distributed by individuals. These electronic documents can sometimes be found at multiple locations, not necessarily in the possession of the person who created the electronic documents or places where the person is or had ever been. The Edwards analysis does not easily adapt to informational privacy claims. This has created a consideration of the proper approach to informational privacy claims.

Jones

[13] In Jones, at issue was text messages between the accused and a co-accused. These text messages were obtained by the police, pursuant to a search warrant, from a third party, Telus. The accused alleged that his s. 8 Charter rights had been violated.

[14] The accused did not lead evidence that he authored the text messages. Instead, the accused sought to rely on the Crown’s theory that the accused had authored the text messages. See Jones para 6.

[15] It was agreed that, if the text messages were authored by the accused, the accused would have a reasonable expectation of privacy in those text messages. See Jones para 15.

[16] The Supreme Court considered the proper approach to determine whether there was a “reasonable expectation of privacy” in the informational privacy claim advanced by the accused. See Jones para 13.

[17] In the context of this informational privacy claim, the Supreme Court stated:

[9] I conclude that an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire.

[32] In my view, that is best accomplished by concluding that counsel for a s. 8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him. In other words, where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant’s s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. Alternatively, the court may encourage prosecutors to be forthright in regards to their theory. [33]

[33] The preceding lays out an exception to the rule that a Charter applicant “bears the burden of persuading the court that [his] Charter rights or freedoms have been infringed or denied” (Collins, at p. 277). Mr. Jones is entitled to rely on this exception because, as explained above, Ontario Crown counsel tendered the Text Messages to prove that he was the author of their inculpatory contents, and admitted in the voir dire that the evidence was “very clear” in that respect. Pursuant to the Crown’s theory, then, he should have been presumed to be the author of the Text Messages for the purposes of his s. 8 application.

[34] In the instant circumstances, it follows that Mr. Jones subjectively expected privacy in records of his electronic conversation found in the service provider’s infrastructure. As the Court of Appeal correctly noted, text messages are private communications. This is not in dispute. Further, as the application judge found, Mr. Jones and his co-accused used third-party names so as to “avoid detection or association with” the Text Messages (application judgment, reproduced in A.R., vol. I, at pp. 1-41, at para. 31). This suggests they intended their communications to remain private. Accordingly, we may infer that Mr. Jones had a subjective expectation of privacy in the subject matter of the search.

(emphasis added)

Marakah

[18] In R. v. Marakah [2017] 2 SCR 608 (released the same day as Edwards), Chief Justice McLaughlin reaffirmed that the Edwards analysis remains applicable:

[10] Section 8 applies “where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; see also R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18. To claim s. 8 protection, a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e., that the person subjectively expected it would be private and that this expectation was objectively reasonable: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45; see also Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60; Katz v. United States, 389 U.S. 347 (1967), at p. 361, per Harlan J., concurring. Whether the claimant had a reasonable expectation of privacy must be assessed in “the totality of the circumstances”: Edwards, at paras. 31 and 45; see also Spencer, at paras. 16-18;Cole, at para. 39; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 26; Tessling, at para. 19. This approach applies to determining whether there is a reasonable expectation of privacy in a given text message conversation.

[11] In considering the totality of the circumstances, four “lines of inquiry” (Cole, at para. 40) guide the court’s analysis:

1. What was the subject matter of the alleged search?

2. Did the claimant have a direct interest in the subject matter?

3. Did the claimant have a subjective expectation of privacy in the subject matter?

4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

(See also Spencer, at para. 18; Patrick, at para. 27; Tessling, at para. 32.)

(emphasis added)

[19] The Supreme Court in Marakah was alive to the distinction where the privacy claim relates to informational data:

[14] The first step in the analysis is to identify the subject matter of the search: see Spencer, at para. 18; Cole, at para. 40; Patrick, at para. 27; Tessling, at para. 32. How the subject matter is defined may affect whether the applicant has a reasonable expectation of privacy. Care must therefore be taken in defining the subject matter of a search, particularly where the search is of electronic data: see Spencer, at para. 23.

[15] The subject matter of a search must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission. As Doherty J.A. stated in R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 65, a court identifying the subject matter of a search must not do so “narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action”. In Spencer, at para. 26, Cromwell J. endorsed these words and added that courts should take “a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake” and should look at “not only the nature of the precise information sought, but also at the nature of the information that it reveals”. The court’s task, as Doherty J.A. put it in Ward, is to determine “what the police were really after” (para. 67).

(emphasis added)

Le (January 25, 2018)

[20] Shortly after Edwards and Marakah were released, the Court of Appeal in R. v. Le, 2018 ONCA 56 considered the accused’s claim reasonable expectation of privacy in a “territorial space”. The Court of Appeal applied the Edwards analysis:

[35] A reasonable expectation of privacy does not exist in the air or in the abstract. One has or does not have a reasonable expectation of privacy in respect of a specified subject matter in specified circumstances: Spencer, at paras. 22-33; R. v. Marakah,2017 SCC 59, 142 W.C.B. (2d) 490, at paras. 14-15.

[36] The subject matter of a privacy claim may be the person of the claimant, a place, information, or a combination of the three: Tessling, at paras. 20-23; R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 60. The factors that will be relevant to the determination of whether a reasonable expectation of privacy exists and the weight to be assigned to any particular factor will depend in large measure on the subject matter of the privacy claim. For example, if the privacy claim is informational, the potential capacity of the information to reveal core biographical data relating to the claimant will be crucial in assessing the privacy claim. However, if the subject matter of the privacy claim is a place, control over that place will play a central role in assessing the validity of a reasonable expectation of privacy claim. If the privacy claim has both a territorial and informational component, then all of the relevant factors will be considered: see Tessling, at para. 22; Spencer, at paras. 34-40; Marakah, at paras. 38-44; R. v. Jones, 2017 SCC 60, 142 W.C.B. (2d) 343, at paras. 39-45.

[37] The appellant advances an exclusively territorial privacy claim. He maintains that the moment the police entered the Dixon backyard they violated his s. 8 right. The appellant does not assert a privacy claim that depends on what the appellant was doing or what he was saying while in the Dixon backyard. There is no informational component to this privacy claim.

[41] The trial judge (at para. 82) correctly identified R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, as the pertinent authority. Edwards dealt with a territorial privacy claim. The trial judge referred to the criteria listed in Edwards as helpful in assessing a privacy claim in respect of property. He correctly noted that apart from the appellant’s physical presence in the backyard when the police entered, none of the criteria identified in Edwards existed in this case. The appellant had no possession or control of any kind over the backyard. There was no evidence of the appellant’s historical use of, or connection with, the property. The appellant had no means by which to regulate access to the property. He was, as the trial judge indicated, “a mere transient guest in the Dixon backyard” (para. 81).

[45] Edwards identifies control as a key factor in the assessment of a territorial privacy claim. The Supreme Court recently reaffirmed that holding inJones, at para. 40:

The control and access factors have also been particularly salient in territorial privacy cases. As suggested above, land owners and tenants have a practical ability to exclude visitors from their territory and maintain a choice to be left alone by controlling access to their domicile… [Emphasis added.]

(emphasis added)

Van Duong (February 6, 2018)

[21] In R. v. Van Duong, 2018 ONCA 115, the Court of Appeal dealt with the reasonable expectation of privacy of the accused to a home (a territorial claim of privacy). Again, the Court of Appeal applied the Edwards analysis in these circumstances:

[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 CanLII 255 (SCC), [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.

[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.

[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.

(emphasis added)

Murray (May 16, 2018)

[22] In R. v. Murray 2018 ONSC 3053, the police searched a motel room with a search warrant. The motel room was rented by a female friend of the accused. The accused had been staying there for two or three days. This was a territorial claim of privacy. The Crown submitted that the accused did not have standing to bring the s.8 Charter application. Justice Molloy applied an Edwards analysis and determined that the accused’s rights with respect to the room were tenuous, being only a casual friend of the renter, only visiting two or three days, did not have a key and did not contribute to the expenses. Justice Molloy concluded that the accused did not have standing to bring the application.

[23] Defence counsel in Murray submitted that Edwards was overruled by Jones and Marakah. The argument advanced was similar to the argument advanced on this application. Justice Molloy dismissed this argument:

[22] Mr. Bytensky submitted that the Supreme Court of Canada’s decision in Edwards is from a “bygone era” and has been effectively overruled by the Court’s more recent articulation of the expectation of privacy test in R. v. Marakah. I do not see the decision in Marakah as having completely changed the law of search and seizure, nor do I see it as overruling Edwards. The issue in Marakah was whether a person who had sent a text message had standing to challenge a police search of the phone of the person who received that message. The majority of the Court held that Mr. Marakah had a reasonable expectation of privacy in the text message, even after it had been sent and received by another person, and that he therefore had standing to challenge the constitutionality of the search of the other person’s phone. In her analysis, the Chief Justice (writing for the majority) referred to a number of factors that courts had referred to over the years to assist in determining whether it was reasonable to expect privacy in particular circumstances, Edwards being one of the cases cited. The Chief Justice then went on to explore the concept of the place of the search as a helpful factor in determining the right to privacy. She noted that this factor was largely developed in the context of territorial privacy interests and that digital subject matter did not fit easily within those structures. It is difficult to determine what is the “place” of a digital conversation. The Chief Justice specifically held that “control or regulation of access to a place is relevant to a reasonable expectation of privacy,” again citing Edwards. She then went on to note that the place of the search is merely one of several factors and not necessarily determinative, which is not new law. Likewise, the Chief Justice held that the factor of control is not always dispositive of whether there is a reasonable expectation of privacy. Applying the same principles established in Edwards, the majority concluded that when seen in context and bearing in mind the idiosyncrasies of digital messages, a person has a reasonable expectation of privacy in respect of the text messages on the recipient’s phone. At no point in this analysis did the Court determine that it had now established an entirely new test for dealing with the principle of reasonable expectation of privacy, nor did the Court seek to reverse, or even modify, the application of Edwards in the traditional contexts in which it has historically been applied.

[23] I do not agree with the submission of the defence that the application of the Marakah decision requires a consideration of the subject matter of the search, rather than the place of the search and that if the subject matter of the search is the personal property of the accused, then he has a reasonable expectation of privacy in it. Taking the line of analysis suggested by defence counsel here, would completely emasculate the existing jurisprudence and essentially eliminate all consideration of standing. Upon establishing ownership in the property, a reasonable expectation of privacy would be established, and the owner of the property would have standing to challenge its seizure no matter where the property was located. Such an interpretation would reverse decades of jurisprudence. If that had been the intention of the Court in Marakah, I would have expected a clear direction to that effect. In my opinion, that decision is applicable to electronic messages, and not to tangible personal property.

(emphasis added)

ANALYSIS

[24] In this case, the expectation of privacy alleged by the accused relates to the Property. This is a territorial claim of privacy. The police searched the Property. There is no informational component in the present case. There is no personal privacy issue in the present case.

[25] This court adopts the reasoning of Justice Molloy that Jones and Marakah did not overrule Edwards as suggested by the Defence. This would effectively create “automatic” standing in all “territorial” privacy claims.

[26] Jones provides that an accused can rely on the alleged Crown facts as true for the purpose of a s. 8 Charter application. This was applied in an informational privacy claim.

[27] Even if this court were to rely on the allegations of the Crown in the charges, this application would be dismissed.

[28] It is important to consider exactly what it is that the Crown is alleging in this case on both charges.

[29] On the production charge, it is not necessary that the Crown prove knowledge and control of the Property, only that the marijuana plants were produced by the accused. The Defence application has no merit whatsoever as it relates to the production charge since possession is not an essential element of that charge. There are no facts to be assumed which would assist the Defence in its s. 8 Charter application.

[30] I agree with the Crown that, on the possession charge, it alleges the accused had possession of the marijuana plants – essentially that they had knowledge of and control of the marijuana plants. There is no need for the Crown to also prove that the accused had possession of the Property. The Property might have been abandoned. The accused may have been visitors. The accused may have been trespassers. None of this would make a difference on what the Crown must prove at trial.

[31] The Defence misconstrues Jones to suggest that the Crown’s allegation is that the accused had possession of the Property and, hence, a privacy interest in the Property. The Crown need not go that far.

[32] For example, if marijuana plants were grown in remote part of a public park, an accused would and could not have a reasonable expectation of privacy in the place – the public park. Simply because the Crown alleges that the accused produced the marijuana plants in the park would not be sufficient to establish a reasonable expectation of privacy in the park. If the Crown proved beyond a reasonable doubt that the accused had possession of the marijuana plants in the park, the accused would be guilty of possession.

[33] As can be seen in Le and Van Duong (consistent with para 40 of Jones), an Edwards analysis, with particular emphasis on control and access factors, remains appropriate for territorial claims of privacy. This is the very analysis conducted by Justice Sproat to arrive at his determination that the accused had no standing to bring the s. 8 Charter application.

[34] Even if it was appropriate to use the “exception” in Jones and assume the facts alleged by the Crown are true for the s. 8 Charter application in this case, it would have made no difference to the analysis conducted by and decision of Justice Sproat.

CONCLUSION

[35] The Defence Application for a re-hearing is dismissed.

Ricchetti, J.

Released: June 08, 2018

COURT FILE NO.: Crim J (F) 45/M

DATE: 20180608

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DUNG LE and TUAN NGUYEN

COUNSEL: H. Akin for the Crown

G. Orr, Q.C. for the Defendant Tuan Nguyen

S. O’Neill for the Defendant Dung Le

ENDORSEMENT ON Application for Re-Hearing

Ricchetti, J.

Released: June 08, 2018