In R. v. Samaniego, 2022 SCC 9, March 25, 2022, the accused and a co-accused (Mr. Serrano) were charged with illegal possession of a firearm. The accused and the co-accused had gone to a club, but a security guard would not allow the accused to enter the club.  He allowed the co-accused, a good friend, to do so. The security guard testified that the accused became upset and threatened him with a gun he had in the waistband of his pants.  

During cross‑examination of the security guard, the trial judge prohibited counsel for the accused from pursuing four lines of inquiry: (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 accused was convicted.  His appeal to the Ontario Court of Appeal was dismissed. He appealed to the Supreme Court of Canada. The Court indicated that the appeal involved the following issues (at paragraph 15):

-What is the scope of the trial management power?

-Did the trial judge err by curtailing cross-examination in any of the four rulings?

-If so, can the curative proviso be applied to sustain Mr. Samaniego’s conviction?

The appeal was dismissed. The Supreme Court held 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” (at paragraph 5).  

What is the scope of the trial management power?

The Supreme Court indicated that 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… Judges may intervene to manage the conduct of trials in many ways, including restricting cross-examination that is unduly repetitive, rambling, argumentative, misleading” (at paragraphs 20 and 22).

Did the trial judge err by curtailing cross-examination in any of the four rulings?

The Court concluded that three of the four rulings illustrated no error.

(1) Whether there was a cocaine transaction between the co‑accused and the security guard:

The Court held (at paragraph 37):

…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).

(2) Whether the security guard was scared at any time during the incident:

The Court held (at paragraph 43):

…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.

(3) Whether the security guard refused to identify the two accused:

The Court held (at paragraph 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.

(4) Who dropped the gun and who picked it up:

The security guard told the police that the co-accused dropped the gun in front of him at the club and picked it back up. At the preliminary inquiry, he initially testified that he was unsure who dropped the gun and picked it up, but subsequently adopted the contents of his statement to the police.

At the trial, the trial judge ruled that defence 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’” (see paragraph 61).

The Court held that the trial judge erred (at paragraph 64):

…It was incorrect for the judge to tell trial counsel she could not go “behind” the preliminary inquiry judge’s ruling on past recollection recorded. Trial judges are not bound by evidentiary rulings made at the preliminary inquiry. More importantly, the guard’s adoption of his police statement as true did not erase his different initial version of events. 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.

If so, can the curative proviso be applied to sustain Mr. Samaniego’s conviction?

The Court held (at paragraph 78):

Overall, I am satisfied that the judge’s technical error caused no substantial wrong or miscarriage of justice. It is difficult to see how the prejudice alleged by Mr. Samaniego materialized. Trial counsel was able to vigorously challenge the security guard’s credibility and repeatedly emphasize the primary defence theory that he was lying to protect Mr. Serrano. Furthermore, there was no indication that she wanted to ask the questions improperly barred by the trial judge. Even if she did want to pursue the line of questioning barred by the judge, this would likely have undermined — rather than supported — the primary theory advanced by Mr. Samaniego. In the context of this trial, the trial judge’s error was harmless and would not have affected the outcome. There was no miscarriage of justice.