R. v. PAN, 2025 SCC 12, APRIL 10, 2025.

FACTS: The accused were convicted of attempted murder and first degree murder.  On appeal, the Ontario Court of Appeal set aside the first degree murder conviction and ordered a new trial, but sustained the attempted murder conviction.

The Crown appealed from the setting aside of the first degree murder conviction and the accused appealed from the sustaining of the attempted murder conviction.

The Issues:

The Supreme Court described the issues raised by the appeal in the following manner (at paragraphs 26 and 27):

The Crown appeals, seeking to reinstate the convictions for first degree murder. The appeal raises two main issues:

1. Did the trial judge make a reviewable error in concluding that there was no air of reality to the included offences of manslaughter and second degree murder?

2. If so, does the curative proviso apply?

The respondents each cross-appeal from the Court of Appeal’s decision, seeking to have their convictions for attempted murder set aside. Several of the issues raised on cross-appeal could also provide an additional basis for this Court to uphold the order for a new trial on the count of first degree murder. Their cross-appeals raise the following issues:

1. If a new trial is ordered in respect of the first degree murder convictions, must the attempted murder convictions also be set aside and a new trial ordered?

2. Did the trial judge make a reviewable error in allowing the Crown slide show to enter the jury room?

3. Did the trial judge make a reviewable error in his approach to the juror bias issues?

4. Did the trial judge make a reviewable error in instructing the jury on the propensity evidence?

HELD:  Both appeals were dismissed (at paragraphs 3 to 5):

The Crown appeals from the Court of Appeal’s decision, seeking to restore the convictions for first degree murder. It argues that the Court of Appeal was wrong to conclude that the lesser included offences of second degree murder and manslaughter should have been left with the jury for this count. This argument invites consideration of the air of reality test as it applies to included offences. After outlining the relevant principles, I conclude that the included offences had an air of reality in this case and that the jury should have been permitted to consider them. As a result, a new trial is necessary for all of the respondents on the first degree murder count.

The respondents each cross-appeal, asking this Court to set aside their convictions for attempted murder and order a new trial on this count. They argue that the trial judge’s error in failing to leave the included offences with the jury tainted the attempted murder convictions in addition to the first degree murder convictions, and thus a new trial is warranted on both counts. I disagree. The error affects only the first degree murder convictions and provides no basis to disturb the convictions for attempted murder.

The respondents also raise various other decisions of the trial judge that they say were in error and provide a basis for ordering a new trial on both counts. Notably, they argue that the trial judge erred in permitting a slide show presentation prepared for the Crown to go with the jury to the jury room, and they invite this Court to consider the legal framework governing this use of jury aids. Applying the proper framework to this case, I conclude that there was no reversible error in the trial judge’s approach. I also conclude that the other grounds of cross-appeal — that the trial judge erred in dealing with allegations of juror bias and in instructing the jury on the use of propensity evidence — provide no basis for interfering with the convictions, substantially for the reasons of the court below.

Therefore, for the reasons that follow, I would dismiss the appeal and the cross-appeals.

Did the trial judge make a reviewable error in concluding that there was no air of reality to the included offences of manslaughter and second degree murder?

At paragraphs 71 and 72:

I agree with the Court of Appeal that the trial judge erred in concluding that there was no air of reality to the theory of a plan to kill only Mr. Pan. On a reasonable appreciation of this record, the jury could have had a reasonable doubt that Mrs. Pan was one of the intended targets of the plan while accepting the factual inferences required to convict the respondents of second degree murder or manslaughter.

This is not a case like Aalders, in which the entirety of the evidence belied the accused’s bare assertion that he did not intend to kill the victim. In this case, while there was strong evidence supporting the Crown’s theory, there was no undisputed evidence contradicting the idea that the plan was only to kill Mr. Pan.

If so, does the curative proviso apply?

At paragraphs 91 and 92:

Had the jury been properly instructed on the included offence theories, it would have had to grapple with the evidence suggesting that Jennifer did not have the same animus towards her mother as she did towards her father. I would note that much of this evidence came from Jennifer herself, whose theory at trial was that the only plan in November 2010 was that she herself would be killed, and who thus had no interest in admitting any animus towards either parent. That she did admit her animus towards her father while maintaining that her mother was “the perfect mother” is not insignificant (A.R., part V, vol. L, at p. 310). Reasonable doubt about planning and deliberation, as I have stressed, is a low bar.

I do not dispute that a conviction on one of the included offences, particularly second degree murder, which has a subjective mens rea element, would require the jury to draw important inferences based solely on circumstantial evidence. However, I would not consider a conviction on either one of those offences to be outside the realm of possibility. I therefore conclude that the curative provisodoes not apply.

If a new trial is ordered in respect of the first degree murder convictions, must the attempted murder convictions also be set aside and a new trial ordered?

At paragraph 115:

[T]he error in failing to leave the included offences with the jury on the first degree murder count did not taint the jury’s verdict on the attempted murder count. There is thus no statutory authority for an appellate court to order a new trial on the attempted murder count on the basis of that error.

Did the trial judge make a reviewable error in allowing the Crown slide show to enter the jury room?

At paragraphs 130 and 146:

Before permitting a jury aid to go to the jury room during deliberations, the trial judge must be satisfied that the aid is reasonably necessary, accurate, and fair. These criteria serve to balance the value that these aids can provide in elucidating the evidence against their potential to distract or mislead the jury. Jury aids should be permitted to go to the jury room if the former outweighs the latter.

  Overall, it was fair to admit the Crown slide show and to send it to the jury room. Although the slide show reflected the Crown’s theory, in the unique circumstances of this case, its explanatory value outweighed any potential prejudice. The prejudice was greatly reduced by the presence of defence counsel’s competing aids, which rounded out the evidentiary picture, as well as the trial judge’s forceful caution about the dangers of relying on the slide show. The trial judge’s decision to permit the slide show to go to the jury room is owed deference.

Did the trial judge make a reviewable error in his approach to the juror bias issues?

During the trial, the jury sent the following note to the trial judge:

We have been aware that a spouse of one of our jurors has been attending the proceedings on a regular basis. It has recently come to our attention that a limited amount of text messages were received by the juror, some of which were shared with individuals amongst the jury. We have discussed the issue in great detail and feel that the information shared is immaterial to the proceedings. As part of our discussion, we felt an obligation to bring this to your attention.

Some of the accused requested a mistrial.  It was not granted.  The Supreme Court dismissed this ground of appeal, concluding as follows (at paragraph 155):

The Court of Appealproperly dismissed this ground of appeal. The trial judge gathered the information necessary to determine whether there was actual bias or a reasonable apprehension of bias. Whether to go further and call juror 4’s spouse or require the production of the text messages was a discretionary decision that depended on the trial judge’s assessment of the entire situation, from the perspective of a reasonable and informed observer. His decision not to do so did not amount to a reviewable error.

Did the trial judge make a reviewable error in instructing the jury on the propensity evidence?

At paragraphs 161 and 162:

I agree with the Court of Appeal that the trial judge’s approach to the propensity evidence provides no basis for interfering with the convictions. The jury instructions were adequate. It was clear that the trial judge’s reference to “any” of the accused included Mr. Crawford, particularly given that Mr. Crawford’s counsel raised this concern and issued his own warning about impermissible reasoning in his closing statement.

There is no duty on a trial judge to relate every instruction to each accused by name. Doing so in this case would have needlessly added further complexity to already long and complex jury instructions. As this Court stated in R. v. Abdullahi, 2023 SCC 19, at para. 35, “[t]he accused is entitled to a jury that is properly, not perfectly, instructed”. Mr. Crawford’s argument comes across as a demand for perfection. It cannot succeed.