The Supreme Court of Canada has upheld a decision to overturn the first-degree murder conviction of Jennifer Pan and ordered a new trial for her and the others alleged to have been involved in a murder-for-hire plot that left Pan’s mother dead and father critically injured.
The decision by a trial judge to exclude a defence theory from the jury instructions because it lacked an air of reality was at the heart of the Court’s 7-2 decision, which affirmed one released by the Ontario Court of Appeal in 2023.
It’s a case that has garnered international attention as the focus of a Netflix true crime documentary.
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Kyla Lee of Acumen Law in Vancouver, and past president of the CBA’s criminal justice section, says it’s good that the Court was explicit about the standard of review when applied in this context because there had been some confusion.
“I like the details in relation to better explaining the air of reality test and the judge’s function in doing a brief evidentiary examination before leaving with the jury or the trier-of-fact.”
She says that as a lawyer whose practice is focused on driving-related offences, including DUIs and driving prohibitions, she often deals with the air of reality concerns with affirmative defences, including when it comes to people having a reasonable excuse for not providing a breath sample.
“Those things are important affirmative defences, and for us to have this really good clarification about the gatekeeping function of the trial judge in allowing this defence to be raised through the air of reality test is going to make my job easier,” Lee says.
John Rosen, senior partner at Rosen & Company Barristers, worries about a case like this with multiple victims, where there’s an attempt to reconcile the lesser and included offences in the murder charge, along with the desire by the accused to re-try the attempted murder convictions as well.
“What would a jury do if they had to assess a degree of liability with the murder? How would they have attempted to assess the attempted murder,” he asks.
“It’s either all or nothing, and depending on how they word the indictment, it could have been an aggravated assault because there was no lesser offence left with the jury on the attempted murder charge.”
While he understands the defence’s complaint, Rosen says he wouldn’t have called it a palpable and overriding error.
Lee says that in jury trials, there is a psychological potential for jurors to try and find a “middle ground” as a basis to convict somebody, which the majority points out can lead to wrongful convictions.