R v Samaniego: SCC Defines Trial Management Powers in Evidentiary Rulings
“The accused was entitled to a fair trial, not an endless one,” the Supreme Court of Canada (“SCC” or “the Court”) asserted in the recent ruling, R v Samaniego, 2022 SCC 9 [Samaniego]. It is a cogent quote in defence of trial management power—a power that allows trial judges to control court processes to ensure that trials proceed “in an effective and orderly fashion” (Samaniego, para 20).
The scope of trial management powers was put before the Court in Samaniego after a criminally-accused man appealed a trial judge’s decision to quash four lines of questioning that his counsel raised to a key witness. While trial management powers grant judges the authority to restrict cross-examination that is “unduly repetitive, rambling, argumentative, misleading or irrelevant” (Samaniego, para 22), the accused argued that the trial judge exceeded her powers by restricting important evidentiary findings.
In Samaniego, the SCC clarified the scope of a trial judge’s trial management power. Also on the table was whether the trial judge erred in barring the accused’s counsel (“trial counsel”) from cross examining a witness in four impugned rulings, and if so, whether the error could be excused using a curative proviso in the Criminal Code.
In 2015, Mr. Samaniego (“the Respondent”) and his co-accused, Mr. Serrano (“Serrano”) attended a nightclub in Toronto. The security guard allowed Serrano to enter as they were “good friends,” but denied entry to the Respondent due to a negative interaction they had in the past (Samaniego, para 6). By the end of the night, police arrested both the Respondent and his co-accused for possession of a loaded and restricted firearm. The issue at trial surrounded who had possession of the gun.
The Crown contended that both men had the gun in their possession at some point throughout the night (Samaniego, para 8). The crux of their argument relied heavily on the security guard’s testimony (Samniego, para 8). The guard testified that the Respondent flashed him a gun that was in his waistband, which Serrano then took from him to diffuse the situation (Samaniego, para 8). The security guard also remembered someone dropping the gun in front of him and then picking it back up. In his police statement, he mentioned that this individual was Serrano. However, by the time of the preliminary inquiry, the guard could not remember who the person was with certainty. The Crown received permission from the preliminary inquiry judge for the security guard to testify in accordance with his police statement because that document could be said to reliably record his memory at the time of the incident (Samaniego, para 58). Therefore, for the purposes of the trial, the guard was permitted to testify that Serrano dropped and picked up the gun.
Both the Respondent and his co-accused turned on each other at trial and blamed the other as having sole possession of the gun. Central to the Respondent’s defence was impeaching the security guard’s credibility. His primary theory of defence was that he was being falsely blamed by the security guard to cover up for his “good friend,” Serrano (Samaniego, para 10).
Trial counsel cross-examined the security guard at length and the trial judge made numerous interventions (Samaniego, para 11). At issue were four specific lines of questioning that were quashed during the Respondent’s counsel’s cross-examination of the security guard. Those questions were:
- Whether a cocaine transaction occurred between Mr. Serrano and the security guard;
- Whether the security guard was “scared”;
- Whether the security guard “refused” to identify the two accused; and
- Who dropped the gun in front of the security guard and who picked it up (Samaniego, para 27).
The Respondent submitted that the trial judge improperly curtailed these lines of questioning by barring important evidentiary findings. The Crown argued that the judge properly curtailed them as an exercise of her trial management power (Samaniego, para 27).
In a 6-3 majority, the Court sided with the Crown and dismissed the appeal. The SCC found that three of the trial judges impugned rulings were free from error, and while the fourth ruling was problematic in part, the error did not constitute a substantial wrong or miscarriage of justice (Samaniego, para 5).
Writing for the Court, Justice Moldaver first clarified the scope of trial management powers. The purpose of the power is three-pronged: to ensure that trials proceed fairly, effectively, and efficiently (Samaniego, para 21). The Court then teased apart the nuanced relationship between trial management powers and the rules of evidence. Justice Moldaver stressed that ensuring efficiency in the courtroom cannot mean sacrificing rules of evidence (Samaniego, para 24). That said, the two concepts are not mutually exclusive. Occasionally, “trial management decisions will overlap with the rules of evidence,” which is acceptable so long as it is done “carefully” (Samaniego, paras 26, 22). Unless trial judges demonstrate an error in principle or an unreasonable exercise of trial management power, their interventions in court proceedings should be owed deference by appeal courts (Samaniego, para 26).
The Court then found that the trial judge did not err in intervening on the first three impugned lines of questioning.
Regarding the trial counsel’s inquiry into the potential cocaine transaction with the security guard, the trial judge correctly found that there was no “good faith basis” to pursue this line of questioning (Samaniego, para 34). This was because the substance of the questioning was “completely speculative” and the purpose of the questioning was “irrelevant” to the trial issues (Samaniego, para 32). This decision was owed deference to the trial judge.
The SCC also found that the following two lines of questioning were correctly curtailed because they were irrelevant, misleading, and wasteful of court time. On the second line of inquiry regarding whether the security guard was “scared” on the night of the incident, the Court deferred to the trial judge’s discretion. The majority found that it was misleading for trial counsel to cherry-pick a portion of the security guard’s police statement to suggest that the security guard was not scared, when he stated in another portion of the same statement that he was indeed fearful (Samaniego, para 43). On the third line of questioning about whether the security guard “refused” to identify the two accused in a surveillance video, the SCC held that the trial judge properly used her trial management powers to quash the inquiry. She correctly found that identifying the two accused persons was not an issue and was therefore irrelevant to the case (Samaniego, para 52).
SCC Splits on the Fourth Impugned Line of Questioning
While the dissent did not comment on the majority’s treatment of the first three lines of questioning, the Court divided on the trial judge’s fourth intervention when she quashed trial counsel’s cross-examination on who dropped and picked up the gun.
In cross-examination, trial counsel attempted to impeach the guard’s credibility by confronting him with the fact that at some point, he could not recall who had dropped and picked up the gun. The trial judge prohibited trial counsel from doing so. (Samaniego, para 61). She explained that the preliminary inquiry judge “ruled that the guard’s police statement was his evidence on that point” and she could not “go back behind that ruling” (Samaniego, para 61). The trial judge then curtailed the trial counsel’s ability to perform any cross-examination on the security guard’s preliminary inquiry testimony before the adoption of his police statement.
The Majority Finds No Substantial Wrong or Miscarriage of Justice
The majority held that the trial judge’s intervention was problematic in part. It was not wholly problematic because she correctly evoked her trial management power to curtail a line of questioning that “unfairly characterized the facts” about the guard’s memory of the event (Samaniego, para 63). On the part that was problematic, the majority found that it did not amount to a substantial wrong or miscarriage of justice when viewed in the context of the trial as a whole (Samaniego, para 78).
The erroneous aspect of the trial judge’s ruling was when she limited “any cross-examination about the security guard’s preliminary inquiry testimony prior to his adoption of his police statement” (Samaniego, para 64). It was incorrect for her to state that she could not go “behind [the] ruling” of the preliminary inquiry judge (Samaniego, para 64). Trial counsel could have continued to cross-examine the security guard on other inconsistencies between the guard’s preliminary inquiry testimony and police statement had she wanted (Samaniego, para 64).
The majority held that while the judge erred on this point, the error was not fatal to the Respondent. Justice Moldaver relied on a curative proviso found in s. 686(1)(b)(iii) of the Criminal Code, RSC 1985 c. C-46 to make this point. This proviso allows appeal courts to dismiss an appeal from conviction where “no substantial wrong or miscarriage of justice has occurred” (Samaniego, para 65). The Crown can evoke the proviso “where the error is harmless or trivial or where the evidence is so overwhelming that a conviction was inevitable” (Samaniego, para 65)
The majority ruled that the curative proviso applied in this case because the error was “harmless or trivial”. The majority rejected the Respondent’s argument that any erroneous curtailment of cross-examination in a case where credibility is a central issue deserves a new trial (Samaniego, para 68). Rather, throughout the cross-examination, trial counsel made abundantly clear that the Respondent’s primary theory of defence was that the “security guard was lying to protect his good friend, Mr. Serrano” (Samaniego, para 69). As trial counsel was incredibly vocal about the Respondent’s primary theory of defence, the Court held that one additional chance to attack the security guard’s credibility would be “all but inconsequential” in furthering his case (Samaniego, para 69).
Justice Moldaver also stated that any possible prejudice arising from the trial judge’s error would have been minimal (Samaniego, para 72). In fact, the majority held that if trial counsel pursued this fourth line of questioning, it would have potentially worked against the Respondent’s defence. This is because the security guard’s testimony cited Serrano, not the Respondent, as the individual who dropped and picked up the gun. Poking holes in this statement could then further implicate the Respondent.
The Dissent Stresses Exclusivity Between Trial Management Powers and Evidentiary Rulings
Justices Côté, Rowe and Brown (“the dissent”) diverged from the majority. They would have allowed Mr. Samaniego’s appeal, set aside his conviction, and ordered a new trial. Central to their position was that the trial judge improperly quashed a “highly relevant and material line of questioning,” which resulted in an “erroneous evidentiary ruling” that was distinct from a mere trial management decision (Samaniego, para 86). As Justices Côté and Rowe asserted in their reasons, “trial management powers can never be used to exclude relevant and material evidence” (Samaniego, para 126).
The dissent stated that significant risks exist when courts rely on trial management authority to make evidentiary rulings. Namely, it can adversely impact trial predictability and the accused’s right to make a full answer and defence (Sameniego, para 139). Relying on trial management powers in this way could also create a two-tiered legal system in which some litigants “would need to build their case under established evidentiary rules while others would need to build it ounder the trial judge’s […] trial management discretion” (Samaniego, para 143). This would impact fairness and accessibility (Samaniego, para 143).
The dissent also parted from the majority on the application of the curative proviso, finding that it could not be used to save the trial judge’s error. They stressed that, “[t]he error was significant” because the “Crown’s case […] turned entirely on the security guard’s credibility” (Samaniego, para 87).
The Value of Clarity and Efficiency in Litigation
One cannot help but detect the thinly-veiled displeasure coursing beneath Justice Moldaver’s reasons as he explained the conduct of the Respondent’s trial counsel. Within it lies important reminders for litigators on the importance of clarity, succinctness, and efficiency in the courtroom.
Early in his reasons, Justice Moldaver described a setting of disarray in explaining that the Respondent’s trial was “neither a model of brevity nor clarity” (Samaniego, para 2). He continued to condemn trial counsel’s litigation conduct by describing it as “repetitive, wandering, and misleading” as well as “confusing” at times (Samaniego, paras 12, 14). The Justice also did not seem to appreciate that counsel’s “grossly inaccurate” time estimate of requiring an additional 30 minutes of cross-examination when the reality was closer to an entire day (Sameniego, para 11). The Court’s umbrage with trial counsel’s conduct may have influenced their finding that the trial judge’s trial management powers were reasonable in the circumstances. The trial judge, unlike the trial counsel, was lauded by Justice Moldaver as exercising “patience and […] care” in otherwise unruly circumstances (Samaniego, para 14).
Inherent in the Court’s dislike for uncouth litigation is an access to justice issue. Litigators should not waste valuable court time and resources on unnecessary, confusing, or misleading lines of questioning; instead, they must prioritize succinctness to free up the courts for others. Not only can this ensure more just accessibility to the justice system, but it could also save your client a trip to the Supreme Court.