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Criminal - Jury - Mayuran Instructions

. 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.