Her Majesty the Queen v. Samaniego

[Indexed as: R. v. Samaniego]

Ontario Reports

Court of Appeal for Ontario

Benotto, Paciocco and Thorburn JJ.A.

July 6, 2020

151 O.R. (3d) 449 | 2020 ONCA 439

Case Summary

Criminal law — Evidence — Admissibility — Prior discreditable conduct — Trial fairness — Appellant and co-accused charged with possession of restricted firearm — Incident occurring at nightclub in presence of security guard known to both accused — Appellant alleging that guard's evidence protected co-accused — Appeal based on trial judge's rulings narrowing or restricting counsel's challenging of guard's evidence regarding identification, prior statements and whether incident involved a drug deal — Trial judge's rulings not affecting trial fairness — Appeal dismissed.

Criminal law — Evidence — Witnesses — Evidence previously taken — Trial fairness — Identification — Prior consistent statements — Prior inconsistent statements — Appellant and co-accused charged with possession of restricted firearm — Incident occurring at nightclub in presence of security guard known to both accused — Appellant alleging that guard's evidence protected co-accused — Appeal based on trial judge's rulings narrowing or restricting counsel's challenging of guard's evidence regarding identification, prior statements and whether incident involved a drug deal — Trial judge's rulings not affecting trial fairness — Appeal dismissed.

Criminal law — Sentence — Appeal — Accused sentenced to 48 months for possession of loaded restricted firearm — Trial judge properly considered lack of prior record and accused's family support as mitigating, but appellant was hostile in a public space with a loaded weapon — Sentence appeal dismissed.

The appellant was one of two men who tried to enter a nightclub. The security guard at the door, who knew both men, testified that he refused entry to the appellant but allowed the other man to enter. The appellant became enraged, threatened the guard, showed him a gun and said that he would shoot him. He then walked away, after which the co-accused took the gun from the appellant and dropped it. Both men were charged jointly with possession of a loaded restricted firearm. The co-accused's defence was that he took the gun from the appellant so that he would not shoot. He had the gun for less than three minutes and did not realize that it was loaded or real. The appellant's defence was that he never had the gun and did not even know about it so it must have been with the co-accused the whole time. According to the appellant, the guard's evidence ought to be rejected because he was protecting the co-accused. During cross-examination of the security guard by appellant's counsel, the trial judge curtailed questions relating to the issue of identity, clarified for the jury portions of the witness's preliminary inquiry, prevented questions about whether the meeting at the club was a cocaine transaction between the guard and the co-accused, and corrected counsel's characterization of an inconsistent statement. Based on those rulings by the trial judge, the appellant appealed his conviction. He also appealed his sentence of 48 months in prison less two months for house arrest and one month for pre-trial custody. [page450]

Held, the appeal should be dismissed.

The trial judge did not err in preventing an identification issue from going to the jury. At the preliminary inquiry, the security guard testified that he didn't really recall whether the two men he was testifying about were the same two men as seen in a security video. During cross-examination at trial, the accused's counsel suggested that the security guard refused to identify the two men. That suggestion was an unfair characterization and irrelevant, as identity was not an issue. The trial judge exercised her discretion to prevent the assertion from going to the jury. Trial fairness was not impacted by the ruling as the appellant's counsel made the point that not only did the guard have a relationship that could bias a witness but that the guard may have given biased testimony.

The trial judge's ruling regarding the security guard's memory as to who had the gun did not render the trial unfair. At the preliminary inquiry, the guard was asked who picked up the gun after it had been dropped but he said he didn't recall. The preliminary judge conducted a voir dire, determined that the loss of memory was genuine and ruled that the guard's police statement, in which he identified the co-accused as having retrieved the gun, was admissible as past recollection recorded. The guard adopted his statement and gave the same evidence at trial, where appellant's counsel confronted him with an excerpt from the preliminary inquiry transcript. The trial judge determined that counsel was unfairly using a selective portion of the transcript to try to show that the guard was lying to the court both at the preliminary inquiry and the trial, but nonetheless allowed cross-examination on his changing memory. Appellant's counsel fully explored various inconsistencies in the security guard's evidence and the suggestion that his testimony was tailored to assist the co-accused, so there was no unfairness to the trial as a whole.

The trial judge's exercise of discretion refusing to allow the guard to be questioned about an alleged drug deal was entitled to deference. Appellant's counsel referred to a moment in the security video where it could be inferred that drugs were passed from the guard to the co-accused. The judge reviewed the video and concluded that the question was purely speculative, lacked a good faith foundation, was irrelevant to the charge and prejudiced the co-accused. That was her call to make and did not jeopardize the fairness of the trial.

There was no error in not putting the guard's police statement to the jury. The guard testified at trial that he found it "scary" to think the appellant was going to shoot him. His police statement indicated that when the gun was dropped he was "not scared, but surprised" and his reaction was to call the police. The statement was a prior consistent statement and as such was presumptively inadmissible and lacked probative value. Trial fairness was not affected.

The trial judge provided extensive and thoughtful reasons for sentence. She considered the appellant's lack of record and his family support and obligations as mitigating factors. However, the offence occurred in a public space, the appellant conducted himself in a hostile and intimidating manner, the firearm was loaded, it had an over-capacity magazine, and the serial number had been removed.

Per Paciocco J.A. (dissenting): In ruling that the line of questioning regarding the co-accused's reaction to the video evidence would not be allowed because identity was not in issue, the trial judge committed an error in principle by misconceiving its relevance. With respect to the evidence regarding the gun, it was clear that defence counsel wanted to use the prior inconsistent statement to mount a credibility challenge. The trial judge erred in treating the issue as [page451] nothing more than a memory challenge. Regarding the alleged drug deal, the trial judge did not identify or apply the legal considerations used where an accused proposes to present discreditable conduct evidence against a co-accused, nor did she identify or apply the legal standard to determine whether there was a sufficient foundation for cross-examination. As for the police statement, the trial judge erred in diminishing the force of an inconsistency by directing the jury that there was also a consistency, and by permitting the re-examination to proceed in that way. The rulings were the results of errors of law and errors of mixed law and fact such that the appeal should not have turned on whether the impugned rulings undermined the fairness of the trial.

Cases referred to

R. v. Abdulle (2020), 149 O.R. (3d) 301, [2020] O.J. No. 572, 2020 ONCA 106 (C.A.); R. v. B. (J.), [2019] O.J. No. 3645, 2019 ONCA 591, 378 C.C.C. (3d) 302 (C.A.); R. v. Crawford (1995), 1995 CanLII 138 (SCC), 22 O.R. (3d)288, [1995] 1 S.C.R. 858, [1995] S.C.J. No. 30, 179 N.R. 161, 81 O.A.C. 359, 96 C.C.C. (3d) 481, 37 C.R. (4th) 197, 27 C.R.R. (2d) 1, 26 W.C.B. (2d) 555; R. v. Duong (2007), 84 O.R. (3d) 515, [2007] O.J. No. 316, 2007 ONCA 68, 220 O.A.C. 131, 217 C.C.C. (3d) 143, 45 C.R. (6th) 145, 150 C.R.R. (2d) 324, 72 W.C.B. (2d) 363 (C.A.); R. v. Earhart, [2010] O.J. No. 5481, 2010 ONCA 874, 270 O.A.C. 250,272 C.C.C. (3d) 475,96 W.C.B. (2d) 153, 81 C.R. (6th) 148 (C.A.); R. v. Eisenhauer, [1998] N.S.J. No. 28, 1998 NSCA 60, 165 N.S.R. (2d) 81, 123 C.C.C. (3d) 37, 14 C.R. (5th) 35, 37 W.C.B. (2d) 439 (C.A.); R. v. Fields (1986), 1986 CanLII 2639 (ON CA), 56 O.R. (2d) 213, [1986] O.J. No. 794, 16 O.A.C. 286, 28 C.C.C. (3d) 353, 53 C.R. (3d) 260, 17 W.C.B. 232 (C.A.); R. v. Grant, [2015] 1 S.C.R. 475, [2015] S.C.J. No. 9, 2015 SCC 9, 468 N.R. 83, [2015] 4 W.W.R. 423, 17 C.R. (7th) 229, 321 C.C.C. (3d) 27, 121 W.C.B. (2d) 139, 384 D.L.R. (4th) 63, 315 Man. R. (2d) 259; R. v. Hamilton, [2011] O.J. No. 2306, 2011 ONCA 399, 271 C.C.C. (3d) 208, 279 O.A.C. 199, 95 W.C.B. (2d) 671 (C.A.); R. v. Ivall, [2018] O.J. No. 6583,2018 ONCA 1026, 370 C.C.C. (3d) 179 (C.A.); R. v. Jackson (2015), 128 O.R. (3d) 161, [2015] O.J. No. 6274, 2015 ONCA 832, 25 C.R. (7th) 243, 87 M.V.R. (6th) 5, 342 O.A.C. 284, 332 C.C.C. (3d) 466 (C.A.); R. v. Johnson, [2010] O.J. No. 4153, 2010 ONCA 646, 262 C.C.C. (3d) 404, 267 O.A.C. 201, 90 W.C.B. (2d) 638, 80 C.R. (6th) 145 (C.A.); R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, 335 C.C.C. (3d) 403, 398 D.L.R. (4th) 381,29 C.R. (7th) 235, 388 B.C.A.C. 111, 358 C.R.R. (2d) 97, 130 W.C.B. (2d) 596; R. v. Kendall, 1987 CanLII 180 (ON CA), [1987] O.J. No. 388, 20 O.A.C. 134, 35 C.C.C. (3d) 105, 57 C.R. (3d) 249, 2 W.C.B. (2d) 8 (C.A.); R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, [1986] S.C.J. No. 65, 33 D.L.R. (4th) 267, 71 N.R. 61, [1987] 1 W.W.R. 97, 7 B.C.L.R. (2d) 273, 29 C.C.C. (3d) 385, 14 C.P.C. (2d) 156, 54 C.R. (3d) 294, 1 W.C.B. (2d) 9; R. v. Luciano, [2011] O.J. No. 399, 2011 ONCA 89, 267 C.C.C. (3d) 16, 273 O.A.C. 273, 95 W.C.B. (2d) 127 (C.A.); R. v. Lyttle, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 2004 SCC 5, 235 D.L.R. (4th) 244, 316 N.R. 52, 184 O.A.C. 1, 180 C.C.C. (3d) 476, 17 C.R. (6th) 1, 60 W.C.B. (2d) 74; R. v. Murray (2017), 138 O.R. (3d) 500, [2017] O.J. No. 2529, 2017 ONCA 393, 347 C.C.C. (3d) 529 (C.A.); R. v. O. (L.), [2015] O.J. No. 2956, 2015 ONCA 394, 324 C.C.C. (3d) 562, 38 O.A.C. 123 (C.A.); R. v. Pan, [2014] O.J. No. 5959, 2014 ONSC 5753, 118 W.C.B. (2d) 380 (S.C.J.); R. v. Polanco, [2018] O.J. No. 2502, 2018 ONCA 444 (C.A.); R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, 83 D.L.R. (4th) 193, 128 N.R. 81, 48 O.A.C. 81, 66 C.C.C. (3d) 321, 7 C.R. (4th) 117, 6 C.R.R. (2d) 35, 13 W.C.B. (2d) 624; R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, 371 N.R. 384, 229 C.C.C. (3d) 257, 76 W.C.B. (2d) 761, 54 C.R. (6th) 228, [2008] 5 W.W.R. 579, 77 B.C.L.R. (4th) 1, 291 D.L.R. (4th) 1, 59 M.V.R. (5th) 1, 251 B.C.A.C. 62; R. v. Stubbs, [2013] O.J. No. 3657, 2013 ONCA 514, 300 C.C.C. 181, 309 O.A.C. 114, 109 W.C.B. (2d) 50 (C.A.); R. v. Suzack, 2000 CanLII 5630 (ON CA), [2000] O.J. No. 100, 128 O.A.C. 140, 141 C.C.C. (3d) 449, 30 C.R. (5th) 346, 71 C.R.R. (2d) 1, 45 W.C.B. (2d) 157 (C.A.); R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, [page452] [1995] S.C.J. No. 82, 128 D.L.R. (4th) 121, 186 N.R. 365, 85 O.A.C. 321, 101 C.C.C. (3d) 97, 42 C.R. (4th) 133, 28 W.C.B. (2d) 282; R. v. Van Leeuwen, [2012] O.J. No. 103, 2012 ONSC 132, 101 W.C.B. (2d) 612 (S.C.J.)

Statutes referred to

Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 9(1), 10 [as am.], 11

Criminal Code, R.S.C. 1985, c. C-46, ss. 95(1) [as am.], 684 [as am.]

Authorities referred to

McCormick, Charles Tilford and John W. Strong, McCormick on Evidence, 4th ed. (West Pub, 1992)

APPEAL by the accused from the conviction entered on June 18, 2018 and the sentence imposed on November 16, 2018 by Croll J., [2018] O.J. No. 6128, 2018 ONSC 6785 (S.C.J.).

Victor Samaniego, acting in person.

David Parry, duty counsel assisting appellant on January 14, 2020, representing appellant on March 10, 2020.

Michael Fawcett, for respondent.

BENOTTO J.A. (THORBURN J.A., CONCURRING): —

[1] I agree with my colleague that the trial judge did not undermine the cross-examination of the security guard and that this ground of appeal should fail. I do not agree with his conclusion that several rulings made by the trial judge during the trial require a new trial. In my view, the rulings were trial management decisions within the discretion of the trial judge and did not deprive the appellant of material evidence necessary for his defence. I would dismiss the appeal and the sentence appeal.

Facts

[2] The issues at this jury trial were not complex. Yet it became a difficult trial requiring management by the trial judge. The simple fact scenario arose as follows.

[3] Officers received information about a gun at the entrance to a nightclub. Within two minutes, they were at the nightclub where they found two men and a loaded restricted firearm. The men were charged jointly with possession pursuant to s. 95(1) the Criminal Code, R.S.C. 1985, c. C-46. [page453]

[4] The issue at trial was whether one or both had possession. The events in question took place within a period of about 15 minutes.

[5] There was no issue that the two men were the appellant and the co-accused Jose Serrano. The appellant testified, Serrano did not.

[6] The Crown alleged that the two accused went to the nightclub together. The appellant brought the gun and later gave it to Serrano. The testimony of the nightclub's security guard was central to the Crown's case. He testified as follows.

[7] The security guard and Serrano were friends. The appellant, however, was not a friend because -- as in the agreed statement of fact -- the security guard had previously been threatened by the appellant.

[8] On the night in question, the security guard was at the entrance to the nightclub. When the appellant and Serrano approached, he allowed Serrano into the nightclub but stopped the appellant. The appellant became enraged, threatened him, showed him a gun and said he would shoot him. He then walked away. Meanwhile, Serrano came back out of the club, went to the appellant, took the gun, walked into the club, came back out and dropped the gun. The security guard asked his friend John to call the police.

[9] Security video was entered into evidence depicting some of what happened. There was no issue as to identity. The appellant and Serrano were the two men who approached the security guard and the two men in the video: the appellant with a ponytail; Serrano wearing a hat.

[10] Serrano's defence was that he was taking the gun away so the appellant would not shoot. He had the gun for less than three minutes and did not realize it was loaded or real. The appellant's defence was that he never had the gun and did not even know about it, so it must have been with Serrano the whole time. The appellant urged the jury to reject the security guard's evidence because he was protecting Serrano.

Conduct of the trial

[11] The trial judge told the jury approximately how long the trial would last. She relied on counsel's time estimates. The estimates were inaccurate. The jury was repeatedly excused for lengthy submissions regarding issues which should have been resolved during the pre-trial process. The jury was held for long periods in the jury room.

The cross-examination of the security guard

[12] The four impugned rulings arose during the cross-examination of the security guard by appellant's counsel. It is not an exaggeration to say that the cross-examination was unfocused, [page454] unstructured, rambling and repetitive. For example, a great deal of time was spent attempting to ask the security guard -- who spoke with an interpreter -- to read the police officer's handwritten notes written in English. Counsel also exceeded the time estimate given for the cross-examination. During the cross-examination, the trial judge

(1) curtailed questions relating to the issue of identity;

(2) clarified for the jury portions of the witness' preliminary inquiry;

(3) prevented questions about whether the meeting at the club was a cocaine transaction between the security guard and Serrano; and

(4) corrected the counsel's characterization of an inconsistent statement.

[13] As I will discuss below, these rulings, viewed in context, do not require appellate intervention. Nor did they deprive the appellant of a fair trial.

Discussion

[14] In my view, the trial judge properly exercised her trial management function, her rulings are entitled to deference and the appellant was not prevented from presenting his defence.

Trial management

[15] A trial judge is required to manage the trial and is in the best position to do so. The trial judge lives with the flow and tenor of the proceedings, observes the testimony and the submissions and exercises discretion to control the process. As this court said in R. v. Hamilton, [2011] O.J. No. 2306, 2011 ONCA 399, 271 C.C.C. (3d) 208 (C.A.), leave to appeal refused, [2011] S.C.C.A. No. 547, at para. 49:

At a time when we are concerned about the increasing cost and length of criminal trials as well as their drain on resources and the pressures they bring to bear on the administration of justice, appropriate trial management is to be encouraged, not muted.

[16] The trial judge's management role has gained significance post-Jordan,with burdened resources and strict time limits. As set out in R. v. Jordan,[2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, at para. 139:

Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials [page455]

[17] This court, when commenting on the above citation said in R. v. Polanco, [2018] O.J. No. 2502, 2018 ONCA 444 (C.A.), at para. 22:

The right of a trial judge to control and manage the trial process is not a new one. It is well-established that trial judges have the authority to ensure that trials proceed not only fairly, but also efficiently. In exercising that authority, trial judges are entitled to take a number of steps, including restricting counsel's questioning of witnesses to ensure that that questioning is not unduly repetitive. On that point, by way of example, in R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, Watt J.A. said, at para. 92

A trial judge may intervene to focus the evidence on issues material to a determination of the case. To clarify evidence as it has been given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitive evidence. To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings: Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, at paras. 233-34.

[18] Each of the impugned rulings was a proper exercise of trial management by an experienced trial judge. They are entitled to deference. Further, none of the rulings impacted the fairness of the trial. The jury would have understood the defence and would not have engaged in impermissible reasoning.

[19] I now turn to the individual rulings.

The impugned rulings

(1) Identity: "I don't recall really whether those [people on the video] are the same people [the two accused]"

(a) Preliminary inquiry evidence

[20] The preliminary inquiry was held over several non-consecutive days. The third day was in November 2016. The next appearance was four months later in March 2017. On that day, the Crown was about to show the security guard the video that depicts two men approaching him at the entrance to the nightclub.

[21] As a lead-in to the video, the Crown said that he had spoken to counsel for the two accused and "there's no issue that it's their clients" approaching and interacting with the security guard. The witness said: "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." The Crown responded, "I can indicate to you, sir, that there's no issue that the people you're talking about are the two people depicted in the video." The rest of the video was then played. The witness described that he "had a problem" with the man with the ponytail and that he was the one he had a [page456] problem with before. He was cross-examined by the appellant's counsel and clearly differentiated between the two accused. There was no indication of confusion and the suggestion was never put to him that he was confused about whether he was mistaken as between the appellant (with the ponytail) and Serrano (his friend with the hat).

(b) Trial evidence

[22] During his cross-examination at trial, the appellant's counsel suggested that the security guard did "not want to identify" and that he was "refusing to identify" the two accused at the preliminary inquiry.

[23] This was the only reason given for the request to pursue this issue.

[24] As the video played during his preliminary hearing testimony, the security guard clearly recognized the two men, and set out their respective actions. The suggestion that he refused to identify the accused was incorrect and an unfair characterization. It was also irrelevant, as identity was not an issue.

[25] The appellant's counsel confronted the security guard about the change in his evidence on this point. She suggested that the evidence he told police was different from the evidence he gave at the preliminary inquiry: when he gave his police statement he said he did not recognize the two accused but, after seeing the video and being told that identity was not an issue at the preliminary inquiry, he told the court the two individuals on the video were the two accused. The security guard explained that in his police statement he did not identify the two accused as he was just responding to questions asked of him and his focus was on the "guy" with whom he had an argument (the appellant).

[26] The appellant's counsel also suggested to the security guard that he gave false testimony to the police to protect Serrano. The security guard admitted that Serrano was a friend and a regular at the club but denied the suggestion that he lied to protect Serrano.

[27] The appellant's counsel thereby addressed the fact that the security guard's testimony on this point changed and why it changed.

[28] What the trial judge did was exercise her discretion to prevent the misleading and irrelevant assertion that the security guard "refused" to identify the two accused, from going to the jury. The witness' testimony at the preliminary inquiry was not inconsistent with his trial testimony. Identity was never an issue at trial. By restricting this line of questioning, [page457] the trial judge did not err. As this court wrote in R. v. Ivall, [2018] O.J. No. 6583, 2018 ONCA 1026, 370 C.C.C. (3d) 179 (C.A.), at para.168:

Trial judges are entitled to restrict a line of cross-examination that would not further the resolution of the issues in the case and might only serve to distract or confuse the jury thereby needlessly prolonging the trial.

[29] Most importantly, trial fairness could not have been impacted by this ruling. The only possible relevance for the question was to undermine the security guard's credibility by showing that he was trying to protect his friend Serrano. The point was made that the security guard changed his evidence (though not the fact that the position in the police statement was repeated at the preliminary inquiry before he was told that identity was not an issue and that the two people in the video was the two accused). It had been made clear throughout the trial that Serrano was his friend and that he had not disclosed his friendship with Serrano at first, and there had been many more effective attacks on the credibility of the security guard. As such, the appellant's counsel made the point that not only did the security guard have a relationship that could bias a witness but that the security guard may have given biased testimony.

(2) The security guard's memory: Who had the gun?

(a) Preliminary inquiry evidence

[30] On the second day of the security guard's preliminary inquiry testimony, he was asked which accused picked up the gun after it was dropped. He could not recall. He said he didn't see who had the gun because he was focusing on the one who threatened him (the appellant). The Crown then applied to enter the security guard's police statement as past recollection recorded.

[31] The preliminary inquiry judge conducted a voir dire, determined that his loss of memory was genuine and ruled that his police statement -- wherein he said Serrano picked up the gun -- was admissible as past recollection recorded. The witness then adopted his statement.

(b) Trial evidence

[32] At trial, the witness said Serrano picked up the gun. The appellant's counsel then read him the following excerpt from the preliminary inquiry:

Q: And I had asked you yesterday whether a particular portion refreshed your memory about whether any of the two individuals or either of the two individuals that you saw had any interaction with the [page458] gun after it fell.

A: As I said yesterday, I didn't see exactly who was the one holding the gun or rather had the gun.

Q: And after the gun fell, did you observe either of the two individuals doing anything to that gun?

A: No, no, I didn't see anything. I don't know what they did with it. I don't know.

[33] After reading the above portions to the witness, appellant's counsel asked the following question:

Q: So, sir, my question to you, why did you not tell what you're telling us today or yesterday?

[34] Later, appellant's counsel suggested to the security guard in cross examination that he

refused to tell the court which of the two people had dropped the gun. . . . The Crown in fact had to bring an application to have your evidence brought in in another way.

[35] The trial judge determined that appellant's counsel was unfairly using a selective portion of the preliminary inquiry transcript to try to show he was lying to the court both at the preliminary inquiry and at trial. She concluded that this was an unfair characterization because the preliminary inquiry judge determined that he had a genuine loss of memory and allowed his memory to be refreshed. Thus, it would have been misleading to suggest that he was lying to both courts.

[36] However, the trial judge nonetheless allowed cross-examination on his changing memory because that is how the appellant's counsel framed her rationale. Appellant's counsel told the judge: "But surely I can challenge him on his lack -- the lack of memory he had at that time and the revival of memory now."

[37] The appellant's counsel was also permitted to challenge the security guard on why his evidence on this point changed:

Q. [Serrano] is your friend for many years.

A. You already asked me that question.

Q. Yes. So, you would change your story to suit him, that be correct?

A. Why would I do that?

Q. The police statement. One of the questions I asked you was why didn't you say certain things to the police and you were. . .

A. Well they asked me questions and I answered it. . .

Q. You didn't tell them about your close friendship with Serrano?

R. The questions he was asking me was very specific. [page459]

Q. You were asked if you had anything to add and you said no.

Q. You remember testifying [at the preliminary inquiry] on November 3rd. At that time you refused to tell the court which of the two people had dropped the gun.

[38] At this point, the trial judge noted, "You've already challenged him on the statement where there are differences between the police statement and his evidence but you can't go back to what preceded this voir dire ruling." The jury were instructed that appellant's counsel could ask the security guard about his memory in general terms but could not go behind the preliminary inquiry judge's ruling that he adopted his evidence given in the police statement.

[39] My colleague's view is that the trial judge erred because she believed that to allow cross-examination would be to go behind the preliminary inquiry judge's ruling. He concludes that the trial judge erred by not allowing cross-examination on the inconsistency between his trial testimony as to who picked up the gun and his preliminary inquiry testimony when he did not recall. While I see it differently, even it was an error, it did not render the trial unfair.

[40] First, appellant's counsel framed her questions as going to memory and refusal of the security guard to say which of the two dropped the gun. That is what the trial judge dealt with. The trial judge allowed extensive cross-examination on the lack of memory. It is the duty of counsel to clearly articulate the basis for a challenged line of questioning. When, as here, the rights of the co-accused are engaged, the trial judge must attempt to balance and reconcile the completing rights: R. v. Crawford (1995), 1995 CanLII 138 (SCC), 22 O.R. (3d)288, [1995] 1 S.C.R. 858, [1995] S.C.J. No. 30, at para. 32.

[41] Second, the trial judge was concerned about the suggestion to the security guard that his testimony at the preliminary inquiry did not include the police statement. The police statement formed part of his testimony, as it was admitted for the truth of its contents. The trial judge told the jury that the statement was admitted into evidence. In other words, he gave the same testimony at trial as he did at the preliminary inquiry.

[42] Third, I see no unfairness to the trial as a whole as a result of this ruling. Over several days, the appellant's counsel fully explored various inconsistencies in the security guard's evidence and the suggestion that his testimony was tailored to assist Serrano.

(3) The cocaine: Was it a drug deal?

[43] The trial judge refused to allow the witness to be questioned about an alleged drug deal between himself and Serrano. The appellant's counsel was relying on the fact that cocaine had been found on Serrano when he was arrested. She pointed to a [page460] split second in the security video where -- she asserts -- it could be inferred that drugs were passed from the witness to Serrano.

[44] The trial judge reviewed the security video, concluded that the question was purely speculative, lacked a good faith foundation, was irrelevant to the charge before her and prejudicial to the co-accused. This was her call to make.

[45] Further, the appellant did not articulate the relevance of the question which was prejudicial to the co-accused Serrano. It would have been highly prejudicial to Serrano to suggest that he was a drug dealer. He had not been charged with a drug related offence and this had not been raised at the pre-trial. In a joint trial, the trial judge must balance the rights of each accused and preserve overall fairness. Even an admissible question may be disallowed if its prejudicial effect outweighs its probative value: R. v. Abdulle (2020), 149 O.R. (3d) 301, [2020] O.J. No. 572, 2020 ONCA 106 (C.A.), at para. 59. It would have been highly prejudicial to Serrano to suggest that he was a drug dealer. These decisions are accorded considerable deference on appeal. See R. v. Luciano, [2011] O.J. No. 399, 2011 ONCA 89, 267 C.C.C. (3d) 16 (C.A.), at para. 234:

In the absence of a legal error, a misapprehension of material evidence or an unreasonable result, a trial judge's decision on where the balance falls between probative value and prejudicial effect attracts substantial deference on appeal: R. v. J. (B.T.) (2006), 2006 CanLII 33664 (ON CA), 84 O.R. (3d) 227 (C.A.), at para. 33; Handy at para.153; B.(C.R.) at pp. 23-24; B.(L.); M. (A.H.) at para. 51; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73.

[46] In any event, the trial judge's decision did not jeopardize the fairness of the trial. Defence counsel did ask about the co-accused's drug possession before objection. The witness knew nothing about that.

[47] In summary, the trial judge's exercise of discretion with respect to trial management and the probative/prejudicial value of the drug deal is entitled to deference and does not require appellate intervention.

(4) The inconsistent statements and the police statements

[48] The security guard testified at trial that he thought the appellant was going to shoot him and that he found this threat "scary". He further testified that after Serrano took the gun from the appellant there was nothing to be worried about.

[49] Defence counsel asked him how he felt when Serrano dropped the gun. She read to him a portion of his police statement when he said he "was not scared, but surprised" and his reaction was to call the police. Counsel did not say why she was referring to the police statement which did not appear to be [page461] inconsistent with the witness's trial testimony. The trial judge nonetheless allowed the question, which was put as follows:

Q: So, we've established that you're not scared, correct. You're not scared that day? Yes?

A: I said I wasn't scared.

[50] The confusion arose because it was not clear at what point he was or was not scared: when he thought he was going to be shot or when Serrano dropped the gun. It was in an attempt to clarify this for the jury that the trial judge, at the Crown's request, put to the jury "another section of the notes that indicate that [he] did tell the officer he felt fear for his safety". She also instructed the jury that there were other portions of the notes where he said he was afraid for his safety.

[51] I do not agree with my colleague that the police statement should have been put to the jury. The appellant's counsel did not make such a request -- for good reason: (i) the statement was a prior consistent statement, as such, it is presumptively inadmissible and lacking probative value: R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, at para. 5; (ii) it would have been prejudicial to the appellant for the jury to have the police statement which would have served to confirm the security guard's testimony and undermine his position; and (iii) it was not evidence: R. v. B. (J.), [2019] O.J. No. 3645, 2019 ONCA 591, 378 C.C.C. (3d) 302 (C.A.), at paras. 48-50. I therefore do not agree that there was an error that affected trial fairness.

[52] In summary, these four impugned rulings by the trial judge were trial management decisions none of which impacted the overall fairness of the trial.

Sentence Appeal

[53] The appellant was sentenced to 48 months' imprisonment less two months for house arrest release and one month for pre-trial custody. The appellant appeals on the basis that he should have had a lower sentence as he was a first-time offender and had good family support.

[54] The trial judge provided extensive and thoughtful reasons for her decision. She considered his lack of record, his family support and obligations as mitigating factors. However, the offence occurred in a public space, the appellant conducted himself in a hostile and intimidating manner, the firearm was loaded, had an over-capacity magazine and the serial number had been removed.

[55] I see no error in principle warranting appellate intervention. [page462]

Disposition

[56] I would dismiss the appeal as to conviction and sentence.

PACIOCCO J.A. (dissenting): --

Overview

[57] Jose Serrano was found in possession of a loaded handgun. He was observed tossing it away as the police approached. A jury convicted him of possessing a loaded, restricted firearm, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46. The jury also convicted the appellant, Victor Samaniego, who was jointly tried with Mr. Serrano, of the same offence. Mr. Samaniego had been with Mr. Serrano when Mr. Serrano was found with the handgun.

[58] A security video admitted into evidence did not depict Mr. Samaniego's alleged possession, nor did Mr. Serrano testify. The only evidence linking Mr. Samaniego to the handgun was testimony furnished by Mr. Mateo-Ascencio, a security guard at the club where the incident took place. Mr. Mateo-Ascencio (the "security guard") is a friend of Mr. Serrano's. At trial he gave a sympathetic account of Mr. Serrano's involvement and incriminated Mr. Samaniego. According to the security guard, Mr. Serrano came to possess the handgun only when, in order to protect the security guard, he took it away from Mr. Samaniego, who had brought it and brandished it.

[59] Mr. Samaniego's case, therefore, came down to the security guard's credibility. In my view, the trial judge made a series of errors during the course of the trial that deprived Mr. Samaniego of important evidence relevant to the security guard's credibility. Specifically:

-- She erred in excluding as irrelevant, prior statements furnished by the security guard at the preliminary inquiry (including, "I don't recall really whether those are the same people") that were relevant and probative in supporting Mr. Samaniego's challenge at trial that the security guard would lie to protect his friend, Mr. Serrano. The trial judge mistakenly ruled that these statements could not be proved because identity was not in issue at the trial.

-- She erred in excluding a prior inconsistent statement furnished by the security guard at the preliminary inquiry ("As I said yesterday, I didn't see exactly who was the one holding the gun. Or rather, had the -- the gun") that was relevant and probative as a prior inconsistent statement, and in supporting the defence challenge at trial that the security [page463] guard would lie to protect his friend. The trial judge mistakenly ruled that this statement could not be proved because the security guard's preliminary inquiry testimony was not inconsistent with his trial testimony that he observed Mr. Serrano dropping the gun. The explanation she offered for this ruling was that, at the preliminary inquiry, the security guard had subsequently adopted his prior consistent police statement that it was the man in the hat (hence Mr. Serrano) who dropped the gun, and so this was his preliminary inquiry evidence. The trial judge also erroneously ruled that it would be improper for counsel at trial to go behind the preliminary inquiry judge's ruling that the security guard's inconsistent testimony at the preliminary inquiry was attributable to memory problems he was experiencing.

-- She erred in failing to apply correct legal standards in determining whether Mr. Samaniego could confront the security guard during cross-examination with the suggestion that he had engaged in a drug transaction with the co-accused, Mr. Serrano, during their interaction at the time of the incident. Specifically, she denied this line of inquiry without applying the "good faith basis" established in R. v. Lyttle, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 2004 SCC 5, at paras. 47-48, and without applying the admissibility standards that apply where an accused offers discreditable conduct evidence against a co-accused, as discussed in R. v. Abdulle, supra, at para. 59. She erroneously denied the proposed cross-examination on the bases that Mr. Serrano had never been charged or convicted of this drug transaction; and that the drug transaction was not established. She also erroneously concluded that this line of inquiry was irrelevant.

-- She erred in directing the jury that the security guard had made prior consistent statements, when those prior consistent statements had never been proved by evidence.

[60] My colleague sees these rulings as appropriate trial management decisions. I disagree. The trial management power, as important as it is, is constrained by the rules of admissibility. The trial management power does not give judges the discretion to misapply the rules of admissibility, nor does this discretion replace evidentiary standards for the discretion to exclude technically admissible evidence. Given the legal errors that occurred, the conviction must be set aside.

[61] Legally, there is no need to go on and ask whether these rulings undermined the fairness of the trial. However, even on that [page464] metric, I would allow the appeal and set aside the conviction. This case turned on the credibility of the security guard. Mr. Samaniego was denied access to cogent information that he could have relied upon to assist him in casting doubt on the security guard's credibility. This information could have shown that the security guard may have concocted his narrative to protect his friend, Mr. Serrano. The fact that Mr. Samaniego was able, without the benefit of the cogent evidence denied through the first two errors, to present the theory that the security guard was lying to protect Mr. Serrano does not render the trial fair.

[62] I would therefore allow Mr. Samaniego's appeal, set aside his conviction of possession of a loaded, restricted firearm, and order a new trial.

Material Background Facts

[63] The Crown theory was that Mr. Samaniego had the loaded handgun down his waistband when attempting to enter a club. When the security guard denied him entry, he threatened the security guard by shaping his hand as a handgun and pointing it at the security guard. He then showed the actual handgun to the security guard by lifting his shirt. The Crown theory was that shortly after this, Mr. Serrano took possession of the firearm from Mr. Samaniego, before dropping and then retrieving it. The police were called. When the police arrived and approached Mr. Samaniego and Mr. Serrano, Mr. Serrano, who still had possession of the handgun at the time, was seen attempting to throw the handgun away, but it was recovered.

[64] Identity was not in issue at the trial. Mr. Samaniego and Mr. Serrano admitted that they were the men who interacted with the security guard at the relevant time. It was also admitted that they are the men depicted in a security video that captured some of the events, but did not depict the possession of the firearm. Mr. Samaniego and Mr. Serrano ran "cut-throat" defences.

[65] Although he did not testify, Mr. Serrano's counsel put to the jury that he took the gun from Mr. Samaniego in emergency circumstances, and that the security guard felt that "he was alive today" as a result of Mr. Serrano's action in taking the gun away from Mr. Samaniego. Mr. Serrano's position was that he had the handgun for no more than three minutes, and did not know it was a real gun, let alone a loaded one.

[66] Mr. Samaniego's defence was that Mr. Serrano, who was ultimately found in possession of the handgun, was the only person who ever possessed it. The credibility of the security guard was therefore crucial. If he was not believed beyond a reasonable doubt, Mr. Samaniego could not be convicted. Mr. Samaniego challenged [page465] the testimony of the security guard that implicated him on the basis that Mr. Serrano and the security guard were good friends. Mr. Samaniego urged that the security guard was covering up for Mr. Serrano in his testimony by "trying to put Serrano as a saviour in the best possible light". Defence counsel for Mr. Samaniego, Uma Kancharla ("defence counsel"), put this suggestion to the security guard directly on more than one occasion.

Issues

[67] This appeal originated as an inmate conviction appeal. In that appeal Mr. Samaniego challenged the trial judge's handling of Mr. Samaniego's cross-examination of the security guard. Mr. Samaniego identified specific interventions and rulings made by the trial judge to support his contention that the trial judge interfered improperly in the conduct of the cross-examination, preventing an effective cross-examination and rendering the trial unfair.

[68] During the oral inmate appeal hearing, focus fell on the correctness of several of the impugned rulings. A rehearing was scheduled to permit the parties to address these embedded but discrete issues more comprehensively. Ultimately, the issues in the appeal coalesced into whether the trial judge erred in these rulings. As ultimately argued, the issues for resolution in the conviction appeal can be stated as follows:

A. Did the trial judge err in preventing Mr. Samaniego from confronting the security guard with his preliminary inquiry testimony that "I don't recall really whether those are the same people", and related testimony?

B. Did the trial judge err in excluding the security guard's testimony at the preliminary inquiry that "As I said yesterday, I didn't see exactly who was the one holding the gun. Or rather, had the -- the gun"?

C. Did the trial judge err in her rulings related to whether the security guard handed Mr. Serrano cocaine during their videotaped encounter?

D. Did the trial judge err in directing the jury that the security guard had testified consistently with his trial evidence, when those "consistent" statements were not been presented in evidence?

E. Did the rulings made by the trial judge undermine the fairness of the trial?

[69] Mr. Samaniego also appeals the sentence imposed as unfit and made without adequate allowance for the fact that he was [page466] convicted as a first time, youthful adult offender. For the reasons offered by my colleague, I would grant leave to appeal the sentence imposed, but I would dismiss the sentence appeal. My reasons below therefore focus solely on issues raised in the conviction appeal.

Analysis

[70] I do not accept Mr. Samaniego's general submission, made during the inmate appeal, that the trial judge undermined the effectiveness of the cross-examination by interfering improperly in its conduct, thereby interrupting its flow. This was a difficult jury trial, involving two accused persons who were presenting cut-throat defences and where key evidence was given with the aid of an interpreter. Most of the interruptions arose from objections from counsel. Indeed, many of the problems with flow and effectiveness stemmed from the manner in which defence counsel conducted the cross-examination. I am not persuaded that the fairness of the trial was undermined by the trial judge's engagement during the cross-examination. In my view, the problems that occurred arose from discrete rulings the trial judge made.

A. Did the trial judge err in excluding testimony from the preliminary inquiry that "I don't recall really whether those are the same people"?

(1) Overview of the error

[71] To show that the security guard was offering misleading evidence to assist Mr. Serrano in his cut-throat defence, defence counsel attempted to confront the security guard with answers the security guard had furnished at the preliminary inquiry that could be taken as suggesting that he did not know Mr. Serrano and could not recognize him. Specifically, the security guard said at the preliminary inquiry, "I don't recall really whether those are the same people" as the two accused before the court. In the same exchange, the security guard purported not to be able to identify the man on the videotape, who was admitted at the preliminary inquiry to be Mr. Serrano, because he could not see his face.

[72] When the trial judge learned that defence counsel for Mr. Samaniego intended to put these statements to the security guard at trial, she prevented defence counsel from doing so on the basis that identity was conceded as an issue at the preliminary inquiry and the trial.

[73] With respect, the trial judge misconceived the relevance of the evidence and defence counsel's purpose in seeking to call it. The evidence was not sought to challenge identity. It was sought [page467] to challenge the credibility of the security guard, the crucial issue in the case. A jury could find that this evidence confirmed the security guard's readiness to provide misleading information about Mr. Serrano's role in the relevant events by demonstrating that the security guard had already lied in the same proceedings relating to Mr. Serrano's involvement. The evidence sought by defence counsel was admissible in law, and it was important. The trial judge erred in excluding it. I will elaborate.

(2) Relevant facts from the preliminary inquiry

[74] At the preliminary inquiry, defence counsel for both accused conceded the identity of Mr. Serrano and Mr. Samaniego as the men depicted in the security video. The Crown nonetheless depended on the testimony of the security guard to establish a prima facie case against either man, and so the security guard was called as a witness.

[75] During his evidence at the preliminary inquiry, the security guard described an incident in which two men tried to enter the club. He said he denied entry to one of the men because of a prior argument, and that this man went on to threaten him with a gun. He described this man as light skinned with long curly hair. He then testified, "The other one, I didn't have a problem with and, like, I didn't even know him." He said he could not describe this other man because his focus was on "the guy that I have the argument". He was asked if he recognized this other man. He said, "Not exactly." After having been shown his police statement, the security guard described the cap and sweater this other man was wearing and referred to him as the "other one" to distinguish him from the man who threatened the security guard.

[76] The matter was adjourned with the security guard still being examined in chief.

[77] When the preliminary inquiry resumed four months later, on March 6, 2017, the security guard retook the stand. The security video was played. The man admitted to be Mr. Serrano was depicted in the security video wearing a baseball hat. The security guard was asked if the man in the videotape wearing the baseball hat was the man he was referring to in his statement as having dropped the gun. He said, "No, but you know, I couldn't see the face". The Crown then said:

Court's indulgence. All right, if we can just stop it there for a moment, please? I -- I can tell, you, that for the purposes of the preliminary inquiry just spoken to the two lawyers, and there's no issue that it's their clients that you're interacting with here.

Q. Do you understand that? [page468]

A. 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.

[78] The Crown, already in possession of an admission of identity, did not pursue this issue further.

[79] During the cross-examination of the security guard, which occurred after the Crown had alerted the security guard that identity was not in issue, the security guard agreed with defence counsel that he was "good friends" with the man in the hat (admitted to be Mr. Serrano), and that they always got along "really well".

(3) The relevant facts from the trial

[80] As indicated, at the trial, the identity of Mr. Samaniego and Mr. Serrano as the individuals depicted in the security video was again conceded. The security guard testified at trial that he and Mr. Serrano were good friends and had been for many years. He called Mr. Serrano "Cholo" and said they had been friends for more than ten years. The security guard testified that Mr. Samaniego threatened him with the gun, and that Mr. Serrano came into possession of the gun only after taking it from Mr. Samaniego to protect the security guard from Mr. Samaniego.

[81] During cross-examination, defence counsel confronted the security guard with his failure to disclose his friendship with Mr. Serrano in his police statement. The security guard said he had. An objection was made to the way defence counsel proposed to use the police statement to demonstrate otherwise. The jury was excused, and submissions were made. When the jury was recalled, defence counsel did not immediately take up this issue again.

[82] Defence counsel subsequently confronted the security guard with previous testimony he gave at the preliminary inquiry that "The other one, I didn't have a problem with and, like, I didn't even know him." Having confirmed that the security guard and Mr. Serrano were friends, defence counsel said, "You're referring to Mr. Serrano saying, 'I didn't even know him'. Why did you say that?" The security guard responded that when he said, "I don't even know him", he was not referring to Mr. Serrano but to the other person, in other words, Mr. Samaniego. When defence counsel sought to challenge this claim, Mr. Serrano's counsel objected, "The witness has clarified he wasn't referring to Mr. Serrano." The trial judge said, "He has answered Ms. Kancharla. Are you going somewhere new?" Defence counsel asked a few more questions "to clarify", and then moved on.

[83] The cross-examination continued. Other issues were canvassed, and, as indicated, more than once defence counsel suggested to the security guard that he was testifying as he was to protect his friend, Mr. Serrano. [page469]

[84] After the jury had been excused several more times to address objections, and defence counsel had taken longer than the time she had estimated to complete her cross-examination, the trial judge asked her in the absence of the jury to outline what other use she proposed to make of the March 6, 2017 preliminary inquiry transcript.

[85] In response, defence counsel identified the security guard's testimony that he could not see the face of the man who dropped the gun, and his comment that "I don't recall really whether those are same people." The trial judge responded, "Okay. But at the end it's not an issue. It's been admitted that they're the two accused so, there's not -- that that -- we don't have to go there." Defence counsel responded, "Right, but he's want -- does not want to identify, that's the issue, even though he's shown a video." After Mr. Serrano's counsel joined in the Crown's objection, the trial judge directed defence counsel that she could not "go to this." The trial judge said, "There's no issue that these are the two people. So, again, this wasn't pursued at the preliminary inquiry because of the admission, so you can't just sort of pick out one line. We have to have the whole context."

[86] Shortly after, defence counsel raised the issue again, saying, "He's refusing to identify, Your Honour the two people." The trial judge reaffirmed her ruling, and prohibited defence counsel from confronting the security guard with this testimony. She also prevented defence counsel from further confronting the security guard with his failure to disclose his friendship with Mr. Serrano until March 6, 2017, a date late into the preliminary inquiry.

[87] After this, defence counsel asked no further questions about the security guard's preliminary inquiry testimony relating to Mr. Serrano's identity.

(4) Analysis

[88] The trial judge erred in preventing Mr. Samaniego from confronting the security guard with his testimony at the preliminary inquiry that "I don't recall really whether those are the same people" as the accused before the court, and with his purported inability to identify Mr. Serrano as the man on the videotape because he could not see his face. Relatedly, she erred in preventing defence counsel from further confronting the security guard with his failure to disclose his friendship until March 6, 2017.

[89] I appreciate that trial judges have trial management powers, and that appellate courts owe deference to trial management choices. As the passages quoted by my colleague confirm, the trial management power includes the authority to restrict unduly [page470] repetitive or irrelevant questioning that will unduly prolong trials: R. v. Polanco, supra, at para. 22, leave to appeal refused, [2018] S.C.C.A. No. 271; R. v. Murray (2017), 138 O.R. (3d) 500, 2017 ONCA 393, at para. 92. However, the trial management power does not extend to the exclusion of admissible evidence. Instead, the admissibility of evidence is governed by the law of evidence, not the proper exercise of trial management powers. Accordingly, although deference is owed to findings of fact and findings of mixed fact and law made without errors in principle when deciding on admissibility, "[t]he court must . . . apply a correctness standard to the ultimate question of whether the trial judge properly applied the criteria relevant to the admissibility of the evidence": R. v. Duong (2007), 84 O.R. (3d) 515, [2007] O.J. No. 316, 2007 ONCA 68 (C.A.), at para. 54.

[90] Rouleau J.A. described the basic rule of evidence in R. v. Johnson, [2010] O.J. No. 4153, 2010 ONCA 646, 262 C.C.C. (3d) 404 (C.A.), at paras. 81-82, as follows:

The fundamental rule that underpins the law of evidence in Canada is that all evidence that is logically probative to some material issue at trial is relevant, and therefore admissible unless excluded by some particular rule of law: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 40; Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at p. 201.

However, evidence that is relevant may still be inadmissible if it is subject to a specific exclusionary rule. Underlying many particular exclusionary rules is the broad principle that where the prejudicial effect of admitting otherwise relevant evidence would exceed its probative value, it is inadmissible: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 736-740; R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, at p. 552.

[91] In ruling that the proposed line of questioning would not be allowed because identity was not in issue, the trial judge committed an error in principle by misconceiving its relevance. This evidence was not being offered to cast doubt on identity, as the trial judge supposed. The evidence was being called to discredit the security guard's testimony on the theory that the evidence would demonstrate that the security guard testified falsely at the preliminary inquiry about Mr. Serrano's identity in order to protect him. This evidence was relevant to the security guard's credibility at the trial, the key issue before the jury.

[92] More specifically, the jury could readily find that, given his friendship with Mr. Serrano, the security guard's preliminary inquiry testimony that he could not recall whether the accused men were the same people involved in the encounter, or that he could not identify Mr. Serrano on the security video because he could not see his face, was untrue. That prior testimony was not only inconsistent with his testimony at trial, it logically supported [page471] the bias motive that defence counsel was presenting to discredit the security guard's testimony, namely, that he was now testifying falsely to protect Mr. Serrano, just as he had at the preliminary inquiry.

[93] My colleague comes to a different conclusion. She is of the view that the security guard's subsequent testimony at the preliminary inquiry that the two men were Mr. Serrano and Mr. Samaniego rendered irrelevant the security guard's initial testimony that "I don't really recall whether those are same people." She is also of the view that it was unfair in those circumstances for defence counsel to have suggested that the security guard had refused to identify his friend. I cannot agree on either point.

[94] Relevance is a matter of logic drawn from everyday experience and common sense: R. v. Jackson (2015), 128 O.R. (3d) 161, [2015] O.J. No. 6274, 2015 ONCA 832 (C.A.), at paras. 119-23, leave to appeal refused, [2016] S.C.C.A. No. 38. The security guard and Mr. Serrano were long-time friends, and the security footage showed the two men interacting closely at the relevant time. As a matter of logic, the security guard would have recognized Mr. Serrano. In this context, a reasonable jury could well find that the security guard's initial preliminary inquiry testimony that "I don't really recall whether these are same people", was false testimony offered by the security guard to protect Mr. Serrano, thereby increasing the risk that he would testify falsely at the trial to protect Mr. Serrano.

[95] The fact that at the preliminary inquiry the security guard subsequently acknowledged Mr. Serrano's presence during the event does not eradicate this initial testimony, nor does it undercut its relevance. Particularly not in the circumstances of this case. The security guard did not simply initiate a change in his evidence after seeing the security video. He did so only after he was told by the Crown that Mr. Serrano admitted his identity, making it pointless for the security guard to maintain that he could not recall the two men.

[96] Having misconceived the relevance of the security guard's prior statements, the trial judge erred in law by failing to properly apply the rules governing the admissibility of evidence. There is no exclusionary rule that can justify the trial judge's ruling to prohibit defence counsel from confronting the security guard with the testimony now under consideration. The collateral facts rule, in its most aggressive form, does exclude evidence that is "not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case": R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, [1986] S.C.J. No. 65, at p. 474 S.C.R. However, there is an exception to the collateral facts rule for evidence relevant to a bias or interest the witness has that could cause them to testify falsely: R. v. Pan, [2014] O.J. No. 5959, 2014 ONSC 5753 (S.C.J.), at para. 61; [page472] R. v. Van Leeuwen, [2012] O.J. No. 103, 2012 ONSC 132 (S.C.J.), at para. 32. This evidence was called to show that the security guard was testifying falsely to protect Mr. Serrano by supporting his cut-throat defence against Mr. Samaniego.

[97] Nor did the trial judge invoke the discretion to exclude technically admissible evidence. Even had she done so, that exclusionary discretion could not operate. This was defence evidence, a context in which the exclusionary discretion, described by Rouleau J.A. in Johnson, is significantly restricted. Judicial discretion to exclude otherwise admissible defence evidence must be exercised only where the probative value of the evidence is substantially outweighed by the prejudice its admission will cause: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, at pp. 611-12 S.C.R.; R. v. Grant, [2015] 1 S.C.R. 475, [2015] S.C.J. No. 9, 2015 SCC 9, at para. 19.

[98] There was a formidable foundation for finding that prior to March 6, 2017, the security guard demonstrated his interest or bias at the preliminary inquiry by testifying falsely to protect his friend, the very basis upon which his evidence at the trial was being challenged. This inference has substantial probative value.

[99] I do not accept the position of my colleague that the relevance or probative value of this evidence was affected at trial by the fact that the jury was made aware that the security guard and Mr. Serrano were close friends. There is a world of difference between establishing a relationship that could bias a witness and presenting evidence capable of satisfying jurors that the witness may have given biased testimony in the same proceedings in favour of his friend.

[100] Nor do I accept my colleague's position, that the relevance or probative value of the evidence Mr. Samaniego was denied is affected by the fact that defence counsel was able to use other changes in the security guard's testimony relating to the identification of Mr. Serrano to challenge his testimony. The excluded evidence was not repetitive, or redundant, or even cumulative. It was independent evidence that could contribute to the jury's ultimate assessment of the security guard's credibility and it should have been made available to Mr. Samaniego.

[101] Indeed, when defence counsel suggested to the security guard that he had not mentioned to the police that he was friends with Mr. Serrano, the security guard denied that he had not mentioned his friendship, even though the record shows the challenge to be true. Yet Mr. Samaniego was prohibited from revisiting this issue. And when he was confronted with his prior testimony that "The other one, I didn't have a problem with and, like, I didn't even know him", the security guard said he was not referring to his friend, Mr. Serrano, but to Mr. Samaniego. Had the trial judge permitted defence counsel to confront the security guard with the [page473] statement, "I don't recall really whether those are the same people", and/or his claim that he could not recognize his friend in the security footage because he could not see his face, this could well have gone a long way in buttressing or even independently establishing the defence position that the security guard was motivated by bias to testify falsely to assist Mr. Serrano.

[102] The probative value of the excluded evidence was high. Meanwhile, there was no possibility of substantial prejudice by permitting this evidence to be adduced. Concerns about the consumption of time, or potential jury confusion (something that could easily be overcome with a jury direction), cannot reasonably be considered to substantially outweigh the probative value of this information. Nor would there have been any unfairness to the Crown in permitting Mr. Samaniego to use these statements at trial arising from the fact that the Crown did not have reason to challenge them at the preliminary inquiry. The Crown could have been given ample opportunity at the trial to ask the security guard any appropriate questions it wanted about why he testified as he did.

[103] The trial judge erred in excluding these statements. She committed an error in principle in finding them to be irrelevant because identity was not in issue, and she erred in law in failing to admit admissible defence evidence.

B. Did the trial judge err in excluding testimony from the preliminary inquiry that "as I said yesterday, I didn't see exactly who was the one holding the gun or rather had the gun"?

(1) Overview of the errors

[104] During his examination-in-chief at the trial, the security guard testified that, while not visible on the security video, Mr. Samaniego threatened him with gestures and lifted his shirt to show the gun in his waist. After this, Mr. Serrano took the gun from Mr. Samaniego, and then Mr. Serrano subsequently dropped it and picked it up.

[105] The security guard had testified at the preliminary inquiry that he did not see who dropped the gun or what was done with it afterwards.

[106] When defence counsel sought to cross-examine the security guard at trial about this discrepancy, the trial judge ruled that there was no inconsistency because the security guard ultimately adopted his police statement, which was consistent with his trial testimony. She also held that she could not go behind the preliminary inquiry judge's ruling that the discrepancy between the version in the police statement and in the initial preliminary inquiry testimony was the result of genuine memory loss. [page474]

[107] With respect, the trial judge's rulings were in error. The testimony initially given at the preliminary inquiry was manifestly inconsistent with the version given by the security guard at trial. The trial judge erred in finding that there was no inconsistency because the security guard ultimately adopted his police statement, and that only his police statement represented his evidence at the preliminary inquiry.

[108] She also erred in finding that the preliminary inquiry judge's ruling, that the discrepancy was the result of genuine memory loss, governed at the trial.

[109] These errors were not cured by the trial judge's ruling permitting defence counsel to ask general questions about the security guard's change in memory, without going into specifics. Mr. Samaniego was entitled to go into the specifics of this inconsistency. In any event, the material inquiry was not about the security guard's memory. It was about his credibility. Again, I will elaborate.

(2) The police statement

[110] Shortly after the event, the security guard gave an oral statement to the police, which was recorded by a police officer. It described two men trying to get into the club, the "first gentleman" wearing a baseball hat, and the "second gentleman" who had threatened him before. The police statement said that "the first gentleman passed me but stopped by other security guard at the entrance. Then he came back to where I am standing before and dropped the gun in front of me." The statement later repeated that the "guy with the baseball hat dropped the gun on the floor. He looked at me, picked up the gun and walk south of Rivalda Rd."

[111] It was never in issue, either at the preliminary inquiry or the trial, that Mr. Serrano was the one wearing the baseball hat, not Mr. Samaniego.

(3) The preliminary inquiry

[112] At the preliminary inquiry, the security guard did not offer the account contained in his police statement nor did he testify that he could not recall who dropped the gun. He said:

A. The one that was with the other young man who went to the back, he was returned from the door while the other was talking to me. They came -- they came over and they joined where I was and pulled out the gun.

COURT INTERPRETER: I'm sorry. Interpreter mistake. The gun fell.

Mr. Lieshman: Q. Where did the gun fall from?

A. Just in front of where I was standing.

Q. Where did it fall from? [page475]

A. I did not see it exactly. Both of them were there. Like, so, I don't know.

Q. And did you see the gun before it dropped?

A. No.

[113] The next day the same theme was taken up again, as the security guard's examination-in-chief at the preliminary inquiry continued:

Q. All Right. And I had asked you yesterday whether a particular portion [of the police statement] refreshed your memory about whether any of the two individuals -- or either of the two individuals that you saw had any interaction with the gun after it fell.

R. As I said yesterday, I didn't see exactly who was the one holding the gun. Or rather, had the -- the gun.

Q. And after the gun fell, did you observe either of the two individuals do anything to that gun?

A. No. No, I didn't see anything. I don't know what they did with it. I -- I don't know.

Q. Sir, listen to the question, please. Do you remember right now, as you're sitting her in the witness box, who picked up the gun after it fell?

R. I don't know exactly because the one who was threatened me, this is the one I have a problem with. This is the one I was focussing on.

(Emphasis added)

[114] Clearly, the security guard did not testify consistently with his police statement that the man with the hat, Mr. Serrano, dropped the gun. As the result of this testimony the Crown brought an application to have the security guard's police statement admitted pursuant to the "past recollection recorded" exception to the hearsay rule. He contended that the witness was having memory problems. The preliminary inquiry judge granted the application, finding that the discrepancy between the statements was because of a genuine loss of memory, and the police statement was admitted into evidence at the preliminary inquiry as hearsay evidence after the security guard adopted that statement.

(4) The trial

[115] At the trial, when defence counsel began to cross-examine the security guard about the initial version of events he had provided at the preliminary inquiry, she suggested to the security guard that he had "refused to tell the court which of the two people had dropped the gun". She then suggested to the witness that the Crown [page476] had to bring an application to have his evidence brought another way.

[116] This brought an objection from the Crown, who submitted that defence counsel could not ask the witness about the application, and that her questions should be confined to specific areas of the transcript. When defence counsel began to do so, Mr. Serrano's counsel objected. A colloquy occurred, in which the trial judge, who was not yet aware of the preliminary inquiry judge's refreshing memory ruling, agreed that there was an inconsistency relating to the dropping of the gun. The jury was recalled, and defence counsel put the part of the underlined passage, reproduced above in para. 113 of this decision, to the security guard, which he acknowledged. Defence counsel then asked the security guard, "So, sir, my question to you, why did you not tell what you're telling us today or yesterday?"

[117] The Crown objected again, on the basis that this question was unfair because at the preliminary inquiry the witness had adopted his statement to the police. The trial judge inquired further about the preliminary inquiry judge's ruling and after confirming that the preliminary inquiry judge had admitted the police statement as past recollection recorded said:

THE COURT: Okay. So, Ms. Kancharla all the stuff that happened before this judge made that determination, that -- that's not appropriate to put to him. A decision was made. His preliminary inquiry evidence was his police statement that you've already challenged him on. The fact that, he had confusion, that, was the reason that they brought the application at the preliminary inquiry, so you can't again now return to challenge him on that confusion. The decision was made at the preliminary inquiry that he couldn't remember. They could rely on the statement for the truth of their -- its contents. You've already challenged him on that statement where in fact there are some differences between the police statement and his evidence, but you can't go back to what preceded this voir dire ruling.

(Emphasis added)

[118] Defence counsel protested the ruling, saying, "But surely I can challenge him on his lack -- the lack of memory he had at that time and the revival of memory now."

[119] After further submissions from the Crown, the trial judge made her final ruling:

THE COURT: What -- what -- okay. You can ask him about his failing memory, but you can't put to him his confusion that he had, that you just tried to put to him when after that it was determined that it was his prelim -- his statement to the police that was his evidence. So, you can ask him about his memory in general terms, although I think you've already done that. But you can't do what you were trying to do because -- and I wouldn't have known about this application at the preliminary inquiry. It's not correct. The Crown was here and Ms. Bojanowska to say to me, Your Honour, that's not what happened at the preliminary inquiry. This was his evidence at the preliminary inquiry. The trial judge -- [page477] the preliminary inquiry judge made a ruling that it's his police statement that's the evidence. So you can't -- I'm not going back behind that ruling.

(Emphasis added)

[120] The issue came up again a short time later during the same colloquy after defence counsel explained her intention to ask the security guard about his memory loss around the preliminary inquiry. When pressed by the trial judge she explained that her reason for wanting to do so was, "That he refused to identify the -- who the person who dropped the gun but now he's able to recall directly. It's a very specific point" (emphasis added). The trial judge made clear that defence counsel could ask why his memory was different between the police statement and his memory today, but that she "can't go to the specifics of what was said before that application was made". The trial judge then said that since the security guard adopted his police statement, "there's no inconsistency there".

[121] When the jury was recalled shortly after, the trial judge gave the following direction to the jury relating to the testimony of the security guard:

And you may recall that just before you were excused this morning, Ms. Kancharla put to this witness a portion of his preliminary inquiry testimony where he indicated that "He had not seen exactly who was the one holding the gun".

At the preliminary inquiry Mr. Mateo-Ascencio needed to have his memory refreshed. There is a formal legal procedure for doing so and an application was brought before that judge. The presiding judge at the preliminary inquiry made a legal ruling, the result of which was that Mr. Mateo-Ascencio adopted the statement he gave to the police immediately after the incident as his evidence about what he had seen.

In other words, the police statement became part of his evidence at the preliminary inquiry. And as you know yesterday there was a reference to and questions about that statement. Accordingly, any reference made by Ms. Kancharla today to the preliminary inquiry evidence about Mr. Mateo-Ascencio's uncertainty about who he saw holding the gun, must be completely disregarded by you and must have no part in your consideration or deliberation about this case.

(Emphasis added)

(5) Analysis

[122] With respect, the trial judge committed several errors in her admissibility ruling, and she erred in directing the jury to disregard the inconsistency that the security guard had acknowledged.

[123] First, the trial judge erred in finding that since the security guard ultimately adopted his prior consistent police statement "there is no inconsistency". In R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, [page478] [1995] S.C.J. No. 82, at para. 38, Lamer C.J.C., without intending to offer an exhaustive definition of the term, described an "inconsistency" as "a different version of the story", that casts doubt on both versions of the story. He also endorsed Professor McCormick's comment in McCormick on Evidence, 4th ed. (West Pub, 1992), at p. 120, where Professor McCormick described an inconsistency as a "change of face" that may be explored, "casting light on which is the true story and which the false".

[124] The security guard's preliminary inquiry testimony included a story that he did not see exactly who was holding the gun, that he "didn't see anything", and that he did not "know what they did with it". This testimony is manifestly inconsistent with his testimony at the trial that Mr. Serrano was the one who dropped the gun and picked it up. His testimony at trial and this testimony from the preliminary inquiry cannot both be simultaneously true.

[125] The fact that the security guard subsequently adopted his "consistent" police statement does not change the fact that he gave this inconsistent testimony before doing so. If a witness offers internally inconsistent testimony at a proceeding the first version does not disappear. A trier of fact may appropriately consider that internal inconsistency in deciding which version to believe or whether to believe the witness at all. And they may choose to believe the first version and not the second. To illustrate the point, imagine that the security guard testified at the trial as he had at the preliminary inquiry. The jury would have been free to find either that he did not see who dropped the gun (the testimony), or that he saw Mr. Serrano drop it (the adopted police statement), or the jury could have chosen to believe neither account. Later evidence does not eradicate earlier evidence.

[126] To be sure, the fact that a witness who made a prior inconsistent statement has also made consistent statements can reduce the probative value of the inconsistency. For this reason, where a witness has been confronted during cross-examination with a prior inconsistent statement the witness made, courts have discretion to put the significance of that inconsistency into context by permitting proof of prior consistent statements made by the witness on the same subject: R. v. O. (L.), [2015] O.J. No. 2956, 2015 ONCA 394, 324 C.C.C. (3d) 562 (C.A.), at para. 36; R. v. Murray (2017), 138 O.R. (3d) 500, [2017] O.J. No. 2529, 2017 ONCA 393 (C.A.), at paras. 152-53. The trial judge would have been entitled here, had the Crown requested it, to permit the Crown to respond to Mr. Samaniego's prior inconsistent statement challenge by proving that the security guard also made prior consistent statements. It was wrong, however, for the trial [page479] judge to conclude that the subsequent consistency eradicated the prior inconsistency.

[127] Things are different, of course, if a statement is ripped out of context so that it appears to be inconsistent, when in fact it is not. In such cases, context can demonstrate the actual meaning of the statement, removing any suggestion of inconsistency. But this is not what happened here. What transpired is that after giving the prior inconsistent statements reproduced, in paras. 112 and 113 above, the security guard changed his evidence when confronted with his police statement. A subsequent change in evidence does not make the prior inconsistency disappear, nor does it make it unfair or selective for defence counsel to confront a witness with prior inconsistent statements. The trial judge erred in finding otherwise.

[128] Relatedly, the trial judge erred in finding that because the security guard ultimately adopted his police statement at the preliminary inquiry, "[t]his was his evidence at the preliminary inquiry". To be sure, the version in the police statement was evidence he gave at the preliminary inquiry, but so too were the inconsistent answers he provided during his testimony at the preliminary inquiry.

[129] Second, the trial judge erred in holding that neither she nor defence counsel could go behind the preliminary inquiry judge's ruling. Trial judges are not bound by evidentiary rulings made by preliminary inquiry judges and neither are the lawyers appearing at those trials. No authority need be cited for this proposition. The fact that the preliminary inquiry judge applied the doctrine of past recollection recorded was immaterial at the trial and was not a proper basis for an evidentiary ruling. The trial judge erred by resting her ruling on what the preliminary inquiry judge had decided.

[130] Indeed, it was for the jury to determine, after hearing the inconsistent evidence, whether the discrepancies were the result of memory loss or were yet another illustration of the security guard testifying falsely at the preliminary inquiry to protect his friend, as defence counsel contended. By attorning to the preliminary inquiry judge's conception of why the security guard changed his evidence, and by directing the jury not to consider the prior inconsistent statement, the trial judge deprived the jury of their proper role.

[131] These errors in the trial judge's ruling are not cured by the fact that the trial judge permitted defence counsel to ask the security guard about his "failing memory", "in general terms", without "go[ing] to the specifics", as my colleague suggests. First, Mr. Samaniego was entitled to put the specific inconsistencies to the witness. Allowing general questions about memory without providing the specifics is not a proper substitute. [page480]

[132] Second, although defence counsel expressed the desire in her colloquy with the trial judge to pursue this line of questioning to challenge the security guard's "lack of memory", it is evident that she wanted to challenge the security guard's credibility. Defence counsel framed this challenge in terms of memory only after the trial judge ruled that "[t]he decision was made at the preliminary inquiry that he couldn't remember. . . . [Y]ou can't go back to what preceded this voir dire ruling". Defence counsel was insisting that she could challenge that finding when she said, "But surely I can challenge him on his lack -- the lack of memory he had at that time and the revival of memory now." Although it could have been better expressed, it was clearly defence counsel's position that any claimed lack of memory by the security guard was not genuine. In other words, that when initially asked about the gun being dropped at the preliminary inquiry, the security guard refused to implicate his friend, Mr. Serrano.

[133] The fact that defence counsel wanted to use the prior inconsistent statement to challenge the security guard's credibility is evident in the challenge she posed to the witness that drew the initial objection: "So, sir, my question to you, why did you not tell what you're telling us today or yesterday." This is also evident from her explanation to the trial judge that she wanted to challenge the security guard's memory by asking him about his memory loss around the preliminary inquiry. The reason she offered was, "That he refused to identify the -- who the person who dropped the gun." "Refusing" and "forgetting" are manifestly different things. Moreover, her strategy in this line of questioning was consistent with her overall challenge to the security guard's testimony -- that he was testifying falsely to assist his friend.

[134] I therefore disagree with my colleague's position that the trial judge was entitled to treat the issue before her as nothing more than a memory challenge. It was clear that defence counsel wanted to use the prior inconsistent statement to mount a credibility challenge, and she should not have been prevented from doing so.

[135] With respect, the trial judge erred in ruling that there was no inconsistency and that she would not go behind the preliminary inquiry judge's "past recollection recorded" ruling. She further erred in directing the jury to disregard any reference by defence counsel to the witness' "uncertainty" relating to who was holding the gun.

C. Did the trial judge err in her rulings related to whether the security guard handed Mr. Serrano cocaine during their videotaped encounter?

[136] The property report prepared in connection with Mr. Serrano's arrest recorded that cocaine had been seized, and [page481] Mr. Serrano initially faced a cocaine related charge arising from his arrest, which the Crown elected not to proceed with at trial. Based on this and hand contact depicted on the videotape between Mr. Serrano and the security guard, defence counsel attempted to develop the theory at trial that Mr. Serrano had gone to the club to obtain cocaine from the security guard. She asked the security guard whether he saw Mr. Serrano with cocaine that day. The Crown objected and Mr. Serrano's counsel said he was considering asking for a mistrial.

[137] During the colloquy that followed the trial judge asked defence counsel:

All right Ms. Kancharla how can you raise this issue of cocaine when it hasn't been established? You're going to take this trial down another route. There may be -- there's been no charges. We -- we have to have the cocaine issue tried as well, if you're going to go there with this.

[138] When defence counsel described her foundation, the trial judge said, "But you have no evidence." The trial judge then said, "[I]t's highly prejudicial to suggest that cocaine was found without him being charged with that and being found guilty of that."

[139] As submissions continued the trial judge viewed the video and said, "Well, if something is exchanged, we have no idea what -- what that was." She said that the issue should be brought down to first principles and said, "it's not at all relevant to the charges, to what the Crown has to prove and what the defence's raising doubts about". The trial judge then said:

Yes, that -- that's what we're -- what we're doing. . . . It would be completely speculative. . . . There's nothing there that supports any basis for that suggestion and I'm not going to allow it.

[140] After noting that the contact "could be slapped hands", the trial judge made her ruling: "Nothing about the cocaine and nothing about what the slap of the hand, the -- a slight interaction as they're walking. That's not on the table. You understand?"

[141] When the jury returned, the trial judge referenced defence counsel's question about cocaine and said:

There is no basis for this suggestion and you are to disregard it completely. It is not relevant in any way to the case that the Crown must prove and must have no part in your deliberations.

[142] The trial judge erred in law in her decision to prevent Mr. Samaniego from presenting discreditable conduct evidence about a co-accused to support his "cut-throat" defence. Trial judges do have robust discretion to prevent an accused from presenting discreditable conduct evidence about a co-accused. Had the trial judge properly exercised that discretion it would have warranted [page482] deference. However, the trial judge fettered her discretion, or failed to apply it properly, by misapplying the relevant law. At no point did she identify or apply the legal considerations that are to be used where an accused proposes to present discreditable conduct evidence against a co-accused (affirmed in Abdulle). Nor did she identify or apply the legal standard that is to be used in determining whether there is a sufficient foundation for cross-examination (the "good faith" standard established in Lyttle). Instead, and with respect, she based her decision on erroneous criteria.

[143] First, the trial judge erred in denying this line of questioning because Mr. Serrano was not facing a cocaine related offence at the trial and he had not been "found guilty of that". Even the Crown is permitted to call uncharged and unproven but relevant discreditable conduct evidence relating to an accused person where the similar fact evidence rule is satisfied. As this court observed in R. v. Stubbs, [2013] O.J. No. 3657, 2013 ONCA 514, 300 C.C.C. 181 (C.A.), at para. 68, "In most cases, evidence of other discreditable conduct is introduced through the testimony of those who suffered it (if alive), observed it, or as admissible hearsay." Accused persons are not restricted by the similar fact evidence rule in presenting discreditable conduct evidence about co-accused persons: R. v. Kendall, 1987 CanLII 180 (ON CA), [1987] O.J. No. 388, 35 C.C.C. (3d) 105 (C.A.), at p. 124 C.C.C. They should not be subject to stricter criteria when seeking to call discreditable conduct evidence than the Crown is subject to. If the evidence otherwise satisfies the test for presenting discreditable conduct evidence against a co-accused, the fact that the co-accused is not charged with the offence at the proceeding or has not been found guilty of the offence should not matter.

[144] Second, the trial judge erred in concluding that the proposed evidence was irrelevant. If the security guard and Mr. Serrano exchanged cocaine, as defence counsel was attempting to establish, that would have been proof of discreditable conduct by the security guard relevant to his credibility: R. v. Fields (1986), 1986 CanLII 2639 (ON CA), 56 O.R. (2d) 213, [1986] O.J. No. 794, 28 C.C.C. (3d) 353 (C.A.), at p. 359 C.C.C. It could also have been relied upon by Mr. Samaniego to argue that Mr. Serrano is the type of person to have possessed the firearm given his involvement in cocaine, since accused persons are not barred from relying on the prohibited inference of general character that limits the Crown: R. v. Suzack, 2000 CanLII 5630 (ON CA), [2000] O.J. No. 100, 141 C.C.C. (3d) 449 (C.A.), at paras. 130-32, leave to appeal refused, [2000] S.C.C.A. 583. Most importantly, if established, this evidence could also have offered weight to the central defence theory that the security guard had reason to testify falsely to assist Mr. Serrano. [page483]

[145] The fact that defence counsel did not articulate these lines of reasoning during the colloquy does not matter, particularly given that none of the objections to the evidence were based on irrelevance, and the trial judge did not call on defence counsel to explain the relevance of the proposed cross-examination before declaring it to be irrelevant. In my view, the relevance of the evidence sought through the proposed cross-examination was plain. The first two relevant inferences I have identified -- bad character relevant to credibility and bad character relevant to the prospect of offending -- are affirmed by the law of evidence, while the third relevant inference -- an additional reason not to implicate Mr. Serrano -- is clear from the context of the case. The trial judge erred in her relevance determination.

[146] Third, the trial judge erred in expecting that defence counsel should have "evidence" of the cocaine transaction for this line of cross-examination to be pursued, and in finding that the proposed line of inquiry to was "speculative". I agree that, generally, trial judges have discretion to determine whether proposed evidence is speculative, but they must make such determinations using the legal standards that apply. The standard for a proposed line of cross-examination was set by the Supreme Court of Canada in Lyttle, and Lyttle does not equate the absence of evidence with speculation. Lyttle held that accused persons are entitled to put a relevant suggestion to a witness, even when not in a position to prove the suggested fact, if there is a good faith basis for the question. The law does not require evidence of the suggested fact before a good faith question may be asked because the whole point in asking the question is to acquire that evidence. A good faith basis is merely a belief in the possible accuracy of a fact that is "honestly advanced on the strength of reasonable inference, experience or intuition": Lyttle, at para. 48. There was such a basis here. There was a foundation for believing that when he was arrested Mr. Serrano was found to be in possession of cocaine. And the security video showed, a short time before, Mr. Serrano and the security guard in close contact, touching hands. After viewing the security video, the trial judge did not conclude that no transaction was possible from that interaction. She erred by applying the wrong threshold standard for asking questions in cross-examination.

[147] Finally, the trial judge erred in not applying the proper test for determining whether an accused can pursue discreditable evidence relating to a co-accused. There is no technical rule that an accused person is prima facie prohibited from leading evidence that raises the bad character of a co-accused, as the Crown is prima facie [page484] prohibited from doing. Trial judges do, however, have discretion to prevent accused persons from leading such evidence, but only where its prejudicial effect "clearly" outweighs its probative value to the accused: R. v. Earhart, [2010] O.J. No. 5481, 2010 ONCA 874, 272 C.C.C. (3d) 475 (C.A.), at para. 76, leave to appeal refused, [2011] S.C.C.A. 397. The word "clearly" is important. Most recently, consistent with the quasi-constitutional standard for the discretionary exclusion of defence evidence identified in Seaboyer, this court described the relevant admissibility test in this way, in Abdulle, at para. 59:

[When] an accused seeks to adduce evidence in an effort to mount a full answer and defence, the trial judge must ensure a balance against the rights of any joint accused. They must determine whether the evidence sought to be adduced is technically admissible, and then whether, even if technically admissible, it should be excluded on the basis that its prejudice substantially outweighs its probative value.

(Emphasis added)

[148] Although the trial judge spoke of the prejudice of the proposed line of inquiry, she never applied the "prejudice substantially outweighs its probative value" standard in support of her exclusionary ruling. It is far from apparent that she had this standard in mind, or that this cautious exclusionary standard would have been met in this case, given that (1) the evidence was not about extraneous bad character, but arose from security video evidence depicting the very transaction being alleged; (2) the evidence was relevant in several respects, including on the central issue in the case of whether the security guard would testify falsely to assist Mr. Serrano; and (3) the prejudice could have been mitigated by a proper jury direction.

[149] My colleague is of the view that the trial judge's decision to foreclose this line of cross-examination did not affect the fairness of the trial because defence counsel did ask the security guard about Mr. Serrano's possession of cocaine and the security guard said he knew nothing about this. With respect, this reasoning begs the question of what this line of cross-examination, if permitted, may have produced. Moreover, had this line of questioning been pursued, it would have been for the jury to determine whether it believed the security guard's testimony on this point, but they were denied the opportunity to make that determination because (1) the line of cross-examination was cut off before that answer could be challenged; and (2) the jury was told to disregard the questions and answers that were provided. In any event, the instant point is that the trial judge committed legal errors and errors in principle in ruling the cross-examination to be inadmissible, and the Crown has [page485] not invoked the proviso. In my view, the errors that occurred cannot be cured by assessments of the impact of the ruling on trial fairness, nor can they be cured by the fact that, had the decision been made on proper criteria, deference would have been due to a decision to deny the proposed cross-examination.

[150] In sum, the trial judge erred in law by failing to apply the legal standard required by law for evaluating the adequacy of the foundation for cross-examination. She further erred in failing to apply the legal standard required for determining the admissibility of evidence of the discreditable conduct of a co-accused. She also committed errors in principle by applying erroneous considerations in denying the proposed cross-examination.

D. Did the trial judge err in directing the jury that the security guard had testified consistently with his trial evidence, when these "consistent" statements were not presented into evidence?

[151] On two occasions after inconsistent statements made by the security guard were presented by the defence, the jury was advised that the security guard had also made statements consistent with this evidence, without the consistent statements having been proved.

[152] This happened once after defence counsel put a passage to the security guard from his police statement:

How were you feeling [question] when this was -- when this was happening?

Answer: I was not scared, but surprised, focused and my reaction was to call the police.

[153] After the jury had been excused, counsel for Mr. Serrano objected to the question, saying that defence counsel was not being fair because in "another aspect" of his statement to the police the security guard said, "I felt fear for my safety".

[154] The trial judge said during the colloquy, "Well, that should be put to the witness. It's not fair to simply excerpt certain parts." She did not call upon defence counsel to put the entire statement to the witness, nor did she invite Mr. Serrano's counsel to do so by way of re-examination. When the jury returned, she said:

Ms. Kancharla highlighted a portion of the officer's notes where Mr. Mateo-Ascencio indicated to the officer that he was not scared.

Please be advised that there is another portion of the notes that indicate that Mr. Mateo-Ascencio did tell the officer that he felt fear for his safety.

[155] The second occasion occurred when the security guard was being re-examined. The Crown asked the following questions: [page486]

Q. Yesterday Ms. Kancharla took you to a portion of your preliminary inquiry transcript and she put to you that you didn't mention being friends with Mr. Serrano at the preliminary inquiry, do you remember that?¹

A. Yes

Q. If I may, if you could look at the March 6, preliminary inquiry transcript, Mr. Mateo-Ascencio? Give you a second to find that. Got it?

A. Yeah, March 6.

Q. Okay. At page 15, if you can just begin reading to yourself at about line 11 where it starts "Question: Tell me about it" then continue to about line 21. Good?

A. Yes.

Q. So, having read that did you in fact talk at the preliminary inquiry about being good friends with Jose Serrano?

A. Yes, I did. It's -- it's there.

[156] In both cases, the trial judge's handling of the prior consistent statement of fear, and the Crown's re-examination, the procedures used were improper. To be clear, I am not suggesting that the trial judge erred by failing to make the prior consistent statements trial exhibits that would be given to the jury for their deliberation. Whether a jury should be furnished with copies of statements used in examination or cross-examination is not the matter of current concern. The error was in advising the jury that unproved, prior consistent statements had been made.

[157] I appreciate that defence counsel did not object on either occasion. Contrary to the position taken by my colleague, however, it is my view this is not the kind of error that can be overcome by a failure to object. The obligation to decide cases based solely on evidence goes to the root of the adjudicative function. Apart from formal admissions and judicial notice, neither of which apply, triers of fact must confine themselves to evidence that has been admitted. Jurors are accordingly instructed to this effect in all jury directions.

[158] For this reason, when a witness does not admit making a prior statement, it must be proved in evidence: R. v. Eisenhauer, [1998] N.S.J. No. 28, 1998 NSCA 60, 165 N.S.R. (2d) 81 (C.A.), at p. 62, leave to appeal refused, [1998] SCCA No. 144; and see ss. 9(1), 10 and 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5, relating to prior inconsistent statements. [page487]

[159] It was therefore an error for the trial judge simply to tell jurors that the security guard had made a consistent statement that was never put into evidence. Similarly, it was incorrect for the Crown to have the security guard read the transcript to himself and then express his opinion that he talked about he and Mr. Serrano being good friends, without the purported prior consistent statement being proven directly, and it was an error for the judge not to have corrected this.

[160] There are good reasons why prior statements must be proved in evidence. It is for the trier of fact, in this case the jury, to determine the significance, if any, of a prior consistency or inconsistency. To do that they must be acquainted with what is said, and its context.

[161] To illustrate, the first time the security guard said he was not scared during the police interview he had been asked how he was feeling as the event he described was happening, including being threatened. It was later in the same conversation that he said he feared for his safety when he was threatened. The jury was entitled to the details of the statement to assess whether the consistent statement really tempered the inconsistency, and the parties should have been given the opportunity to explore with the witness why he would provide facially inconsistent statements during the same interview. This can only be achieved when the relevant consistent or inconsistent statements are proved.

[162] Similarly, it was not until after the Crown had admonished the security guard that identity was not in issue, and defence counsel suggested directly to the security guard that he was good friends with Mr. Serrano, that the security guard acknowledged his friendship with Mr. Serrano. Yet given how the Crown had proceeded, the jury was left only with the suggestion that a consistent statement had been made, without being advised of circumstances that could well have been taken as confirming the defence position that the security guard had not been forthcoming about his friendship.

[163] The trial judge erred in diminishing the force of an inconsistency by directing the jury that there was also a consistency, and by permitting the re-examination to proceed in this way.

E. Did the rulings made by the trial judge undermine the fairness of the trial?

[164] This appeal should not turn on whether the impugned trial rulings undermined the fairness of the trial. These rulings were the result of errors of law and mixed errors of law and fact. The Crown has not invoked the proviso, nor would that invocation be [page488] likely to have succeeded with respect to the first two errors I have identified. The conviction must be set aside.

[165] Given how the appeal was argued, I will nonetheless go on and consider whether the rulings undermined the fairness of the trial. In my view, the first two errors I have identified would have done so on their own. That outcome is fortified by the other errors I have identified.

[166] This is not a case where Mr. Samaniego's defence theory was far-fetched. Mr. Serrano had possession of the gun when the police arrived and tried to dispose of it. The security video shows that the security guard did not attempt to stop Mr. Serrano from entering the club after he claimed to have seen Mr. Samaniego pass the gun to Mr. Serrano. At one point during the trial when asked when he first saw the gun the security guard said, "When he take it out and pass it to my friend."This would have been after the security guard claimed that Mr. Samaniego showed him the gun in his waistband, thus potentially contradicting his earlier testimony that he first saw the gun when Mr. Samaniego threatened him. It is entirely possible that the security guard simply misspoke or may not have understood the question, but I need not resolve this. The point is that in the circumstances of this case it was critically important that Mr. Samaniego have a full and fair opportunity to challenge the security guard's credibility. He did not. The defence theory was that Mr. Serrano was lying to support his friend, Mr. Serrano, yet Mr. Samaniego was denied access to preliminary inquiry testimony from the security guard that a jury could find shows the security guard doing precisely this.

[167] In Seaboyer, at p. 608 S.C.R., McLachlin J. commented:

The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution.

In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled.

(Emphasis added)

[168] Together, these erroneous rulings deprived Mr. Samaniego of his ability to call the evidence necessary to challenge the evidence called by the prosecution.

Conclusion

[169] I would set aside Mr. Samaniego's conviction and order a new trial.

Appeal dismissed.

Notes

1 This is not an accurate description of what defence counsel had suggested. Instead, she put it to the witness that he had not told the police about his friendship with the security guard, and that he had not mentioned it at the preliminary inquiry until March 6, 2017.

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