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Criminal - Confessions

. R. v. Foreshaw

In R. v. Foreshaw (Ont CA, 2024) the Court of Appeal considered a jury 'Mayuran instruction', here for the purpose of a trial confession which was contrary to pre-trial statements:
(2) Mayuran Instruction

[40] This ground of appeal relates to the appellant’s alleged confession to Mr. Kirinde that he stabbed Mr. Romain. The error alleged is that the trial judge failed to instruct the jury, pursuant to the dicta from R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, that considering the evidence as a whole, if they believed the appellant’s denial of his confession or were left with a reasonable doubt that he had made the alleged confession, they must reject it and not rely on the alleged statement: Mayuran, at paras. 39-43.

[41] The appellant complains that the trial judge did not distinguish the nature or potential use of the confession by the appellant from any of his other alleged out-of-court statements, telling the jurors to “use [their] common sense” to decide if the appellant made any alleged out-of-court statements and consider them “in the same way as all the other evidence”.

[42] According to the appellant, this error was particularly problematic in the context of the trial judge’s further – admittedly correct – instruction that, unique among witnesses, out-of-court statements made by the appellant which were inconsistent with his trial testimony could be relied upon by them for their truth.

[43] In Mayuran, at para. 43, Abella J. relied on the following statement from the Supreme Court in R. v. MacKenzie, 1993 CanLII 149 (SCC), [1993] 1 S.C.R. 212, at p. 239:
... where a statement by an accused at trial is entirely at odds with a previous out-of-court statement by the accused, and the jury believes the statement at trial, or is left in reasonable doubt that it is true, then the jury must reject the out-of-court statement; the accused must be given the benefit of the doubt. In arriving at that conclusion, the jury should, of course, give consideration to the evidence as a whole.
[44] On the facts of Mayuran, Abella J. found, at para. 43, that it was an error not to provide an instruction called for in MacKenzie:
If the jury believed the evidence about Suganthini’s prison confession beyond a reasonable doubt, then it would necessarily have found her guilty of murder. As a result, in accordance with MacKenzie, the trial judge should have instructed the jury that considering the evidence as a whole, if they believed Suganthini’s testimony at trial, or if they were left with reasonable doubt that she had confessed, they must reject the out-of-court statement. The failure to do so was an error.
[45] In the case at bar, the appellant submits that the trial judge should have provided a similar instruction. I am not persuaded by this submission.

[46] In order to understand whether a Mayuran or MacKenzie instruction is required in a given case, it is necessary to consider the Supreme Court’s comments in R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at pp. 103-104, which clarified the limited category of cases where such an instruction is required:
MacKenzie pointedly does not provide that a jury may sift through the evidence and reject any item that is not proven beyond a reasonable doubt. Unlike Morin, MacKenzie dealt with the credibility of conflicting statements going directly to the ultimate issue in dispute. The jury’s decision to believe or disbelieve the statement relied upon by the Crown necessarily amounted to choosing between the two competing theories of the case. In those limited circumstances, it was held that the trial judge could instruct the jury not to believe the Crown’s evidence if, in light of the case as a whole, including the contrary testimony of the accused, they had a reasonable doubt that the evidence was true ... Given the dispositive nature of the evidence in question, there is little risk that such an instruction would be misleading, since a jury would ultimately have to apply the criminal standard to the evidence in any event by virtue of the general instructions regarding the burden of proof. Therefore, although the instruction does focus the jury’s attention on two pieces of evidence, in its effect it is not much different from telling them that if all the evidence in the case raises a reasonable doubt in their minds about the guilt of the accused, they must acquit.
[47] In the case at bar, the alleged confession was not the critical piece of evidence that effectively decided the case. There was also direct evidence from Mr. Kirinde that he saw the appellant stab Mr. Romain. Thus, this was not a situation where the jury’s finding on whether the confession was made was necessarily conclusive of the appellant’s guilt or innocence. For example, the jury might have reasonable doubt regarding whether the confession was made but be satisfied that the appellant was guilty based on the testimony about the stabbing in the context of all of the other evidence.

[48] In my view, it would be confusing and counterproductive to instruct the jury that they must be satisfied beyond a reasonable doubt that the confession was made but that the eyewitness account of the stabbing should be treated like any other piece of evidence. Therefore, I would dismiss this ground of appeal.
. R. v. Beaver

In R. v. Beaver (SCC, 2022) the Supreme Court of Canada considers the common law (ie. non-Charter) confessions doctrine:
(1) The Common Law Confessions Rule

(a) General Principles

[45] The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary (Oickle, at paras. 30 and 68; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 11; Tessier (SCC), at paras. 39, 68 and 89). Under the confessions rule, an involuntary confession “always warrants exclusion” (Oickle, at para. 30; see also R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 38). But a voluntary confession need not always be admitted into evidence. If a voluntary confession was obtained in a manner that breached the Charter, it can still potentially be excluded under s. 24(2) (Oickle, at para. 30; Singh, at para. 38).

[46] At the heart of the confessions rule is the delicate balance between individual rights and collective interests in the criminal justice system (Singh, at paras. 1, 21, 27-28, 31 and 34; Tessier (SCC), at paras. 4 and 69; Oickle, at para. 33). The “twin goals” of the rule involve “protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes” (Oickle, at para. 33). On the one hand, the common law recognizes an individual’s right against self‑incrimination and right to remain silent, such that an individual need not give information to the police or answer their questions absent statutory or other legal compulsion; on the other hand, the police often need to speak to people when discharging their important public responsibility to investigate and solve crime.

[47] Voluntariness, broadly defined, is the “touchstone” of the confessions rule (Oickle, at paras. 27, 32 and 69; Spencer, at para. 11; Singh, at para. 31). Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justice system (Oickle, at paras. 32 and 70; Singh, at paras. 30 and 34; Tessier (SCC), at paras. 70 and 72). A statement may be involuntary “because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence” (Tessier (SCC), at para. 70).

[48] The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority” (Tessier (SCC), at para. 68). The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry (see Oickle, at paras. 47, 66-67 and 71; Spencer, at paras. 11-12; Singh, at para. 35; Tessier (SCC), at paras. 5, 68, 76 and 87).

(b) Oppression

[49] Oppression focusses on the atmosphere of a police interview. This Court has accepted that “[o]ppression clearly has the potential to produce false confessions” because a suspect may “confes[s] purely out of a desire to escape [inhumane] conditions” (Oickle, at paras. 58 and 60). The non-exhaustive factors that can create oppressive conditions include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; or excessively aggressive, intimidating police questioning for a long time (Oickle, at paras. 58-60; Tessier (SCC), at para. 99).

(c) The Role of a Police Caution

[50] The role of a police caution in the voluntariness analysis was recently clarified in Tessier (SCC), where Kasirer J. affirmed, at para. 5, that “the presence or absence of a police caution is an ‘important’ factor in answering the question of voluntariness”, based on Charron J.’s guidance in Singh, at para. 33 (see also Singh, at para. 31; Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262, at p. 267).

[51] In Tessier (SCC), Kasirer J. explained that if the accused was a suspect, the absence of a caution is prima facie evidence of — but does not itself establish — involuntariness (paras. 11 and 89). Neither a caution nor proof of actual knowledge of the right to silence is a necessary condition of voluntariness (Tessier (SCC), at paras. 12 and 74; see also Singh, at paras. 31 and 33; Boudreau, at p. 267). Nevertheless, the absence of a caution “weighs heavily” in the voluntariness analysis because it is “prima facie evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot be considered voluntary” (Tessier (SCC), at para. 11).

[52] When the police have not given a caution, the Crown must “show that the absence of a caution did not undermine the suspect’s free choice to speak to the police as part of the contextual examination of voluntariness” (Tessier (SCC), at para. 8). The absence of a caution may be afforded less weight when the suspect subjectively understood the right to silence or the consequences of speaking to the police. Kasirer J. provided the following guidance in Tessier (SCC), at para. 88:
While not necessary for the Crown to demonstrate, proof that the accused was in fact subjectively aware of their right to silence or aware of the consequences of speaking will be powerful evidence that the absence of a caution did not undermine voluntariness. In such an instance, doubts as to fairness that could result from the absence of a caution plainly do not arise because the suspect has the information necessary to choose whether to speak or remain silent.
[53] Some of the non-exhaustive factors that can help show the suspect was subjectively aware of their right to silence or of the consequences of speaking to the police include (1) the suspect’s awareness of being recorded; (2) indications that the suspect is directing the conversation; (3) the suspect’s awareness of what is being investigated and their alleged role in the investigation; (4) the suspect’s exercise of the right to silence by declining to answer police questions; and (5) the suspect’s eagerness to talk, although this factor can weigh for and against such a finding, depending on the circumstances (Tessier (SCC), at para. 88).

[54] Absent an error of law in relation to the applicable legal principles, a trial judge’s application of the voluntariness framework is a question of fact or of mixed fact and law attracting appellate deference (Oickle, at para. 22; Spencer, at paras. 16-18; Tessier (SCC), at para. 46). Mere disagreement with the weight given to various items of evidence is not a basis to reverse a trial judge’s finding of voluntariness (Oickle, at para. 22).


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