Victor Samaniego Appellant v. Her Majesty The Queen, 2022 SCC 9

SUPREME COURT OF CANADA Citation: R. v. Samaniego, 2022 SCC 9 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) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

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 oncross-examination can and should be understood as applications of these ordinary rules of evidence and, in particular, the trial judge’sresidual power to exclude overly prejudicial evidence. A trial judge should prevent counsel from asking irrelevant questions becausethose questions have no probative value.

Similarly, courts should stop repetitious or misleading questioning because the probative valueof repeated or misleading questions is minimal while their prejudicial effects to the trial process are significant. Such interventions areevidentiary rulings, not trial management decisions. Relying on trial management authority when making evidentiary rulings undermines trial predictability and consistency, andthe accused’s right to make full answer and defence. With respect to trial predictability and consistency, the rules of evidence dictatehow parties can establish the facts needed to build their case.

In a predictable manner, it lets parties know what information they canpresent 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 trialmanagement authority to make evidentiary determinations could create a two-tiered system where some litigants would need to buildtheir case under established evidentiary rules while others would need to build it under the trial judge’s more loosely defined and opaquetrial 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 accusedpersons by giving them a wide right to call evidence.

Unlike in the case of Crown-led evidence, there is no evidentiary discretion toexclude 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. Therules of evidence protect an accused’s right to make full answer and defence by ensuring that trial judges do not too readily excludedefence evidence, even when that evidence has minimal probative value or some serious prejudicial effects.

Trial management powers donot direct trial judges to be similarly cautious. Relying on trial management authority to curtail a line of cross-examination in the name oftrial efficiency, for example, could prevent defence counsel from eliciting relevant and material evidence even when the prejudicialeffects 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 arguablymisleading question posed by the accused’s counsel.

If she thought the question was misleading because it was missing necessarycontext, she could have asked the accused’s counsel to rephrase the question and draw the security guard’s attention to the fact that hehad also subsequently adopted his police statement at the preliminary inquiry. The trial judge could have also simply allowed thequestion, leaving it for the Crown to raise the security guard’s prior consistent police statement in reply.

Either way, the jury could thenassess whether the inconsistency was the result of the security guard’s genuine memory loss or whether it was illustrative of the securityguard testifying falsely at the preliminary inquiry to protect his friend. Alternatively, if the trial judge thought that the accused’s counselwas baselessly misrepresenting the facts and misleading the jury, she could have restricted that line of questioning under her overarchingexclusionary power if the question’s probative value was substantially outweighed by its prejudicial effects.

Instead of taking any ofthese steps, the trial judge prevented the accused’s counsel from asking any questions on the specifics about what the security guard saidat the preliminary inquiry before he adopted his police statement. This was an erroneous evidentiary decision. The security guard’s initialpreliminary inquiry testimony was plainly inconsistent with his trial testimony. It was therefore relevant and material to a central issue attrial — the security guard’s credibility. It was also not subject to any exclusionary rule.

The fact that the security guard’s policestatement 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 wasextremely high and touched on the central issue at trial, whereas the prejudicial effects were minimal at best. The accused was deprivedof 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 inwhich the curative proviso is appropriate: (1) where the error is so harmless or trivial that it could not have had any impact on theverdict; or (2) where the evidence is so overwhelming that the trier of fact would have inevitably convicted. Neither branch is applicablein the instant case. First, the trial judge’s error was not harmless. The accused was entitled to fully explore the security guard’s priorinconsistent statement about who dropped and picked up the gun without constraint and use this inconsistency to challenge the securityguard’s credibility.

He was also entitled to use this inconsistency to support the main defence theory that the security guard was willingto lie to protect his friend, the co-accused. The accused was erroneously denied any opportunity to do this. Further, the trial judgeensured that the only question that the accused’s counsel asked about this inconsistency played no role in the jury’s deliberation byinstructing the jury to completely disregard this testimonial inconsistency.

The unfairness flowing from the trial judge’s ruling was notminimized by the fact that the accused could explore other inconsistencies in the security guard’s testimony and generally allude to thesecurity 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 topossession 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 thegun 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, (SCC), [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), (ON CA), 73 O.R. (3d) 40; R. v. Felderhof (2003), (ON CA), 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] 1S.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, 391C.C.C. (3d) 208; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562.

By Côté and Rowe JJ. (dissenting) Fanjoy v. The Queen, (SCC), [1985] 2 S.C.R. 233; R. v. Khanna, 2016 ONCA 39; R. v. Biniaris, 2000 SCC15, [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), (ON CA), 68 O.R. (3d) 481; R. v. Cody, 2017 SCC31, [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, 372C.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, (SCC), [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, (SCC), [1991] 2 S.C.R. 577; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Clarke (1998), (ON CA), 18C.R. (5th) 219; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Osolin, (SCC), [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, (SCC), [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, (SCC), [1984] 2 S.C.R. 311; R. v. Levogiannis, (SCC), [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), (ON CA), 203 O.A.C. 54; R. v. L.K.W. (1999), (ON CA), 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, 151O.R. (3d) 449, 390 C.C.C. (3d) 151, [2020] O.J. No. 2952 (QL), 2020 CarswellOnt 9146 (WL Can.), affirming the conviction of theaccused 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, highlycontested jury trial over a seemingly straightforward issue: whether Mr. Samaniego and/or his co-accused, Mr. Serrano, had possessionof a handgun. The experienced trial judge had her hands full keeping the proceedings on track.

Without her patience and her overridingconcern that all parties be treated fairly, it almost certainly would have resulted in a mistrial. Cut-throat defences led to bickering amongthe parties; time estimates were honoured more in the breach than in the observance; and the jury was repeatedly required to leave thecourtroom while the trial judge dealt with case management and evidentiary issues, many of which were attributable to the manner inwhich 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 wenton 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 toappeal 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 notraise a question of law; rather, the disagreement between the majority and dissenting judge is largely factual, hinging on differinginterpretations of trial counsel’s purpose for engaging in certain areas of cross-examination. This does not, in the Crown’s view, raise aquestion of law.

A judge’s choice to intervene in cross-examination is a question of mixed fact and law (Fanjoy v. The Queen, (SCC), [1985] 2 S.C.R. 233, at p. 238). Mr. Samaniego characterizes the disagreement at the Court of Appeal differently. Hemaintains 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 trialjudge’s intervention in cross-examination, this was not the crux of the Court of Appeal’s disagreement.

The court disagreed on thecharacterization 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 managementpower. [20] The trial management power allows trial judges to control the process of their court and ensure that trials proceed inan effective and orderly fashion.

While this Court has not provided explicit guidance on the nature and scope of the power, it hasimplicitly 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 ). [22] Judges may intervene to manage the conduct of trials in many ways, including restricting cross-examination that isunduly 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), (ON CA), 73 O.R. (3d) 40 (C.A.), at para. 25). The trial management power is an essentialand versatile tool; it must, however, be exercised carefully (R. v. Felderhof (2003), (ON CA), 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 inR. 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 managementdecisions and evidentiary rulings must always remain separate to ensure that erroneous evidentiary rulings are not glossed over under theguise of trial management on appellate review. While I disagree that trial management and evidentiary rulings must always remainseparate, 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.

Thestandard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Extricable evidentiaryerrors are held to a more stringent standard of review than trial management decisions. The trial management power is not a license toexclude 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 torevive a line of inquiry that the trial judge has previously barred in an evidentiary ruling, the rules of evidence and trial managementoverlap.

Drawing on the previous evidentiary ruling — that the line of questioning is barred by an evidentiary rule — the judge exercisestheir trial management power to curtail irrelevant and repetitive questioning. As this example illustrates, it is important on appellatereview that trial management decisions are examined in the context of the trial as a whole, rather than as isolated incidents. Trialmanagement 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 who picked it up. He does not raise ineffective assistance of counsel.

The Crown submits that the judge properly curtailed all four lines of questioning as an exercise of her trial management power. [ 28 ] As I will explain, the trial judge did not err in curtailing the first three impugned lines of questioning. This Court only divides on the fourth ruling set out in the preceding paragraph, namely who dropped the gun and who picked it up. On that ruling, while I am satisfied that the curtailment of questioning was erroneous in part, I conclude that the error was harmless and occasioned no substantial wrong or miscarriage of justice. Accordingly, I would dismiss the appeal.

(1) Whether There Was a Cocaine Transaction Between Mr. Serrano and the Security Guard (

a) Background and Ruling [ 29 ] Trial counsel attempted to pursue a line of questioning intended to suggest that Mr. Serrano went to the club that night either to sell cocaine to, or buy cocaine from, the security guard. She asked the guard if he took cocaine that day. He said no. She asked if he saw Mr. Serrano taking cocaine. He said no. Trial counsel then suggested to the guard that Mr. Serrano had cocaine on him when he was arrested: “Surprise[d] to learn that . . . he had some cocaine on him when he was arrested?” (A.R., vol. II, at p. 85).

The guard replied that he did not understand. [ 30 ] Both the Crown and Mr. Serrano’s counsel objected to this line of questioning. The judge excused the jury and conducted a voir dire . The Crown submitted that the questioning was improper. While acknowledging that Mr. Serrano was initially charged with possession of cocaine, the Crown did not seek a committal on that charge at the preliminary inquiry. Mr.

Serrano’s counsel expressed concern that the issue of cocaine possession was raised at all, given that the parties had agreed to stay away from it, as it amounted to bad character evidence. [ 31 ] Trial counsel indicated that she was unaware that the cocaine issue was off limits, even though she knew that the charges against Mr. Serrano had been withdrawn. Her position was that Mr. Serrano went to the club to sell cocaine to, or buy cocaine from, the security guard. She relied on the fact that cocaine was found on Mr. Serrano when he was arrested.

She further pointed to a split-second clip in the surveillance video where the guard and Mr. Serrano touched hands, suggesting that this was a drug deal. [ 32 ] The trial judge watched the surveillance video clip twice and concluded that there was no foundation for trial counsel’s suggestion that there was a cocaine transaction between Mr. Serrano and the guard. The momentary touching of hands did not support an inference that any substance was exchanged, much less cocaine.

She concluded that this line of questioning was irrelevant to the charges and “completely speculative”. [ 33 ] Later in the cross-examination during another voir dire , trial counsel again maintained that she should be able to ask about the cocaine because it was in the disclosure material. The judge found that this information formed no part of the case. It had not been established and trial counsel had given no indication in the pre-trial form that she was going to be relying on discreditable conduct. The judge did not allow further cross-examination on this point. (

b) The Trial Judge Did Not Err in Curtailing This Line of Questioning [ 34 ] This ruling involved both an initial evidentiary ruling — that there was no good faith basis for the line of questioning — and a subsequent trial management decision — rejecting trial counsel’s renewed attempts to pursue this questioning. [ 35 ] The trial judge’s initial evidentiary ruling discloses no error. She correctly assessed whether there was a good faith basis for the questions based on trial counsel’s articulated purpose. Trial judges should not have to go behind counsel’s articulated purpose when making a ruling.

While 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. In some cases, the purpose of a line of questioning may be apparent from the context, even where it has not been explicitly articulated. However, to ensure a fair trial, trial judges must be careful not to be seen as making arguments for a represented accused or the Crown.

This is particularly important in a case like this, where the co-accused were running cut-throat defences. [ 36 ] 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. Regrettably, the learned dissenting judge in the Court of Appeal did not heed this admonition.

With respect, his reasons bear little relationship to the questions trial counsel sought to ask or the purposes articulated by her for asking them. [ 37 ] Returning to the issue at hand, trial counsel repeatedly said that she wanted to ask about cocaine to demonstrate that Mr. Serrano went to the club to sell cocaine to, or buy cocaine from, the security guard. The trial judge was entitled to rely on the purpose articulated by counsel for the proposed line of questioning.

Even though the judge did not explicitly use the words “good faith”, her findings demonstrate that she answered the correct question: Was there a reasonable inference available on the facts that there was a cocaine transaction between Mr. Serrano and the guard? The 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 ( R. v.

Lyttle , 2004 SCC 5 , [2004] 1 S.C.R. 193, at para. 48 ). [ 38 ] When trial counsel revived her attempts to ask about the cocaine later on in the cross-examination, the trial judge reasonably exercised her trial management power to curtail irrelevant questioning that would not have furthered any issue at trial ( Ivall , at para. 168 ). Her decision is owed deference and does not warrant intervention.

(2) Whether the Security Guard Was “Scared” at Any Time During the Incident

(

a) Background and Ruling [ 39 ] Trial counsel asked the security guard a series of questions, apparently designed to establish that he was lying about being “scared” at the club that night. She began by having him read out a portion of his police statement where, in response to being asked how he felt when Mr. Serrano dropped the gun beside him, he replied: “I was not scared, but surprised” (A.R., vol. II, at p. 82). Trial counsel then asked the guard to confirm that he said he was not scared. The guard agreed that he was not scared at that moment.

Shortly thereafter, trial counsel suggested to him that he was not scared at all on the day of the incident. The guard agreed. [ 40 ] Later on during a voir dire , Mr. Serrano’s counsel objected to trial counsel’s portrayal of the security guard’s evidence about not being scared during the incident. Specifically, Mr. Serrano’s counsel argued that it was unfair for trial counsel to maintain that the guard was not scared that day, based on an isolated portion of his police statement, where elsewhere in the statement, he said he was scared.

Trial counsel agreed that there was another passage in the statement where the guard said he was scared. [ 41 ] The judge found that it was unfair to excerpt parts of the police statement in a misleading way. She decided that the easiest way to deal with this problem was to provide a corrective instruction to the jury immediately, rather than take the security guard back to the confusing statement. She instructed the jury that, in addition to the passage trial counsel highlighted where the guard said he was not scared for his safety, there was another passage in his police statement where he said he was scared.

Trial counsel did not object or express any disagreement with this instruction. [ 42 ] Immediately following the corrective instruction, trial counsel asked the security guard if he agreed that there was a passage in his police statement where he said he was not scared and another passage where he said he was scared. The guard agreed. (

b) The Trial Judge Did Not Err in Curtailing This Line of Questioning [ 43 ] The judge’s trial management decision to curtail and clarify trial counsel’s misleading suggestion was reasonable and is owed deference. It was misleading to suggest that the security guard was not scared that day 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 trial counsel to pursue it, only to learn later that the questions were misleading and could only serve to distract or confuse the jury. The judge reasonably exercised her trial management power to stop this misleading questioning and correct it with an instruction to the jury. [ 44 ] Mr. Samaniego suggests that it was wrong for the judge to provide the corrective instruction before the security guard formally adopted the passage in his police statement where he said he was scared. I disagree.

There was no error for three reasons. [ 45 ] First, directly after the instruction, trial counsel had the security guard adopt the passage of his police statement where he said he was scared. This momentary delay caused no prejudice to Mr. Samaniego. [ 46 ] 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. [ 47 ] Third, trial counsel did not raise any objection to the judge providing a corrective instruction.

This may have been a tactical choice because further highlighting the guard’s prior consistent statement would have undermined Mr. Samaniego’s overarching theory: that the guard was lying. While not determinative, lack of objection to the judge’s instruction is informative as to the materiality of an alleged error ( R. v. Calnen , 2019 SCC 6 , [2019] 1 S.C.R. 301, at para. 38 ). [ 48 ] Mr. Samaniego suffered no unfairness from the judge drawing attention to a passage of the security guard’s police statement that he had not yet explicitly adopted.

The judge was reasonably responding to misleading questioning by trial counsel. Any minor prejudice was fleeting because the guard adopted the passage from his statement immediately after the corrective instruction.

(3) Whether the Security Guard “Refused” to Identify the Two Accused (

a) Background and Ruling [ 49 ] At trial, trial counsel attempted to confront the security guard with a line from his preliminary inquiry testimony, in which, according to counsel, he was “refusing” to identify the two accused. The trial judge did not allow the questions. [ 50 ] On the first of several days of examination-in-chief at the preliminary inquiry, the security guard testified about his interactions with the two accused. The proceeding was adjourned in the middle of his examination-in-chief.

Over four months later, the preliminary inquiry resumed and the Crown continued its examination-in-chief by reminding the guard that he had testified months earlier about his interactions with the two accused. The guard agreed. The Crown then showed him a surveillance video of the night in question. [ 51 ] At the outset of the renewed questioning, the guard had difficulty identifying the persons in the video as the two accused. Crown counsel indicated that he had spoken with both defence counsel and it was agreed that the video showed the guard interacting with the two accused.

The guard replied: “I do understand what you say, but the thing is that I’m not sure — I don’t recall really whether those are the same people” (R.R., vol. I, at p. 40). The Crown indicated again that there was no issue that the two people in the video were the two accused. The rest of the video was played and the guard answered questions in which he identified the two accused in the video.

Trial counsel did not cross-examine him at the preliminary inquiry on any source of confusion regarding identification. [ 52 ] At trial, however, she sought to cross-examine the guard on his evidence from the preliminary inquiry in which he testified that he could not recall whether the two accused were the persons in the video. In a voir dire to determine the propriety of a proposed line of questioning, she told the trial judge that she intended to ask the security guard about this aspect of his testimony because it demonstrated that he did not want to identify the two accused.

The judge reiterated that identity was admitted. She ruled that trial

counsel could not pluck a line from the preliminary inquiry testimony that was not relevant to an issue at trial, nor pursued as an issue at the preliminary inquiry. [ 53 ] Later on during the voir dire , trial counsel tried to revive this line of questioning, maintaining that at the preliminary inquiry, the security guard was “refusing to identify” the two accused in the video (A.R., vol. II, at p. 190). Again, the judge reiterated that identification of the two accused was not an issue and that trial counsel had not pursued it as an issue at the preliminary inquiry. (

b) The Trial Judge Did Not Err in Curtailing This Line of Questioning [ 54 ] The trial judge appropriately prevented trial counsel from pursuing this misleading line of questioning. The judge was entitled to rely on trial counsel’s articulated purpose for her questions. Trial counsel’s purpose was to suggest that the security guard refused to identify the two accused at the preliminary inquiry. This was simply not true. The guard’s comment about not recalling whether the two persons in the video were the two accused must be taken in context.

At the preliminary inquiry, the guard identified the two accused as those involved in the incident, both before and after the impugned comment. To suggest he refused to identify the accused was misleading. [ 55 ] Furthermore, if there was any concern that the security guard was refusing to identify the two accused, this concern was dispelled at trial. The guard identified the two accused as the persons in the surveillance video near the beginning of his examination-in-chief.

There was no issue that the guard could not, or would not, identify the accused as the two persons in the video. [ 56 ] The judge reasonably exercised her trial management power to curtail this misleading and irrelevant line of questioning. Her decision is owed deference. The questions were not relevant to the resolution of any live issues in the case. Rather, they were misleading, wasteful of court time, and disruptive to the jury. Mr. Samaniego was entitled to a fair trial, not an endless one ( Ivall , at para. 168 ).

(4) Who Dropped the Gun and Who Picked It Up (

a) Background and Ruling [ 57 ] Shortly after the incident at the club, the security guard told the police in a recorded statement that Mr. Serrano dropped the gun in front of him at the club and picked it back up. At the preliminary inquiry, the guard initially testified that he was unsure who dropped the gun and picked it up. The Crown tried to refresh his memory by asking him to read his police statement. He testified that he still did not remember. [ 58 ] The Crown then asked the guard to reread a portion of his police statement.

The security guard testified that he could not really remember what happened because it was a long time ago, but he confirmed that his memory was fresher when he gave his police statement. In the face of this response, the Crown sought and received permission from the preliminary inquiry judge to have his statement on this point entered into evidence as past recollection recorded — a method of refreshing the memory of a witness who does not have a present recollection of an event by having them adopt a document that reliably recorded their memory at or around the time of the event (D. M. Paciocco, P.

Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at pp. 539-40). [ 59 ] At trial, the security guard testified in accordance with his police statement: that Mr. Serrano dropped the gun and picked it up. Trial counsel confronted the guard with the contrary evidence he had initially given at the preliminary inquiry and asked: “. . . why did you not tell what you’re telling us today or yesterday?” (A.R., vol. II, at p. 177). [ 60 ] Crown counsel objected.

She submitted that this was not a fair question because the security guard had adopted his police statement at the preliminary inquiry as past recollection recorded due to a genuine memory lapse. It was misleading for trial counsel to suggest that he was lying by not giving the same version of events at trial as he did at the preliminary inquiry.

The Crown suggested that trial counsel “can put to the witness that his memory was fading on some aspects at the preliminary inquiry and ask him why he remembers those portions today, but not to say he was lying at the preliminary inquiry” (p. 184). [ 61 ] The judge agreed that trial counsel could challenge the security guard on the contents of his police statement and on his failing memory. She could not, however, question him about his first version of events before adopting his police statement as past recollection recorded.

The trial judge decided that, since the preliminary inquiry judge ruled that the guard’s police statement was his evidence on that point, she could not go “back behind that ruling” (p. 184). (

b) The Trial Judge Erred in Curtailing This Line of Questioning [ 62 ] The trial judge’s ruling had two aspects. The first was an unproblematic trial management ruling targeting misleading questioning that would have confused the jury and needlessly prolonged the trial. The judge reasonably ruled that trial counsel could not pursue a line of questioning designed to show that the security guard had not told the same story at trial as he did at the preliminary inquiry.

This was a misleading suggestion because the guard did tell the same story at trial and at the preliminary inquiry — 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, trial 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. [ 63 ] The trial judge was entitled to rely on trial counsel’s framing of her proposed line of questioning. She did so and reasonably concluded that it was misleading to suggest that the security guard lied at trial and/or the preliminary inquiry by not telling the same story. That was a misleading characterization of the facts. As such, she was entitled to exercise her trial management power to curtail the proposed questions that, while not irrelevant, unfairly characterized the facts to the point that asking them would have been more distracting than informative ( John , at para. 60 ).

She did, however, allow trial counsel leeway to reframe her questions to ask the guard about his failing memory. This aspect of her ruling reveals no error. [ 64 ] The second, and more 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 anevidentiary ruling, reviewable on a correctness standard. It was incorrect for the judge to tell trial counsel she could not go “behind” thepreliminary inquiry judge’s ruling on past recollection recorded. Trial judges are not bound by evidentiary rulings made at thepreliminary inquiry. More importantly, the guard’s adoption of his police statement as true did not erase his different initial version ofevents.

With respect, the trial judge erred in holding that there was no inconsistency trial counsel could probe, had she sought to do so.The remaining question is whether this error was fatal. In my view, it was not. D. The Curative Proviso Applies [65] The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code allows a court of appeal to dismiss an appealfrom conviction where “no substantial wrong or miscarriage of justice has occurred”. The Crown may rely on the curative proviso wherethe error is harmless or trivial or where the evidence is so overwhelming that a conviction was inevitable (R. v.

Sekhon, 2014 SCC 15,[2014] 1 S.C.R. 272, at para. 53). No one suggests that the evidence in this case was overwhelming; accordingly, our sole concern iswhether the error was harmless or trivial, such that there is no reasonable possibility that the verdict would have been different had it notbeen made (R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at para. 85; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28). [66] The Crown raised the curative proviso for the first time in oral submissions. Even though it was not raised in itsfactum, this does not necessarily bar its application.

Appellate courts may apply the curative proviso if the Crown has implicitly raised itby arguing, in essence, that no substantial wrong or miscarriage of justice occurred or that the evidence of guilt is so overwhelming suchthat the verdict would have been the same (R. v. Ajise, 2018 SCC 51, [2018] 3 S.C.R. 301, at para. 1, aff’g 2018 ONCA 494, 361 C.C.C.(3d) 384, at para. 32; R. v. Cole, 2021 ONCA 759, at paras. 155-58 ; R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, atpara. 49).

Though it would have been preferable had the Crown raised the proviso in its factum, I am satisfied that the content of itsfactum and the invocation of the proviso in oral argument allows this Court to consider it. There is no prejudice to Mr. Samaniego.Experienced appellate counsel representing him made submissions on the proviso in his main argument and again in reply. He did notsubmit that we should bar the Crown from raising it.

In any event, even if he had, I would have granted leave to the Crown to do so inthe interests of justice. [67] In support of its position, the Crown submits that the incorrect curtailment of one line of questioning, designed toimpeach the security guard’s credibility, would not have impacted the result. Trial counsel was able to effectively challenge the guard’sfaulty memory on the point in issue — who dropped the gun and who picked it up — and used this to cast doubt on the overall credibilityand reliability of the guard’s evidence. [68] Mr.

Samaniego, on the other hand, submits that any improper curtailment of cross-examination in a case wherecredibility is the central issue should result in a new trial. Being prevented from pursuing a valuable line of inquiry to further his pivotaltheory that the security guard was lying constitutes reversible error. With respect, I would not give effect to his submissions for threereasons. [69] First, both in cross-examination and her closing address, trial counsel brought home to the jury, in no uncertain terms,the primary theory of Mr.

Samaniego’s defence, namely that the security guard was lying to protect his good friend, Mr. Serrano. Trialcounsel vigorously and repeatedly attacked the guard’s credibility in cross-examination. In total, she spent one and a half dayschallenging his credibility on virtually every facet of his evidence. On three occasions, she put the primary theory of Mr. Samaniego’sdefence directly to him. In the context of this lengthy cross-examination, one further opportunity to attack the guard’s credibility would,in my view, have been all but inconsequential in advancing the primary theory of Mr. Samaniego’s defence.

There was no mystery aboutit; even Mr. Serrano’s counsel and the Crown drew the jury’s attention to it in their closing addresses. If the jury knew nothing else, theyknew that Mr. Samaniego’s defence hinged on undermining the credibility of the security guard by showing that he and Mr. Serranowere good friends and the guard was lying about Mr. Samaniego’s involvement to protect Mr. Serrano. [70] The jury’s evident knowledge of the primary theory of Mr.

Samaniego’s defence distinguishes this case from Lyttle,where the trial judge prohibited defence counsel from advancing their primary theory aimed at undermining the credibility of a keywitness. Indeed, the judge threatened a mistrial if defence counsel ignored his ruling. On appeal to this Court, the line of questioning thatMr. Lyttle’s defence counsel sought to pursue was found to be proper. As such, the trial judge’s ruling effectively deprived Mr. Lyttlefrom presenting the primary theory of his defence to the jury. In those circumstances, it goes without saying that the proviso could notreasonably apply.

That is a far cry from this case. Here, Mr. Samaniego was able to advance the primary theory of his defence withouthindrance. [71] Let me be clear. There is no categorical rule that any improper interference with cross-examination bars application ofthe proviso. I need look no further than this Court’s recent decision in R.V. Writing for a majority of the Court, Karakatsanis J. appliedthe proviso, despite finding that defence counsel’s cross-examination was improperly curtailed on a point that was highly relevant, andindeed critical, to defence counsel’s attack on the complainant’s credibility (paras. 7 and 98).

As is the case here, Karakatsanis J. foundthat enough cross-examination was permitted — and occurred — which “allowed the defence to test the evidence with sufficient rigour”(para. 9). In both this case and R.V., the triers of fact were well aware of the critical defence theory based on the questions defencecounsel were allowed to ask (para. 98). [72] Second, on the facts of this case, any possible prejudice arising from this single misstep by the trial judge would havebeen minimal.

Had trial counsel been able to probe the security guard on his inconsistent accounts at the preliminary inquiry, in my view,this would not have furthered Mr. Samaniego’s primary theory; on the contrary, it would have worked against it. [73] At every step of the way, the security guard’s account of who dropped and picked up the gun served to incriminateMr. Serrano, not vindicate him. Beginning with the police interrogation, had the guard wanted to protect Mr. Serrano, surely he wouldnot have told the police that it was Mr. Serrano who dropped the gun in front of him and picked it up. Putting the gun in Mr.

Serrano’shand incriminated him. At the preliminary inquiry, the guard retreated from his initial testimony that he could not remember whodropped and picked up the gun; in its place, he adopted his police statement that it was Mr. Serrano who did so. Again, this did not helpMr. Serrano, it incriminated him. And finally at trial, the guard testified in accordance with his police statement — again incriminating

Mr. Serrano. Viewed in this light, it is fanciful to think that Mr. Samaniego’s primary theory would have been furthered had trial counselbeen allowed to probe the discrepancy about who dropped the gun and who picked it up. [74] Finally, it is speculative to suggest that trial counsel would have even asked the security guard about why he gave twoversions of events at the preliminary inquiry. At no point during the lengthy voir dire did trial counsel indicate that she wanted to ask thisquestion.

She repeatedly told the judge that her proposed questioning concerned the security guard’s failing memory between thepreliminary inquiry and trial — questioning that the trial judge allowed. She focused on the fact that the guard adopted his policestatement as past recollection recorded at the preliminary inquiry because he could not remember who dropped and picked up the gun,whereas at trial, he could remember. The trial judge allowed this questioning so long as trial counsel stayed away from the guard’sversion of the events before the past recollection recorded ruling.

In doing so, the judge was entitled to rely on trial counsel’s articulationof the purpose for the questions, without fear of being second-guessed on appeal. [75] While the judge should not have curtailed cross-examination on the security guard’s version of events before the pastrecollection recorded ruling, there is no indication that trial counsel intended to ask such questions. It is speculative, at best, to suggestthat she would likely have pursued this line of questioning when she made no attempt to do so at any point in her cross-examination. [76] Mr.

Samaniego was entitled to a fair trial, not a perfect trial (R. v. Harrer, (SCC), [1995] 3 S.C.R.562, at para. 45). My colleagues refrain from deciding whether the trial judge erred in the other three impugned rulings. Instead, theyfocus on one mistake, arising out of one ruling, on one area of cross-examination — and maintain that Mr. Samaniego did not receive afair trial. While one error may be enough in some circumstances to render a trial unfair, I am not persuaded that the single error here wasenough.

Viewed properly in the context of the trial as a whole, the jury had what they needed to infer that the guard may not have beentelling the truth about who dropped the gun and who picked it up. [77] My colleagues and I agree that an accused’s right to cross-examination is a fundamental part of full answer anddefence, but that this right is not unlimited (Côté and Rowe JJ.’s reasons, at para. 183). We also agree that the curative proviso can onlyrarely apply in cases where cross-examination has been improperly curtailed (para. 170; R.V., at para. 86). But we

part company as towhether this is one of those rare cases where the error was harmless and the proviso can apply. In my view, for the reasons I haveprovided in paras. 69-75, it is. [78] Overall, I am satisfied that the judge’s technical error caused no substantial wrong or miscarriage of justice. It isdifficult to see how the prejudice alleged by Mr. Samaniego materialized. Trial counsel was able to vigorously challenge the securityguard’s credibility and repeatedly emphasize the primary defence theory that he was lying to protect Mr. Serrano.

Furthermore, there wasno indication that she wanted to ask the questions improperly barred by the trial judge. Even if she did want to pursue the line ofquestioning barred by the judge, this would likely have undermined — rather than supported — the primary theory advanced byMr. Samaniego. In the context of this trial, the trial judge’s error was harmless and would not have affected the outcome. There was nomiscarriage of justice. V. Disposition [79] I would dismiss Mr. Samaniego’s appeal and affirm his conviction. The reasons of Côté, Brown and Rowe JJ. were delivered by Côté and Rowe JJ. — I.

Introduction [80] Trial judges have the authority to control the proceedings over which they preside. Through the exercise of their “trialmanagement” powers, courts can promote efficient adjudication by controlling how parties present their case. But these trialmanagement powers end where the law of evidence begins. Rulings on the admissibility of real or oral evidence, including rulings onpermissible lines of cross-examination, are evidentiary decisions.

The propriety of those rulings is governed by the rules of evidence, notthe court’s trial management authority. [81] As this case demonstrates, an overly broad and haphazard approach to trial management powers undermines trialpredictability and consistency, and an accused’s right to make full answer and defence. Most litigation is a truth-seeking exercise. Casestypically turn on a dispute about the facts, not on disagreements about what the law requires. The rules of evidence outline how partiescan establish the facts needed to build their case.

In a predictable manner, it lets parties know what information they can present tosupport their case, how they can tender this information, and what use they can make of this information once admitted. These rulescannot be ignored because a trial judge is presiding over a difficult or complex case. Excluding relevant and material evidence under theguise of a trial judge’s trial management powers creates legal uncertainty and undermines an accused’s right to make full answer anddefence.

That is what occurred here. [82] The appellant, Victor Samaniego, and his co-accused, Jose Patricio Serrano, were charged with possession of aloaded restricted firearm. The only issue at trial was who had possession of the gun outside of a nightclub. Mr. Samaniego andMr. Serrano each ran a “cut-throat” defence, accusing the other of bringing the gun to the nightclub. [83] The only evidence linking Mr. Samaniego to possession of the gun was the testimony of the nightclub’s securityguard. His credibility was the most important issue at trial. [84] At trial, the trial judge made four impugned rulings during Mr.

Samaniego’s cross-examination of the security

guard. For the purposes of this appeal, it is sufficient to consider only one of these rulings: the trial judge’s exclusion of a prior inconsistent statement by the security guard made at the preliminary inquiry about who dropped and picked up the gun. At the preliminary inquiry, the security guard initially testified that he did not see who dropped and picked up the gun outside of the nightclub. At trial, he testified that Mr. Serrano dropped and picked up the gun. Mr. Samaniego sought to impugn the security guard’s credibility with this inconsistency, but the trial judge prevented him from doing so.

We do not discuss the other three impugned rulings, as it is unnecessary to do so. [ 85 ] Mr. Samaniego and Mr. Serrano were both convicted. On appeal, Mr. Samaniego challenged the four mid-trial rulings, including the ruling above. A majority of the Court of Appeal dismissed the appeal. They labelled all of the trial judge’s rulings as harmless “trial management” decisions. The dissenting judge disagreed. In his view, the impugned rulings were incorrect evidentiary decisions, not trial management decisions. Since these rulings deprived Mr.

Samaniego of highly probative evidence, a new trial was necessary. [ 86 ] We would allow the appeal. In our view, the trial management powers cannot be used to exclude relevant, material, and otherwise admissible evidence. The trial judge’s ruling improperly prevented Mr. Samaniego from pursuing a highly relevant and material line of questioning. It was therefore an erroneous evidentiary ruling, not a trial management decision.

Contrary to the trial judge’s reasons, the fact that the security guard’s police statement was admitted for the truth of its contents did not erase the security guard’s initial inconsistent preliminary inquiry testimony. The trial judge erred by concluding otherwise. [ 87 ] This error cannot be saved by the curative proviso. The error was significant. The Crown’s case against Mr. Samaniego turned entirely on the security guard’s credibility. Any inconsistency in the security guard’s testimony was therefore highly relevant to Mr. Samaniego’s defence.

But an inconsistency going to the heart of the indictment — who had possession of the gun — was the most important type of testimonial inconsistency that defence counsel could hope to explore. This is especially so given the facts of this case, as the security guard’s initial unwillingness to incriminate his friend, Mr. Serrano, at the preliminary inquiry until he was confronted with a contradictory police statement buttressed Mr. Samaniego’s central defence theory: that the security guard was willing to testify falsely in order to protect Mr.

Serrano. [ 88 ] The significant harm flowing from this error was not diminished by the fact that Mr. Samaniego could impugn the security guard’s credibility in other ways. An effective cross-examination often involves a coordinated series of attacks that, cumulatively, undermine the witness’s credibility. The right to make full answer and defence therefore entitles an accused to explore all inconsistencies and lines of credibility attack, within evidentiary limits. Mr. Samaniego was unfairly deprived of this right. The curative proviso is therefore inapplicable. [ 89 ] It follows that we would set aside Mr.

Samaniego’s conviction and order a new trial. II. Background [ 90 ] Mr. Samaniego was charged with possession of a loaded restricted firearm, contrary to s. 95(1) of the Criminal Code , R.S.C. 1985, c. C-46 . He was jointly tried with Mr. Serrano, who was charged with the same offence. The trial took place with a jury and both men were convicted. The key issue at trial was whether one or both of the co-accused possessed the gun outside of a nightclub in Toronto. [ 91 ] The events in question took place on August 17, 2015. Police were called and informed about a gun outside of a nightclub.

When police arrived and approached Mr. Samaniego and Mr. Serrano, Mr. Serrano was in possession of the gun. Police observed Mr. Serrano throwing the gun away, but it was recovered shortly thereafter. [ 92 ] The Crown’s theory at trial was that Mr. Samaniego and Mr. Serrano went to the nightclub together, with Mr. Samaniego initially in possession of the gun. The Crown relied heavily on the testimony of the security guard at the nightclub. The security guard testified that he denied Mr. Samaniego entry due to a previous incident between the two and that, in response, Mr.

Samaniego threatened him and lifted his shirt to reveal a gun in his waistband. The security guard testified that Mr. Serrano then took possession of the gun from Mr. Samaniego. Mr. Serrano subsequently dropped the gun and picked it up, at which point the police were called. [ 93 ] Mr. Samaniego and Mr. Serrano each ran a “cut-throat” defence, accusing the other of having brought the gun to the nightclub. Mr. Serrano’s position was that he took the gun away from Mr. Samaniego after the altercation with the security guard. Mr.

Samaniego’s position was that he never had possession of the gun and that he did not even know about it until Mr. Serrano dropped it. Mr. Samaniego testified at the trial, while Mr. Serrano did not testify. [ 94 ] The security guard’s testimony was crucial to the Crown’s case against Mr. Samaniego as well as Mr. Serrano’s defence. While the Crown tendered three surveillance clips that captured some of the events in question, none depicted Mr. Samaniego in possession of the gun. The security guard’s testimony was the only evidence at trial directly linking Mr. Samaniego to the gun. [ 95 ] Mr.

Samaniego’s defence therefore centred on undermining the security guard’s credibility. A key line of attack was Mr. Serrano and the security guard’s close personal relationship. Whereas the security guard and Mr. Samaniego had a history of animosity, the security guard and Mr. Serrano had been good friends for 10 years. Mr. Samaniego thus sought to establish that the security guard was giving biased and inaccurate testimony in order to protect his friend. Mr.

Samaniego’s counsel also relied on the security guard’s police statement and his preliminary inquiry testimony, highlighting purported inconsistencies with his testimony at trial in order to undermine his credibility. [ 96 ] Throughout the trial, the trial judge made a number of rulings that circumscribed defence counsel’s ability to challenge the credibility of the security guard on cross-examination. For the purposes of this appeal, it is sufficient to

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