Reading R v Samaniego, 2022 SCC 9 (March 25, 2022), and its excellent summary by Henna Mohan at thecourt.ca , might leave you wondering about the extent to which defence counsel has a duty to obfuscate evidence tendered by the prosecutor.
First, some general observations will occur to readers in relation to the role of defence counsel in a trial.
All counsel have a duty not to mislead the court, but this does not mean that defence counsel must assist the court to recognise the truth of the prosecutor’s evidence. Not misleading the court has a narrow meaning: not knowingly stating facts or points of law incorrectly; not suggesting something for which counsel has no proper grounds; not departing from the client’s instructions in order to present a better defence on invented facts. Given that counsel would recognise the impropriety of doing those things, the primary duty to the client does not detract from the duty to the court.
If, in cross-examination, defence counsel can make a witness’s testimony less clear or less intelligible than it appeared at first, counsel for the prosecution will have the opportunity to re-examine the witness and seek to restore clarity and intelligibility. It is, given that, not improper for defence counsel to attempt to “muddy the waters” in the interests of the client.
All this must be done within the confines of fairness, and that is a matter for the trial judge. Powers to exercise this sort of control may be statutory (for example in New Zealand we have s 85 of the Evidence Act 2006). Essentially, questions that are “improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand” must not be allowed.
Where the defence strategy is to obfuscate prosecution evidence, that must therefore, on this statutory formulation, be done without improper, unfair, misleading or needlessly repetitive questioning, and without using language that is too complicated for the witness to understand.
The exercise of judicial control over the questioning of witnesses is called, in Samaniego, an aspect of trial management.
Some questions must be disallowed if they seek to introduce inadmissible evidence, and that is a matter of law, not of trial management. The majority judgment at [25] sets out the different approaches on appeal to evidential rulings and to trial management decisions:
“Trial management decisions and the rules of evidence must generally remain separate issues on appellate review. The standard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Extricable evidentiary errors are held to a more stringent standard of review than trial management decisions. The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency.”
Experienced barristers will have noticed that the very best cross-examination is brief and to the point. Of course there may be exceptions to this, for example where a witness’s evidence has covered numerous topics, each of which contains material that has to be challenged. And there may be cases where aspects of a witness’s character that could impinge on the accuracy of testimony need to be exposed by careful probing. But generally, brevity is best.
“The art and skill of advocacy is ‘a highly refined one whose very best practitioners may manage to persuade in the face of facts…’ ” [ L. Zedner Criminal Justice (Oxford University Press, 2004) at p. 169, cited in Edward Johnston, “The Defence Lawyer in the Modern Era” at p 35].
If I were to criticise Samaniego, I would say this. We may wonder whether the Canadian appellate courts’ tendency to resort to deference is really appropriate. Deference is a weakness in appellate powers. To decline to review a decision, saying that the decider was in a better position to make the decision, is to deny a right of appeal. This has crept into the posited distinction between decisions of law and decisions concerning case management. Is this a material distinction? As indicated above, in New Zealand this sort of case management, determining what questions are allowed, is a part of the law of evidence, and is certainly not a discretionary matter (as the word “must” in s 85 indicates). Again, the Canadian courts in this regard seem to be withdrawing from their appellate role and denying rights of appeal.
Regardless of who caused the error in this trial, there was a failure to cross-examine on a matter directly relevant to the credibility of the only witness who gave evidence on the sole issue in the case. This amounted to a denial of the fundamental right to challenge evidence adduced by the prosecutor. It was a fundamental failure of trial process, and regardless of the likely effect of the error on the outcome of the trial, there had not been a fair trial and a new trial should have been ordered. It was wrong of the majority to say, at [35]-[36], on appeal we don’t consider what better decisions may have been made by counsel. That is another denial of appeal process. Case management should require trial judges to ensure trials are fair, and it seems odd that if a judge realised that counsel was making a mistake (here, thinking an inconsistency occurred between the witness’s second and third statements, when in fact the inconsistency was between those two and the first statement), the judge could simply keep quiet and let the error amplify, and that appellate judges could treat it as an error that was inconsequential.
I don’t ignore the apparently persuasive aspects of the majority judgment. But consider how a juror might have reacted had the witness’s inconsistencies been exposed. The witness identified in his second and third statements who had the gun initially, but in a first statement the witness didn’t know who had the gun initially. Is the witness a careful person who speaks with precision? Is the witness’s subsequent account an innocent invention? How reliable is the witness’s memory? Why did the statement change? Can we be sure the witness is accurate now?
So, while it is tempting to say that this is one of those rare cases where absence of cross-examination in relation to credibility did not prevent the appeal court from correctly deciding that the witness’s trial evidence was credible to the criminal standard of proof, in the context of the admitted animosity of the witness towards the appellant (in contrast to the admitted friendship between the witness and the co-defendant), there must, in my respectful opinion, be a reasonable doubt and the appeal should have been allowed, perhaps with a retrial being ordered.
There is nothing unusual about having strong dissenting judgments in final appeals. Law is just a numbers game. [1]
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[1] I must admit I thought I was being a bit cheeky in saying this, but later I came across this: "...In Fitzleet Estates Lord Wilberforce explained (p 1349) that doubtful issues have to be resolved and “the law knows no better way of resolving them than by the considered majority of the ultimate tribunal”. ": Chandler v The State (No 2) (Trinidad and Tobago) [2022] UKPC 19 (16 May 2022) at [63].
