Court File and Parties

CITATION: R. v. Pham, 2010 ONCA 766

DATE: 20101115

DOCKET: C51013

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] 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] 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.

[3] In 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.

[4] On 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.

[5] We 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] Accordingly, the appeal is allowed, the convictions are set aside and verdicts of acquittal are substituted.