R. v. Nguyen et al Date:, 2011 BCPC 517

Citation: R. v. Nguyen et al Date: 20111116 2011 BCPC 0517 File No: 201799-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THU THI NGUYEN, THI NGOC BICH NGUYEN RULING ON STANDING APPLICATION OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: Peter Eccles, Michelle Wiancko Counsel for Thi Ngoc Bich Nguyen : Gloria Ng Counsel for Thu Thi Nguyen : Shelley Sugarman

Place of Hearing: Vancouver , B.C. Date of Hearing: November 2, 4, 8, 2011 Date of Ruling: November 9, 2011 Date of Reasons: November 16, 2011 RULING ON STANDING OF THU THI NGUYEN & THI NGOC BICH NGUYEN TO CHALLENGE SEARCH WARRANT FOR 2140 KINGSWAY AVENUE NATURE OF APPLICATION [ 1 ] Ms. Thu Thi Nguyen (referred to in this ruling as “Thu Nguyen”) and Ms. Thi Ngoc Bich Nguyen (referred to in this ruling as “Bich Nguyen”) wish to challenge the validity of the search warrant which was the basis for a June 8, 2005, search of 2140 Kingsway Avenue (“2140 Kingsway”) Vancouver, British Columbia.

That location was the business premises of Vietnam Travel Inc., one of the original co-accused in these proceedings. It is asserted that other businesses may have used 2140 Kingsway for their business activities. [ 2 ] Both Thu Nguyen and Bich Nguyen assert they had a reasonable expectation of privacy in relation to 2140 Kingsway. The Crown maintains that neither applicant has standing to challenge the search warrant because they did not have a reasonable expectation of privacy at the business premises located at 2140 Kingsway.

PRIOR PROCEEDINGS [ 3 ] Court proceedings relating to the charges on Information 201799-1 began in early August 2011. On August 8 to 10, 2011, a stand alone voir dire was held on Bich Nguyen’s application to exclude evidence. Bich Nguyen asserted there had been multiple breaches of her ss. 8, 9, and 10 Charter rights on May 17, 2005, during her initial interaction with police and on June 8, 2005, when the police attended at 2140 Kingsway to execute a search warrant. The ruling on that application was issued October 26, 2011, and a supplementary ruling was issued on November 2, 2011.

I found that the police had failed to give Bich Nguyen the s. 10(

b) Charter rights at the beginning of the investigative detention and this was a breach of s. 10 (b). However, after conducting a s. 24 (2) analysis, I concluded that a balancing the factors set out in R. v. Grant 2009 SCC 32 , supported the admission of the evidence that was gathered following the s. 10 (

b) breach rather than its exclusion. [ 4 ] On November 1, 2011, counsel for Vietnam Travel Inc. applied for a judicial stay of proceedings on the basis that Vietnam Travel Inc. was dissolved on August 13, 2007. After hearing from counsel, I was satisfied that a stay of proceedings was appropriate and therefore granted the application. Consequently, Vietnam Travel Inc. is no longer a party in these proceedings and accordingly, the style of cause has been changed. BACKGROUND [ 5 ] Thu Nguyen, Bich Nguyen, along with Mr. Nam Hoang Nguyen , (“Nam Nguyen”) and Vietnam Travel Inc., were charged with the following counts (paraphrased): (

a) Bich Nguyen is charged with having dealt with $15,543,981 (Canadian) with the intent to conceal or convert those funds knowing that those funds were obtained or derived directly or indirectly as a result of the commission of offences under the Controlled Drugs and Substances Act . In doing so, she is alleged to have committed an offence contrary to s. 462.31 of the Criminal Code of Canada (the Code ”). This offence is alleged to have occurred between September 1, 2003, and May 18, 2005, at or near Vancouver, British Columbia and Toronto, Ontario. (

b) Bich Nguyen is also charged with unlawfully possessing $174, 530 knowing that all or part of that money was obtained directly or indirectly as a result of the commission of offences under the Controlled Drugs and Substances Act . That offence is alleged to have occurred on June 17, (sic) 2005, at Vancouver, British Columbia. (

c) Thu Nguyen is charged with having dealt with $7,229,880 (Canadian) knowing that all or part of those funds were obtained or derived directly or indirectly as a result of the commission of offences under the Controlled Drugs and Substances Act . That offence is alleged to have occurred between July 15, 2003, to February 9, 2005, at or near Vancouver, British Columbia and Toronto, Ontario. (

d) Nam Nguyen is charged with having dealt with $1,330,160 (Canadian) knowing that all or part of those funds were obtained or derived directly or indirectly as a result of the commission of offences under the Controlled Drugs and Substances Act . That offence is alleged to have occurred between August 11, 2003, to August 30, 2003, at or near Vancouver, British Columbia. (

e) Bich Nguyen, Thu Nguyen, Nam Nguyen and Vietnam Travel Inc. are all charged with having dealt with $24,104,021 (Canadian) knowing that all or part of those funds were obtained or derived directly or indirectly as a result of the commission of offences under the Controlled Drugs and Substances Act . That offence is alleged to have occurred between July 15, 2003, to May 18, 2005 at or near Vancouver, British Columbia and Toronto, Ontario.

[ 6 ] On June 7, 2005, a search warrant was issued pursuant to s. 487 of the Code authorizing a search of the business premises at 2140 Kingsway, Vancouver, British Columbia and any computer system located in that place. A copy of the search warrant is attached as Appendix A to this ruling. (NB - The warrant is not attached to the published version). The search warrant was issued on the basis of an Information to Obtain (“the ITO”) sworn by Corporal Kaare Kolot, an officer with the Royal Canadian Mounted Police.

THU NGUYEN’S STANDING APPLICATION Position of Thu Nguyen [ 7 ] Thu Nguyen seeks standing to challenge the search warrant issued June 7, 2005. She seeks to have evidence obtained as a result of the execution of the search warrant excluded on the basis that the warrant is invalid on its face and the manner of search was unreasonable. Thu Nguyen relies on the sworn statements of Corporal Kolot in the ITO.

She asserts that the search warrant was executed at offices of businesses registered as belonging to her located at 2140 Kingsway. [ 8 ] Thu Nguyen maintains the following information from the ITO supports her position that she had an expectation of privacy in the premises at 2140 Kingsway: 1. A company called Vietnam Travel Inc. had records and a registered mailing office at No. 102 – 2252 Kingsway. That company last filed a return in 2004. 2. According to the City of Vancouver business licence look up system that company had gone out of business. 3.

According to BC Corporate Registry, Vietnam Travel Centre and Trans Vietnam Money Services were registered as firm names or trade names associated with Thu Nguyen. 4. According to the City of Vancouver business licence look up system two business licences were issued to Thu Nguyen for those businesses at 2140 Kingsway. She is described as the “business name/owner”. 5. The police observed signs at 2140 Kingsway with the names Vietnam Travel and Trans Vietnam Money Services. 6.

The police were given authority under the search warrant to search for documents from Trans Vietnam Money Services which Thu Nguyen submits was her company. [ 9 ] Thu Nguyen acknowledges that the burden of persuasion to establish standing and an expectation of privacy in the premises falls on her. She submits the burden of persuasion means she must establish it was more “probable than not” that she had an expectation or right of privacy in the business offices. Thu Nguyen maintains she had such a right.

The ITO indicates that two of the businesses to be searched were Vietnam Travel Centre and Trans Vietnam Money Services. Thu Nguyen argues she was their owner and the office and businesses were hers.

She argues that a person does not have to be seen at his place of business in order to establish an expectation of privacy in his businesses or the place where his business is located Thu Nguyen argues there is no evidence to suggest that she had given up possession or control of the business premises to any other occupant. [ 10 ] Thu Nguyen relies on the following authorities to support her submissions: An excerpt from The Law of Search and Seizure in Canada , 8 th edition –

Chapter 1; R. v. Hurry 2002 ABQB 420 ; R. v. Khuc 2000 BCCA 20 ; R. v. Vi 2008 BCCA 48 ; R. v. Smith 2003 BCSC 1118 ; R. v. Guo 2009 ONCJ 184 ; R. v . Dobney Holdings , [1984] B.C.J. No. 948 ; R. v. Dobney Holdings [1995] B.C.J. No. 2172 ; R. v. Le 2005 BCPC 47 . Crown Position on Thu Nguyen Standing [ 11 ] The Crown submits there is no evidence before the court that Thu Nguyen herself operated any business out of 2140 Kingsway. The Crown argues Thu Nguyen has not placed sufficient evidence before the court to support a conclusion that she has standing.

The Crown argues that, in considering the ITO relied on by Thu Nguyen, it is relevant to note she was not the primary target of the ITO. In fact, the primary target was Bich Nguyen. The Crown notes there is nothing in the materials before the court to connect Thu Nguyen to Vietnam Travel which is the name on a sign on the premises at 2140 Kingsway. The Crown argues that Vietnam Travel is a distinct legal person from Thu Nguyen. [ 12 ] The Crown notes that a number of the points made by Thu Nguyen about her interests in the premises arise out of Corporal Kolot’s theory of the case.

The Crown submits the theory of the case is irrelevant in determining standing. The Crown says all the ITO establishes is that the name of a business is related to or associated with Thu Nguyen. That is not a sufficient basis to vest any interest in Thu Nguyen to challenge a search of the business premises at 2140 Kingsway. The Crown acknowledges there was a sign above the door of 2140 Kingsway that read “Vietnam Travel” and another sign that read “Trans Vietnam Money Services”.

However, the Crown maintains the signs above the door do not assist Thu Nguyen to establish a privacy interest in the business premises of a business that is open to the public. The Crown argues there is no indication Thu Nguyen had ever been at the business premises. There is nothing to suggest that Thu Nguyen had any ownership or control of 2140 Kingsway.

The Crown argues the fruits of the search themselves do not create standing, neither does Corporal Kolot’s theory of the case. [ 13 ] The Crown further argues there is not a shred of evidence that anything recovered from the premises was of a personal nature relating to Thu Nguyen. The Crown argues R. v. Sipes has made it clear that the test for standing is a not a mere rubber stamp. The Crown further argues that the court must not conflate standing with a possessory interest in an item seized.

It argues that standing to challenge a search warrant and proving that something is a person’s possession are two different things. [ 14 ] The Crown submits Thu Nguyen has to prove on a balance of probabilities, by evidence or admitted facts, that she has standing

to challenge the search. The fact that she is charged as a co-accused in the matters before the court is not sufficient to establish areasonable expectation of privacy in the business premises at 2140 Kingsway. The Crown argues Thu Nguyen meets none of the criteriaenumerated in R. v. Edwards, (SCC), [1996] 1 S.C.R. 128. [15] The Crown relies on the following cases: R. v. Wilson 2011 BCCA 252; R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193; R. v. Bradley, [1999] B.C.J. No. 1286; R. v. Sipes 2008 BCSC 1257; R. v. Bains, 2010 BCCA 178; R. v. Novak 2000 BCCA 257; R. v.Stein 2010 BCCA 173; R. v.

Pugliese (1992), (ON CA), 71 C.C.C. (3d) 295; R. v. Parchment 2002 BCCA 252; R. v.Belnavis, (SCC), [1997] 3 S.C.R. 341 BICH NGUYEN’S STANDING APPLICATION Position of Bich Nguyen [16] Bich Nguyen seeks standing to challenge the search warrant issued on June 7, 2005. She seeks to have evidence obtained as aresult of the execution of the warrant excluded from trial on the basis that the warrant is invalid on its face and because of the manner inwhich the evidence was obtained by police. Additionally, Bich Nguyen seeks an order pursuant to ss. 7 and 11(

d) of the Charter to havethe evidence seized during the execution of the search warrant excluded on the basis that its admissibility would render the trial unfairdue to the fact that the ITO included information obtained during Bich Nguyen’s previous interactions with the police on May 17, 2005. A ruling issued on October 26, 2011, following a stand alone voir dire regarding Charter challenges to the initial stop of Bich Nguyenon May 17, 2005, found that her s. 10(

b) rights had been breached. Bich Nguyen initially also sought leave to cross-examine CorporalKolot and the sub-affiants on the ITO on matters touching on the existence of reasonable and probable grounds, however, thatapplication was not pursued. [17] With respect to the standing issue, Bich Nguyen asserts she had an expectation of privacy in the business premises andcomputer systems located at 2140 Kingsway.

Bich Nguyen relies on the ITO as well as certain documents disclosed to her by theCrown, namely; a BC Hydro invoice dated December 15, 2003, a BC Hydro invoice dated November 16, 2004, and a commercial leaseexecuted September 1, 2002. Bich Nguyen submits she need not establish a possessory interest in the location where the items are seizedin order to seek to enforce her s. 8 rights. She submits there is evidence to support her historical use of 2140 Kingsway, her current use orsome oversight for the business operating at those premises, and the fact that she was an employee working at those premises.

She alsomaintains that the ITO and the warrant itself provide support for her assertion of a privacy interest in those premises. Additionally, shesubmits that the fact a computer may have been found on the premises is sufficient to give her a privacy interest because it may have hadpersonal information stored therein. [18] Bich Nguyen notes there are numerous references to her throughout the ITO wherein her suspected activities and interactionswith the police are offered to support the existence of reasonable and probable grounds for the issuance of the warrant.

She submits theBC Hydro documents and the commercial lease demonstrate a historical use of the premises. [19] Bich Nguyen argues she had an expectation of privacy in the work computer she used at the premises. That work computer wasalso searched by the police during the execution of the search warrant. In this regard Bich Nguyen relies on R. v. Morelli 2010 SCC 8and R. v. Cole, 2011 ONCA 218 , [2011] O.J. No. 1213. Additionally, Bich Nguyen relies on the case law cited by ThuNguyen as well as on the following cases: R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v.

Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 and R. v. Archambault, [1993] O.J. No. 2273. [20] Bich Nguyen also argues that because there was a s. 10(

b) breach of her right to counsel during the initial stop on May 17,2011, and because the affiant in the ITO relied on comments she was alleged to have made at that time, this allows her to raise s. 7 ands. 11(

d) to challenge whether relying on those statements would render the trial unfair. In order to challenge those statements in the ITOshe has to challenge the search warrant. Bich Nguyen argues that the court has a discretion to allow her to challenge the police use ofthose statements in the ITO. She relies on the analysis in R. v. Harrer, (SCC), [1995] S.C.J. No. 81. Crown Position on Bich Nguyen Standing [21] The Crown relies on the same arguments it advanced in response to Thu Nguyen’s standing application.

The Crown argues thatBich Nguyen’s reliance on Corporal Kolot’s theory that she may have had an interest in something at 2140 Kingsway is not enough togive her standing. The Crown acknowledges that someone had a privacy interest in those premises but it was not Bich Nguyen. In theITO a number of statements are ascribed to her. The Crown says those statements are not consistent and should be approached withcaution because their veracity is clearly compromised.

The Crown says, to the extent the ITO suggests that Bich Nguyen may have hada privacy interest in some of the items seized, that is immaterial because she has failed to establish that she had a privacy interest in theplace from which they were seized. [22] With respect to the suggestion that Bich Nguyen may have had an interest in information in a computer, the Crown submitsthere is not a shred of evidence in the proceedings now before the court that she touched or used a computer.

The Crown notes thisapplication is a separate matter from the voir dire held in August 2011 to address Bich Nguyen’s initial Charter challenge. Accordingly,it would be inappropriate for this court to rely on any evidence adduced in that voir dire in deciding the current application before thecourt. The Crown submits that the burden is on Bich Nguyen to establish an expectation of privacy.

Further, it falls to her to placeevidence before the court to support her application. [23] The Crown argues there is no basis for this court to find standing has been established on the basis of the s. 7 and s. 11(d)arguments raised by Bich Nguyen. The Crown acknowledges that in a prior ruling this court found that her

section 10 (

b) rights had beenbreached. However, in that ruling, after a full s. 24 (2) analysis, this court concluded the evidence should not be excluded. Accordingly,the Crown argues there is no merit to Bich Nguyen’s argument based on the analysis in Harrer.

THE LAW [24]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Theprincipal purpose of s. 8 is to protect the privacy interests of an accused from unreasonable intrusion by the state. Therefore, in order toestablish an infringement of s. 8, an accused must first establish she had a reasonable privacy interest in the thing searched or seized. The right to be free from unreasonable search and seizure is a right that attaches to people and not to places: Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145. [25] A person whose s. 8 Charter rights have been violated can seek to have evidence obtained from the search excluded under s.24(2) of the Charter. However, a person can only seek a remedy under s. 24(2) of the Charter if her personal rights under the Charterhave been infringed. In R. v. Pugliese (1992), 72 C.C.C. (3d) 285 (Ont. C.A.), Finlayson J.A. noted that s. 8 is directed to the protectionof the security of the person, not the protection of his property.

It is an accused’s personal exposure to the consequences of the searchand seizure that give him the right to challenge the admission into evidence at his trial of the fact of the search and the account of whatwas found. Later in the decision Finlayson J.A. wrote: ... Accordingly, s. 8 is available to confer standing on an accused person who had a reasonable expectation of privacy in the premiseswhere the seizure took place, even though he had no proprietary or possessory interest in the premises or in the articles seized. ... [26] In R. v.

Edwards, [1996] 1 S.C.R. 145, Cory J. writing for the majority said it is of fundamental importance to remember thatthe privacy right allegedly infringed must, as a general rule, be that of the accused person who makes the challenge. He alsosummarized the principles pertaining to the nature of the s. 8 right and that set out some factors that may be considered in determiningwhether a person has a reasonable expectation of privacy. [27] The onus is on the accused to establish that she had a reasonable expectation of privacy, on a balance of probabilities.

InVukelich, McEachern C.J.B.C. concluded, after a review of the case law, that it does not follow that an accused is always entitled as ofright to a voir dire in the course of a criminal trial in order to challenge the constitutionality of a search. On this point also see also Bainsat para. 69. This was recently reiterated in Wilson where the parties had agreed there was no need to hold a Vukelich hearing todetermine whether the accused could meet the threshold test for the holding of a voir dire. Frankel J.A. wrote: ...

A search warrant is presumed to have been properly issued and an accused bears the burden of proving otherwise. When an accusedseeks to challenge a warrant there is no right to a voir dire and a trial judge should generally be able to decide whether to hold one on thebasis of the submissions of counsel. ... (see para. 63) ANALYSIS Assessment of Thu Nguyen’s reasonable expectation of privacy [28] I will begin by first considering the factors identified in Edwards in relation to Thu Nguyen: (

a) There is no evidence that Thu Nguyen was present at 2140 Kingsway at the time the search warrant was executed; (

b) There is no direct evidence that Thu Nguyen had possession or control of 2140 Kingsway. The references in the ITO to theaddress 2140 Kingsway in the business licences of do not by themselves establish possession or control. (

c) There is no evidence that Thu Nguyen owned 2140 Kingsway; (

d) As to historical use of the place or item, there is no evidence with respect to historical use of the documents seized by the police. As to historical use of the place, (i.e. premises) Thu Nguyen relies on information contained in the ITO that a search of the BC CorporateRegistry showed that Thu Nguyen was associated with Vietnam Travel Centre and Trans Vietnam Money Services.

At paragraph 29 ofthe ITO Corporal Kolot attests that a search of the BC Corporate Registry by another officer showed that Vietnam Travel Centre andTrans Vietnam Money Services “were both registered as firm names or trade name associated to Thu Tai Nguyen and Thu Thi Nguyenrespectively”. At paragraph 31 Corporal Kolot also attests to receiving information from another officer that: (

i) City of Vancouver licence No. 05-117339MX was issued for the business name/owner Thu Thi Nguyen and Trans VietnamMoney Services for the address of 2140 Kingsway with money services listed as the type of business. (ii) There was a previous licence number of 04-520856TW and 05-110818TW issued to the business name/owner Thu Thi Nguyenand Vietnam Travel Centre as a travel agent with the address of 2140 Kingsway. (

e) In the ITO Corporal Kolot further deposed at paragraph 33 that he was told by another officer that on May 18, 2005, he observed asign with the name “Vietnam Travel” above the address 2140 Kingsway. Another officer who walked by 2140 Kingsway also reportedthat he observed the name Trans Vietnam Money Services on a sign above the door. He also observed a stand alone teller wicket insidethe office; (

f) There is no evidence that Thu Nguyen had the ability to regulate access to 2140 Kingsway; (

g) There is no direct evidence from Thu Nguyen that she had a subjective expectation of privacy, however, there is the assertion,through this application, of such an expectation of privacy.

[ 29 ] The question I need to answer is whether, on an objective basis, Thu Nguyen had a reasonable expectation of privacy in the premises at 2140 Kingsway. The information before the court which suggests Thu Nguyen may have had a possible connection to 2140 Kingsway is: (

a) the address 2140 Kingsway is on the business licences for two businesses registered as firm names or trade names associated to Thu Nguyen; (

b) the name Trans Vietnam Money Services was on a sign at 2140 Kingsway: There was also a sign with the name Vietnam Travel but it is equivocal as it is not clear if this referred to Vietnam Travel Inc. or Vietnam Travel Centre. (

c) there was a stand alone teller wicket inside 2140 Kingsway. Is this enough, in all the circumstances, to establish that Thu Nguyen had a reasonable expectation of privacy in 2140 Kingsway? I have concluded it is not. A review of the cases makes it clear that s. 8 protects personal privacy interests, not places. In this case, other than the fact Thu Nguyen was listed as “owner” of two firm/trade names, there is no other evidence that she had any connection to 2140 Kingsway.

There is no evidence that she worked there, that she had personal papers there, that she had been seen inside the premises or that she had signed a lease. [ 30 ] In Khuc the accused and his wife along with their young daughter and two other young children were found in a residence searched by the police. Mr. Khuc and Ms. Bui asserted they were visiting babysitters and had the right to control entry. That was not found to be enough.

In Vi the court ruled that, while possession and control of premises was not conclusive on the question of reasonable expectation of privacy, there was no evidence Vi had given up possession or control to any other person. However, that case is distinguishable on the facts. The evidence before the trial judge in Vi was that: the accused owned the property in question, his pickup truck had been parked on the property on occasion, he had keys to the property and his fingerprints were found on some equipment in the grow-op. On appeal the court found the trial judge had misapprehended the facts.

The court concluded that, when all the factors were considered, the evidence supported an expectation of privacy, albeit a reduced expectation. [ 31 ] The evidence in the case before me is very different and significantly weaker. In this case Thu Nguyen does not own the property; there is no evidence she was there at the time of the search; and there is no evidence to support a conclusion that she could regulate access. Whether there was a subjective expectation of privacy may be inferred in the absence of any testimony. On the basis of the evidence before me such an inference is not warranted.

Having considered the totality of circumstances, I conclude that Thu Nguyen has not established on a balance of probabilities that she had an expectation of privacy in 2140 Kingsway. Assessment of Bich Nguyen reasonable expectation of privacy [ 32 ] I will consider the factors identified in Edwards in relation to Bich Nguyen: (

a) No evidence was placed before the court, in this application, that Bich Nguyen was present at 2140 Kingsway either at the time the warrant was executed or prior to that date. I agree with the Crown’s submission that I cannot rely on evidence called in the August 2011 voir dire which was not been otherwise placed before the court in this application. At paragraph 32 of the ITO there is a reference to a BMW X5 registered to Bich Nguyen as lessee that was parked in the alley behind 2140 Kingsway on one occasion on May 18, 2005. However, the presence of the parked vehicle on one occasion is not by itself indicative of a privacy interest. (

b) The evidence with respect to possession or control of 2140 Kingsway relied on by Bich Nguyen is a lease executed on September 1, 2002. The lease is between the landlord and Vietnam Travel Inc. as the tenant. The term of the lease is stated as September 1, 2002 to September 1, 2007. The lease was apparently signed by the landlord and by Eric V --------(the rest of name is indecipherable) "for Ngoc Thi Bich Nguyen". Eric V is noted as being a "manager".

Bich Nguyen argues this establishes an element of possession or control (as well as historical use) when considered in light of the fact that paragraph 28 of the ITO states Thi Ngoc Bich Nguyen was the sole director and the sole officer listed for a company called Vietnam travel Inc. However, at paragraph 31 of the ITO it is noted that the City of Vancouver business license lookup indicated in relation to license 04 – 029082TW issued for Vietnam Travel Inc. that it had "gone out of business".

Additionally, at paragraph 28 of the ITO, information from the BC Corporate Registry on May 17, 2005, indicated that Vietnam Travel Inc. had last filed a return in 2004. (

c) There is no evidence that Bich Nguyen had any ownership interest in 2140 Kingsway. In regard to this factor and the possession and control factor it is conceivable that Vietnam Travel Inc., a former co–accused, ostensibly had possession or control of the 2140 Kingsway or some form of ownership interest as a tenant. However, even if Vietnam Travel Inc., which is recognized as a legal person, had an ownership interest or possession or control of 2140 Kingsway, that does not establish that Bich Nguyen in her own right had possession or control or an ownership interest. (

d) Bich Nguyen argues there is evidence of historical use, namely, the lease and the BC Hydro documents. As noted above, the lease does not assist in proving that Bich Nguyen herself had historically used the property. The BC Hydro documents are dated December 2003 and November 2004. They both name Bich Nguyen in the address portion of the billing statement. However, immediately below her name in the November 2004 statement is the entry: "DBA Vietnam Travel Inc." and in the December 2003 billing statement the reference "DBA Vietnam Travel".

At most, the Hydro billing statements establish that Bich Nguyen was receiving statements at that location in 2003 and 2004 but the statements do not establish that she continued to have a connection to 2140 Kingsway in May 2005. (

e) There is no evidence that Bich Nguyen had the ability to regulate access to 2140 Kingsway in May 2005 (

f) There is no direct evidence that Bich Nguyen had a subjective expectation of privacy. However, there is the assertion of such an expectation of privacy through this application.

[ 33 ] The issue I must address is whether Bich Nguyen has established that she had a reasonable expectation of privacy in the premises at 2140 Kingsway. The information before the court that suggests Bich Nguyen may have had a possible connection to 2140 Kingsway is: (

a) the many references to Bich Nguyen in the ITO; (

b) Corporal Kolot’s theory of the investigation as set out in the ITO; (

c) the presence of her leased vehicle in an alley behind 2140 Kingsway; (

d) the BC Hydro billing statements for November 2004 and December 2003; (

e) the possibility of a computer(

s) being found at 2140 Kingsway; (

f) the indication in the BC Corporate Registry that Bich Nguyen was the sole director and sole officer of Vietnam Travel Inc.; (

g) Bich Nguyen’s statement to police that she was an employee. [ 34 ] The case law makes it clear that s. 8 of the Charter is directed to the protection of the security of the person and not the protection of property.

Section 8 of the Charter Is available to confer standing on an accused who has a reasonable expectation of privacy in premises where a seizure takes place even though the accused has no proprietary or possessory interest in the premises or the articles seized: see Pugliese . However, in order to assert that constitutionally protected right Bich Nguyen has the burden of providing an evidentiary basis to establish that she had a reasonable expectation of privacy. Do the materials submitted in this application establish a reasonable expectation on the balance of probabilities?

It is my conclusion that they do not. [ 35 ] The many references to Bich Nguyen in the ITO clearly indicate she was a target of the investigation being conducted by Corporal Kolot and other officers. However, as noted in Pugliese , a constitutional right to privacy is not created merely by reason of a person becoming the target of the search. Further, the materials submitted to establish historical use and/ or possession or control of the premises do not establish that Bich Nguyen herself, rather than the former corporate co-accused, Vietnam Travel Inc., had a privacy interest in the premises.

I have considered the factors set out in Edwards individually, however, I have assessed those factors in light of the totality of the circumstances in this particular case. I conclude that Bich Nguyen has not established that she had an expectation of privacy in 2140 Kingsway. CONCLUSION [ 36 ] For the reasons set out above I find that neither Thu Nguyen nor Bich Nguyen had a reasonable expectation of privacy at 2140 Kingsway at the time the search warrant was executed.

Accordingly, neither of them is granted standing for the purposes of challenging the admission of evidence obtained as a result of the search of 2140 Kingsway. _____________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia