Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. YANG, 2023 ONCA 526, AUGUST 4, 2023.

FACTS: The accused was charged with the offence of possession of a controlled substance for the purpose of trafficking. Parcels of marijuana were discovered in a vehicle that the accused was operating popped after a collision.  At the trial, the accused testified that he did not know the marijuana was in the vehicle.  He called a witness (Mr. Xu) who testified that he had placed the marijuana in the vehicle after he had borrowed the vehicle and then forgot about it. 

The accused was convicted.  In rejecting Mr. Xu’s evidence, the trial judge stated:

…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.”

The accused appealed from conviction, arguing that the trial judge’s reasons for rejecting Mr. Xu’s evidence was based on an error of law: the “failure to admit error”.

HELD: The appeal was allowed and a new trial was ordered.  The Ontario Court of Appeal concluded that the trial judge “engaged in an illogical or irrational line of reasoning” (at paragraph 14):

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.