Pan and the men accused of attacking her parents will face a new trial related to her mother's death
A Supreme Court of Canada majority ordered a new trial for Jennifer Pan and the individuals who allegedly helped orchestrate a violent attack on her parents, overturning their first-degree murder convictions regarding Pan’s mother and opening the possibility they will be convicted on less serious charges.
The decision affirms a 2023 decision by the Court of Appeal for Ontario.
Chief Justice Richard Wagner wrote the opinion for the majority in the 7-2 decision. Justices Andromache Karakatsanis and Sheilah Martin dissented.
“Jennifer still has a long road ahead of her, but this is a very important day towards her hope of one day establishing her innocence in relation to these charges,” Stephanie DiGiuseppe, a partner at Henein Hutchison Robitaille LLP who represented Pan, told Canadian Lawyer on Thursday.
“She's very happy, of course, with the Supreme Court results, and is looking forward to having an opportunity for a retrial in relation to the death of her mother.”
The widely publicized case dates to 2010, when three armed intruders entered the home where Pan lived with her parents. The intruders shot each of her parents in the head and shoulders, killing her mother and seriously injuring her father. Pan was tied to a banister but unharmed.
Pan, who had a difficult relationship with her parents, was charged with the first-degree murder of her mother and the attempted murder of her father. Three other individuals – Daniel Wong, Lenford Crawford, and David Mylvaganam – faced the same charges.
At trial, a jury convicted the four defendants of both charges, accepting the Crown’s theory that Wong and Crowford helped Pan arrange to have her parents killed by Mylvaganam and others.
The defendants appealed, arguing that the trial judge made several errors. They alleged that the judge erred by telling the jury that only two possible scenarios could establish the defendants’ guilt. In one, the defendants had planned to murder both of Pan’s parents. In the other, the Pans had been shot in the commission of a home invasion and robbery.
According to the defendants, the judge should have allowed the jury to consider a third scenario: that they planned only to kill Pan’s father and that they had killed her mother while carrying out that plan. This scenario left open the possibility of second-degree murder or manslaughter convictions for some of the defendants instead of a more serious first-degree murder conviction.
The defendants also argued that the judge erred by not dismissing an allegedly biased juror, allowing a slide show presentation by the Crown to go into the jury room, and telling the jury how to use evidence about the character of Eric Carty, another defendant who was tried in a separate case.
The Court of Appeal for Ontario granted the defendants’ appeal, ruling that the jury should have been permitted to consider the third scenario. This is because the scenario had an “air of reality” – meaning there is a realistic possibility that a reasonable jury could acquit on a principle offence, like first-degree murder, and convict on an included offence, like second-degree murder or manslaughter.
The appellate court ordered a new trial on the first-degree murder charge.
However, the court declined to overturn the convictions for the attempted murder of Pan’s father. The court also concluded that the trial judge did not err concerning the allegedly biased juror, the slide show, or the evidence about Carty.
The Crown appealed the appellate court’s decision, and the defendants cross-appealed, seeking to additionally set aside their convictions for attempted murder.
The SCC majority agreed with the appellate court’s decision and dismissed both the Crown’s appeal and the defendants’ cross-appeals.
Wagner wrote that the majority agreed the defendants were entitled to a new trial concerning the first-degree murder convictions since the third scenario that the trial judge barred the jury from considering had an air of reality. “A trial judge’s determination about whether there is an air of reality is a question of law reviewable for correctness,” Wagner said.
When a criminal defendant is acquitted of an offence like first-degree murder because they did not meet all the criteria for a conviction, they may still meet the criteria to be convicted of an included or lesser offence, like second-degree murder or manslaughter. According to Wagner, juries must be allowed to consider such included offences if there is “a realistic possibility of an acquittal on the principal offence and a conviction on the included offence.”
Applied to this case, “the trial judge erred in concluding that there was no air of reality to the theory of a plan to kill only Mr. Pan,” Wagner wrote.
“On a reasonable appreciation of this record, the jury could have had a reasonable doubt that Mrs. Pan was one of the intended targets of the plan while accepting the factual inferences required to convict the respondents of second-degree murder or manslaughter.”
He added, “This Court has established that a conviction on a more serious charge cannot be taken to mean that a jury would not have convicted on a lesser charge had it been available.”
Wagner dismissed the defendants’ other allegations regarding how the trial judge conducted their trial. On the slide show issue, he ruled that it was fair for the judge to admit the Crown’s slide show to the jury room because “in the unique circumstances of this case, its explanatory value outweighed any potential prejudice.
He said, “Prejudice was greatly reduced by the presence of defence counsel’s competing aids, which rounded out the evidentiary picture, as well as the trial judge’s forceful caution about the dangers of relying on the slide show.”
In their dissent, Karakatsanis and Martin agreed with the majority on dismissing the defendants’ cross-appeals.
However, they argued that the trial judge’s first-degree murder convictions should have been upheld. “The trial judge properly exercised his important gatekeeping function in refusing to leave lesser included offences with this jury,” they said.
“There was no direct evidence for the theory that on the night in question, the respondents acted on a plan to kill only Hann Pan, Ms. Pan’s father,” they added. “And the trial judge — who observed the voluminous evidence firsthand — also concluded that the evidence could not realistically support circumstantial inferences in favour of that theory.”
DiGiuseppe said the majority’s opinion represents “the first time the Supreme Court has set out, in a very precise way, what the test is that trial judges need to follow when they’re deciding whether or not a jury should have the option of convicting of one of those lesser included offences.”
She added that Pan maintains her innocence regarding both the murder of her mother and the attempted murder of her father.
Jack Gemmell, who represented Mylvaganam, told Canadian Lawyer it was critical not to overlook the rules the SCC laid out for determining whether to admit the slide show to the jury room.
“As we move forward, there will be more resort to things like sophisticated PowerPoints, animations, recreations, and so on, and so it's very important that rules be set for how the court should deal with it,” he says. “The reality is that the juries will be much influenced by it, and may, in fact, base their decisions on it.”
The Ontario Ministry of the Attorney General and counsel for the other defendants did not immediately respond to requests for comment.
