APPEAL WATCH: R v Pan, a legally messy murder 

The Supreme Court of Canada (“SCC”) has granted leave to appeal the long and complex case of R v Pan 2023 ONCA 362 [Pan]. At trial, four co-accused – Jennifer Pan (“Pan”), Daniel Chi-Kwong Wong (“Wong”), Lenford Crawford (“Crawford”), and David Mylvaganam (“Mylvaganam”) – were all convicted of first-degree murder and attempted murder in the murder-for-hire plot that killed Pan’s parents.

In Pan, the Ontario Court of Appeal dealt with seven grounds of appeal, which raised interesting questions related to jury instruction, included offences, judicial discretion and more. 

Background 

At trial, Pan and her co-accused were tried by a jury. Since juries do not give reasons, the facts in Pan were  in dispute on appeal. The Crown’s theory was that Pan orchestrated the death of her parents by hiring several people to stage a home invasion and robbery to kill her parents, thereby distancing her from any immediate involvement in their deaths (Pan, paras 4-13). The home invasion took place on November 8th, 2010, as planned, while Jennifer Pan and her parents were at home (Pan, para 4). Mrs. Pan was shot in the head and killed, while Mr. Pan survived despite suffering multiple gunshot wounds (Pan, para 41). According to the Crown, the co-accused played different roles in the murder-for-hire plot:  Mylvaganam was one of three individuals that carried out the home invasion (alongside one unidentified person and Eric Carty, who was not a co- accused in the same trial), while Wong and Crawford only served as intermediaries that connected Pan with the guns used by the hitmen (Pan, para 7). The connection between Pan and the co-accused parties was not in dispute. 

The defence theory of the case, on the other hand, was that Pan had, at one time, developed a contract killing plan in which she planned to kill only her dad (Pan, para 14).t She later abandoned her initial plan and subsequently planned the staged home invasion to die by suicide in a way that would preserve insurance benefits for her brother (Pan, para 14, 24). According to Pan’s testimony at trial, her second plan was also abandoned because her relationship with her father had improved. Thus, according to the defence, Pan was also an unsuspecting victim of the home invasion that took place at her home on November 8, 2010 (Pan, para 14). 

The trial judge put two scenarios to the jury: (1) the killings flowed from the home invasion robbery and Pan was unaware of the plan, in which case they must acquit her and Wong with the other verdicts still open for the two others; or (2) Pan deliberately planned to kill her parents by hiring her  co-accused, in which case they must find Pan and her co-accused guilty of first-degree murder and attempted murder (Pan, paras 46, 52). No lesser offences such as second-degree murder or manslaughter were put to the jury. Pan and the co-accused were all found guilty of both first-degree murder and attempted murder, and sentenced concurrently to life in prison for each respective charge. (Pan, paras 1-2). 

Grounds of Appeal 

Pan and her co-accused appealed to the Ontario Court of Appeal (“ONCA”) on seven grounds (Pan, para 43): 

1. The trial judge erred in his instructions to the jury on the possible routes to liability by restricting those routes to just two scenarios. 
2. The trial judge erred in his instructions to the jury by failing to direct their attention to portions of Pan’s evidence in support of the defense of abandonment. 
3. Improprieties in some of the closing submissions were not remedied by the trial judge’s charge, rendering the trial unfair and resulting in a miscarriage of justice. 
4. The trial judge erred by failing to conduct a sufficient inquiry into issues relating to one of the jurors and in failing to discharge that juror. 
5. The trial judge erred by permitting the prosecution’s PowerPoint presentation to go into the jury room. 
6. The trial judge failed to properly direct the jury on the evidence of Carty’s propensity for violence. 
7. The trial judge failed to properly direct the jury on the permissible uses of Crawford’s out-of-court statements. 

The Appeal Decision

The ONCA ordered a new trial on the first-degree murder convictions, but upheld the attempted murder convictions and the sentences of Pan and Wong. 

The first ground of appeal raised the trial judge’s limitation of routes to liability in the jury instructions and was considered the most challenging and consequential error on appeal (Pan, para 48). The ONCA found that the trial judge erred by not separating the murder and attempted murder charges for the jury to consider individually (Pan, paras 53-57). 

The court clarified that the trial judge can only limit these options in the rare case where acquittal on one charge necessarily means the acquittal on the others (Pan, para 53). In this case, there was evidence that the original plan was only to kill Mr. Pan, and that Pan, the accused, had a better relationship with her mother. Thus, ONCA found that there was sufficient evidence for the jury to find that Pan intended to kill only her father and was therefore only guilty of the attempted murder and not the first-degree murder of her mother (Pan, paras 56-57). Because “the verdict on the first-degree murder charge did not have to mirror the verdict on the attempted murder charge” (Pan, para 55), the facts here fall outside the narrow exception to the general rule that juries must be instructed to consider their verdict on each count separately (Pan, para 53). 

Moreover, the test for leaving a lesser included offence with the jury is the “air of reality” test; that is, whether a jury, properly instructed, “may be satisfied beyond a reasonable doubt of the elements of an included offence but not be so satisfied regarding the elements of the principal offence” (Pan, para 59). Here, the court found that there was an “air of reality”  because there was a “realistic possibility of…a conviction” (Pan, para 64, citing R v Ronald, 2019 ONCA 971 para 42) on the included offences of second-degree murder and manslaughter. (Pan, paras 58, 67). 

Regarding most of the other grounds of appeal, the ONCA emphasized that significant deference is owed to the trial judge especially given the length of the trial, and the volume and complexity of the evidence adduced. 

The ONCA dismissed the other five grounds of appeal.

What specific grounds are the SCC interested in?

The Crown’s position on the “air of reality” test 

The Crown’s appeal to the SCC is premised on the notion that the “air of reality” test, when applied to included offences and alternative routes to liability, should be treated differently than its application to positive defenses (His Majesty the King’s Memorandum of Argument on Application for Leave to Appeal [“Memo”]). They submit that the standard of review for an “air of reality” is not correctness, but rather, deference and correctness (Memo, at paras 46-48). The Crown argues that there is mixed jurisprudence on this issue, and the law should include an element of deference because of the trial judge’s unique position and in alignment with the judge’s role as manager of the trial (Memo, at para 47). They also submit that some weighing of the evidence is permissible under the “air of reality” test (Memo, at paras 30-31). The Crown states that R v Aalders [1993] 2 SCR 482; 103 DLR (4th) 700 is the appropriate decision to base the correct “air of reality” test for included offences; that case, according to the Crown, implicitly supports finding that the “sufficient evidence” standard permits the trial judge to do cursory weighing of the credibility and reliability of evidence (Memo, at para 30). Recent ONCA judgments rebut this, which the Crown submits are a departure from the SCC jurisprudence on this issue (Memo, at paras 37-38). 

I believe that the Crown will have an uphill battle on these submissions. It seems unlikely that the SCC would muddle the “air of reality” test by having it apply differently in different circumstances. Moreover, the “air of reality” test already screens out bare assertions by the defense, and in this case, there was other evidence aside from Pan’s assertion, such as evidence supporting a relationship between Pan and her mother that, while not particularly compelling, could ground a reasonable doubt. 

The cross-appeal regarding juror #4 

The SCC might find the trial judge went beyond the legitimate use of discretion when handling the perceived bias of juror #4. The juror had a spouse attending the trial and texting the juror, despite sitting in on portions where the jury had been dismissed. The trial judge had concerns and investigated but, ultimately, did not look at the contents of the text messages that were sent to juror #4 before determining that it would not be an issue (Pan, para 98). The ONCA recognized that this was not ideal, but still determined that this fell within the trial judge’s discretion (Pan, para 102). 

The SCC may find the trial judge erred by not attaining the requisite information to make an informed choice about the perceived or actual bias of juror #4, undermining procedural fairness. 

The cross-appeal regarding the PowerPoint aid used in jury deliberations 

The SCC might also be interested in clarifying the proper discretionary guidelines for allowing aids that are not in evidence to be used by the jury in their deliberations, which are not consented to by both sides (Pan, para 115). 

In this case, as discussed in the fifth ground of appeal, the trial judge permitted a PowerPoint presentation prepared by the Crown to be used by the jury in its deliberations (Pan, para 111). The PowerPoint summarized complex evidence related to information derived from cell towers (Pan, para 107). In order not to complicate the trial  further, the trial judge did not allow the creator of the PowerPoint to be called as a separate witness or allow the PowerPoint into evidence, but approved its use as an aid in closing submissions with notice to the defense (Pan, paras 108-109). The defense took issue with the trial judge’s later decision to allow the PowerPoint in with the jury during deliberations (Pan, para 110). 

The ONCA stated that trial judges should be very careful about allowing into deliberations any aids that only represent the evidence from one of the parties’ perspectives, especially when they can serve as an “advocacy tool” (Pan, para 121). However, they did not find that the trial judge erred in this case, because: (1) the cell phone tower information was very dense, complex and lengthy, so the aid was important to assist the jury make sense of it; (2) the defense had notice it would go to the jury room before making their closing submissions, so they could have addressed deficiencies at the time;(3) the trial judge permitted the defense to use other charts that emphasized their evidence; and (4) the trial judge instructed the jury on the limits of permissible use of the PowerPoint (Pan, para 122). 

The concern about giving aids that may double as advocacy tools originated in R v Bengert, 1980 CanLII 321, BCJ No 721 (QL) (BC CA) [Bengert] at paras 142-144. The SCC has never offered direction to guide trial judges on when such aids may be appropriate. In Bengert, the trial judge’s decision to allow the use of a Crown-created chronology of dates and events was not overturned on appeal on the basis that the trial was long and complex, the chronology helped summarize a large volume of evidence, and that the defence had notice and a comparable ability to provide their own aids (Bengert, paras 142-144).

In this case, according to the ONCA, the tool had more advocacy potential than in Bengert and the defense did not have the resources to produce a similar aid (Pan, paras 116, 118). Furthermore, the trial judge in this case erred by interpreting Bengert as condoning any tool that would assist a jury when the trial was long and complex (Pan, para 117). Thus, the SCC may want to consider whether these reasons together meant that the trial judge did not have an adequate basis to permit the use of the PowerPoint. This is because, if the trial judge considered any tool permissible if it could help, then the trial judge did not weigh the prejudicial nature of the PowerPoint effectively in exercising their discretion. 

Conclusion 

The trial was long and complicated. Partly due to the size and scope of the trial and the complexity of the evidence, the trial judge faced several challenges to maintaining the trial as both fair and comprehensible to the jury. The trial judge made several errors, but the ONCA recognized that the standard is not perfection and accorded the trial judge deference. On appeal to the SCC, there are still many live issues, and it will be interesting to see what the SCC considers to be the issues of national importance.