R. v. Pham, [2011] O.J. No.

1579
Ontario Judgments

Ontario Court of Appeal

Toronto, Ontario
M.J. Moldaver, J.M. Simmons and R.A. Blair JJ.A.
Heard: April 1, 2011.
Judgment: April 1, 2011.
Released: April 7, 2011.
Docket: C50881
[2011] O.J. No. 1579 | 2011 ONCA 271
Between Her Majesty the Queen, Appellant, and Nghia Dinh Pham, Respondent

(6 paras.)

Case Summary

Appeal From:
On appeal against acquittal by Justice Brent Knazan of the Ontario Court of Justice dated July 13, 2009.

Counsel

Kevin Wilson, for the appellant.

Kim Schofield, for the respondent.

APPEAL BOOK ENDORSEMENT

The following judgment was delivered by

THE COURT

1 The question of whether a person has a reasonable expectation of privacy for purposes of s.
8 of the Charter is context driven.
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R. v. Pham, [2011] O.J. No. 1579

2 In this case, the respondent was in the premises at the time of the search and the trial judge
found that in the context of his baby-sitting duties, he had possession and control and the ability
to admit or exclude others from the premises. In our view, that finding was open to him and we
see no basis for interfering with it or the conclusion flowing from it that the respondent had the
necessary standing to attack the search warrant.

3 At trial, the Crown conceded a breach of s. 8 in relation to the adequacy of the search
warrant. As this was a pre-Grant, [2009] 2 S.C.R. 353, case, the trial judge applied the Collins,
[1987] 1 S.C.R. 265, test in his 24(2) analysis.

4 In doing so, he failed to make clear findings as to where the police conduct fell on the
continuum of misconduct scale, as described in cases such as R. v. Blake, 2010 ONCA 1 at
para. 23. In addition, he failed to make findings that address the impact of the breach on the
respondent's Charter protected interests.

5 In view of this, we are unable to carry out the analysis now required by Grant.

6 Accordingly, we would allow the appeal, set aside the verdict of acquittal and order a new
trial.

End of Document