Defence's witness said he had substance for medicinal purposes, trial judge rejected testimony
Finding that the trial judge had erred in his credibility analysis of the defence’s witness, the Ontario Court of Appeal has ordered a retrial for a man accused of possession for the purpose of trafficking.
In R. v. Yang, 2023 ONCA 526, the appellant, Lin Yang, had been convicted for possessing 5.6 lbs of marijuana. At trial, Yang’s friend Ze Yi Xu, who had a medical-marijuana license, had testified that it was his, and he had accidentally left it in Yang’s vehicle. Convicting Yang in February 2020, Justice Lorne Chester rejected Xu’s testimony beyond a reasonable doubt, saying that it failed to pass “the common-sense test.”
The Court of Appeal found Chester made two errors in his assessment.
Police discovered the marijuana in the trunk of the car Yang was driving after he got into an accident. The collision had caused the hatchback to pop open, and the police discovered it while looking for Yang’s ownership and insurance documents.
At trial, Xu testified that he had forgotten the marijuana in the vehicle after having borrowed the car to travel 75 km to the farm where the marijuana is produced. Xu said he uses marijuana to treat pain associated with an injury to his spine and neck. He said he needed the car because his wife had taken his to visit her friend. Yang’s car was at Xu’s residence because Yang was visiting overnight.
When Xu returned from the farm, he drove his children to school. By the time he arrived home his wife had returned with their truck, and he took the truck to attend to a work matter forgetting that he had left his marijuana, as well as his medical marijuana license, in Yang’s car.
“The first error was a misapprehension of evidence,” says Anna Martin, counsel for the Crown in the appeal.
Chester mistakenly believed that Xu had access to his own truck for the errand, even though Xu had testified his wife had been using it at the time. The Crown argued on appeal that this factual error was inessential to the overall credibility findings because the judge had rejected Xu’s evidence in its entirety, calling it “totally incredible.” Yang argued this amounted to a “material misapprehension of the evidence by the trial judge on a significant issue” and caused a miscarriage of justice.
“The Court of Appeal disagreed and found that the error was essential to the trial judge’s findings,” says Martin. “The Court noted that the error completely undercut Xu’s account.”
The second error arose from the fact that Xu did not go to the police when he realized his friend had been arrested but chose to wait for his trial. Chester found that Xu’s failure to immediately clear up the misunderstanding with the police was inconsistent with his claim that he was “very happy to come to court to prove that it belonged to me.”
But the police had found the marijuana in packaging consistent with drug trafficking, and Xu believed that since the police thought that was the purpose, he would incriminate himself if he admitted it was his. But, waiting until trial, he was protected by s. 5 of the Canada Evidence Act and s. 13 of the Charter, which both allow witnesses to give incriminating evidence without the evidence being used against them in a separate hearing.
“The Court found that the trial judge engaged in irrational or illogical reasoning on this point, as it would have been prudent for Xu not to come forward given the state of the law,” says Martin.
At the appeal, the Crown argued that Chester had mentioned “several other problems” with Xu’s evidence, and the judge had rejected the entire story, not only the two aspects of it on which he erred. The Court of Appeal said that the focus must be on the role the errors played on the judge’s decision. The inquiry concerns whether Chester would have rejected the evidence beyond a reasonable doubt had he not made either or both the errors, and the court said it could “have no confidence that he would have done so.”
