CITATION: R. v. Pham, 2011 ONCA 271

DATE: 20110407

DOCKET: C50881

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Blair JJ.A.

BETWEEN

Her Majesty The Queen

Appellant

and

Nghia Dinh Pham

Respondent

Kevin Wilson, for the appellant

Kim Schofield, for the respondent

Heard and endorsed: April 1, 2011

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

APPEAL BOOK ENDORSEMENT

[1] The question of whether a person has a reasonable expectation of privacy for purposes of s. 8 of the Charter is context driven.

[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 case, the trial judge applied the Collins 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.