





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 i
s 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
    respondents
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.


