A fair trial, not a perfect trial: SCC provides guidance on the limits of judicial intervention during a cross-examination

A majority of the SCC has affirmed a decision that a trial judge’s rulings curtailing lines of questioning in a cross-examination in a criminal trial fell within the trial judge’s exercise of her trial management power.

The main issue at trial was whether the accused or co-accused had possession of a gun. The trial judge excluded questioning about the security guard’s inconsistent statement given at a preliminary inquiry about whether the accused or co-accused had the gun, thus following the preliminary inquiry judge’s ruling of “past recollection recorded” which allowed the security guard to adopt his police statement as true.

Justice Moldaver, writing for the majority, held that the trial judge erred in preventing cross-examination on inconsistent preliminary inquiry testimony because the trial judge was not bound by evidentiary rulings made at a preliminary inquiry, but held that this error was saved by the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, because

  1. enough cross examination was allowed to make the jury aware of the accused’s main defence—the security guard’s credibility;
  2. prejudice was minimal because the questioning sought to incriminate the co-accused, not the accused; and
  3. there was no indication that the accused’s counsel intended to ask questions about the guard’s version of events before the past recollection recorded ruling.

Moldaver J. explained that “there is no categorical rule that any improper interference with cross-examination bars application of the proviso” and stated that the accused was “entitled to a fair trial, not a perfect trial,” citing R v Harrer.

Côté and Rowe JJ., writing for the minority, would have ordered a new trial because “trial management powers end where the law of evidence begins” and “trial management powers can never be used to exclude relevant and material evidence.”  The parties should be able to present all relevant and material evidence to the trier of fact and if there is an issue of admissibility, a trial judge should “turn their minds to the rules of evidence, not their trial management authority” to make litigation predictable, accessible, and fair.

Given that the security guard’s credibility was the most important issue at trial, and the trial judge erred when she prevented the accused from impugning the security guard’s credibility with his inconsistent statements at the preliminary inquiry, the error involved “an inconsistency going to the heart of the indictment.” The minority referred to R.V. for the once unquestionably bedrock principal that “a failure to allow relevant cross-examination will almost always be grounds for a new trial.”

The full decision can be read here.