|
Evidence - Self-Incrimination. R. v. Yang
In R. v. Yang (Ont CA, 2023) the Court of Appeal allowed an appeal on grounds that a non-party witness intentionally waited until trial - where they would have the protection of Charter s.13 ['Self-incrimination'] and s.5 of the Canada Evidence Act ["Incriminating questions"] - before revealing that he had exonerating, though potentially self-incriminating, testimony:[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.
....
[14] ... 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.
|
