Court of Appeal for Ontario

Date: 2023-08-04 Docket: C69766

Judges: Huscroft, Paciocco and Coroza JJ.A.

Between:

His Majesty the King Respondent

and

Lin Yang Appellant

Counsel:

Jeff Marshman, for the appellant Anna Martin, for the respondent

Heard: July 10, 2023

On appeal from the conviction entered on February 19, 2020, by Justice L. Chester of the Ontario Court of Justice.

Reasons for Decision

[1] Lin Yang appeals his conviction of possession of a controlled substance for the purpose of trafficking – 5.6 pounds of marijuana – contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The marijuana, packaged in parcels consistent with preparation for drug trafficking, was discovered in a knapsack and a bag that were exposed after the hatchback of the vehicle that Mr. Yang was operating popped open as the result of a motor vehicle collision.

[2] The vehicle belonged to Mr. Yang’s wife, but he was the sole occupant at the time of the collision. Police officers discovered the marijuana while looking for the ownership and insurance documents after Mr. Yang advised them that they could find the documents in the vehicle.

[3] In his appeal, Mr. Yang focussed exclusively on the trial judge’s analysis of the credibility of the sole defence witness, Ze Yi Xu, who offered exculpatory evidence on Mr. Yang’s behalf.

[4] Mr. Xu testified that the marijuana was his. He said he forgot it in Mr. Yang’s vehicle along with his medical marijuana licence after he borrowed the car to travel 75 km to a farm where his medical marijuana supply was produced, in order to retrieve marijuana that he needed for pain relief for an injury to his spine and neck. He said he leased the farm in return for letting the owner take marijuana from his medical marijuana crop, which was tended by an employee whom he paid between $2,000 and $3,000 per month. He said the crop was used solely for his personal use, including sharing with friends. Mr. Xu explained that he borrowed Mr. Yang’s car to retrieve the marijuana as his wife had taken his half-ton truck, their only vehicle, to visit a friend. Mr. Yang was visiting overnight from Montreal where his home is, so Mr. Yang’s vehicle was at Mr. Xu’s residence. Mr. Xu testified that he left to retrieve the marijuana in Mr. Yang’s vehicle around 4:00 a.m. or 5:00 a.m. in the morning, when Mr. Yang went to bed, because he needed the medical marijuana and the traffic would be light. He said he retrieved five pounds of marijuana, more than the usual amount, because the crop had accumulated.

[5] Mr. Xu said he did not empty the marijuana from Mr. Yang’s car on his return as he had to get his children to school. He said he drove them in Mr. Yang’s car, as his wife was still not home. On route while dropping his children off he received a work-related call from a renovation customer. When he returned home, he promptly attended to the business call, taking his truck, which his wife had returned, forgetting to move the marijuana and his medical marijuana licence from Mr. Yang’s car to his house before doing so.

[6] Mr. Xu explained his failure to advise the police that the marijuana was his after learning of Mr. Yang’s arrest, claiming that he called a lawyer for advice and was told not to do so. He said he learned after speaking to the lawyer that he had misunderstood the terms of his medical marijuana licence, believing at the time he picked up the marijuana that he could transport that amount under his licence. [1] He said he was “very happy to come to court to clarify.”

[7] In his decision, the trial judge correctly described the legal principles he was obliged to apply in assessing the exculpatory evidence Mr. Xu was offering. He then rejected Mr. Xu’s testimony beyond a reasonable doubt as “not being capable of belief”. He called the story “totally incredible”, commenting that “it does not pass the common sense test.”

[8] On appeal, Mr. Yang takes issue with two of the explanations the trial judge offered for that conclusion.

[9] First, he argues that the trial judge misapprehended the evidence by mistakenly believing that Mr. Xu had his half-ton truck available to him at all times. The trial judge evidently believed that Mr. Xu’s wife took a “car”, a vehicle other than the half-ton truck (the “available half-ton truck misapprehension”). In fact, Mr. Xu’s evidence was that his wife took the half-ton truck, their only vehicle, to visit her friend and did not return with the vehicle until after he brought the children to school in Mr. Yang’s car. The trial judge relied on this error as a basis for rejecting two key components of Mr. Xu’s account:

(a) The trial judge commented that it does not make sense that Mr. Xu would “borrow the keys to the [Mr. Yang’s] car” when “Mr. Xu’s truck is not a large commercial van or truck, but a pick-up truck”, in other words, a vehicle of his own that was suitable for the errand. Whether suitable or not, on the evidence the half-ton truck was not available to Mr. Xu at the time.

(b) The trial judge made clear he did not believe Mr. Xu’s account about driving the children to school in Mr. Yang’s car, commenting “He still uses [Mr. Yang’s] vehicle, not his pick up.” Again, on the evidence, Mr. Yang’s vehicle was the only vehicle at Mr. Xu’s disposal.

[10] Mr. Yang argues that this was a material misapprehension of the evidence by the trial judge on a significant issue, Mr. Xu’s credibility, thereby causing a miscarriage of justice: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. The Crown concedes that the misapprehension occurred and relates to a significant and not a peripheral issue but submits that it is not material given other bases for rejecting Mr. Xu’s testimony.

[11] Second, Mr. Yang argues that the trial judge erred in reasoning that Mr. Xu’s testimony is not credible because he had not advised the police about what happened before coming to court and testifying. Specifically, in explaining his grounds for rejecting Mr. Xu’s testimony the trial judge said:

Finally, his response to [Mr. Yang’s] wife calling him to tell him about the arrest and the problem with her husband, what does he do? Instead of going to the police immediately and owning up to his mistake, not Mr. Yang’s apparently, according to him, and rectifying the problem, he says he goes to his lawyer’s office, who advises him not to go. But now, he has an epiphany and says, “I’m very happy to come to court to prove that it belonged to me.”

[12] Mr. Yang argues that the trial judge’s reasoning – that Mr. Xu’s failure to clear Mr. Yang by going to the police and admitting ownership is inconsistent with his claim that he was “very happy to come to court to prove that it belonged to me” – is based on a misunderstanding of the law (the “failure to admit error”). Had Mr. Xu told the police before trial that he owned the marijuana he would have been self-incriminating and could have been charged, given the belief by the police that this marijuana was possessed for the purpose of trafficking. But if he waited until trial to give that explanation, he would be protected by s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, and s. 13 of the Charter from having his testimony used against him, either on this charge or for any charges arising from breach of the terms of his marijuana licence as a result of this incident.

[13] The Crown disagrees, arguing that the trial judge was entitled to treat Mr. Xu’s evidence that he was “happy” to testify, to be a claim by him about his virtuous intentions, which is logically belied by Mr. Xu’s moral failure to intercede immediately.

[14] We are persuaded that the trial judge committed both errors. We accept the Crown’s concession that the “available half-ton truck misapprehension” occurred and we accept Mr. Yang’s submission that the “failure to admit error” occurred as well. With respect to the “failure to admit error”, Mr. Xu’s decision to await trial before attempting to clear Mr. Yang would be a prudent and sensible choice, given the state of the law. By waiting, he could protect Mr. Yang without imperilling himself. There is therefore no inconsistency between refraining from self‑incriminating before trial and being happy to be able to take responsibility during trial when it is safe to do so. We are persuaded that the trial judge engaged in an illogical or irrational line of reasoning in support of the verdict, given the state of the law. Indeed, this reasoning error by the trial judge is on the periphery of an error of law since it depended on an oversight by the trial judge relating to the relative legal jeopardy Mr. Xu would be in by sharing his account before or during his testimony.

[15] The Crown position is that when viewed in the context of the evidence as a whole, these errors are not material because the trial judge’s misapprehension of the evidence was not essential to his credibility analysis, and there are other compelling bases for rejecting Mr. Xu’s account apart from these reasoning errors. The Crown emphasizes that the trial judge mentioned several other problems with Mr. Xu’s evidence, including that Mr. Xu’s denial of trafficking is contradicted by the way the marijuana was packaged; the trial judge’s observation that Mr. Xu’s claim that he was not aware that he has to grow the marijuana in a building was “fishy”; and the trial judge’s conclusion that Mr. Xu’s account of the lease “sounds even fishier”. The Crown emphasizes that the trial judge rejected the entire story, not just the aspects of the story he relied on the two errors to address.

[16] We do not agree. The question for us is not whether Mr. Xu’s evidence warrants disbelief, either based on the record as a whole, or based on the remaining problems identified by the trial judge. The focus must be on the role these errors played in the trial judge’s decision. The relevant inquiry for the misapprehension of evidence error is whether the material representation was essential to the trial judge’s reasoning: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36, 39. The inquiry relating to illogical or irrational reasoning, such as the “failure to admit error”, is functionally identical, namely, whether the error is “essential to the verdict”, such that the verdict “ rests on a mistake as to the substance of the evidence”: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 19, per Fish J. (dissenting, but not on this point), and paras. 44, 45, per Lebel J. (emphasis added); R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 97-98, per Fish J. (dissenting, but not on this point). In both cases we are inquiring whether the trial judge would have rejected Mr. Xu’s evidence beyond a reasonable doubt even had he not made either or both of these errors in his credibility assessment. In the circumstances, we can have no confidence that he would have done so. The “available half-ton truck misapprehension” played a prominent role in the trial judge’s explanations for his finding. Indeed, on its own, his belief that Mr. Xu had no reason to borrow or take Mr. Yang’s car completely undercuts Mr. Xu’s entire account. Even the “failure to admit error” was featured in the trial judge’s explanation. Although the trial judge’s reasons for judgment make clear that he rejected Mr. Xu’s account in its entirety, he explained this conclusion by particularizing several reasons, among which the two reasoning errors we have identified arguably received the greatest attention. In the circumstances, we find that these errors formed an essential part of the trial judge’s reasoning.

[17] The appeal is therefore allowed, and a retrial is ordered.

“Grant Huscroft J.A.”

“David M. Paciocco J.A.

“S. Coroza J.A.”

Footnote:

[1] The trial proceeded on the assumption that Mr. Xu’s medical marijuana licence would not allow him to transport the quantity of marijuana that was discovered in the vehicle. The Crown has since confirmed that pursuant to s. 187 (d) of the Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 transportation of that much marijuana would have been authorized. We note in passing that in disbelieving Mr. Xu’s testimony, the trial judge found Mr. Xu’s claim that he thought the transportation to be legal to be incredible (a belief that we now know to have been accurate) because a 150 grams possession limit is “in plain sight on the licence”. In fact, under s. 187(d) of the Access to Cannabis for Medical Purposes Regulations, it is the storage limit, not the possession limit, which dictates the amount of marijuana authorized to be transported between a production site and the registrant’s ordinary residence. In Mr. Yang’s case this amount was just under 20 pounds. This error was not raised on appeal so no more will be said of it.