Court File and Parties
COURT OF APPEAL FOR ONTARIO
Moldaver, Armstrong and Rouleau JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
And
Thi Lan Pham
Appellant
Counsel: Russell Silverstein, for the appellant Joseph Selvaratnam, for the respondent
Heard and endorsed: November 12, 2010 On appeal from the conviction entered by Justice Harvison Young of the Superior Court of Justice on June 19, 2009.
APPEAL BOOK ENDORSEMENT
[1]
Appeal Book Endorsement
The sole issue on appeal is whether there was any evidence upon which the trial judge could find that the accused before the court was the perpetrator of the alleged offences.
[2]
Analysis
The appellant submits, and we agree, that there was no evidence called that the appellant, seated before the court, was the person who had engaged in the alleged criminal acts. No one testified that the appellant was the person who applied for the mortgages in question. No one testified as to the relationship between the appellant and her two co-accused. No one testified that the appellant had even gone to any of the banks in question or dealt with the various accounts. And finally, no witnesses testified that the appellant had given them her date of birth, social insurance number or address.
3In concluding that identification had been established, the trial judge found that the accounting records showed links between the three defendants. With respect, we disagree. While the accounting evidence showed a link between the three perpetrators, as noted, there was no evidence linking the appellant to the co-accused.
4On appeal, Crown counsel argues that it would have been open to the trial judge to use the date of birth below the appellant’s name on the back of the Indictment as evidence of her date of birth – and then linking that to the perpetrator, who according to various banking and accounting records, had the same date of birth.
5We disagree. In our view, the date of birth on the back of the Indictment had no evidentiary value in the circumstances of this case.
[6]
Disposition
Accordingly, the appeal is allowed, the convictions are set aside and verdicts of acquittal are substituted.