Court headnote

R. v. Samaniego
Collection
Supreme Court Judgments
Date
2022-03-25
Neutral citation
2022 SCC 9
Report
[2022] 1 SCR 71
Case number
39440
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Ontario
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Samaniego, 2022 SCC 9, [2022] 1 S.C.R. 71
Appeal Heard: November 5, 2021 Judgment Rendered: March 25, 2022 Docket: 39440
Between:
Victor Samaniego Appellant
and
Her Majesty The Queen Respondent
- and -
Criminal Lawyers’ Association (Ontario) Intervener
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 79)
Moldaver J. (Wagner C.J. and Karakatsanis, Martin, Kasirer and Jamal JJ. concurring)
Joint Dissenting Reasons: (paras. 80 to 185)
Côté and Rowe JJ. (Brown J. concurring)
Victor Samaniego Appellant
v.
Her Majesty The Queen Respondent
and
Criminal Lawyers’ Association (Ontario) Intervener
Indexed as: R. v. Samaniego
2022 SCC 9
File No.: 39440.
2021: November 5; 2022: March 25.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for ontario
Criminal law — Trial — Evidence — Admissibility — Cross‑examination — Intervention by trial judge — Scope of trial management power — Curtailment of four lines of questioning by trial judge during cross‑examination of Crown witness by accused’s counsel — Whether trial judge’s rulings were proper exercise of trial management power — Whether trial judge erred in curtailing cross‑examination — If so, whether curative proviso applies — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1)(b)(iii).
In August 2015, the accused and his co‑accused went to a nightclub. The security guard allowed the co‑accused into the club, as the two were good friends. However, the security guard denied the accused entrance because the accused had threatened him at the club on a prior occasion. Later in the evening, the police were called about a gun at the club. They arrested the accused and co‑accused for possession of a loaded restricted firearm. The accused was eventually convicted of the charge by a jury.
At the accused’s trial, the Crown relied heavily on the security guard’s testimony in support of its position that both accused had the gun in their possession at some point in the evening. The security guard testified that: the accused became angry at him when he barred him from entering the club, threatened him and showed him a gun in his waistband; the co‑accused came out of the club and defused the situation by taking the gun away from the accused; and then the co‑accused went back into the club, came out, dropped the gun in front of the security guard and picked it back up.
The accused’s defence was that his co‑accused had sole possession of the gun. He sought to impeach the security guard’s credibility, arguing that the security guard implicated him to protect his co‑accused, who was the security guard’s good friend.
In the course of the cross‑examination of the security guard by the accused’s counsel designed to undermine the security guard’s credibility, the trial judge made a number of rulings curtailing lines of questioning. Four of these rulings formed part of the accused’s appeal from conviction to the Court of Appeal and form the basis of the accused’s appeal before the Court. They pertained to the following lines of questioning: (1) whether there was a cocaine transaction between the co‑accused and the security guard; (2) whether the security guard was scared at any time during the incident; (3) whether the security guard refused to identify the two accused; and (4) who dropped the gun and who picked it up. The majority of the Court of Appeal dismissed the appeal, finding that the rulings were an exercise of the trial judge’s trial management power and revealed no error. The dissenting judge, however, found evidentiary errors in all four rulings and would have ordered a new trial.
Held (Côté, Brown and Rowe JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Three of the impugned rulings were free from error. The fourth ruling was erroneous in part; however, the curative proviso applies, as it occasioned no substantial wrong or miscarriage of justice.
The trial management power allows trial judges to control the process of their court and ensure that trials proceed in an effective and orderly fashion. This power has three interrelated purposes: ensuring that trials proceed fairly, effectively, and efficiently. Trial judges may intervene to manage the conduct of trials in many ways, including restricting cross‑examination that is unduly repetitive, rambling, argumentative, misleading, or irrelevant. Excessive trial delay can also be mitigated by proper trial management. The trial management power is an essential and versatile tool; it must, however, be exercised carefully. Parties should generally be allowed to present their cases as they see fit. The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency. Trial management decisions and the rules of evidence must generally remain separate issues on appellate review. The standard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Sometimes, however, trial management decisions will overlap with the rules of evidence. As such, it is important on appellate review that trial management decisions are examined in the context of the trial as a whole, rather than as isolated incidents.
The first impugned ruling involved both an initial evidentiary ruling — that there was no good faith basis for the line of questioning regarding the cocaine transaction — and a subsequent trial management decision — rejecting the accused’s counsel’s renewed attempts to pursue this questioning. The trial judge correctly assessed whether there was a good faith basis for the line of questioning based on the accused’s counsel’s articulated purpose — on which the trial judge was entitled to rely. The accused’s counsel repeatedly said that she wanted to ask about cocaine to demonstrate that the co‑accused went to the club to sell cocaine to, or buy cocaine from, the security guard. While trial judges may inquire into counsel’s proposed purpose, as a general rule, it is not their function to guess at or suggest more appropriate purposes than those proffered by counsel. Nor is it the function of appellate judges to assume the role of trial counsel, formulating questions that counsel could have asked, identifying the legal basis for them, and making arguments that counsel could have made to show that they were permissible. The trial judge found that the drug deal hypothesis was completely speculative and without any basis after reviewing the surveillance video. This finding is tantamount to finding that no reasonable inference could be drawn and, therefore, that there was no good faith basis to ask the questions. When the accused’s counsel revived her attempts to ask about the cocaine later on in the cross‑examination, the trial judge reasonably curtailed the irrelevant questioning that would not have furthered any issue at trial.
Regarding the second ruling, the judge’s trial management decision to curtail and clarify the accused’s counsel’s misleading suggestion was reasonable and is owed deference. It was misleading to suggest that the security guard was not scared on the day of the incident and only reference a passage of the police statement which supported this suggestion, knowing that elsewhere in the statement, he told the police he was scared. While not an irrelevant line of questioning, it would have been a needless waste of court time to allow the accused’s counsel to pursue it, only to learn later that the questions were misleading and could only serve to distract or confuse the jury. It was not an error for the trial judge to provide a corrective instruction to the jury, advising of the existence of another passage in the police statement where the security guard said he was scared before he formally adopted that passage for three reasons. First, directly after the instruction, the accused’s counsel had the security guard adopt the passage of his police statement where he said he was scared. Second, all parties agreed that the security guard’s police statement contained a passage where he said that he was scared. Adopting the passage was an evidentiary formality in the circumstances. Third, the accused’s counsel did not raise any objection to the trial judge providing a corrective instruction.
The trial judge’s third ruling was an appropriate exercise of her trial management power to prevent the accused’s counsel from pursuing a misleading line of questioning that was not relevant to the resolution of any live issues in the case. The accused was entitled to a fair trial, not an endless one. The trial judge was entitled to rely on the accused’s counsel’s articulated purpose for her questions, which was to suggest that the security guard refused to identify the two accused at the preliminary inquiry. This suggestion was simply not true. The security guard’s comment about not recalling whether the two persons in the surveillance video were the two accused must be taken in context. At the preliminary inquiry, he identified the two accused as those involved in the incident, both before and after the impugned comment. He also identified the two accused as the persons in the surveillance video near the beginning of his examination‑in‑chief.
The trial judge’s fourth ruling had two aspects. The first was a proper trial management ruling targeting misleading questioning designed to show that the security guard had not told the same story at trial as he did at the preliminary inquiry about who dropped and picked up the gun. He did tell the same story — both times in accordance with his police statement. While it was true that he offered a contrary story at the preliminary inquiry before adopting his police statement as past recollection recorded, the accused’s counsel was not seeking to expose the inconsistent versions given at the preliminary inquiry. Rather, her suggestion implied that he said only one thing at the preliminary inquiry and the opposite at trial. This was simply not true. The second, and problematic, aspect of the trial judge’s ruling was her further restriction of any cross‑examination about the security guard’s preliminary inquiry testimony prior to his adoption of his police statement. This was an incorrect evidentiary ruling. Trial judges are not bound by evidentiary rulings made at the preliminary inquiry. More importantly, the security guard’s adoption of his police statement as true did not erase his different initial version of events. There was an inconsistency that the accused’s counsel could probe, had she sought to do so.
The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code allows a court of appeal to dismiss an appeal from conviction where no substantial wrong or miscarriage of justice has occurred. The proviso can only rarely apply in cases where cross‑examination has been improperly curtailed. This is one of those rare cases; the second aspect of the trial judge’s fourth ruling was not a fatal error. The accused’s counsel was able to vigorously challenge the security guard’s credibility and repeatedly emphasize the primary defence theory that he was lying to protect the co‑accused. Furthermore, there was no indication that the accused’s counsel wanted to ask the questions improperly barred by the trial judge. Even if she did want to pursue that line of questioning, this would likely have undermined — rather than supported — the primary theory advanced by the accused. In the context of the trial, the trial judge’s technical error was harmless and would not have affected the outcome. There was no substantial wrong or miscarriage of justice.
Per Côté, Brown and Rowe JJ. (dissenting): The appeal should be allowed, the conviction set aside, and a new trial ordered. The trial judge’s exclusion of the security guard’s prior inconsistent statement made at the preliminary inquiry about who dropped and picked up the gun was an erroneous evidentiary ruling, not a trial management decision. This error cannot be saved by the curative proviso.
Trial judges have the authority to control the proceeding over which they preside. They should control, direct, and administer the trial in an effective and efficient way. Among other powers, trial management authority allows trial judges to place reasonable limits on oral submissions, direct written submissions, defer rulings, decline to hear frivolous motions after hearing from the parties, and, exceptionally, direct the order in which evidence is called. These powers allow trial judges to control the court’s process by managing how parties present their case, not the evidence they can tender to build their case. Trial management powers can never be used to exclude relevant and material evidence. Rulings on the admissibility of real or oral evidence, including rulings on permissible lines of cross‑examination, are evidentiary decisions. The propriety of those rulings is governed by the rules of evidence, not the court’s trial management authority.
Separating trial management powers from the rules of evidence does not lead to inefficiency and confusion. The rules of evidence are sensitive to trial efficiency concerns. The law of evidence allows courts to weigh the benefits of admitting oral or real evidence against the costs to trial efficiency. Courts should exclude technically admissible evidence when the costs to the trial process outweigh the benefits. This is reflected in established exclusionary rules, such as the collateral facts rule that prohibits calling evidence solely to contradict a witness on a collateral fact, as well as the trial judge’s general discretionary power to exclude evidence when its probative value is outweighed by its prejudicial effects. Evidence is prejudicial when, among other concerns, it would unduly undermine the efficiency of the trial by consuming an inordinate amount of time which is not commensurate with its value. Limits on cross‑examination can and should be understood as applications of these ordinary rules of evidence and, in particular, the trial judge’s residual power to exclude overly prejudicial evidence. A trial judge should prevent counsel from asking irrelevant questions because those questions have no probative value. Similarly, courts should stop repetitious or misleading questioning because the probative value of repeated or misleading questions is minimal while their prejudicial effects to the trial process are significant. Such interventions are evidentiary rulings, not trial management decisions.
Relying on trial management authority when making evidentiary rulings undermines trial predictability and consistency, and the accused’s right to make full answer and defence. With respect to trial predictability and consistency, the rules of evidence dictate how parties can establish the facts needed to build their case. In a predictable manner, it lets parties know what information they can present to support their case, how they can tender this information, and what use they can make of this information once admitted. Parties are entitled to present all relevant and material evidence to the trier of fact, absent a clear ground for exclusion. Relying on trial management authority to make evidentiary determinations could create a two‑tiered system where some litigants would need to build their case under established evidentiary rules while others would need to build it under the trial judge’s more loosely defined and opaque trial management discretion. This would make litigation less predictable, accessible, and fair. It would also stifle development of the law.
As for the accused’s right to make full answer and defence, the rules of evidence provide special protection to accused persons by giving them a wide right to call evidence. Unlike in the case of Crown‑led evidence, there is no evidentiary discretion to exclude technically admissible defence evidence simply because its probative value is outweighed by its prejudicial effects. Instead, defence‑led evidence should be excluded only when its probative value is substantially outweighed by the prejudice it could cause. The rules of evidence protect an accused’s right to make full answer and defence by ensuring that trial judges do not too readily exclude defence evidence, even when that evidence has minimal probative value or some serious prejudicial effects. Trial management powers do not direct trial judges to be similarly cautious. Relying on trial management authority to curtail a line of cross‑examination in the name of trial efficiency, for example, could prevent defence counsel from eliciting relevant and material evidence even when the prejudicial effects of the questions do not substantially outweigh their probative value.
In the present case, the law of evidence provided the trial judge with a number of options to deal with the arguably misleading question posed by the accused’s counsel. If she thought the question was misleading because it was missing necessary context, she could have asked the accused’s counsel to rephrase the question and draw the security guard’s attention to the fact that he had also subsequently adopted his police statement at the preliminary inquiry. The trial judge could have also simply allowed the question, leaving it for the Crown to raise the security guard’s prior consistent police statement in reply. Either way, the jury could then assess whether the inconsistency was the result of the security guard’s genuine memory loss or whether it was illustrative of the security guard testifying falsely at the preliminary inquiry to protect his friend. Alternatively, if the trial judge thought that the accused’s counsel was baselessly misrepresenting the facts and misleading the jury, she could have restricted that line of questioning under her overarching exclusionary power if the question’s probative value was substantially outweighed by its prejudicial effects. Instead of taking any of these steps, the trial judge prevented the accused’s counsel from asking any questions on the specifics about what the security guard said at the preliminary inquiry before he adopted his police statement. This was an erroneous evidentiary decision. The security guard’s initial preliminary inquiry testimony was plainly inconsistent with his trial testimony. It was therefore relevant and material to a central issue at trial — the security guard’s credibility. It was also not subject to any exclusionary rule. The fact that the security guard’s police statement was admitted through a hearsay exception at the preliminary inquiry did not erase the earlier inconsistent testimony. Finally, the prejudicial effects of the evidence did not substantially outweigh its probative value. The probative value of this evidence was extremely high and touched on the central issue at trial, whereas the prejudicial effects were minimal at best. The accused was deprived of the right to pursue a highly relevant line of cross‑examination.
The curative proviso in s. 686(1)(b)(iii) of the Criminal Code cannot save the trial judge’s error. There are two situations in which the curative proviso is appropriate: (1) where the error is so harmless or trivial that it could not have had any impact on the verdict; or (2) where the evidence is so overwhelming that the trier of fact would have inevitably convicted. Neither branch is applicable in the instant case. First, the trial judge’s error was not harmless. The accused was entitled to fully explore the security guard’s prior inconsistent statement about who dropped and picked up the gun without constraint and use this inconsistency to challenge the security guard’s credibility. He was also entitled to use this inconsistency to support the main defence theory that the security guard was willing to lie to protect his friend, the co-accused. The accused was erroneously denied any opportunity to do this. Further, the trial judge ensured that the only question that the accused’s counsel asked about this inconsistency played no role in the jury’s deliberation by instructing the jury to completely disregard this testimonial inconsistency. The unfairness flowing from the trial judge’s ruling was not minimized by the fact that the accused could explore other inconsistencies in the security guard’s testimony and generally allude to the security guard’s motive to lie. An effective cross‑examination often involves a coordinated series of attacks that, cumulatively, undermine the witness’s credibility. Second, the evidence was far from overwhelming — the only evidence linking the accused to possession of the gun was the testimony of one witness who had a motive to lie and whose testimony at trial about who he saw drop the gun was, at times, manifestly inconsistent with his testimony at the preliminary inquiry.
Cases Cited
By Moldaver J.
Distinguished: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; considered: R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; referred to: Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397; R. v. Polanco, 2018 ONCA 444; R. v. Ivall, 2018 ONCA 1026, 370 C.C.C. (3d) 179; R. v. Snow (2004), 73 O.R. (3d) 40; R. v. Felderhof (2003), 68 O.R. (3d) 481; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Ajise, 2018 SCC 51, [2018] 3 S.C.R. 301, aff’g 2018 ONCA 494, 361 C.C.C. (3d) 384; R. v. Cole, 2021 ONCA 759; R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208; R. v. Harrer, [1995] 3 S.C.R. 562.
By Côté and Rowe JJ. (dissenting)
Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Khanna, 2016 ONCA 39; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397; R. v. Potter, 2020 NSCA 9, 385 C.C.C. (3d) 1; R. v. Felderhof (2003), 68 O.R. (3d) 481; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Greer, 2020 ONCA 795, 397 C.C.C. (3d) 40; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177; R. v. Nield, 2019 BCCA 27, 372 C.C.C. (3d) 375; R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500; R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139; R. v. Hall, 2018 ONCA 185, 139 O.R. (3d) 561; R. v. Podolski, 2018 BCCA 96, 360 C.C.C. (3d) 1; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Polanco, 2018 ONCA 444; R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577; R. v. Mitchell, 2008 ONCA 757; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Clarke (1998), 18 C.R. (5th) 219; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515; R. v. C. (K.), 2015 ONCA 39, 17 C.R. (7th) 181; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; R. v. Perkins, 2016 ONCA 588, 352 O.A.C. 149; R. v. Raghunauth (2005), 203 O.A.C. 54; R. v. L.K.W. (1999), 126 O.A.C. 39.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 10(1).
Canadian Charter of Rights and Freedoms, ss. 7, 11(d).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 95(1), 686(1)(b)(iii), 691(1)(a).
Authors Cited
Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. Toronto: LexisNexis, 2018.
McWilliams’ Canadian Criminal Evidence, vols. 2 and 3, 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto: Thomson Reuters, 2022 (loose‑leaf updated February 2022, release 1).
Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.
Salhany, Roger E. Canadian Criminal Procedure, vol. 1, 6th ed. Toronto: Thomson Reuters, 2021 (loose‑leaf updated December 2021, release 5).
Wright, Cecil A. “The Law of Evidence: Present and Future” (1942), 20 Can. Bar Rev. 714.
APPEAL from a judgment of the Ontario Court of Appeal (Benotto, Paciocco and Thorburn JJ.A.), 2020 ONCA 439, 151 O.R. (3d) 449, 390 C.C.C. (3d) 151, [2020] O.J. No. 2952 (QL), 2020 CarswellOnt 9146 (WL), affirming the conviction of the accused for possession of a loaded restricted firearm. Appeal dismissed, Côté, Brown and Rowe JJ. dissenting.
Chris Rudnicki and Karen Lau‑Po‑Hung, for the appellant.
Craig Harper and Jacob Millns, for the respondent.
Louis P. Strezos and Michelle Biddulph, for the intervener.
The judgment of Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ. was delivered by
Moldaver J. —
I. Introduction
[1] Managing a criminal trial is a demanding task. This trial was no exception. It devolved into a nine-day, highly contested jury trial over a seemingly straightforward issue: whether Mr. Samaniego and/or his co-accused, Mr. Serrano, had possession of a handgun. The experienced trial judge had her hands full keeping the proceedings on track. Without her patience and her overriding concern that all parties be treated fairly, it almost certainly would have resulted in a mistrial. Cut-throat defences led to bickering among the parties; time estimates were honoured more in the breach than in the observance; and the jury was repeatedly required to leave the courtroom while the trial judge dealt with case management and evidentiary issues, many of which were attributable to the manner in which the main Crown witness was cross-examined by Mr. Samaniego’s trial counsel (“trial counsel”).
[2] This appeal centres on that cross-examination. It was neither a model of brevity nor clarity. On the contrary, it went on at great length and drew numerous objections from both Crown counsel and Mr. Serrano’s counsel for being repetitive, unfocused, and misleading. To make matters worse, when the trial judge tried to clarify the purpose and relevance of trial counsel’s questions, she was often met with unclear and unhelpful responses.
[3] In the course of trial counsel’s cross-examination, over her objection, the trial judge made a number of rulings curtailing lines of questioning. Four of these rulings form the basis of this appeal. The jury eventually convicted Mr. Samaniego of possession of a loaded restricted firearm, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46. On his appeal from conviction to the Court of Appeal for Ontario, a majority of the court found no error in the four rulings and dismissed Mr. Samaniego’s appeal (2020 ONCA 439, 151 O.R. (3d) 449). The crux of the disagreement between the majority and the minority centred on whether the impugned rulings were discretionary, falling within the trial judge’s exercise of her trial management power, or whether they constituted erroneous evidentiary rulings that warranted a new trial. The majority found that the rulings were an exercise of the judge’s trial management power and revealed no error. The dissenting judge found evidentiary errors in all four rulings and would have ordered a new trial. He stressed that the trial management power could not override proper evidentiary considerations and justify improper evidentiary rulings. Mr. Samaniego now appeals to this Court as of right.
[4] For reasons that follow, I would dismiss Mr. Samaniego’s appeal. Under their trial management power, trial judges are permitted to control their courtroom and streamline the functioning of the trial. Exercises of trial management will generally not overlap with evidentiary rulings, but sometimes they do. This does not mean that erroneous evidentiary rulings can be justified under the guise of trial management. They cannot.
[5] In this case, some of the impugned rulings involved trial management decisions, while others involved a mixture of evidentiary determinations and trial management decisions. As I will explain, I am satisfied that three of the impugned rulings were free from error. The fourth ruling was erroneous in part; in my view, however, it occasioned no substantial wrong or miscarriage of justice.
II. Background
A. The Offence
[6] As part of an agreed statement of facts, the parties acknowledge that on August 17, 2015, Mr. Samaniego and his co-accused, Mr. Serrano, went to a Toronto nightclub called Las Brisas. The security guard greeted Mr. Serrano at the door and allowed him into the club; the two were good friends. The guard denied Mr. Samaniego entrance because Mr. Samaniego had threatened him at the club on a prior occasion. The parties further agree that, later in the evening, the guard’s friend called the police about a gun at the club. When the police arrived, they saw Mr. Serrano and Mr. Samaniego walking away and observed Mr. Serrano discard a gun. They arrested both men for possession of a loaded restricted firearm.
[7] The parties’ stories differ on what happened at the club before the police arrived. Surveillance video at the club showed the two accused and the security guard, but not the gun. Identity was admitted. The main issue at trial was whether one or both of the accused had possession of the gun.
[8] The Crown’s position was that both men had the gun in their possession at some point that evening. In support of its position, Crown counsel relied heavily on the security guard’s testimony. The guard testified that Mr. Samaniego became angry at him when he allowed Mr. Serrano into the club, but barred Mr. Samaniego from entering. Mr. Samaniego threatened him with a finger/thumb motion that looked like a gun and showed him a gun in his waistband. Mr. Serrano came out of the club and defused the situation by taking the gun away from Mr. Samaniego. Mr. Serrano went back into the club, came out, dropped the gun in front of the guard and picked it back up. The guard then asked a friend, who was close by, to call the police. Mr. Serrano and Mr. Samaniego left the club and were arrested a short time later.
[9] The two accused ran cut-throat defences. Mr. Serrano maintained that he had no knowledge of Mr. Samaniego bringing a gun to the club. It was never his intention to possess it; he only took it to protect the security guard from Mr. Samaniego. Moreover, he argued that there was no evidence that he knew the gun was real, restricted, or loaded.
[10] Mr. Samaniego’s defence was that Mr. Serrano had sole possession of the gun; he never touched it. In support of his position, he sought to impeach the security guard’s credibility, arguing that the guard implicated him to protect Mr. Serrano, the guard’s “good friend”. He did so by covering up for Mr. Serrano, withholding information from the police and falsely portraying Mr. Serrano in the best possible light.
B. Mr. Samaniego’s Cross-Examination of the Security Guard
[11] Trial counsel’s cross-examination of the security guard lasted approximately a day and a half, spanning over 150 pages of transcript. Time estimates were repeatedly exceeded. On the first day of her cross-examination, she questioned the guard for approximately 2 hours and advised that she would need 45 minutes the next morning. An hour into her cross-examination the following morning, the judge reminded her of her timeline. Counsel advised that she needed another 30 minutes at most. That estimate proved to be grossly inaccurate; the remainder of her cross‑examination took up the entire day.
[12] As the record reveals, the cross-examination was often repetitive, wandering, and misleading. Some questions were difficult to understand, particularly for the security guard who required the assistance of an interpreter. The purpose and relevance of many lines of inquiry were difficult to discern. The judge had to excuse the jury five times to discuss issues arising from the cross-examination. Many of these discussions were lengthy and covered ground that had already been dealt with.
[13] The potential for prejudice caused by both accused running cut-throat defences added another dimension of difficulty for the judge. Some of trial counsel’s lines of inquiry were highly prejudicial to Mr. Serrano. It was essential that the judge closely monitor the risk this prejudice posed, bearing in mind her obligation to ensure that both accused received a fair trial.
[14] In sum, the trial judge had her hands full trying to ensure trial fairness, minimize jury disruption, and rein in a cross-examination that was lengthy, disjointed, and confusing. That she was able to keep the trial on the rails in the circumstances is a credit to her patience and the care she exhibited throughout to protect the interests of the parties, the witnesses, and the members of the jury.
III. Issues
[15] There are four issues:
A. Jurisdiction: Does Mr. Samaniego’s appeal to this Court raise a question of law?
B. What is the scope of the trial management power?
C. Did the trial judge err by curtailing cross-examination in any of the four rulings?
D. If so, can the curative proviso be applied to sustain Mr. Samaniego’s conviction?
IV. Analysis
A. Jurisdiction: Mr. Samaniego Appeals on a Question of Law
[16] Mr. Samaniego appeals to this Court under s. 691(1)(a) of the Criminal Code. That provision allows an accused to appeal as of right on a question of law from a dissenting judgment at the court of appeal.
[17] The Crown submits that Mr. Samaniego’s appeal is barred because the disagreement at the Court of Appeal does not raise a question of law; rather, the disagreement between the majority and dissenting judge is largely factual, hinging on differing interpretations of trial counsel’s purpose for engaging in certain areas of cross-examination. This does not, in the Crown’s view, raise a question of law. A judge’s choice to intervene in cross-examination is a question of mixed fact and law (Fanjoy v. The Queen, [1985] 2 S.C.R. 233, at p. 238). Mr. Samaniego characterizes the disagreement at the Court of Appeal differently. He maintains that it raises a question of law regarding the rules of evidence and their application.
[18] I agree with Mr. Samaniego’s characterization of the disagreement. While the subject of the appeal was the trial judge’s intervention in cross-examination, this was not the crux of the Court of Appeal’s disagreement. The court disagreed on the characterization of the judge’s interventions and the evidentiary principles that govern them. That raises a question of law (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23).
B. Scope of the Trial Management Power
[19] Before examining the impugned rulings, it is necessary to discuss the content and scope of the trial management power.
[20] The trial management power allows trial judges to control the process of their court and ensure that trials proceed in an effective and orderly fashion. While this Court has not provided explicit guidance on the nature and scope of the power, it has implicitly endorsed the concept (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 26).
[21] The power has three interrelated purposes: ensuring that trials proceed fairly, effectively, and efficiently (R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47; R. v. Polanco, 2018 ONCA 444, at para. 22 (CanLII)).
[22] Judges may intervene to manage the conduct of trials in many ways, including restricting cross-examination that is unduly repetitive, rambling, argumentative, misleading, or irrelevant (R. v. Ivall, 2018 ONCA 1026, 370 C.C.C. (3d) 179, at paras. 167-68; R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.), at para. 25). The trial management power is an essential and versatile tool; it must, however, be exercised carefully (R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.), at para. 38). Parties should generally be allowed to present their cases as they see fit (Polanco, at para. 29).
[23] Managing the conduct of trials to ensure timely justice is particularly important, considering this Court’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 139. Excessive trial delay can be mitigated by proper trial management.
[24] Ensuring efficiency does not mean sacrificing the rules of evidence. Mr. Samaniego submits that trial management decisions and evidentiary rulings must always remain separate to ensure that erroneous evidentiary rulings are not glossed over under the guise of trial management on appellate review. While I disagree that trial management and evidentiary rulings must always remain separate, I agree that trial management does not provide a safe haven for erroneous evidentiary rulings.
[25] Trial management decisions and the rules of evidence must generally remain separate issues on appellate review. The standard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Extricable evidentiary errors are held to a more stringent standard of review than trial management decisions. The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency.
[26] Sometimes trial management decisions will overlap with the rules of evidence. For example, where counsel tries to revive a line of inquiry that the trial judge has previously barred in an evidentiary ruling, the rules of evidence and trial management overlap. Drawing on the previous evidentiary ruling — that the line of questioning is barred by an evidentiary rule — the judge exercises their trial management power to curtail irrelevant and repetitive questioning. As this example illustrates, it is important on appellate review that trial management decisions are examined in the context of the trial as a whole, rather than as isolated incidents. Trial management decisions, as the one in this example, engage the judge’s discretion. Absent error in principle or unreasonable exercise, these discretionary decisions deserve deference (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44).
C. The Impugned Trial Rulings
[27] Mr. Samaniego submits that the trial judge improperly curtailed four lines of questioning during his counsel’s cross-examination of the security guard: (1) whether there was a cocaine transaction between Mr. Serrano and the security guard; (2) whether the security guard was “scared” at any time during the incident; (3) whether the security guard “refused” to identify the two accused; and (4) who dropped the gun and w

Court headnote

R. v. Samaniego Collection Supreme Court Judgments Date 2022-03-25 Neutral citation 2022 SCC 9 Report [2022] 1 SCR 71 Case number 39440 Judges Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud On appeal from Ontario Subjects Criminal law Notes Case in Brief SCC Case Information Decision Content SUPREME COURT OF CANADA Citation: R. v. Samaniego, 2022 SCC 9, [2022] 1 S.C.R. 71 Appeal Heard: November 5, 2021 Judgment Rendered: March 25, 2022 Docket: 39440 Between: Victor Samaniego Appellant and Her Majesty The Queen Respondent - and - Criminal Lawyers’ Association (Ontario) Intervener Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. Reasons for Judgment: (paras. 1 to 79) Moldaver J. (Wagner C.J. and Karakatsanis, Martin, Kasirer and Jamal JJ. concurring) Joint Dissenting Reasons: (paras. 80 to 185) Côté and Rowe JJ. (Brown J. concurring) Victor Samaniego Appellant v. Her Majesty The Queen Respondent and Criminal Lawyers’ Association (Ontario) Intervener Indexed as: R. v. Samaniego 2022 SCC 9 File No.: 39440. 2021: November 5; 2022: March 25. Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for ontario Criminal law — Trial — Evidence — Admissibility — Cross‑examination — Intervention by trial judge — Scope of trial management power — Curtailment of four lines of questioning by trial judge during cross‑examination of Crown witness by accused’s counsel — Whether trial judge’s rulings were proper exercise of trial management power — Whether trial judge erred in curtailing cross‑examination — If so, whether curative proviso applies — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1)(b)(iii). In August 2015, the accused and his co‑accused went to a nightclub. The security guard allowed the co‑accused into the club, as the two were good friends. However, the security guard denied the accused entrance because the accused had threatened him at the club on a prior occasion. Later in the evening, the police were called about a gun at the club. They arrested the accused and co‑accused for possession of a loaded restricted firearm. The accused was eventually convicted of the charge by a jury. At the accused’s trial, the Crown relied heavily on the security guard’s testimony in support of its position that both accused had the gun in their possession at some point in the evening. The security guard testified that: the accused became angry at him when he barred him from entering the club, threatened him and showed him a gun in his waistband; the co‑accused came out of the club and defused the situation by taking the gun away from the accused; and then the co‑accused went back into the club, came out, dropped the gun in front of the security guard and picked it back up. The accused’s defence was that his co‑accused had sole possession of the gun. He sought to impeach the security guard’s credibility, arguing that the security guard implicated him to protect his co‑accused, who was the security guard’s good friend. In the course of the cross‑examination of the security guard by the accused’s counsel designed to undermine the security guard’s credibility, the trial judge made a number of rulings curtailing lines of questioning. Four of these rulings formed part of the accused’s appeal from conviction to the Court of Appeal and form the basis of the accused’s appeal before the Court. They pertained to the following lines of questioning: (1) whether there was a cocaine transaction between the co‑accused and the security guard; (2) whether the security guard was scared at any time during the incident; (3) whether the security guard refused to identify the two accused; and (4) who dropped the gun and who picked it up. The majority of the Court of Appeal dismissed the appeal, finding that the rulings were an exercise of the trial judge’s trial management power and revealed no error. The dissenting judge, however, found evidentiary errors in all four rulings and would have ordered a new trial. Held (Côté, Brown and Rowe JJ. dissenting): The appeal should be dismissed. Per Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Three of the impugned rulings were free from error. The fourth ruling was erroneous in part; however, the curative proviso applies, as it occasioned no substantial wrong or miscarriage of justice. The trial management power allows trial judges to control the process of their court and ensure that trials proceed in an effective and orderly fashion. This power has three interrelated purposes: ensuring that trials proceed fairly, effectively, and efficiently. Trial judges may intervene to manage the conduct of trials in many ways, including restricting cross‑examination that is unduly repetitive, rambling, argumentative, misleading, or irrelevant. Excessive trial delay can also be mitigated by proper trial management. The trial management power is an essential and versatile tool; it must, however, be exercised carefully. Parties should generally be allowed to present their cases as they see fit. The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency. Trial management decisions and the rules of evidence must generally remain separate issues on appellate review. The standard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Sometimes, however, trial management decisions will overlap with the rules of evidence. As such, it is important on appellate review that trial management decisions are examined in the context of the trial as a whole, rather than as isolated incidents. The first impugned ruling involved both an initial evidentiary ruling — that there was no good faith basis for the line of questioning regarding the cocaine transaction — and a subsequent trial management decision — rejecting the accused’s counsel’s renewed attempts to pursue this questioning. The trial judge correctly assessed whether there was a good faith basis for the line of questioning based on the accused’s counsel’s articulated purpose — on which the trial judge was entitled to rely. The accused’s counsel repeatedly said that she wanted to ask about cocaine to demonstrate that the co‑accused went to the club to sell cocaine to, or buy cocaine from, the security guard. While trial judges may inquire into counsel’s proposed purpose, as a general rule, it is not their function to guess at or suggest more appropriate purposes than those proffered by counsel. Nor is it the function of appellate judges to assume the role of trial counsel, formulating questions that counsel could have asked, identifying the legal basis for them, and making arguments that counsel could have made to show that they were permissible. The trial judge found that the drug deal hypothesis was completely speculative and without any basis after reviewing the surveillance video. This finding is tantamount to finding that no reasonable inference could be drawn and, therefore, that there was no good faith basis to ask the questions. When the accused’s counsel revived her attempts to ask about the cocaine later on in the cross‑examination, the trial judge reasonably curtailed the irrelevant questioning that would not have furthered any issue at trial. Regarding the second ruling, the judge’s trial management decision to curtail and clarify the accused’s counsel’s misleading suggestion was reasonable and is owed deference. It was misleading to suggest that the security guard was not scared on the day of the incident and only reference a passage of the police statement which supported this suggestion, knowing that elsewhere in the statement, he told the police he was scared. While not an irrelevant line of questioning, it would have been a needless waste of court time to allow the accused’s counsel to pursue it, only to learn later that the questions were misleading and could only serve to distract or confuse the jury. It was not an error for the trial judge to provide a corrective instruction to the jury, advising of the existence of another passage in the police statement where the security guard said he was scared before he formally adopted that passage for three reasons. First, directly after the instruction, the accused’s counsel had the security guard adopt the passage of his police statement where he said he was scared. Second, all parties agreed that the security guard’s police statement contained a passage where he said that he was scared. Adopting the passage was an evidentiary formality in the circumstances. Third, the accused’s counsel did not raise any objection to the trial judge providing a corrective instruction. The trial judge’s third ruling was an appropriate exercise of her trial management power to prevent the accused’s counsel from pursuing a misleading line of questioning that was not relevant to the resolution of any live issues in the case. The accused was entitled to a fair trial, not an endless one. The trial judge was entitled to rely on the accused’s counsel’s articulated purpose for her questions, which was to suggest that the security guard refused to identify the two accused at the preliminary inquiry. This suggestion was simply not true. The security guard’s comment about not recalling whether the two persons in the surveillance video were the two accused must be taken in context. At the preliminary inquiry, he identified the two accused as those involved in the incident, both before and after the impugned comment. He also identified the two accused as the persons in the surveillance video near the beginning of his examination‑in‑chief. The trial judge’s fourth ruling had two aspects. The first was a proper trial management ruling targeting misleading questioning designed to show that the security guard had not told the same story at trial as he did at the preliminary inquiry about who dropped and picked up the gun. He did tell the same story — both times in accordance with his police statement. While it was true that he offered a contrary story at the preliminary inquiry before adopting his police statement as past recollection recorded, the accused’s counsel was not seeking to expose the inconsistent versions given at the preliminary inquiry. Rather, her suggestion implied that he said only one thing at the preliminary inquiry and the opposite at trial. This was simply not true. The second, and problematic, aspect of the trial judge’s ruling was her further restriction of any cross‑examination about the security guard’s preliminary inquiry testimony prior to his adoption of his police statement. This was an incorrect evidentiary ruling. Trial judges are not bound by evidentiary rulings made at the preliminary inquiry. More importantly, the security guard’s adoption of his police statement as true did not erase his different initial version of events. There was an inconsistency that the accused’s counsel could probe, had she sought to do so. The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code allows a court of appeal to dismiss an appeal from conviction where no substantial wrong or miscarriage of justice has occurred. The proviso can only rarely apply in cases where cross‑examination has been improperly curtailed. This is one of those rare cases; the second aspect of the trial judge’s fourth ruling was not a fatal error. The accused’s counsel was able to vigorously challenge the security guard’s credibility and repeatedly emphasize the primary defence theory that he was lying to protect the co‑accused. Furthermore, there was no indication that the accused’s counsel wanted to ask the questions improperly barred by the trial judge. Even if she did want to pursue that line of questioning, this would likely have undermined — rather than supported — the primary theory advanced by the accused. In the context of the trial, the trial judge’s technical error was harmless and would not have affected the outcome. There was no substantial wrong or miscarriage of justice. Per Côté, Brown and Rowe JJ. (dissenting): The appeal should be allowed, the conviction set aside, and a new trial ordered. The trial judge’s exclusion of the security guard’s prior inconsistent statement made at the preliminary inquiry about who dropped and picked up the gun was an erroneous evidentiary ruling, not a trial management decision. This error cannot be saved by the curative proviso. Trial judges have the authority to control the proceeding over which they preside. They should control, direct, and administer the trial in an effective and efficient way. Among other powers, trial management authority allows trial judges to place reasonable limits on oral submissions, direct written submissions, defer rulings, decline to hear frivolous motions after hearing from the parties, and, exceptionally, direct the order in which evidence is called. These powers allow trial judges to control the court’s process by managing how parties present their case, not the evidence they can tender to build their case. Trial management powers can never be used to exclude relevant and material evidence. Rulings on the admissibility of real or oral evidence, including rulings on permissible lines of cross‑examination, are evidentiary decisions. The propriety of those rulings is governed by the rules of evidence, not the court’s trial management authority. Separating trial management powers from the rules of evidence does not lead to inefficiency and confusion. The rules of evidence are sensitive to trial efficiency concerns. The law of evidence allows courts to weigh the benefits of admitting oral or real evidence against the costs to trial efficiency. Courts should exclude technically admissible evidence when the costs to the trial process outweigh the benefits. This is reflected in established exclusionary rules, such as the collateral facts rule that prohibits calling evidence solely to contradict a witness on a collateral fact, as well as the trial judge’s general discretionary power to exclude evidence when its probative value is outweighed by its prejudicial effects. Evidence is prejudicial when, among other concerns, it would unduly undermine the efficiency of the trial by consuming an inordinate amount of time which is not commensurate with its value. Limits on cross‑examination can and should be understood as applications of these ordinary rules of evidence and, in particular, the trial judge’s residual power to exclude overly prejudicial evidence. A trial judge should prevent counsel from asking irrelevant questions because those questions have no probative value. Similarly, courts should stop repetitious or misleading questioning because the probative value of repeated or misleading questions is minimal while their prejudicial effects to the trial process are significant. Such interventions are evidentiary rulings, not trial management decisions. Relying on trial management authority when making evidentiary rulings undermines trial predictability and consistency, and the accused’s right to make full answer and defence. With respect to trial predictability and consistency, the rules of evidence dictate how parties can establish the facts needed to build their case. In a predictable manner, it lets parties know what information they can present to support their case, how they can tender this information, and what use they can make of this information once admitted. Parties are entitled to present all relevant and material evidence to the trier of fact, absent a clear ground for exclusion. Relying on trial management authority to make evidentiary determinations could create a two‑tiered system where some litigants would need to build their case under established evidentiary rules while others would need to build it under the trial judge’s more loosely defined and opaque trial management discretion. This would make litigation less predictable, accessible, and fair. It would also stifle development of the law. As for the accused’s right to make full answer and defence, the rules of evidence provide special protection to accused persons by giving them a wide right to call evidence. Unlike in the case of Crown‑led evidence, there is no evidentiary discretion to exclude technically admissible defence evidence simply because its probative value is outweighed by its prejudicial effects. Instead, defence‑led evidence should be excluded only when its probative value is substantially outweighed by the prejudice it could cause. The rules of evidence protect an accused’s right to make full answer and defence by ensuring that trial judges do not too readily exclude defence evidence, even when that evidence has minimal probative value or some serious prejudicial effects. Trial management powers do not direct trial judges to be similarly cautious. Relying on trial management authority to curtail a line of cross‑examination in the name of trial efficiency, for example, could prevent defence counsel from eliciting relevant and material evidence even when the prejudicial effects of the questions do not substantially outweigh their probative value. In the present case, the law of evidence provided the trial judge with a number of options to deal with the arguably misleading question posed by the accused’s counsel. If she thought the question was misleading because it was missing necessary context, she could have asked the accused’s counsel to rephrase the question and draw the security guard’s attention to the fact that he had also subsequently adopted his police statement at the preliminary inquiry. The trial judge could have also simply allowed the question, leaving it for the Crown to raise the security guard’s prior consistent police statement in reply. Either way, the jury could then assess whether the inconsistency was the result of the security guard’s genuine memory loss or whether it was illustrative of the security guard testifying falsely at the preliminary inquiry to protect his friend. Alternatively, if the trial judge thought that the accused’s counsel was baselessly misrepresenting the facts and misleading the jury, she could have restricted that line of questioning under her overarching exclusionary power if the question’s probative value was substantially outweighed by its prejudicial effects. Instead of taking any of these steps, the trial judge prevented the accused’s counsel from asking any questions on the specifics about what the security guard said at the preliminary inquiry before he adopted his police statement. This was an erroneous evidentiary decision. The security guard’s initial preliminary inquiry testimony was plainly inconsistent with his trial testimony. It was therefore relevant and material to a central issue at trial — the security guard’s credibility. It was also not subject to any exclusionary rule. The fact that the security guard’s police statement was admitted through a hearsay exception at the preliminary inquiry did not erase the earlier inconsistent testimony. Finally, the prejudicial effects of the evidence did not substantially outweigh its probative value. The probative value of this evidence was extremely high and touched on the central issue at trial, whereas the prejudicial effects were minimal at best. The accused was deprived of the right to pursue a highly relevant line of cross‑examination. The curative proviso in s. 686(1)(b)(iii) of the Criminal Code cannot save the trial judge’s error. There are two situations in which the curative proviso is appropriate: (1) where the error is so harmless or trivial that it could not have had any impact on the verdict; or (2) where the evidence is so overwhelming that the trier of fact would have inevitably convicted. Neither branch is applicable in the instant case. First, the trial judge’s error was not harmless. The accused was entitled to fully explore the security guard’s prior inconsistent statement about who dropped and picked up the gun without constraint and use this inconsistency to challenge the security guard’s credibility. He was also entitled to use this inconsistency to support the main defence theory that the security guard was willing to lie to protect his friend, the co-accused. The accused was erroneously denied any opportunity to do this. Further, the trial judge ensured that the only question that the accused’s counsel asked about this inconsistency played no role in the jury’s deliberation by instructing the jury to completely disregard this testimonial inconsistency. The unfairness flowing from the trial judge’s ruling was not minimized by the fact that the accused could explore other inconsistencies in the security guard’s testimony and generally allude to the security guard’s motive to lie. An effective cross‑examination often involves a coordinated series of attacks that, cumulatively, undermine the witness’s credibility. Second, the evidence was far from overwhelming — the only evidence linking the accused to possession of the gun was the testimony of one witness who had a motive to lie and whose testimony at trial about who he saw drop the gun was, at times, manifestly inconsistent with his testimony at the preliminary inquiry. Cases Cited By Moldaver J. Distinguished: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; considered: R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; referred to: Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397; R. v. Polanco, 2018 ONCA 444; R. v. Ivall, 2018 ONCA 1026, 370 C.C.C. (3d) 179; R. v. Snow (2004), 73 O.R. (3d) 40; R. v. Felderhof (2003), 68 O.R. (3d) 481; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Ajise, 2018 SCC 51, [2018] 3 S.C.R. 301, aff’g 2018 ONCA 494, 361 C.C.C. (3d) 384; R. v. Cole, 2021 ONCA 759; R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208; R. v. Harrer, [1995] 3 S.C.R. 562. By Côté and Rowe JJ. (dissenting) Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Khanna, 2016 ONCA 39; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397; R. v. Potter, 2020 NSCA 9, 385 C.C.C. (3d) 1; R. v. Felderhof (2003), 68 O.R. (3d) 481; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Greer, 2020 ONCA 795, 397 C.C.C. (3d) 40; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177; R. v. Nield, 2019 BCCA 27, 372 C.C.C. (3d) 375; R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500; R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139; R. v. Hall, 2018 ONCA 185, 139 O.R. (3d) 561; R. v. Podolski, 2018 BCCA 96, 360 C.C.C. (3d) 1; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Polanco, 2018 ONCA 444; R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577; R. v. Mitchell, 2008 ONCA 757; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Clarke (1998), 18 C.R. (5th) 219; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515; R. v. C. (K.), 2015 ONCA 39, 17 C.R. (7th) 181; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; R. v. Perkins, 2016 ONCA 588, 352 O.A.C. 149; R. v. Raghunauth (2005), 203 O.A.C. 54; R. v. L.K.W. (1999), 126 O.A.C. 39. Statutes and Regulations Cited Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 10(1). Canadian Charter of Rights and Freedoms, ss. 7, 11(d). Criminal Code, R.S.C. 1985, c. C‑46, ss. 95(1), 686(1)(b)(iii), 691(1)(a). Authors Cited Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. Toronto: LexisNexis, 2018. McWilliams’ Canadian Criminal Evidence, vols. 2 and 3, 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto: Thomson Reuters, 2022 (loose‑leaf updated February 2022, release 1). Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020. Salhany, Roger E. Canadian Criminal Procedure, vol. 1, 6th ed. Toronto: Thomson Reuters, 2021 (loose‑leaf updated December 2021, release 5). Wright, Cecil A. “The Law of Evidence: Present and Future” (1942), 20 Can. Bar Rev. 714. APPEAL from a judgment of the Ontario Court of Appeal (Benotto, Paciocco and Thorburn JJ.A.), 2020 ONCA 439, 151 O.R. (3d) 449, 390 C.C.C. (3d) 151, [2020] O.J. No. 2952 (QL), 2020 CarswellOnt 9146 (WL), affirming the conviction of the accused for possession of a loaded restricted firearm. Appeal dismissed, Côté, Brown and Rowe JJ. dissenting. Chris Rudnicki and Karen Lau‑Po‑Hung, for the appellant. Craig Harper and Jacob Millns, for the respondent. Louis P. Strezos and Michelle Biddulph, for the intervener. The judgment of Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ. was delivered by Moldaver J. — I. Introduction [1] Managing a criminal trial is a demanding task. This trial was no exception. It devolved into a nine-day, highly contested jury trial over a seemingly straightforward issue: whether Mr. Samaniego and/or his co-accused, Mr. Serrano, had possession of a handgun. The experienced trial judge had her hands full keeping the proceedings on track. Without her patience and her overriding concern that all parties be treated fairly, it almost certainly would have resulted in a mistrial. Cut-throat defences led to bickering among the parties; time estimates were honoured more in the breach than in the observance; and the jury was repeatedly required to leave the courtroom while the trial judge dealt with case management and evidentiary issues, many of which were attributable to the manner in which the main Crown witness was cross-examined by Mr. Samaniego’s trial counsel (“trial counsel”). [2] This appeal centres on that cross-examination. It was neither a model of brevity nor clarity. On the contrary, it went on at great length and drew numerous objections from both Crown counsel and Mr. Serrano’s counsel for being repetitive, unfocused, and misleading. To make matters worse, when the trial judge tried to clarify the purpose and relevance of trial counsel’s questions, she was often met with unclear and unhelpful responses. [3] In the course of trial counsel’s cross-examination, over her objection, the trial judge made a number of rulings curtailing lines of questioning. Four of these rulings form the basis of this appeal. The jury eventually convicted Mr. Samaniego of possession of a loaded restricted firearm, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46. On his appeal from conviction to the Court of Appeal for Ontario, a majority of the court found no error in the four rulings and dismissed Mr. Samaniego’s appeal (2020 ONCA 439, 151 O.R. (3d) 449). The crux of the disagreement between the majority and the minority centred on whether the impugned rulings were discretionary, falling within the trial judge’s exercise of her trial management power, or whether they constituted erroneous evidentiary rulings that warranted a new trial. The majority found that the rulings were an exercise of the judge’s trial management power and revealed no error. The dissenting judge found evidentiary errors in all four rulings and would have ordered a new trial. He stressed that the trial management power could not override proper evidentiary considerations and justify improper evidentiary rulings. Mr. Samaniego now appeals to this Court as of right. [4] For reasons that follow, I would dismiss Mr. Samaniego’s appeal. Under their trial management power, trial judges are permitted to control their courtroom and streamline the functioning of the trial. Exercises of trial management will generally not overlap with evidentiary rulings, but sometimes they do. This does not mean that erroneous evidentiary rulings can be justified under the guise of trial management. They cannot. [5] In this case, some of the impugned rulings involved trial management decisions, while others involved a mixture of evidentiary determinations and trial management decisions. As I will explain, I am satisfied that three of the impugned rulings were free from error. The fourth ruling was erroneous in part; in my view, however, it occasioned no substantial wrong or miscarriage of justice. II. Background A. The Offence [6] As part of an agreed statement of facts, the parties acknowledge that on August 17, 2015, Mr. Samaniego and his co-accused, Mr. Serrano, went to a Toronto nightclub called Las Brisas. The security guard greeted Mr. Serrano at the door and allowed him into the club; the two were good friends. The guard denied Mr. Samaniego entrance because Mr. Samaniego had threatened him at the club on a prior occasion. The parties further agree that, later in the evening, the guard’s friend called the police about a gun at the club. When the police arrived, they saw Mr. Serrano and Mr. Samaniego walking away and observed Mr. Serrano discard a gun. They arrested both men for possession of a loaded restricted firearm. [7] The parties’ stories differ on what happened at the club before the police arrived. Surveillance video at the club showed the two accused and the security guard, but not the gun. Identity was admitted. The main issue at trial was whether one or both of the accused had possession of the gun. [8] The Crown’s position was that both men had the gun in their possession at some point that evening. In support of its position, Crown counsel relied heavily on the security guard’s testimony. The guard testified that Mr. Samaniego became angry at him when he allowed Mr. Serrano into the club, but barred Mr. Samaniego from entering. Mr. Samaniego threatened him with a finger/thumb motion that looked like a gun and showed him a gun in his waistband. Mr. Serrano came out of the club and defused the situation by taking the gun away from Mr. Samaniego. Mr. Serrano went back into the club, came out, dropped the gun in front of the guard and picked it back up. The guard then asked a friend, who was close by, to call the police. Mr. Serrano and Mr. Samaniego left the club and were arrested a short time later. [9] The two accused ran cut-throat defences. Mr. Serrano maintained that he had no knowledge of Mr. Samaniego bringing a gun to the club. It was never his intention to possess it; he only took it to protect the security guard from Mr. Samaniego. Moreover, he argued that there was no evidence that he knew the gun was real, restricted, or loaded. [10] Mr. Samaniego’s defence was that Mr. Serrano had sole possession of the gun; he never touched it. In support of his position, he sought to impeach the security guard’s credibility, arguing that the guard implicated him to protect Mr. Serrano, the guard’s “good friend”. He did so by covering up for Mr. Serrano, withholding information from the police and falsely portraying Mr. Serrano in the best possible light. B. Mr. Samaniego’s Cross-Examination of the Security Guard [11] Trial counsel’s cross-examination of the security guard lasted approximately a day and a half, spanning over 150 pages of transcript. Time estimates were repeatedly exceeded. On the first day of her cross-examination, she questioned the guard for approximately 2 hours and advised that she would need 45 minutes the next morning. An hour into her cross-examination the following morning, the judge reminded her of her timeline. Counsel advised that she needed another 30 minutes at most. That estimate proved to be grossly inaccurate; the remainder of her cross‑examination took up the entire day. [12] As the record reveals, the cross-examination was often repetitive, wandering, and misleading. Some questions were difficult to understand, particularly for the security guard who required the assistance of an interpreter. The purpose and relevance of many lines of inquiry were difficult to discern. The judge had to excuse the jury five times to discuss issues arising from the cross-examination. Many of these discussions were lengthy and covered ground that had already been dealt with. [13] The potential for prejudice caused by both accused running cut-throat defences added another dimension of difficulty for the judge. Some of trial counsel’s lines of inquiry were highly prejudicial to Mr. Serrano. It was essential that the judge closely monitor the risk this prejudice posed, bearing in mind her obligation to ensure that both accused received a fair trial. [14] In sum, the trial judge had her hands full trying to ensure trial fairness, minimize jury disruption, and rein in a cross-examination that was lengthy, disjointed, and confusing. That she was able to keep the trial on the rails in the circumstances is a credit to her patience and the care she exhibited throughout to protect the interests of the parties, the witnesses, and the members of the jury. III. Issues [15] There are four issues: A. Jurisdiction: Does Mr. Samaniego’s appeal to this Court raise a question of law? B. What is the scope of the trial management power? C. Did the trial judge err by curtailing cross-examination in any of the four rulings? D. If so, can the curative proviso be applied to sustain Mr. Samaniego’s conviction? IV. Analysis A. Jurisdiction: Mr. Samaniego Appeals on a Question of Law [16] Mr. Samaniego appeals to this Court under s. 691(1)(a) of the Criminal Code. That provision allows an accused to appeal as of right on a question of law from a dissenting judgment at the court of appeal. [17] The Crown submits that Mr. Samaniego’s appeal is barred because the disagreement at the Court of Appeal does not raise a question of law; rather, the disagreement between the majority and dissenting judge is largely factual, hinging on differing interpretations of trial counsel’s purpose for engaging in certain areas of cross-examination. This does not, in the Crown’s view, raise a question of law. A judge’s choice to intervene in cross-examination is a question of mixed fact and law (Fanjoy v. The Queen, [1985] 2 S.C.R. 233, at p. 238). Mr. Samaniego characterizes the disagreement at the Court of Appeal differently. He maintains that it raises a question of law regarding the rules of evidence and their application. [18] I agree with Mr. Samaniego’s characterization of the disagreement. While the subject of the appeal was the trial judge’s intervention in cross-examination, this was not the crux of the Court of Appeal’s disagreement. The court disagreed on the characterization of the judge’s interventions and the evidentiary principles that govern them. That raises a question of law (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23). B. Scope of the Trial Management Power [19] Before examining the impugned rulings, it is necessary to discuss the content and scope of the trial management power. [20] The trial management power allows trial judges to control the process of their court and ensure that trials proceed in an effective and orderly fashion. While this Court has not provided explicit guidance on the nature and scope of the power, it has implicitly endorsed the concept (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 26). [21] The power has three interrelated purposes: ensuring that trials proceed fairly, effectively, and efficiently (R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47; R. v. Polanco, 2018 ONCA 444, at para. 22 (CanLII)). [22] Judges may intervene to manage the conduct of trials in many ways, including restricting cross-examination that is unduly repetitive, rambling, argumentative, misleading, or irrelevant (R. v. Ivall, 2018 ONCA 1026, 370 C.C.C. (3d) 179, at paras. 167-68; R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.), at para. 25). The trial management power is an essential and versatile tool; it must, however, be exercised carefully (R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.), at para. 38). Parties should generally be allowed to present their cases as they see fit (Polanco, at para. 29). [23] Managing the conduct of trials to ensure timely justice is particularly important, considering this Court’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 139. Excessive trial delay can be mitigated by proper trial management. [24] Ensuring efficiency does not mean sacrificing the rules of evidence. Mr. Samaniego submits that trial management decisions and evidentiary rulings must always remain separate to ensure that erroneous evidentiary rulings are not glossed over under the guise of trial management on appellate review. While I disagree that trial management and evidentiary rulings must always remain separate, I agree that trial management does not provide a safe haven for erroneous evidentiary rulings. [25] Trial management decisions and the rules of evidence must generally remain separate issues on appellate review. The standard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Extricable evidentiary errors are held to a more stringent standard of review than trial management decisions. The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency. [26] Sometimes trial management decisions will overlap with the rules of evidence. For example, where counsel tries to revive a line of inquiry that the trial judge has previously barred in an evidentiary ruling, the rules of evidence and trial management overlap. Drawing on the previous evidentiary ruling — that the line of questioning is barred by an evidentiary rule — the judge exercises their trial management power to curtail irrelevant and repetitive questioning. As this example illustrates, it is important on appellate review that trial management decisions are examined in the context of the trial as a whole, rather than as isolated incidents. Trial management decisions, as the one in this example, engage the judge’s discretion. Absent error in principle or unreasonable exercise, these discretionary decisions deserve deference (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44). C. The Impugned Trial Rulings [27] Mr. Samaniego submits that the trial judge improperly curtailed four lines of questioning during his counsel’s cross-examination of the security guard: (1) whether there was a cocaine transaction between Mr. Serrano and the security guard; (2) whether the security guard was “scared” at any time during the incident; (3) whether the security guard “refused” to identify the two accused; and (4) who dropped the gun and w

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