Court of Appeal for Ontario

Date: 20230519 Docket: C66377, C66617, C67107, & C67231

van Rensburg, Miller and Nordheimer JJ.A.

Docket: C66377

BETWEEN

His Majesty the King Respondent

and

Jennifer Pan Appellant

Docket: C66617

AND BETWEEN

His Majesty the King Respondent

and

Lenford Crawford Appellant

Docket: C67107

AND BETWEEN

His Majesty the King Respondent

and

Daniel Chi-Kwong Wong Appellant

Docket: C67231

AND BETWEEN

His Majesty the King Respondent

and

David Mylvaganam Appellant

Counsel: Stephanie DiGiuseppe and Harshi Mann, for the appellant Jennifer Pan Peter Zaduk and Jessica Zita, for the appellant Lenford Crawford Peter Copeland, for the appellant Daniel Chi-Kwong Wong Jack Gemmell, for the appellant David Mylvaganam Susan L. Reid, Jeremy Streeter, and Stephanie A. Lewis, for the respondent

Heard: January 17, 18, and 19, 2023

On appeal from the convictions entered by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a jury, on December 13, 2014, and from the sentence imposed on January 23, 2015 (C66377 & C67107).

Nordheimer J.A.:

1Jennifer Pan, David Mylvaganam, Daniel Chi-Kwong Wong, and Lenford Crawford appeal from their convictions for first-degree murder and attempted murder. ¹ The appellants, Pan and Wong, also seek leave to appeal their life sentences for attempted murder in the event that their murder convictions are overturned but their attempted murder convictions are upheld.

2The appellants raise certain grounds of appeal in common and others not in common. I will deal with each of them in turn. For the reasons that follow, the appeals with respect to the first-degree murder convictions are allowed and a new trial is ordered. The appeals on the attempted murder convictions are dismissed. While I would grant leave to appeal the sentences of Pan and Wong, I would dismiss those appeals.

Background

3This was a long and complicated trial. There was a large volume of evidence. It is not necessary to embark on a detailed review of all of that evidence to decide the issues raised. Very helpfully, the appellants filed a joint statement of facts as part of their materials. Much of the needed background to this case can be drawn from that joint statement along with the respondent’s statement of facts and the record.

(i) The prosecution theory

4On the evening of November 8, 2010, three men armed with guns entered the home of Pan and her mother and father, Bich-Ha Pan and Hann Pan, located in a Markham subdivision. The men took control of Pan and her parents. Her parents were taken into the basement and shot. The men then left, leaving Pan behind unharmed. A neighbour’s surveillance camera captured images of three people entering the house at 10:14 p.m., one person leaving at 10:30 p.m., and two people leaving by 10:32 p.m.

5Pan called 911 to report a home invasion and shooting. Responding officers found her tied to a banister. Her father, while seriously wounded, had managed to go to a neighbour’s house where police found him. Pan’s mother died that evening from her injuries. Her father survived.

6Neither Pan nor her father provided a positive identification of the men who entered the home. No relevant fingerprints or DNA were found at the crime scene and none of the bullets used to shoot Pan’s father and mother could be matched to a gun. While the men had demanded money and the master bedroom appeared to be ransacked, other valuables in the house, including the keys to Pan’s mother’s car parked in the driveway outside, were untouched.

7A large volume of cell phone evidence and text messages was led as part of the prosecution’s case. From that and other evidence, the prosecution theory was that Pan had arranged for her parents to be killed. She made this arrangement through her former boyfriend, Wong, and his friend, Crawford. The plan was then carried out by Eric Carty, his young associate, Mylvaganam, and at least one other man. The prosecution alleged that Pan agreed to pay $10,000 for the killings and $2,000 the night of the shooting.

8Pan’s alleged motive was to escape her dysfunctional relationship with her parents, to resume her relationship with Wong, and to collect her share of her parents’ estate and life insurance policies. Wong’s alleged motive was his love for Pan and her promises to take care of him from the financial windfall her parents’ death would bring. The motives of Carty and Mylvaganam were financial. Crawford’s alleged motive was to help his friends, Carty and Wong.

9The prosecution had evidence that, earlier in 2010, Pan had tried to arrange for her parents' murder through Ricardo Duncan, the roommate of her friend, Andrew Montemayor. This came to nothing when Duncan did not follow through.

10The prosecution contended that Pan then turned to Wong, who put her in contact with Crawford for help. On August 18, 2010, Pan began to exchange texts with Crawford from her iPhone using a SIM card provided by Wong.

11In late October 2010, the conspiracy moved forward. Pan resumed contact with Crawford. Preparations were made. Pan withdrew $1,000 from her bank ², Carty tried to obtain a car, and Mylvaganam tried to obtain a gun. On October 31, the prosecution says that a contract price of $10,000 was agreed through an exchange of calls and texts between Crawford, Wong, and Pan and then between Crawford, Carty, and Mylvaganam.

12The plan was consummated on November 8, 2010. That morning, Crawford texted Pan that after work would be “game time”. The cell phone records showed that Mylvaganam and Carty drove that evening from Rexdale to the neighbourhood of the Pan house in Markham. Shortly before the shootings, Mylvaganam’s phone called Pan twice. After the shooting, cell tower records showed Mylvaganam’s phone returning to Rexdale. It was alleged that Carty was contacting Crawford through an intermediary who then contacted Wong through another intermediary to let him know that everything was okay.

13The prosecution also relied on a call between Pan and her friend, Montemayor, just prior to the home invasion. According to Montemayor, Pan told him of her plan to stage a home invasion that night in which her parents would be shot.

(ii) The defence response

14Pan was the only one of the accused who testified at trial. She gave evidence that she did not plan nor want to have her parents killed on November 8, 2010. Pan said that the earlier plan she discussed with Montemayor and Duncan was to have her father killed, not her mother. Pan says she then changed that plan to a plan to have herself killed. She approached Crawford (whom she only knew as “Homeboy”) for that reason, and they agreed on a price of $10,000. When her relationship with her father improved, she cancelled the second plan with Crawford and they agreed on a cancellation fee of $8,500. On the evening of November 8, she received three calls asking whether she had this money ready; she said she did not. She did not expect anyone to come to her home that evening.

15Mylvaganam’s defence was that he had gone with Carty to the Pan house but had remained in the car, thinking he was participating in a home invasion, not a murder. He conceded he was guilty of manslaughter. He disputed the attribution to him of a text sent to Crawford on November 3, 2010, and two calls to Pan on the evening of November 8, 2010. Rather, Mylvaganam says it was Carty who engaged in those communications, using Mylvaganam’s phone, as he had done on other occasions.

16In support of his defence, Mylvaganam called alternate suspect evidence based on Pan’s father’s description of the home invaders as being two dark-skinned males and a lighter-skinned male. Mylvaganam contended that Carty was one of the darker-skinned males and his alternate suspect, Desmond Francis, also a darker-skinned male, was the other. Mylvaganam could not have been the third man because he has dark-coloured skin and cannot be confused with a white or light-skinned man.

17Wong’s position was that the case against him was circumstantial and did not establish guilt. Wong argued that the evidence did not establish a motive for him to involve himself in a plan to murder. He had a new girlfriend and had broken up with Pan. The few text messages relied upon by the prosecution were sent during disjointed conversations with Pan, who Wong said was a disturbed young woman. These texts included Pan’s references to her false claim of having been gang raped and comments suggesting that she was suicidal. Wong argued that it did not make sense that he was involved in a plan with Pan to have her parents killed only days after letting Pan know he was committed to his new girlfriend. He argued that his contacts with Crawford and Carty were drug-related and his texts with Pan, on November 8, 2010, suggested that he did not know a plan to murder would be carried out that day.

18Crawford’s position was that the case against him was also circumstantial. He denied involvement in the plot in his statements to the police. His position was that his involvement was unnecessary as Wong had his own relationship with Carty. Crawford knew Pan only as Wong’s girlfriend and contacted her only to reach Wong. Crawford said that Pan’s evidence to the contrary was not believable.

(iii) Other relevant evidence

19Pan’s parents disapproved of her relationship with Wong. Wong worked as a manager of a Boston Pizza and dealt marijuana. Crawford was Wong’s friend and customer, and they were in frequent contact with each other. Carty was a long-time friend of Crawford and they kept in touch frequently. Wong knew Carty through Crawford. Mylvaganam was a younger associate of Carty, who knew Carty from growing up in Rexdale. In texts, Mylvaganam would call Carty “pop” or “dadz”, a sign of respect.

20Pan’s parents had high expectations for her and her brother. In 2009, Pan’s relationship with her parents took a marked turn for the worse after they discovered that she had deceived them for years about many things. Contrary to what she led them to believe, Pan had not graduated high school, she had not attended Ryerson University (as it was then named) or the University of Toronto, nor had she graduated with a degree in pharmacy. Pan bolstered these lies with fake transcripts and a fake diploma. She was not volunteering at the Hospital for Sick Children, and she was not staying with a friend overnight in Toronto. Rather she was staying with Wong in Ajax. In early 2010, Pan’s parents learned that she was not working at a Walmart pharmacy, as she had told them, and further learned she had continued to remain in touch with Wong. Her father gave her an ultimatum: either stay at home and go to school or leave with Wong and never come back. Pan chose to stay at home and abide by her parents’ rules. Wong ended their romantic relationship, but they remained friends and kept in contact with each other.

21According to Pan, she had a poor relationship with her father during this period. He was the “rule maker” of the house and her mother acquiesced with his dictates to maintain domestic harmony. In the spring of 2010, after learning that Wong continued to call Pan, her father stopped speaking to her. He would ignore her questions. According to Pan, this made her feel unwanted and unloved, as well as resentful and angry. She testified that her relationship with her mother was better and she did not blame her.

22In the summer of 2010, Pan complained to her friend, Montemayor, about her parents and her “house arrest”. Montemayor confided to her about how he had wanted to kill his father. According to Pan, this led her to speak to him about killing her father. Montemayor introduced her to his roommate, Duncan, as someone who could help her with this plan. Pan testified that she met Duncan twice and paid him $1,500 in two installments to carry out this plan. Duncan did nothing; he kept the money and stopped answering her calls.

23Montemayor and Duncan gave inconsistent evidence at trial about whether Pan wanted both her parents killed or only her father. They both denied that the introduction to Duncan was about any such plan. Duncan testified that his interest in Pan was romantic and that Pan complained to him about her parents and frequently mentioned killing herself. He testified that in July 2010, when she asked him to kill her parents, he told her to “fuck off”, and hung up the phone. He did not speak to her again. In cross-examination, Duncan testified that Pan had referred to wanting one parent killed without specifying which one. He also said that Pan had earlier said that she wanted her father killed.

24There was evidence of contacts between Pan and Crawford starting in August 2010. According to Pan, in August 2010, she was depressed and no longer wanted to live. She was aware that, if she committed suicide, it would nullify the insurance policy on her life and the beneficiary, her brother, would be unable to collect. She testified that she contacted Crawford about arranging for her to be killed, not about having her parents killed. She got his number from drug-related messages from “Homeboy” (i.e. Crawford) to Wong on her iPhone and thought that he might be able to help through his street connections. Pan testified that, after a few calls, they agreed on a price of $10,000 for her to be killed. If Wong asked, he was to be told that the plan was to kill Pan’s father, not Pan. However, when her home life began to improve in September 2010, she changed her mind and stopped calling Crawford. She said that she did not pay any of the money agreed upon and, in any event, she did not have the funds to do so.

25There were a number of contacts in October 2010 in alleged furtherance of the plan. On October 31, the prosecution alleged that Wong and Crawford went to scope out the Pan home. There were contacts between Crawford and Wong; between Crawford and Pan; between Crawford and Carty; and between Carty and Mylvaganam. Pan testified that when “Homeboy” (i.e. Crawford) called her on October 31, he told her he was going to execute the plan to kill her that night. Pan made excuses for why it could not happen that night.

26Over the next few days there were further contacts involving the parties including a text from Pan to Crawford on November 3, 2010 in which she said “Today is a no go. Dinner plans out so won’t be home in time.” Pan testified that this was in reference to Crawford coming to pick up a portion of the cancellation fee that had been negotiated when Pan called off the plan to have herself killed. Pan said that, with Wong’s help, she had negotiated a cancellation fee of $8,500.

27Over the next few days there was continuing contact between the various parties, including texts between Carty and Mylvaganam in which Mylvaganam said that he needed “a new new”, which an expert, in the interpretation of urban street language and coded language, said referred to getting a firearm.

28On the day of the murder, November 8, 2010, there was further contact between the parties. In the morning, Crawford texted Pan “To after work ok will be game time”. Pan testified that this was a reference to Crawford picking up his cancellation fee after he finished work. Pan also deleted some texts between her and Wong on that day.

29After the Pan family had dinner, a friend of Pan arrived at the Pan house to watch TV with her. He arrived around 6:30 p.m. and stayed until around 9 p.m. At 7:00 p.m., Pan’s mother left for her line dancing class and at 8:30 p.m. Pan’s father went to bed at his usual time. Pan’s friend gave evidence that Pan’s demeanour that night was normal.

30Cell tower records showed Carty and Mylvaganam travelling from Rexdale (9:15 p.m.) to Markham near the Pan house (10:05 p.m.). At around 9:30 p.m., Pan’s mother returned home from line dancing. Pan went downstairs to say goodnight to her mother. At trial, Pan denied the prosecution’s suggestion that she took this opportunity to unlock the front door. She said she had lied to the police about this in her November 22, 2010 statement.

31At 9:27 p.m., Pan spoke to Montemayor on the phone for around 21 minutes. According to Montemayor, Pan told him on the phone that she was going to go through with a plan that night for a house robbery during which she would be tied up and her parents shot. Montemayor’s evidence was that Pan told him some “people” or some of her “friends” would come to the house through the front door and that they would know when to do it by way of text. Pan denied telling Montemayor about a planned home invasion or a plan to kill her parents on November 8, 2010. In an earlier statement to the police, Montemayor denied speaking with Pan on November 8. In a later police statement, Montemayor said that the contents of the call with Pan were a “blur”.

32During her call with Montemayor, Pan testified she received a call on her iPhone from an unknown number and unknown person. This call was from Mylvaganam’s phone. Mylvaganam said that it was Carty who placed the call. Pan said that the call was about whether she had the money ready. Pan denied the prosecution’s assertion that the call was to advise her that the home invasion participants were in the neighbourhood.

33Pan called a close friend at 10:09 p.m. She had a call with this same close friend earlier that evening. Pan testified that, while she was on the call, she heard her mother yell from downstairs to her father. The friend testified that their call ended abruptly and that, from Pan’s tone, it sounded like that something had happened or interrupted her.

34A neighbour’s surveillance camera captured images of the Pan house from across the street. At 10:14 p.m. three figures could be seen entering the home through the front door. At 10:30 p.m., a figure could be seen coming out the front door then turning left up the next street, followed less than two minutes later by two figures running out the front door and up the same street.

35Pan’s father testified that he woke up to see a “coloured skinned person” pointing a gun to his face. The gunman said: “[W]here is the fucking money?”. He told Mr. Pan to go downstairs. On his way downstairs, Mr. Pan saw his daughter in the hallway near her bedroom with another man holding a gun. Pan’s mother was downstairs in the television room sitting on the sofa. A man was behind her holding a gun to the base of her neck. Mr. Pan was ordered to sit on the sofa. Mr. Pan was struck on the head by a gun. Mrs. Pan’s captor asked how many people were in the house; Mrs. Pan said her daughter was sleeping upstairs.

36Mr. and Mrs. Pan were ordered downstairs to the basement. Their captors were holding blankets taken from the residence. In the basement, one intruder asked another: “[S]hould we tie them up or tape them up? To exit by the front door or the rear door?”. The other replied: “Shoot and exit by the front door”. Mr. and Mrs. Pan were told to cover their heads with blankets and sit on the sofa. Mr. Pan was then shot. When he recovered consciousness, his wife’s body was lying at his feet. He ran out of the house and told his neighbour to call 911, stating “[m]y house was robbed and I was shot”.

37In cross-examination, Mr. Pan agreed with the suggestion that his wife did not see the captors come in but that, from her position on the couch, she should have been able to see them come in through the front door. Mr. Pan agreed that the entry door from the garage to the home was not usually locked. When his wife came home from line dancing, he agreed there was an opportunity for someone to sneak into the house through the garage. Mr. Pan had told the police in an earlier statement that perhaps the intruders had come in through the garage.

38Pan testified that she heard her mother yell from downstairs. She put her Samsung phone in the waistband of her yoga pants, opened her bedroom door, and saw a man exit her brother’s room. The man put a gun to her head and asked her if she had money or cash. Pan was directed downstairs, to sit near the bottom of the stairs. Her father and mother were sitting on the couch. Pan, her captor, and another intruder went upstairs into the master bedroom and the two intruders went through the room for money. She was taken to the upstairs banister and told to kneel. Pan was tied to the banister.

39Pan testified that she heard two gunshots, her mother scream, and several more gunshots. Pan heard the intruders exit the front door. She manoeuvred her phone out of her waistband and called 911. She told the operator that they had been robbed, and some people had broken into her house. She said she was tied upstairs with her hands behind her back. Pan said she had been separated from her parents, and heard shots or “pops”. She asked the operator to stay on the line with her. She testified at trial that she was scared to death when she made that 911 call. Pan testified that she did not know the identities of the intruders and that none of them were any of the other appellants.

40According to Mr. Pan, the faces of all three intruders were, for the most part, uncovered. They were two dark-skinned males and a lighter-skinned male. Mr. Pan did not make a positive identification of the three men. In a photo line-up, he stopped at the photo of Mylvaganam, saying “maybe this guy.” He explained that he saw the man for less than ten minutes and he was not wearing his glasses.

41The first officers at the scene found Mr. Pan standing, bleeding, in the neighbour’s garage. He was taken to the hospital. Pan was in the home with her hands loosely tied by a black lace to an upstairs banister. There was a phone near her. She was uninjured. Mrs. Pan was in the basement, lying face down; she was pronounced dead at the scene. There was no sign of forced entry and items of value such as electronics were untouched. Police did not note whether the entry door from the garage had been locked. Mrs. Pan had been shot three times in the head, shoulder, and neck areas. Mr. Pan had been shot twice, in the shoulder and right temple. The projectiles were fired from the same gun but could not be matched to a firearm in the police database.

42Police statements by Pan, Wong, and Crawford, as well as wiretap conversations involving Wong, Crawford, and Mylvaganam, were introduced into evidence by the prosecution. The police statements had both inculpatory and exculpatory aspects. Pan, Wong, and Crawford each denied involvement in the offences which, if believed, would lead to their acquittals. They also each said things in their police statements that were relied upon by the prosecution as part of its case in chief.

Grounds of Appeal

43The appellants raise seven grounds of appeal:

(i) The trial judge erred in his instructions to the jury on the possible routes to liability by restricting those routes to just two scenarios. (ii) 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 defence of abandonment. (iii) 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. (iv) 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. (v) The trial judge erred by permitting the prosecution’s PowerPoint presentation to go into the jury room. (vi) The trial judge failed to properly direct the jury on the evidence of Carty’s propensity for violence. (vii) The trial judge failed to properly direct the jury on the permissible uses of Crawford’s out of court statements.

44In addition, Pan and Wong seek leave to appeal their sentences of life imprisonment on their convictions for attempted murder, but only if a new trial on the charge of murder is ordered, and the convictions for attempted murder are upheld. ³

45I will deal with each of the grounds in turn.

A. The two scenarios jury instruction

46The trial judge put two scenarios to the jury when instructing on possible routes to liability. Under Scenario 1, the attack on the Pans was planned and deliberate, where the intention was to murder both parents. It was a single attack, which killed one person and very nearly killed a second. Under Scenario 2, the attack on the Pans arose out of a joint plan or agreement between two or more persons to commit a home invasion/robbery and the Pans were shot by the perpetrators in the course of the commission of the robbery. The judge instructed the jury that they were “in no way bound to find that one or the other scenario occurred” and that they “might not be satisfied that either one [had] been made out on the evidence”. He explained that his reference to “two plausible scenarios” was about finding a reasonable way to organize and to explain the essential elements of the offences.

47The appellants collectively argue that the trial judge erred in this approach by, in effect, and in the context of the other instructions given by the trial judge, restricting the possible routes to liability to just those two scenarios.

48In my view, this is the most difficult and most consequential error that is put forward. If it succeeds, it requires a new trial for all the appellants on the murder charge. I have concluded that it does.

49Pan leads on this ground of appeal but the other appellants join in and support it. Pan asserts that the trial judge erred in instructing the jury on the two scenarios option for two reasons. One is that the instruction improperly linked the verdicts on the murder charge and the attempt murder charge. Rather, the jury should have been instructed to consider the charges separately and that a verdict of guilty on one did not lead inextricably to a verdict of guilty on the other.

50The other is that the trial judge ought to have left the included offences of second-degree murder and manslaughter as possible verdicts for all of the accused in relation to the death of Pan’s mother. Pan asserts that there was a realistic possibility that the jury might have concluded that, while Pan had planned for her father to be killed, there was a reasonable doubt as to whether she had such a plan for her mother. Rather, the perpetrators took it upon themselves to kill Pan’s mother. In other words, the perpetrators chose, on the spur of the moment, to kill Pan’s mother but that was never part of the plan. Each of the other appellants raises the same concern regarding the trial judge’s instructions. As will be seen, these two errors are interconnected.

Linking the Offences under Scenario 1

51The trial judge instructed the jury that they had to either find Pan guilty of first-degree murder and of attempted murder, or acquit her of both charges. The same instruction was given for Wong. Other verdicts were left open in respect of the two other appellants, under Scenario 2.

52In describing Scenario 1, the jury was instructed that if they found one of the appellants not guilty of the first-degree murder of Mrs. Pan, then they would also find them not guilty of the attempted murder of Mr. Pan. Alternatively, if the jury found them guilty of the first-degree murder of Mrs. Pan, the jury would necessarily find them guilty of attempted murder.

53The decision trees provided to the jury contained the same direction. The jury was not left with the option of separately considering the two counts. Generally, a jury must be instructed to consider their verdict on each count separately: R. v. Howe, 2005 ONCA 253, (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44. There is, however, a narrow exception to that rule where the evidence is not logically separable: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 8.

54The trial judge appears to have considered the evidence in this case as satisfying that narrow exception. Although the trial judge instructed the jury to consider the evidence for each defendant individually, he told the jury that the “offences are, on this evidentiary record, inextricably intertwined.” He instructed the jury that, under the first scenario, if they found one defendant guilty of first‑degree murder, they would necessarily find him or her guilty of attempted murder.

55While the offences may have been linked because they arose out of the same events, the verdicts were not inextricably linked. There was some evidence before the jury that Pan’s plan related only to her father and not to her mother. Indeed, in an earlier ruling dealing with the scope of cross-examination of Montemayor, the trial judge accepted that was the case. In making that ruling, he expressly referenced that evidence had already been adduced that Pan’s father was the only intended target. If that is the case, the verdict on the first-degree murder charge did not have to mirror the verdict on the attempted murder charge.

56Pan points to this evidence in support of her submission that the two counts were not inseparable. Specifically, Pan refers to the following evidence:

• Pan’s evidence that she never planned to kill her mother and that the last plan was just for Pan to be killed – a plan that she says she abandoned.
• Pan’s evidence about the home invasion.
• Pan’s evidence about her strained relationship with her father and the rules and directives he laid down for her, including severing all ties with Wong, evidence that was confirmed by Pan’s father.
• Pan’s evidence, confirmed by her brother, her cousin, and a friend, that she had a better relationship with her mother.
• Pan’s evidence that her mother only supported her father’s dictates because of cultural expectations.
• Pan’s evidence that, in the Spring of 2010, she planned with Montemayor and Duncan to have her father killed.

The prosecution responds to this submission by pointing to the evidence that supported that the plan was to kill both parents.

57The difficulty with the prosecution’s position is that the question is not whether the evidence on the one side outweighed the evidence on the other. The question is whether there was some evidence that might have led the jury to rationally and logically have a reasonable doubt with respect to the elements of the first-degree murder count on the facts with respect to Pan’s mother but not have that same doubt on the facts as it related to Pan’s father. In this case there was that possibility. Indeed, that possibility might have been potentially increased if the jury had known that they had the right to consider included offences, but they were told that they did not. I now turn to that issue.

Included offences

58The test for whether a trial judge must leave an included offence with the jury is the “air of reality” test. The test is described in detail by Doherty J.A. in R. v. Ronald, 2019 ONCA 971, including where he says, at para. 42:

There should be no instruction on potential liability for an included offence only when, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence. [Citations omitted].

59As this passage confirms, the air of reality test for an included offence requires that 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: see also R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 162.

60There are both similarities and differences between this case and Ronald. Two accused – Ms. Ronald and Mr. Gill – were convicted of the first-degree murder of Mr. Gill’s wife. Both were alleged to have planned and deliberated the killing. Ms. Ronald was at the scene and was alleged to have been directly responsible for the attack on Ms. Gill. Mr. Gill was not present. The trial judge gave an “all or nothing” instruction, leaving verdicts of guilty or not guilty of first‑degree murder for both accused. On appeal, this court accepted that there was an issue on the evidence about whether the jury might have had a reasonable doubt whether Ms. Ronald, assuming they concluded that she killed the deceased, had done so as the result of a planned and deliberate act. If so, second-degree murder would have been an available verdict. This court concluded that the trial judge had erred in not leaving the included offence of second-degree murder with the jury and ordered a new trial for both appellants. Although everyone agreed on appeal that the trial judge had properly given an “all or nothing” charge in respect of Mr. Gill, his conviction for first-degree murder was tainted by the failure to leave second-degree murder as an available verdict for Ms. Ronald.

61In Ronald, a reasonable doubt as to whether Ms. Ronald had planned and deliberated the killing of Ms. Gill would naturally lead to an available second‑degree murder verdict. It was in this context that Doherty J.A. said, at para. 46:

Second degree murder must be left with the jury if there is a reasonable possibility that the jury could have a doubt as to whether the murder was planned and deliberate.

62Justice Doherty went on to discuss the proper approach to the evidence when assessing whether there is an air of reality to an included offence. He observed in Ronald, at para. 59:

However, when deciding whether second degree murder should be left with the jury, the trial judge does not ask if the evidence points more strongly to second degree murder than to planning and deliberation, but instead asks whether a reasonable jury, properly instructed, could have a doubt as to whether Ms. Ronald had planned and deliberated the murder.

63I note that these remarks were made in the context of an appeal by Ms. Ronald, who was alleged to have been directly involved in the killing. In such circumstances, the failure to prove planning and deliberation will necessarily give rise to the possibility of a conviction for the included offence of second-degree murder. Indeed, it may sometimes also give rise to the possibility of a conviction for the included offence of manslaughter.

64However, in cases like the present, at least for Pan and Wong who were alleged to have participated in a plan to kill but were not among the perpetrators, the route to an included offence does not necessarily arise as soon as there is a reasonable doubt on planning and deliberation. Because Pan and Wong were not alleged to have carried out any murder, but were implicated by their dealings with the perpetrators, it would not be sufficient to determine whether there was evidence that could raise a reasonable doubt about whether Mrs. Pan’s murder was planned and deliberate in order to give rise to an air of reality regarding included offences. The next question, returning to Doherty J.A.’s formulation of the “air of reality” test for an included offence, is whether there was a “realistic possibility of…a conviction on an included offence”: Ronald, at para. 42.

65Sometimes defence counsel seek an “all or nothing” verdict, arguing that if the jury has a reasonable doubt on planning and deliberation, an acquittal must follow. In that situation, instructing on included offences, without any real evidentiary basis, would risk a compromise verdict. Where on the law, applicable to the main charge and the included offence, there is no reasonable view of the evidence, when considered as a whole, that could cause the jury to acquit on the main charge but convict on the included offence, an instruction on an included offence is “a breeding ground for confusion and compromise. Neither are conducive to a true verdict”: R. v. Wong, 2006 ONCA 520, (2006), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 12.

66In this case, during the pre-charge conference, the trial judge was urged to leave second-degree murder with the jury in relation to all of the accused, on the basis that Mrs. Pan was killed in the course of a plan to kill Mr. Pan. While the trial judge took time to consider the matter, he ultimately determined that he would not do so. The trial judge did not give extensive reasons for his conclusion. Rather, he sent counsel an email in which he said:

I am not satisfied that there is an air of reality to the assertion that one plausible scenario arising on the evidence is that there was a common criminal venture to murder Mr. Pan that resulted in some member of the common design murdering Mrs. Pan. I am satisfied that two plausible scenarios arise from the evidence and our discussions of each party’s position. First, that there was a planned and deliberate attack on the Pans. Second, that there was a joint plan or agreement to commit a home invasion/robbery and that the Pans were shot in the course of it. I have arranged the instructions accordingly.

67The trial judge relied on his view that there were only two plausible scenarios: a plan to kill both Mr. and Mrs. Pan, and a robbery/home invasion. This issue draws us back into a consideration of the evidence that was before the jury. I have set out the evidence, to which the appellants point, that might have allowed the jury to conclude that Pan’s plan to kill related only to her father and not to her mother. In other words, there was evidence that might have raised a reasonable doubt as to whether the murder of Pan’s mother was the result of a planned and deliberate murder, as opposed to being an unfortunate consequence of the planned and deliberate murder of Pan’s father. That evidence does not have to rise to the level of showing that it would, in fact, have raised a reasonable doubt on first-degree murder but supported a conviction for an included offence, only that it might realistically have done so.

68This point was addressed in R. v. Tenthorey, 2021 ONCA 324, 404 C.C.C. (3d) 457 where Paciocco J.A. said, at para. 69:

Therefore, in determining whether it is possible for a jury to have reasonable doubt on the charged offence but to convict on an included offence, a trial judge should not consider how likely or unlikely the trial judge believes that outcome to be. Nor should the trial judge pay regard to concerns about the credibility or reliability of the evidence required to reach that outcome.

69He reiterated this point, at para. 71, when he said:

In that case, the included offence must be left with the jury, regardless of how incredible or unreliable the evidence may be, or how unlikely it is that the trier-of-fact will ultimately draw the relevant inferences.

70It cannot be said that, in this case, there was no realistic possibility (or air of reality) that a jury might have a reasonable doubt whether there was a deliberate plan to murder Pan’s mother. On that point, it is worth repeating what was said on the subject of the air of reality test in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 54:

The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. [Citation omitted.]

71The fact remains that there was some evidence that might have caused the jury to have a reasonable doubt as to whether the plan was to deliberately kill Pan’s mother (as opposed to her father). The issue was then whether there was an air of reality to an included offence.

72In this case, the jury might have had a doubt about the planned and deliberate murder of Pan’s mother but be satisfied that the appellants knew that the murder of Pan’s mother was a probable consequence of a plan to kill her father. This could give rise to a conviction for second-degree murder. It was also possible for the jury to have had a doubt about the planned and deliberate murder of Pan’s mother but to have been satisfied that there was a reasonably foreseeable risk of non-trivial bodily harm to Pan’s mother through the implementation of the plan to kill Pan’s father, such that a conviction for manslaughter would arise.

73I recognize that the conclusion that included offences had to be left with the jury on the murder count would have complicated what was already a lengthy and complicated set of jury instructions. Different routes would have had to be left with the jury under the party provisions of the Criminal Code, R.S.C. 1985, c. C-46. Indeed, and although this was not directly raised, there may be an argument that a route to first-degree murder might have been open under s. 231(5)(e) on the basis of forcible confinement depending on how the evidence unfolded.

74The central point is that these various options are ones that the jury was entitled to consider and decide. It was not the role of the trial judge to usurp the jury’s role by deciding those questions himself. Once there was some evidence that allowed for these options, they had to be left with the jury.

75The linkage and included offences errors impact all four appellants. If there was a doubt that the murder of Pan’s mother was the result of a planned and deliberate murder, all of the appellants were entitled to the benefit of that doubt. It would be incongruous for Pan to be convicted of a lesser included offence, but the other appellants convicted of first-degree murder, given the circumstances alleged. In fairness, the respondent concedes that is the proper result.

76All of the appellants are therefore entitled to a new trial on the charge of first-degree murder.

B. The defence of abandonment issue

77Pan complains that the trial judge ruled that, if the jury rejected her evidence that the plan with “Homeboy” (i.e. Crawford) was a plan to kill herself, they could not consider portions of Pan’s testimony that she had abandoned the plan.

78In her evidence, Pan said that the plan was for her to be killed but that she abandoned that plan as her relationship with her parents improved. She said that, with Wong’s help, she negotiated a cancellation fee with Crawford to abandon the plan and that it was the collection of this cancellation fee that was the subject of the communications immediately before the murder took place.

79Pan argues that the jury could have taken from the evidence as a whole that the plan was to kill both of her parents but, at the same time, conclude that the evidence she gave about the abandonment of the plan related to the plan to kill her parents. Trial counsel at the pre-charge conference said that the trial judge needed to leave that possibility with the jury.

80The trial judge did not agree. He said that, if the jury rejected Pan’s evidence about the target of the plan, they would necessarily reject her evidence about abandoning the plan. The trial judge did, however, instruct the jury on the defence of abandonment generally. He provided the jury with a summary of the evidence they should consider on this point. He did not link his instruction expressly to Pan’s evidence.

81Pan says that this instruction was not sufficient. She relies on the well-established principle that a trier of fact may believe all, some, or none of a witness’ evidence. The fact that stories are diametrically opposed, as well as the degree to which they are opposed, is but one factor in the air of reality determination: R. v. Park, 1995 SCC 104, [1995] 2 S.C.R. 836, at para. 25. Pan contends that, if the jury rejected her evidence that she planned to kill herself, they still had to consider whether a defence of abandonment was available based on the evidence that they did believe, including portions of Pan’s testimony.

82I do not agree with Pan’s contention. The only restriction placed on her trial counsel was that he could not suggest to the jury that, when Pan said she abandoned the plan, that it was a plan to kill her parents, because Pan never said that was the plan. The trial judge otherwise instructed the jury on the defence of abandonment and trial counsel made submissions on it in his closing address. Trial counsel also did not raise any objection as to the sufficiency of the evidence that the trial judge reviewed on this topic.

83The route that Pan now attempts to weave to a broader consideration of the defence of abandonment is a difficult one on the facts of this case. To the degree that abandonment had a role to play in the jury’s deliberations, in my view, the trial judge’s instructions adequately equipped them to consider it.

84I would reject this ground of appeal.

C. The closing submissions

85Pan complains about the closing submissions of Wong, Crawford, and the prosecution. She says that the submissions included highly prejudicial, improper, and demeaning rhetoric about Pan’s character and mental health. Mylvaganam complains that the prosecution, in its closing address, unfairly and improperly impugned the credibility of the two principal witnesses called by Mylvaganam in support of his alternate suspect defence.

(i) Pan’s issue

86In the course of their closing submissions, counsel for each of Wong, Crawford, and the prosecution, referred to Pan’s character. In relation to that, they each made comments on Pan’s mental state. Pan was referred to as delusional, mentally unwell, a pathological liar, and other similar comments. Counsel for the prosecution said that Pan was “not like you and she’s not like me”. The issue of Pan’s mental state had arisen during the course of the trial and the trial judge had given a mid-trial instruction, in response to concerns expressed by Pan’s counsel, that Pan’s mental state was not something that the prosecution had to prove.

87After the closing submissions, counsel for Pan asked for a mistrial based on the various comments made about her mental state. The trial judge dismissed the request for a mistrial. He said he would include an instruction, as part of his final instructions to the jury, about any comments tending to implicate Pan’s mental health, which he did. The charge also contained general instructions regarding character evidence and assessing credibility. Pan says that these instructions were insufficient to alleviate the prejudice that arose from these comments in the closing submissions.

88I begin with the basic principle that counsel for a co-accused in joint trials has more latitude, than does the prosecution, to make submissions that may be prejudicial to another accused. The prosecutor is more constrained: R. v. Suzack, 2000 ONCA 5630, (2000), 128 O.A.C. 140 (C.A.), at para. 111.

89The closing submissions on behalf of Wong and Crawford referenced Pan’s previous lies but did not invite the jury to engage in impermissible propensity reasoning. Instead, the evidence was used to challenge Pan’s credibility. Pan had, herself, put both her history of lies and her unusual behaviour (e.g., false claim of rape; plot to kill her father; plot to kill herself) clearly in issue during her evidence. It cannot have come as a surprise to her that her co-accused, and the prosecution, might reference this conduct in their closing submissions. None of these references, however, suggested to the jury that these issues could be used to conclude that Pan was guilty of murder. In other words, they did not encourage or invite propensity reasoning. Further, the trial judge specifically cautioned the jury against engaging in propensity reasoning.

90Similarly, the prosecutor’s use of this evidence in her closing submissions was proper. It was directed at Pan’s credibility and the jury’s consideration of her evidence. Again, the prosecutor did not cross the line between the permissible and impermissible use for which this evidence could be put. The trial judge found that the “not like you and she’s not like me” comment was “by-and-large innocuous”. However, prior to commencing his final instructions to the jury, the trial judge made a specific reference to this comment in the prosecution’s closing submissions. He told the jury that Pan’s mental health was not a live issue in the trial.

91The trial judge is in the best position to gauge the impact of closing submissions made by all counsel. The trial judge can assess the apparent significance, or otherwise, of any impugned remarks, and determine whether, and to what extent, correction or other remedial action may be required: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 182. The trial judge did that in this case. There is no basis for this court to interfere.

(ii) Mylvaganam’s issue

92Mylvaganam complains about the following comment in the prosecutor’s closing submissions:

Finally, let’s deal with Desmond Francis. Desmond Francis has not been charged by police, he is not on trial here. Why not? Because the evidence implicating him comes from two unreliable sources, Louise Bynoe and Rochelle Grant.

93Desmond Francis was the alternate suspect advanced by Mylvaganam. He says that this comment by the prosecutor unfairly disparaged that defence and the basis upon which it was advanced.

94This comment by the prosecutor was part of a three-day closing submission. Its potential impact must be gauged in that context. As a general proposition, no counsel should comment on why some other person was or was not charged as part of a particular prosecution. It is irrelevant to the jury’s duty, which is to decide whether the persons who are on trial are guilty or not.

95Notwithstanding that the prosecutor should not have made the comment that she did, I agree with the respondent that it was innocuous in the circumstances of this case. I reach that conclusion for a number of reasons including its inclusion as a single comment in a lengthy closing submission; the fact the counsel for Mylvaganam did not object to it at the time; the fact that counsel for Mylvaganam himself made comment on the fact that Francis was not charged; and the fact that the prosecution made it clear in her closing submissions that the jury could find Mylvaganam guilty regardless of whether Francis was charged or not.

96The prosecutor’s comment, while inadvisable, does not give rise to the level of seriousness that would require intervention by this court.

D. The juror issue

97About four months into the trial, the jury sent a note to the trial judge expressing a concern about something that had occurred involving juror #4. The note read:

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.

98The trial judge discussed the note with counsel. One counsel wanted a mistrial declared but that was rejected by the trial judge. The trial judge conducted an inquiry of each of the jurors, starting with juror #4. Juror #4 said that his spouse had been attending the trial “most days” and had sent him some texts. He said that the texts did not reveal any information about what had transpired in court in the absence of the jury but rather dealt with some “hallway” discussions, including why court had been delayed on a couple of occasions. Juror #4 said that he was not impacted by these texts and remained impartial. All of the other jurors confirmed their remaining impartiality. The trial judge did not ask to see the actual text messages.

99After the inquiry, counsel for two of the appellants renewed a request for a mistrial or, alternatively, that juror #4 be discharged. The trial judge found that the conduct of the spouse did not irreparably taint the appearance of justice and fairness in the case. The trial judge dismissed the application for a mistrial. He did not address the alternative submission that juror #4 be dismissed. The trial judge repeated the instruction he had given to the jury at the outset of the trial about the need to avoid discussing the case with others. He also told the jury to advise the court if any problems persisted.

100Thereafter, another issue arose involving the spouse of the same juror. It was revealed that the spouse had been expressing strong opinions on the case to the officer in charge. While counsel differed on whether a further inquiry was required, the trial judge conducted a second inquiry on this issue. The trial judge heard from the officer in charge and from juror #4. Juror #4 confirmed that he was not aware of any comments that his spouse had made about any of the participants in the proceeding, and that his spouse had not expressed any opinions to him about the case or the people or places involved in it.

101After the inquiry, defence counsel jointly argued that juror #4 should be discharged, as a reasonable apprehension of bias arose from the conduct and opinions of juror #4’s spouse. In addition, one counsel sought a mistrial. The trial judge found that the conduct of the juror’s spouse looked “bad” but did not give rise to a reasonable apprehension of bias. Nor did it undermine the integrity of the trial or the appearance of justice and fairness. The trial judge did not discharge juror #4.

102The decision of a trial judge on how to address jury issues, such as arose in this case, is entitled to significant deference from this court: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 152. In my view, it would have been preferable if the trial judge had asked to see the texts to satisfy himself that there was nothing more contained in them than the jurors indicated. However, that is not fatal to the conclusion that the trial judge reached as to how to deal with the first event. In terms of the second event, juror #4 had said that he was not aware of the comments nor had any of his spouse’s views been shared with him. It was open to the trial judge to accept juror #4’s explanation.

103That said, it was still open to the trial judge to discharge juror #4 given the cumulative effect of these events and their impact on the appearance of juror impartiality. However, he found that the events had not undermined the appearance of the fairness of the trial. Ultimately that was the trial judge’s call to make. As Laskin J.A. observed in R. v. Kossyrine, 2017 ONCA 388, 138 O.R. (3d) 91, at para. 51:

Also, in exercising the discretion under s. 644(1), a trial judge is in a far superior position to that of an appellate court. The trial judge is able to observe the juror, see how the juror answers questions and listens to instructions and watch how the juror reacts to what is going on in the courtroom. An appellate court has none of these advantages.

104The appellants have failed to establish a basis for this court to interfere with the trial judge’s discretion on how best to deal with this issue.

E. The PowerPoint issue

105As part of her closing submissions, the prosecutor used a PowerPoint presentation that detailed some of the voluminous cell phone evidence. The presentation had been prepared by the Ontario Provincial Police (“OPP”). The OPP PowerPoint had its genesis 18 months before the start of the trial, in July 2012, when the prosecutor approached OPP Staff Sergeant Ed Kodis about creating a timeline for the Pan case. The OPP was not involved in the Pan investigation, but Kodis had prior experience preparing a PowerPoint for use in another murder case.

106In January 2014, the prosecution disclosed a draft of the presentation. The author of the presentation was added to the list of prospective prosecution witnesses. Due to changes in personnel at the OPP, a new officer took over the assignment, but he became unable to continue in May 2014. An analyst took over the assignment and prepared a different presentation consisting of a 231 slide PowerPoint and six large charts based on the PowerPoint. This presentation was disclosed for the first time to the court and the appellants on July 11, 2014, shortly before the close of the prosecution’s case, and after the various witnesses from the cell phone providers had testified. The witnesses from Telus, Rogers, and Bell Mobility used their own PowerPoint presentations as part of their evidence.

107The OPP presentation summarized evidence from disparate sources: call detail records and cell tower evidence extracted from the raw records, data recovered from cell phones, bank withdrawal records, the time of the 911 call, video surveillance footage records, and the date and time of a police interview with Crawford. The slides went chronologically from October 24, 2010, through November 8, the day of the shootings, and ending on December 22, 2010. They set out, in full detail, the prosecution’s theory about how the call and text records implicated the four appellants in the conspiracy and the shootings. The presentation referred to over 400 calls, almost 100 text exchanges, and the contents of over 250 individual text messages.

108A voir dire into the admissibility of the OPP PowerPoint, and of any testimony from its author, was held. Counsel for Pan objected to the late disclosure and counsel for Pan, Carty, and Crawford objected to the calling of the author as a witness and the admissibility of the PowerPoint as an exhibit. Counsel for Mylvaganam and Wong preferred to hear from the author at trial, given that the prosecution would be referring to the PowerPoint in their closing, but opposed the PowerPoint being made a numbered exhibit and going into the jury room, particularly, in Wong’s submission, if changes could not be made to the PowerPoint during cross-examination. All of the appellants agreed that the prosecution could use the OPP PowerPoint in its closing.

109The trial judge ruled that the prosecution could not call the author to introduce the PowerPoint presentation in evidence but they could use it in closing submissions as previously agreed by the appellants. ⁴ He found that the presentation was useful and reliable but that the prejudice caused by the court time and resources involved in the calling and cross-examination of the author, and to trial fairness for the appellants in allowing the prosecution through this route to, in effect, make two closing submissions, exceeded the probative value of the PowerPoint. He further ruled that the prosecution had to provide the appellants, on request, with the presentation in an unlocked PowerPoint format. He deferred to the pre-charge conference the question of whether the presentation could go to the jury room as an aid to their deliberations.

110On October 16, 2014, the prosecution applied to have the PowerPoint presentation go to the jury in a bound volume with one slide per page together with several large charts that showed larger periods of time than the individual slides. The appellants objected to the PowerPoint and the charts going to the jury. Wong’s counsel argued that permitting this material to go to the jury room was the worst possible scenario for the defence as they had not had the opportunity to challenge it through cross-examination of the author.

111On October 30, 2014, after the defence submissions had been completed, the trial judge ruled that the PowerPoint presentation would go to the jury room, following the prosecution’s closing submissions, due to the complexity of the cell phone evidence. ⁵ The trial judge later allowed the defence to give four charts that they had prepared to the jury.

112In his earlier ruling on the admissibility of the OPP PowerPoint as evidence, the trial judge found that the presentation was not itself evidence. The presentation was “merely a re-organizing of evidence already tendered”: R. v. Pan, 2014 ONSC 74050, (Ont. S.C.), at para. 29. However, in his October 30, 2014 ruling, he found that the presentation would likely assist the jury. He repeated that purpose when he gave his ruling where he concluded that the presentation could go into the jury room. He said, at para. 105 of his October 30, 2014 ruling:

In my view, giving the jury the PowerPoint presentation will greatly assist them in understanding how the cell phone evidence fits together from the Crown's point of view. The natural retort may be that this only helps the jury understand one side of the case. I would disagree. In my view, the presentation will serve to bring the Crown's case into focus, but it will also assist the jury in understanding the inherent limitations in the cell phone evidence. It can be a useful starting point, or springboard, for the defence to demonstrate how and why other evidence may tend to undermine the Crown's theory, and where the shortcomings are in the Crown's theory of the case.

113In reaching his conclusion, the trial judge relied heavily on the British Columbia Court of Appeal’s decision in R. v. Bengert, 1980 BCCA 321, (1980), 53 C.C.C. (2d) 481 (B.C. C.A.), leave to appeal refused, [1980] S.C.C.A. No. 1, and, to a lesser extent, this court’s decision in R. v. Poitras, 2002 ONCA 23583, (2002), 57 O.R. (3d) 538 (C.A.).

114In considering this issue, I start with the basic proposition that only two categories of evidentiary material will normally go into the jury room. One category comprises the trial exhibits, subject to health and safety concerns as will arise with firearms and drugs. The other category comprises material that the parties consent to being given to the jury. These materials will often include a “cast of characters”, timelines, maps, and other items that counsel agree will be of assistance to the jury in their deliberations. Notwithstanding such agreement, however, the trial judge must still be satisfied of the appropriateness of this material being left with the jury and retains a discretion to not allow any such materials to go to the jury, if the trial judge concludes that they may cause prejudice or mislead the jury.

115Nevertheless, the trial judge maintains a further discretion to permit other materials to go to the jury room, even where there is no consent to doing so. I accept that in long, complex cases, a trial judge has the discretion to allow summaries and aids to go to the jury to assist them with understanding the evidence: R. v. Kanagasivam, 2016 ONSC 2250, at para. 47.

116In exercising that discretion, trial judges must be cognizant of certain practical realities, including the inequality of resources that often exist between the prosecution and the defence. The prosecution has, essentially, unlimited resources to prepare such material. That reality should not allow them, though, to be given greater latitude in placing material that they can prepare to assist their case before the jury. This case demonstrates the concerns about the unequal access to resources. The defence was not realistically in a position to match the prosecution’s access to the necessary talent to prepare such a PowerPoint presentation. This disparity was heightened by the fact that the prosecution’s final presentation was not disclosed until more than four years after the events, and some number of months after the trial began. It was only during pretrial motions in January 2014 that an earlier draft was provided. The final draft, which was a different version of the presentation created by a different officer, was not disclosed until July 2014.

117In reaching his conclusion, the trial judge relied on the following statement from para. 144 of Bengert:

In a long and complex trial of this nature, the members of the jury were entitled to anything which would assist them in dealing with the evidence reasonably, intelligently and expeditiously.

118While I accept that courts must be more receptive to the use of new technology, or technological aids, in terms of facilitating the trial process, there must be limits to that receptiveness. The above statement is too broad in its scope. Saying that the jury are entitled to “anything” that would assist them opens the door much too widely to permitting material to go into the jury room that has not been entered, and tested, as part of the evidence at trial. On this point, in considering the decision in Bengert, it is noteworthy that the material at issue was a chronological chart of the dates and events in issue. These days, I would expect counsel to agree on the need for such an aid to go to the jury in a long and complicated case. In any event, that type of document does not carry with it the same degree of “advocacy” concerns that existed in this case regarding the PowerPoint presentation.

119In terms of the trial judge’s reliance on Poitras, an issue in that case was whether the trial judge acted properly in providing the jury with a written copy of part of his final instructions. Nowadays, of course, there would be no issue about the trial judge giving their instructions to the jury. This court in Poitras concluded that there was no error in the trial judge providing part of his instructions to the jury in written form, although there was some concern expressed over certain portions of the instructions that had not been given to the jury in writing.

120In so concluding, Doherty J.A. said, at para. 47:

The time has come to embrace the use of written material to enhance juror comprehension of oral instructions, particularly where those instructions must be lengthy and complex. There is no legal impediment to the use of written material as an adjunct to oral instructions.

121The decision in Poitras dealt expressly with the final instructions to the jury. This case goes considerably beyond that limited exception to permit what the trial judge considered to be “an advocacy tool” to go to the jury. In my view, such material should only exceptionally be provided to a jury because of the risks inherent in it. As a basic principle, it is arguably unfair to provide the jury with assistance that only reflects one side’s view of the case: R. v. Noureddine, 2015 ONCA 770, 128 O.R. (3d) 23, at para. 107.

122That said, I conclude that the trial judge did not err in permitting the PowerPoint presentation to go to the jury in the particular circumstances of this case. First, the cell phone evidence was dense, it was complicated, and it was lengthy. The jury deserved to have something to help them understand this evidence as part of their deliberations. This is precisely the type of case where summaries of the evidence are helpful for the jury: Regina v. Scheel, 1978 ONCA 2414, (1978), 42 C.C.C. (2d) 31 (Ont. C.A.), at p. 34. Second, while the trial judge had yet to rule on whether the presentation would be allowed to go into the jury room, the defence had a copy of the presentation before they made their closing addresses and thus were able to address any shortcomings in it in their closing addresses. It is important to remember on this point that the prosecution used the presentation extensively in their closing address, as the defence knew they would. Third, the trial judge allowed the defence to give the jury other charts that reflected evidence they planned to emphasize. Fourth, the trial judge gave careful and explicit instructions to the jury on limitations that were inherent in the presentation. He said:

You must be careful about what use you make of that presentation. The PowerPoint presentation is not meant to be a comprehensive overview of all of the evidence in this case. It is not even meant to be a comprehensive overview of the cell phone evidence in this case. Indeed there are large parts of the evidence that are not reflected in any way in the presentation. Its limited use is to assist you in understanding how some of the cell phone evidence fits together from the Crown’s point of view. The presentation is not evidence. It is not to be used as a substitute or a shortcut for your review and consideration of all of the evidence in this case. Its use is limited to assisting you in comprehending how that part of the Crown’s case fits together.

You may find the PowerPoint presentation to be visually appealing. But you must not put greater emphasis on the contents of the presentation simply because it looks appealing or because it has the appearance of comprehensiveness. As I said, it is not meant to be comprehensive. You must give fair and impartial consideration to all of the evidence and the submissions of counsel in this case.

123In my view, those instructions alleviated any concern that the jury would simply accept the contents of the presentation without submitting it to careful scrutiny or that they would ignore their own view of the evidence in favour of the recitation contained in the presentation.

124I also agree with the respondent that the trial judge did not err in permitting the presentation to go to the jury without it being authenticated by a witness. The jury had already heard from three witnesses, who had reviewed the cell phone evidence at length. The trial judge properly used his trial management powers to conclude that having a witness authenticate the presentation would only involve a repetition of a lot of that evidence. I would also note that such a repetition would not necessarily have worked to the benefit of the appellants.

125In concluding on this point, trial judges should be cautious in permitting material that is not in evidence to go into the jury room under the rubric of it being a “jury aid”, especially when its admission is subject to objection. In considering whether such material should go to the jury, the trial judge must be satisfied that it is necessary to assist the jury in their deliberations. The trial judge should also ensure that the material is “accurate and fair”: Poitras, at para. 48. Fairness concerns loom large when the material at issue only represents one side’s view of the evidence, or when the material can be fairly described as an advocacy piece. Trial judges should be especially cautious when allowing such material to go to the jury room.

F. Carty’s propensity for violence

126Mylvaganam’s counsel first sought and obtained permission to advance evidence regarding an alternate suspect, that is, that Francis was one of the three men who burst into the Pan residence. In furtherance of the alternate suspect contention, Mylvaganam’s counsel brought an application to adduce propensity evidence against Carty. The evidence included Carty's nickname, "Sniper", and his criminal record which included convictions for violent offences, including a 2013 conviction for first-degree murder.

127The trial judge, over the objections of the prosecutor, Pan, Wong, and Carty, permitted the introduction of some of the evidence. In particular, he permitted Mylvaganam’s counsel to introduce three convictions from Carty’s criminal record, including the first-degree murder conviction, Carty’s nickname, and two of Carty’s tattoos (“SNYPA” on his left calf complete with an AK-47 assault rifle and a neck tattoo).

128When the evidence was introduced, no mid-trial instruction was given about it. On the second day of the jury charge, the trial judge reviewed the evidence of Carty’s propensity for violence in the context of Mylvaganam’s defence. Then he said:

In the meantime, I want to be clear about how you must not use evidence about Mr. Carty’s propensity for violence. You must not reason that because Mr. Carty has a criminal record for violent, gun-related offences, that it is more likely that any of the other accused persons are guilty of the offences charged. You must not reason that any of the accused persons are guilty solely because they knew or were associated with Mr. Carty.

129On the third day of his charge, the trial judge returned to his issue. He said:

You must not consider [the propensity evidence about Carty, Francis, and/or Mylvaganam] when deciding if the Crown has proven the guilt of any accused person beyond a reasonable doubt except to this limited extent: (1) you may consider whether this propensity evidence, when considered in the context of all of the other evidence, raises a reasonable doubt in your minds as to whether Mr. Mylvaganam had the state of mind required for first degree murder; and (2) you may consider the fact that Mr. Mylvaganam had access to firearms in the fall of 2010 as relevant to placing him within that relatively small circle of individuals in our community with access to handguns and therefore as someone who could have committed the offences.

130In terms of this appeal, Crawford complains that these instructions did not go far enough. He contends that the trial judge needed to relate these instructions expressly to Crawford’s situation given the established connection between Crawford and Carty. More specifically, Crawford contends that the jury should have been specifically instructed not to use Crawford’s association with Carty, a convicted murderer with a propensity for violence including regular possession and use of firearms, against him.

131While the prosecution is prohibited from leading propensity evidence against an accused, one accused may be allowed to lead propensity evidence against a co-accused in a joint trial: R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330 at paras. 65-68, leave to appeal refused, [2016] S.C.C.A. No. 514; R. v. Marks, 2000 ONCA 4096, (2000), 48 O.R. (3d) 161, 145 C.C.C. (3d) 569 (Ont. C.A.) at para. 17.

132Nevertheless, there is still the need for the trial judge to caution the jury as to how they can, and cannot, use such evidence. The trial judge did so in this case. No issue is taken with the correctness of the instructions that he gave. In terms of Crawford’s complaint that the instructions were not specifically linked to him, I note that, in both instructions, the trial judge told the jury that they could not use the evidence to conclude that “any” of the accused persons were guilty.

133I do not accept Crawford’s complaint that he should have been separately identified in this instruction. In a trial with multiple accused persons, that complaint could be made with respect to almost any instruction that the trial judge gives. On this point, I note the observation of Watt J.A. in R. v. Yumnu, 2010 ONCA 637, at para. 312, aff’d 2012 SCC 73, [2012] 3 S.C.R. 777:

The issue here is not whether more could have been said about this subject. That universal truth establishes nothing. Adequacy does not require perfection. The instructions were adequate. And that is enough.

134The instructions given by the trial judge were adequate to address this issue. I would reject this ground of appeal.

G. Crawford’s out of court statements

135The prosecution, as part of its case, introduced seven police statements – three from Pan; two from Wong; and two from Crawford. While the statements of Pan and Wong had both exculpatory and inculpatory aspects, Crawford’s statement was exculpatory, as he said that he had no involvement in the events.

136The trial judge gave what is accepted as a correct instruction on the use of out of court statements by accused persons generally. However, later in his instructions, the trial judge referred to the use of such statements only as evidence “against” a particular accused person. For example, in relation to Crawford in particular, the trial judge said in his instructions:

Remember, again, that Lenford Crawford’s statements to the police are only admissible in evidence against him.

137Crawford complains that the trial judge ought to have said that the statements could be used “for and against” him. He says that the failure to include the “for” option was prejudicial to his position because his statements were exculpatory.

138I accept that a standard of perfection would have had the trial judge use the words “for or against” with respect to all of the statements concerned since they all had exculpatory aspects. But the standard applied to jury instructions is not perfection: R. v. Khill, 2021 SCC 37, 409 C.C.C. (3d) 141, at para. 126.

139I do not accept that the jury would have been confused as to how to use the evidence of these statements. The instructions were clear at the outset, and they had earlier been explained by counsel in their closing addresses. Further, the trial judge gave, not one but two, W.(D.) ⁶ instructions, including W.(D.) instructions explicitly tied to Pan’s, Wong’s, and Crawford’s police statements. In that regard, the trial judge had also told the jury several times that some statements made by an accused person “may help him or her in his or her defence”.

140Finally, I note that none of the trial counsel took issue with the instructions given on this issue nor did any of them ask for more.

141I would reject this ground of appeal.

Applicability of the curative proviso

142The respondent relies on what it describes as the “overwhelming strength” of the prosecution’s case for the application of the curative proviso to any errors found. That reliance is misplaced here. The curative proviso has no application to the error in the jury instructions regarding the two scenarios. As Doherty J.A. said in Ronald, at para. 66:

The erroneous failure to leave a possible verdict on an included offence can seldom be held to have caused no substantial wrong or miscarriage of justice. [Citation omitted.]

143As Doherty J.A. went on to explain, the fact that an included offence should have been left is inconsistent with any finding that the evidence on the main offence was so overwhelming that the verdict would have been the same. In addition, the fact that an included offence was not left with the jury, when it ought to have been, means that the error was not harmless. It directly impacted the verdicts that were available to the jury. Similar to the situation in Ronald, there was a real likelihood in this case that a jury, left only with the choice of convicting Pan of first-degree murder or declaring her not guilty (along with all of the other accused), would opt for the verdict that recognized her responsibility in the death of her mother and held her accountable for her actions.

Does the two scenarios error impact the attempted murder convictions?

144The appellants say that both charges must go back for a new trial if the two scenarios error is found. They say that there is no safe way to separate this jury instruction error between the murder charge and the attempted murder charge in terms of its impact.

145The respondent says that, if the murder and attempted murder convictions are not inextricably linked, and they are not in the circumstances of this case, the attempted murder convictions can be sustained separate and apart from the jury instruction error on murder.

146I fail to see why the attempt murder convictions are in any way tainted by the failure to leave second-degree murder and manslaughter as included offences on the murder charge. The sole issue is whether the jury would have been satisfied beyond a reasonable doubt that the murder of Pan’s mother was the result of a planned and deliberate murder, if they had been instructed on the included offences of second-degree murder and manslaughter. It does not impact on whether the attack on Pan’s father was the result of a planned and deliberate murder that went wrong. Indeed, part of Pan’s own argument for why second-degree murder should have been left with the jury was that it was possible for the jury to find that the plan was to kill her father but not her mother.

147I do not see, in the particular circumstances of this case, why the attempted murder convictions should not stand.

The sentence appeals

148In light of that conclusion, I must address the sentence appeals of Pan and Wong. Both assert that sentences of life imprisonment on the attempted murder convictions were unfit. Pan requests that her sentence be overturned and the matter remitted to the sentencing court for a new hearing or, alternatively, seeks to reduce her sentence on the attempted murder conviction to one of 15 years with credit for time served. Wong seeks to reduce his sentence to one of time served or a further period of incarceration of three years or less. The respondent says that there is no principled basis to interfere with the sentences imposed and that the sentencing judge’s decision is entitled to deference.

149It is not necessary to go into great detail regarding the appropriate approach to sentence appeals. Absent an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor that impacted the sentence imposed, an appellate court should not interfere with the sentence imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

150The sentencing judge reviewed the circumstances surrounding the attempted murder of Pan’s father. Included in his findings were the following:

• The murder was “a crime of terrifying violence”.
• It was “a murder for hire”.
• It was facilitated by a person implicitly trusted by the victims.
• It occurred inside the family home.
• The survival of Pan’s father was pure chance.

151The sentencing judge also found little in the way of mitigating factors other than the lack of prior convictions for most of the appellants.

152In reaching his conclusion to impose life sentences, the sentencing judge said that each of the participants knew that they were involved in a murder plot; that they had ample time to consider the wisdom of their participation in the plot; and each decided to play their part. He described the result as “a considered business transaction; the commodity was death.” He found that the moral blameworthiness of each of the appellants was significant.

153There is no error in principle in the sentencing judge’s analysis. He did not fail to consider any relevant factor, nor did he erroneously consider any aggravating or mitigating factor. Pan suggests that the sentencing judge failed to consider mental health considerations in sentencing her. There are two likely reasons for that. One is that her trial counsel did not raise them in his submissions on sentence. The other is that there was no medical evidence that would support them to the degree necessary to properly impact on the sentence to be imposed.

154Finally, Pan argues that if there is to be a new trial on the murder charge, the new trial may impact on the proper sentences for the attempt murder conviction. She suggests that the sentences should be remitted to be reconsidered after the conclusion and verdict in the new trial.

155For the reasons that I have already given, I do not accept that the attempted murder convictions are so tied to the murder convictions that it impacts on the sentences imposed. Further, there is a serious issue as to whether this court has any jurisdiction to accede to that suggestion. Section 687(1) of the Criminal Code gives this court two options on an appeal from sentence – vary the sentence or dismiss the appeal. There is no option for remitting the sentence for a contingent review based on the outcome of another proceeding. Section 686(8) has no application since none of the specified subsections are applicable to this case.

156Simply put, there is no principled basis on which this court could interfere with the sentences imposed.

CONCLUSION

157I would allow the appeals on the convictions for first-degree murder and order a new trial. I would dismiss the appeals on the convictions for attempted murder.

158While I would grant leave to appeal the sentences of Pan and Wong, I would dismiss those appeals.

Footnotes

1. 1Another co-accused, Eric Carty, was a co-defendant during the trial but his case was ultimately severed following the close of the Crown’s case when his trial counsel became too ill to continue. Mr. Carty later pleaded guilty to the offence of conspiracy to commit murder and was sentenced to 18 years’ incarceration: R. v. Carty, 2015 ONSC 8144.
2. 2The $1,000 withdrawal was completed in two installments. Pan withdrew $500 from her bank account on October 24, 2010 and withdrew an additional $500 on November 4, 2010.
3. 3Mylvaganam filed a Notice of Abandonment with respect to his inmate sentence appeal. Crawford did not appeal his sentence.
4. 4R. v. Pan, 2014 ONSC 74050, (Ont. S.C.), at para. 7.
5. 5R. v. Pan, 2014 ONSC 6055, at paras. 119-123.
6. 6R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742.