



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Samaniego, 2020 ONCA 439

DATE:  20200706

DOCKET: C66310

Benotto, Paciocco and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Victor Samaniego

Appellant

Victor Samaniego, acting in person

David Parry, duty counsel assisting
    appellant on January 14, 2020, representing appellant on March 10, 2020
[1]

Michael Fawcett, for the respondent

Heard: January 14, 2020 and March 10, 2020

On appeal from the conviction entered on
    June 18, 2018 and the sentence imposed on November 16, 2018, by Justice Bonnie
    L. Croll of the Superior Court of Justice, with reasons for sentence reported
    at 2018 ONSC 6785.

Benotto J.A:

[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.

[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 nightclubs security guard was central to the
    Crowns 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]

Serranos 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 appellants 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 guards 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 counsels 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 appellants counsel. It is not an
    exaggeration to say that the cross-examination was unfocused, 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
    officers 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 witnesss
    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 counsels 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 ONCA 399, 271 C.C.C. (3d) 208, 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 judges management role has gained
    significance post-
Jordan
,

with burdened resources and strict time limits. As set out in
R. v.
    Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631, 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.

[17]

This court, when commenting on the above
    citation said in
R. v. Polanco,
2018 ONCA 444, 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 counsels 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 dont 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 theres no issue that its
    their clients approaching and interacting with the security guard. The witness
    said: I do understand what you say, but the thing is that Im not sure  I
    dont recall really whether those are the same people. The Crown responded, I
    can indicate to you, sir, that theres no issue that the people youre 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 problem with before. He was
    cross-examined by the appellants 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
    appellants 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 appellants 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]

T
he appellants 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 appellants counsel thereby addressed the fact that the security
    guards 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
    witnesss 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, the trial judge did not err. As this court wrote in
R. v.
    Ivall,
2018 ONCA 1026, 370 C.C.C. (3d) 179, 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 guards 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 appellants 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 guards memory: who had the gun

(c)

Preliminary inquiry evidence

[30]

On the second day of the security guards preliminary
    inquiry testimony he was asked which accused picked up the gun after it was
    dropped. He could not recall.
He said he didnt 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 guards 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.

(d)

Trial evidence

[32]

At trial, the witness said Serrano picked up the
    gun. The appellants 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 gun after it fell.

A:      As I said yesterday, I didnt 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 didnt see anything. I dont
    know what they did with it. I dont know.

[33]

After reading the above portions to the witness,
    appellants counsel asked the following question:

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

[34]

Later, appellants counsel suggested to the
    security guard in cross examination that he:

[R]efused 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 appellants
    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 appellants
    counsel framed her rationale. Appellants 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 appellants 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 didnt you say certain
    things to the police and you were

A. Well they asked
    me questions and I answered it

Q. You didnt tell
    them about your close friendship with Serrano?

A. The questions he
    was asking me was very specific.

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

Q. You remember testifying [at the
    preliminary inquiry] on November 3
rd
. 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, Youve already challenged him on
    the statement where there are differences between the police statement and his
    evidence but you cant go back to what preceded this
voir
    dire
ruling.  The jury were instructed that appellants counsel
    could ask the security guard about his memory in general terms but could not go
    behind the preliminary inquiry judges ruling that he adopted his evidence
    given in the police statement.

[39]

My colleagues view is that the trial judge
    erred because she believed that to allow cross-examination would be to go
    behind the preliminary inquiry judges 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, appellants 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] 1 S.C.R. 858, 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 appellants counsel
    fully explored various inconsistencies in the security guards 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
    appellants counsel was relying on the fact that cocaine had been found on
    Serrano when he was arrested. She pointed to a 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 suggested 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 ONCA 106, 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 ONCA 89, 267 C.C.C. (3d) 16, at
    para. 234:

In the absence of a legal error, a
    misapprehension of material evidence or an unreasonable result, a trial judges
    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 (CanLII)
, [2002]
    3 S.C.R. 33, at para.
73
.

[46]

In any event, the trial judges decision did not
    jeopardize the fairness of the trial. Defence counsel did ask about the
    co-accuseds drug possession before objection. The witness knew nothing about
    that.

[47]

In summary, the trial judges 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 inconsistent with the witnesss trial testimony. The trial
    judge nonetheless allowed the question, which was put as follows:

Q:      So, weve established that youre not
    scared, correct. Youre not scared that day? Yes?

A:      I said I wasnt 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 Crowns 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 appellants 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 SCC 10, [2008] 1 S.C.R. 272, 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 guards testimony
    and undermine his position; and (iii) it was not evidence
:
R. v. J.B
., 2019 ONCA 591, 378
    C.C.C. (3d) 302, 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.

DISPOSITION

[56]

I would dismiss the appeal as to conviction and
    sentence.

M.L.
    Benotto J.A.

I
    agree. Thorburn J.A.


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. Samaniegos 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. Serranos. At
    trial he gave a sympathetic account of Mr. Serranos 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. Samaniegos case, therefore, came down to
    the security guards 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 guards credibility. Specifically:

·

She erred in excluding as irrelevant, prior
    statements furnished by the security guard at the preliminary inquiry
    (including, I dont recall really whether those are the same people) that
    were relevant and probative in supporting Mr. Samaniegos 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 didnt 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 guard would lie to protect his friend. The trial judge mistakenly
    ruled that this statement could not be proved because the security guards
    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 judges
    ruling that the security guards 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 SCC
    5, [2004] 1 S.C.R. 193, 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
, 2020 ONCA 106, 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 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 guards 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. Samaniegos 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. Serranos
    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. Serranos action in taking the gun away from Mr. Samaniego. Mr.
    Serranos 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. Samaniegos 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 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 judges handling of
    Mr. Samaniegos 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
    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 dont recall
  really whether those are the same people, and related testimony?


B.

Did the trial judge err in excluding the security guards testimony
  at the preliminary inquiry that As I said yesterday, I didnt 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 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. Samaniegos 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 judges 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 dont 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 dont
    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 counsels purpose in seeking to call it.
    The evidence was not sought to challenge identity. It was sought to challenge
    the credibility of the security guard, the crucial issue in the case. A jury
    could find that this evidence confirmed the security guards readiness to
    provide misleading information about Mr. Serranos role in the relevant events
    by demonstrating that the security guard had already lied in the same
    proceedings relating to Mr. Serranos 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 didnt
    have a problem with and, like, I didnt 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 couldnt
    see the face. The Crown then said:
Courts
    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 theres no issue that its their clients that youre
    interacting with here.
Q.      Do you
    understand that?
A.      I do
    understand what you say, but the thing is that Im not sure  I dont 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 didnt have a problem with and, like, I didnt even know
    him. Having confirmed that the security guard and Mr. Serrano were friends,
    defence counsel said, Youre referring to Mr. Serrano saying, I didnt even
    know him. Why did you say that? The security guard responded that when he
    said, I dont 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. Serranos counsel objected, The witness has
    clarified he wasnt 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.
[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 guards testimony that he could not see the face of the man who
    dropped the gun, and his comment that I dont recall really whether those are
    same people. The trial judge responded, Okay. But at the end its not an
    issue. Its been admitted that theyre the two accused so, theres not  that
    that  we dont have to go there. Defence counsel responded, Right, but hes
    want  does not want to identify, thats the issue, even though hes shown a
    video. After Mr. Serranos counsel joined in the Crowns objection, the trial
    judge directed defence counsel that she could not go to this. The trial judge
    said, Theres no issue that these are the two people. So, again, this wasnt
    pursued at the preliminary inquiry because of the admission, so you cant just
    sort of pick out one line. We have to have the whole context.
[86]

Shortly after, defence counsel raised the issue
    again, saying, Hes 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 guards preliminary inquiry testimony relating to
    Mr. Serranos 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 dont 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 repetitive or irrelevant
    questioning that will unduly prolong trials:
R. v. Polanco
, 2018 ONCA
    444, at para. 22, leave to appeal refused, [2018] S.C.C.A. No. 271;
R. v.
    Murray
, 2017 ONCA 393, 138 O.R. (3d) 500, 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 ONCA 68, 84 O.R. (3d) 515, at para. 54.
[90]

Rouleau J.A. described the basic rule of
    evidence in
R. v. Johnson
, 2010 ONCA 646, 262 C.C.C. (3d) 404, 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]
    2 S.C.R. 24, at p. 40;
Morris v. The Queen
, [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] 1 S.C.R. 670, at pp. 736-740;
R. v. Potvin
, [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 guards testimony on
    the theory that the evidence would demonstrate that the security guard
    testified falsely at the preliminary inquiry about Mr. Serranos identity in
    order to protect him. This evidence was relevant to the security guards
    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 guards 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 the bias motive that defence counsel was presenting to
    discredit the security guards 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 guards subsequent testimony at the
    preliminary inquiry that the two men were Mr. Serrano and Mr. Samaniego
    rendered irrelevant the security guards initial testimony that I dont 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 ONCA 832,
    128 O.R. (3d) 161, at paras. 119-123, 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 guards
    initial preliminary inquiry testimony that I dont 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. Serranos 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 guards 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 judges 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] 2 S.C.R. 466, at p.
    474. 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 ONSC 5753, at para. 61;
R. v. Van Leeuwen
,
    2012 ONSC 132, 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; R. v. Gayme
, [1991] 2 S.C.R. 577, at pp.
    611-612;
R. v. Grant
, 2015 SCC 9, [2015] 1 S.C.R. 475, 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 colleagues 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 guards 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 jurys ultimate assessment of the security guards
    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 didnt have a problem with and,
    like, I didnt 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 statement, I dont
    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 didnt 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 judges 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.
[107]

With respect, the trial judges 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 judges ruling, that the discrepancy was the result of genuine memory
    loss, governed at the trial.
[109]

These errors were not cured by the trial judges
    ruling permitting defence counsel to ask general questions about the security
    guards 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 guards 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: Im 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?
A. I did not see
    it exactly. Both of them were there. Like, so, I dont 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 guards 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.
A. As I said
    yesterday, I didnt 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
    didnt see anything. I dont know what they did with it. I  I dont know.

Q. Sir, listen to
    the question, please. Do you remember right now, as youre sitting her in the
    witness box, who picked up the gun after it fell?
A. I dont 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 guards 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 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. Serranos counsel objected. A colloquy occurred, in which
    the trial judge, who was not yet aware of the preliminary inquiry judges
    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 youre
    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 judges 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  thats not appropriate to put to him. A decision was
    made. His preliminary inquiry evidence was his police statement that youve
    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
    cant again now return to challenge him on that confusion.
The decision was
    made at the preliminary inquiry that he couldnt remember.
They could rely
    on the statement for the truth of their  its contents. Youve already
    challenged him on that statement where in fact there are some differences
    between the police statement and his evidence, but
you cant 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 cant 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 youve already done that. But you cant do what you were trying to do
    because  and I wouldnt have known about this application at the preliminary
    inquiry. Its not correct. The Crown was here and Ms. Bojanowska to say to me,
    Your Honour, thats not what happened at the preliminary inquiry.
This was
    his evidence at the preliminary inquiry
. The trial judge  the preliminary
    inquiry judge made a ruling that its his police statement thats the evidence.
So you cant  Im 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 hes able to recall directly
. Its 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 cant 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, theres 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-Ascencios 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] 3
    S.C.R. 764, at para. 38, Lamer C.J., 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 McCormicks comment in
McCormick on Evidence
, (4th ed. 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 guards preliminary inquiry
    testimony included a story that he did not see exactly who was holding the gun,
    that he didnt 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. L. O.
, 2015 ONCA 394,
    324 C.C.C. (3d) 562, at para. 36;
R. v. Murray
, 2017 ONCA 393, at
    paras. 152-153. The trial judge would have been entitled here, had the Crown
    requested it, to permit the Crown to respond to Mr. Samaniegos prior
    inconsistent statement challenge by proving that the security guard also made
    prior consistent statements. It was wrong, however, for the trial 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 paragraphs 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 judges
    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 judges 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 judges 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.
[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 guards lack of memory, it is evident that she
    wanted to challenge the security guards 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 couldnt remember. [Y]ou
    cant 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 counsels 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 guards 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 youre
    telling us today or yesterday. This is also evident from her explanation to
    the trial judge that she wanted to challenge the security guards 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 guards testimony  that he was testifying falsely to
    assist his friend.
[134]

I therefore disagree with my colleagues
    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 judges past recollection recorded ruling. She further
    erred in directing the jury to disregard any reference by defence counsel to
    the witnesss 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. Serranos arrest recorded that cocaine had been seized, and 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. Serranos 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 hasnt been
    established? Youre going to take this trial down another route. There may be 
    theres been no charges. We  we have to have the cocaine issue tried as well,
    if youre 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]ts 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, its not at all relevant to the charges, to what the
    Crown has to prove and what the defences raising doubts about. The trial
    judge then said:
Yes, that  thats
    what were  what were doing.  It would be completely speculative.  Theres
    nothing there that supports any basis for that suggestion and Im 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 theyre walking.
    Thats not on the table. You understand?
[141]

When the jury returned, the trial judge
    referenced defence counsels 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 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 ONCA 514, 300
    C.C.C. 181, 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
, 35 C.C.C.
    (3d) 105 (Ont. C.A.), at p. 124. 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:
Regina v. Fields
(1986), 28 C.C.C. (3d) 353 (Ont. C.A.),
    at p. 359. 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), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras. 130-132, 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.
[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
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 ONCA 874, 272 C.C.C. (3d) 475, 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
    judges 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. Serranos 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 guards 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 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. Its 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. Serranos counsel to do so by way of
    re-examination. When the jury returned, she said:
Ms. Kancharla
    highlighted a portion of the officers 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:
Q. Yesterday Ms.
    Kancharla took you to a portion of your preliminary inquiry transcript and she
    put to you that you didnt mention being friends with Mr. Serrano at the
    preliminary inquiry, do you remember that?
[2]
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.
    Its  its there.
[156]

In both cases, the trial judges handling of the
    prior consistent statement of fear, and the Crowns 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 NSCA 60, 165 N.S.R. (2d) 81, 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.
[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 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. Samaniegos 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 guards 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, 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. Samaniegos conviction and
    order a new trial.
Released: MLB JUL 06 2020
David
    M. Paciocco J.A.

[1]
This appeal began as an inmate appeal and was heard on January 14,
    2020. The appellant was assisted by duty counsel. The court requested further
    submissions and duty counsel obtained a s. 684 authorization to represent him
    and did so on the return on March 10, 2020.


[2]
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.
