



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Van Duong, 2018 ONCA 115

DATE: 20180206

DOCKET: C61350

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trung Van Duong and Chanthone Louangrath

Appellants

Daniel C. Santoro and Andrew Furgiuele, for the
    appellants

Jennifer Conroy, for the respondent

Heard: February 1, 2018

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

[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.

[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.

[4]

Mr. Louangraths 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.

[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.

[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 Duongs 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.

[9]

With respect to the s. 7 claim, Mr. Louangrath did not identify any
    error in the application judges reasons.

[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.


