COURT FILE NO.: CR-18-40000079-00AP
DATE: 20191022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DAXUAN LANG
Appellant
Cara Sweeny, for the Crown
Thomas Hicks, for the Defendant
HEARD: September 23, 2019
B. Davies J.
REASONS FOR JUDGMENT
A. Introduction
[1] At approximately 10:30 pm on May 27, 2017, a concerned citizen, Justin Rolnick, called the Toronto police and reported that a truck was driving erratically up Avenue Road. Mr. Rolnick followed the truck as he spoke to the 911 operator. He told the operator that the truck hit the centre median, swerved across both lanes of traffic and stopped in the centre turning lane for no apparent reason. Mr. Rolnick continued to follow the truck as it turned onto a side street. He described how the truck almost hit a tree and drove through a stop sign without braking. Mr. Rolnick ended the call with police after the driver pulled over and parked the truck on the side street.
[2] Two officers were dispatched. A short time later, they found Mr. Lang sleeping in the truck, slumped over the centre console. The keys were in the ignition but the truck was not running. The officer woke Mr. Lang up by knocking on the window. When they spoke to Mr. Lang, they could smell alcohol on his breath. Mr. Lang had blood shot eyes and was unsteady on his feet as he got out of the vehicle.
[3] The police demanded a breath sample and took Mr. Lang to the police station. Despite several attempts, Mr. Lang did not provide a suitable breath sample. Mr. Lang was charged with impaired driving and failing to provide a breath sample.
[4] Mr. Lang was convicted after trial of impaired driving but acquitted of failing to provide a breath sample. He appeals his conviction on the basis that the trial judge misapprehended the evidence and applied a different standard of scrutiny to the defence evidence than she applied to the Crown’s evidence.
[5] I find that to the extent that the trial judge misapprehended the evidence, the mistakes did not play an essential role in her reasons for convicting Mr. Lang. I also find that the trial judge applied the same level of scrutiny to the Crown and defence evidence. Mr. Lang’s appeal is dismissed.
B. Misapprehension of the Evidence
[6] A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence; R. v. Morrissey, [1995] O.J. No. 638 (C.A.) at para. 83. If the trial judge misapprehended the evidence, the issue will be whether the misapprehension resulted in a miscarriage of justice.
[7] Mr. Lang and his cousin both testified that Mr. Lang had less than a bottle beer. As a result, the case turned on the credibility of the Crown and defence witnesses.
[8] Credibility is a question of fact. Reviewing courts must afford deference to factual findings made by the trial judge, who has the advantage of having heard and seen the witnesses. This court must not interfere with the trial judge’s credibility findings unless they cannot be supported on any reasonable view of the evidence: R. v. C.R., 2010 ONCA 176 at para. 31, R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474 at para. 7.
[9] Here, the defence argues that the trial judge was mistaken about the substance of evidence relevant to the credibility of both Mr. Lang and his cousin and that those mistakes were material to the trial judge’s reasons.
a. Credibility of Mr. Lang
[10] Mr. Lang testified that he went to his cousin’s house after work for dinner on May 27, 2017, arriving at approximately 8:00 p.m. He said he drank less than a bottle of beer while he was there. He testified that he worked 12 hours that day and was very tired when he left his cousin’s house.
[11] Mr. Lang agreed that his driving was bad that night: he agreed that he hit the centre median, swerved across the road, stopped the truck in the middle of Avenue Road and almost hit a tree. He denied that he drove through a stop sign.
[12] Mr. Lang testified that as he was leaving his cousin’s house his boss called and asked him to drop off a tool that was in Mr. Lang’s truck. His boss did not give him the address for the drop off. Rather, his boss juts told him where to go as he was driving. Mr. Lang testified that he was distracted because he was trying to follow his boss’s instructions, and that explains why he was driving so badly.
[13] Mr. Lang testified that he became very agitated as he tried to follow the instructions from his boss. He eventually told his boss he would not make the delivery. He hung up the phone, pulled the truck over and decided to take a rest. The next thing he remembers is waking up when the police knocked on the door of the truck.
[14] The trial judge found that Mr. Lang’s evidence was not credible. She gave three reasons for rejecting his evidence. First, it defies common sense that his boss would not give him the address where he was to drop off the tool but would tell him when to turn as he was driving. Second, the nature of his driving that evening was inconsistent with his explanation of being distracted as he followed the directions his boss gave him. Finally, Mr. Lang’s explanation for why he was sleeping in the car made no sense.
[15] There is one aspect of the trial judge’s reasons in relation to Mr. Lang’s evidence that is based on a misapprehension of the evidence. The trial judge found that Mr. Lang’s evidence about pulling over as soon as he got off the phone with his boss was inconsistent with his evidence that he was very upset and frustrated. It was open to her to make this finding. However, the trial judge also found that Mr. Lang “could offer no reasonable explanation” for why he was slumped over the centre console in the truck while he was sleeping. This part of her reasons is not accurate. Mr. Lang did provide an explanation for how he was positioned in the car. He said it was a large vehicle and he could sleep comfortably in the driver’s seat without reclining it.
[16] This mistake is not significant. It relates to only one small part of one of the trial judge’s reasons for rejecting Mr. Lang’s evidence. This mistake would not have affected the trial judge’s overall assessment of Mr. Lang’s credibility. Even without this misapprehension, the trial judge articulated several other reasons for rejecting Mr. Lang’s evidence that are all supported by the evidence.
b. Credibility of Ms. Lang
[17] Mr. Lang’s cousin, Ying Lang, also testified. She said that she sat across from Mr. Lang throughout dinner that night. She said that Mr. Lang drank less than a bottle of beer. She testified that there were only very short periods of time when she was not watching Mr. Lang.
[18] The trial judge gave four reasons for finding Ms. Lang’s evidence was contrived and illogical. First, it was not credible that Ms. Lang would be so focused on what her cousin had to drink at a dinner party with eight people, including two friends from overseas. Second, Ms. Lang’s evidence that it was impossible that Mr. Lang had more than a beer was not credible. Third, there were inconsistencies between Mr. Lang and Ms. Lang in relation to the type of beer he was drinking. Finally, the trial judge found that Mr. Lang’s evidence that she knew Mr. Lang drank only one beer was inconsistent with her evidence that she walked him out to make sure he was okay to drive.
[19] Defence counsel suggests that the trial judge misapprehended Ms. Lang’s evidence about checking to see if Mr. Lang was drunk before he left. During examination-in-chief, Ms. Lang testified that she walked Mr. Lang out at the end of the evening. She testified that she did not see any signs that he had too much to drink at that time. In cross-examination, Ms. Lang testified that she was in the habit of checking to see if Mr. Lang was too drunk to drive before he leaves. She explained that there had been times in the past when he drank too much and she had to drive him home. Ms. Lang testified that she talked to him at the gate and had a feeling he was alright to drive. She said in cross‑examination that she did not walk him out for the purpose of checking to see if Mr. Lang was okay to drive.
[20] The trial judge held as follows:
Ms. Lang testified that she checked to make sure that Mr. Lang was okay before he left the place. Mr. Lang testified that Ms. Lang walked him to the gate and told him to go home early. As the Crown posited, why would Ms. Lang check to see if Mr. Lang was okay if she was so certain that he had only consumed one beer the entire evening. Her actions in this regard I find are internally inconsistent.
These findings were all open to the trial judge on the evidence. The trial judge did not misapprehend the evidence on this issue.
[21] Defence counsel also argued that the trial judge misapprehended Ms. Lang’s evidence about whether Mr. Lang could have drunk more than one beer. I disagree.
[22] Ms. Lang said various things about whether it was possible or likely that Mr. Lang had more than one beer on the night in question. She said Mr. Lang “would not have had a chance” to drink another bottle of beer while she was away from the table. She also said it was impossible that he poured more beer in his cup and drank that. When pressed, she testified that when she said impossible, she meant that it was not likely to have happened. She also said it was “physically impossible” for Mr. Lang to drink a lot in her absence because she was only away from the table for a short time. It was open to the trial judge to find that Ms. Lang intended to leave the impression that it was not possible that Mr. Lang drank more than she observed. It was also open to the trial judge to find that Ms. Lang’s evidence on this issue was not credible.
[23] Based on the findings made by the trial judge, which were supported by the evidence, it was open to her to reject Ms. Lang’s testimony.
C. Assessment of the Crown’s Evidence
[24] Mr. Lang also argues that the trial judge applied a higher level of scrutiny to the defence evidence than she applied to the Crown’s evidence. I do not agree. The trial judge scrutinized the evidence of the officers in detail. She accepted some but not all of the evidence of the officers who arrested Mr. Lang.
[25] For example, the trial judge found that the officer’s testimony that Mr. Lang was slurring his words was not credible because English was not Mr. Lang’s first language and the Mandarin-speaking officer who interpreted for Mr. Lang at the police station did not testify that he was slurring his words.
[26] The trial judge also rejected the officer’s evidence that Mr. Lang was so unstable on his feet that he almost fell over because his observations were not confirmed by the video captured by the camera on the officer’s car. The trial judge also noted that she “could not discount” Mr. Lang’s testimony that he was unsteady on his feet only as he got out of the truck because it was so high off the ground and he did not fall into the side of the truck, he was pushed. In other words, the trial judge relied on some of Mr. Lang’s testimony to reject part of the officer’s evidence. Importantly, the trial judge also found that Mr. Lang’s testimony raised a reasonable doubt in relation to the charge of failing to provide a breath sample.
[27] The trial judge did misapprehend one piece of the arresting officer’s evidence. She mistakenly found that the officer said that Mr. Lang’s truck began to roll while he was speaking to Mr. Lang. The trial judge noted that video did not confirm this aspect of the officer’s evidence. In fact, the officer never said the truck moved. Rather, he said he was worried it might move which is why he told Mr. Lang to put the car in park and placed him under arrest. This mistake benefitted Mr. Lang; the trial judge used it as a basis to reject some of the officer’s evidence.
[28] The trial judge carefully scrutinized the testimony of each witness. She did not apply a different level of scrutiny to the defence witnesses than she applied to the Crown witnesses.
D. Conclusion
[29] In the end, the trial judge relied on four pieces of evidence to find Mr. Lang guilty of impaired driving: “the observations by Mr. Rolnick of the defendant’s bad driving at a time proximate to the observations made by the officers that the defendant was slumped over the centre console towards the passenger seat; that he had a strong odour of alcohol emitting from his mouth; that his eyes were glossy and red; and that he had pulled the vehicle over without properly placing it in park.”
[30] To the extent that the trial judge made mistakes about the substance of the evidence, those were not crucial to her reasons for rejecting the defence evidence or accepting some parts of the officer’s evidence. It was open to her to accept those portions of the evidence that she relied on in support of the finding of guilt. The trial judge’s verdict is supported by the evidence and there has been no miscarriage of justice. The appeal is, therefore, dismissed.
B. Davies J.
Released: October 22, 2019
COURT FILE NO.: CR-18-40000079-00AP
DATE: 20191022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DAXUAN LANG
Appellant
REASONS FOR JUDGMENT
B. Davies J.
Released: October 22, 2019