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In the recent decision of R v Pan, 2025 SCC 12 [Pan], the Supreme Court of Canada (“SCC”) has addressed the proper scope of the “air of reality” test as it applies to included offences in jury trials. Writing for the majority, Wagner C.J. upheld the Ontario Court of Appeal’s (“ONCA”) verdict that Jennifer Pan should undergo a new trial regarding her initial first-degree murder charge, but maintained her conviction related to the attempted murder charge. Furthermore, the Court also determined that the trial judge erred by failing to leave lesser included offences, such as second-degree murder or manslaughter, to the jury where there was a realistic possibility of conviction on those offences.
The decision follows an earlier Appeal Watch on the case, and resolves lingering uncertainty about whether trial judges may weigh evidence or exercise deference-driven discretion when determining which verdicts to put before a jury. In rejecting the Crown’s attempt to recalibrate the “air of reality” test, the SCC reaffirmed a foundational principle of criminal procedure: where the evidence permits a jury to reasonably convict on an included offence, that option must be left to the jury, even in long, complex, and emotionally charged trials.
Background
Jennifer Pan and three co-accused, Mr. Wong, Mr. Crawford, and Mr. Mylvaganam were tried by a jury for their roles in a planned home invasion that occurred on November 8, 2010. During the invasion, Pan’s mother was fatally shot, and her father was seriously wounded but survived (Pan, para 1).
The Crown’s theory was that Pan orchestrated the attack by hiring others to carry out the killing of her parents, deliberately avoiding any physical involvement in the violence, and then sought to “resume her relationship with Mr. Wong, and collect on their estates and life insurance policies” (Pan, para 16).
The defence advanced a markedly different narrative. Pan testified that while she had once contemplated arranging the killing of her father, she later abandoned that plan. She further claimed that a subsequent plan involving a staged home invasion was intended to facilitate her own death by suicide in a way that would preserve insurance benefits for her family, and that this plan, too, had been abandoned. On this account, Pan was an unsuspecting victim of the home invasion (Pan, para 17).
At trial, the judge instructed the jury on only two possible scenarios: either Pan was unaware of the plan and must be acquitted, or she deliberately planned the killing of both parents, in which case she and her co-accused were guilty of first-degree murder and attempted murder. No lesser included offences—such as second-degree murder or manslaughter—were left with the jury (Pan, para 19).
The jury convicted all the accused on both counts (Pan, para 2).
Ontario Court of Appeal Decision
On appeal, ONCA allowed the appeal in part, ordering a new trial on the first-degree murder conviction while upholding the attempted murder conviction. The court held that the trial judge erred by failing to leave lesser included offences with the jury (Pan, para 25).
Applying the “air of reality” test, ONCA concluded that there was a realistic possibility that a properly instructed jury could have found that Pan intended to kill only her father and not her mother. In such circumstances, the jury could have convicted Pan of attempted murder without convicting her of first-degree murder. Nonetheless, by restricting the jury’s presented theories, the trial judge impermissibly prejudiced the jury’s purposeful role.
The Crown appealed this finding to the SCC, arguing that the ONCA applied the “air of reality” test too strictly and failed to afford sufficient deference to the trial judge’s role in managing a long and complex jury trial (Pan, para 3).
Supreme Court of Canada Decision
Issues
The primary issue before the SCC was whether the trial judge erred in failing to leave lesser included offences with the jury, and specifically whether the ONCA correctly applied the “air of reality” test in ordering a new trial on the murder charge.
Holding
In a 7-2 split decision, the SCC dismissed the Crown’s appeal.
Writing for the majority, Wagner C.J. agreed with the ONCA that the included offences had an air of reality and that the jury should have been permitted to consider them. As a result, the Court upheld the order for a new trial on the first-degree murder charge while maintaining the attempted murder conviction.
Reasons
The majority reaffirmed that the “air of reality” test is a threshold legal inquiry, rather than a discretionary or deferential one. The test is therefore intended to serve as “a meaningful and important gatekeeping exercise” on the part of the trial judge (Pan, para 168). In effect, “a trial judge should not consider how likely or unlikely he or she believes a conviction for that included offence to be, nor should the judge pay regard to concerns about the credibility or reliability of the evidence required to reach that outcome” (Pan, para 32). Importantly, the Court rejected the Crown’s submission that trial judges may engage in limited weighing of credibility or reliability at this stage, or that appellate courts should defer to trial judges’ assessments of whether included offences are realistically available. As such, while trial judges possess broad discretion to manage trials, that discretion does not extend to eliminating viable verdict options based on assessments of evidentiary strength.
Applying these principles to the facts, the Court concluded that the totality of evidence permitted a reasonable inference that Pan intended to kill her father but not her mother (Pan, para 78). In those circumstances, the jury could have convicted Pan of attempted murder without convicting her of first-degree murder. The failure to provide that option amounted to legal error, as the SCC majority highlighted that the central question at issue was “whether the record realistically left room for the jury to have a reasonable doubt that the respondents planned for Jennifer’s mother to be killed, while accepting beyond a reasonable doubt that they planned for her father to be killed” (Pan, para 80).
The SCC declined to interfere with the ONCA’s conclusions on other alleged trial errors, including issues relating to juror impartiality and the use of a Crown-prepared PowerPoint during jury deliberations (Pan, para 130).
Analysis
While the SCC’s decision in Pan offers doctrinal clarity on the largely ambiguous “air of reality” test, it also exposes the tension between trial management efficiency and the jury’s constitutional role. By reaffirming a strict, non-deferential application of the “air of reality” test, the Court prioritizes jury autonomy over judicial streamlining—an approach that carries both principled benefits and practical costs.
The Discretionary Significance
At a doctrinal level, Pan is a strong reaffirmation of the jury’s central role as fact-finder (Pan, para 180). The Crown’s argument urged the Court to effectively reorient the “air of reality” test into a more flexible, and discretionary standard—one that would permit trial judges to limit the range of verdicts left with the jury in the name of coherence and efficiency. Under this approach, narrowing the available verdict options would simplify the jury’s deliberative task by presenting a more streamlined set of factual narratives, thereby reducing the risk of confusion in complex trials involving multiple charges or theories of liability. However, such streamlining could also come at the cost of foreclosing the jury’s ability to grapple with the inherent factual complexity of the case by effectively collapsing nuanced or intermediate conclusions into an all-or-nothing choice. The majority decisively rejected this invitation.
In doing so, the Court preserved the conceptual boundary that the “air of reality” test is not concerned with which verdict is most likely, but with which verdicts are legally available on the evidence. Any approach that allows trial judges to weigh credibility or reliability at the trial stage risks collapsing that distinction and encroaching on the jury’s legal function.
This clarification is especially significant in cases involving multiple charges or complex factual narratives. In such cases, the evidentiary record often supports several overlapping but legally distinct paths to liability, increasing the risk that a trial judge’s effort to streamline jury instructions has the potential to unintentionally collapse viable intermediate verdicts into an overly simplified theory. As a result, Pan confirms that legal complexity does not justify narrowing the jury’s choices where the evidence supports numerous reasonable interpretations, nor does it justify broadening the trial judge’s discretionary role to include the weighing of credibility or reliability.
Trial Management and Its Limits
Pan places meaningful constraints on a trial judge’s ability to manage sprawling jury trials. The trial judge’s approach—presenting the jury with two mutually exclusive theories—was anchored in a desire to simplify an extraordinarily complex case (Pan, para 30). In return, the SCC’s decision signals that such simplification has limits.
While clarity is an important procedural value at trial, framing the case as a single, straightforward choice risks overlooking the range of legally viable verdicts supported by the evidence. In regard to the present case, the SCC is clear: clarity cannot take precedence over legal thoroughness. Pan thus stands for the proposition that judicial efficiency cannot override the accused’s right to have all viable verdicts considered.
Balancing Precision with Practical Costs
More broadly, however, Pan reflects the SCC’s continued reluctance to relax procedural safeguards in response to trial complexity. Rather than customizing legal requirements to be “practical” in the face of lengthy trials, unwieldy records, and complex factual situations, the SCC requires that the structure of trials be made to conform to the principle of fairness. Pan subsequently serves to bolster the conclusion that the right to fairness in a criminal trial is absolute, even when it complicates proceedings or places additional burdens on trial judges and juries.
The SCC’s majority reasoning demonstrates an institutional preference for preserving the constitutional role of the jury over facilitating trial efficiency. In rejecting the Crown’s position, the Court would not entertain a less rigorous or “deferential” approach to the “air of reality” test that would allow trial judges to limit the range of verdicts to those which they found to be sufficiently robust in the evidence presented against them. The desire for a coherent or tidy or narrative-like set of verdicts does not justify a restriction in air of reality applications that would lead to a dilution of the range of verdicts which the evidence would otherwise support. Pan addresses the central institutional concern arising from this practice: that it would permit the trial judge, rather than the jury, to perform the role of the finder of fact in a jury-trial.
Nonetheless, this principled result may have a practical cost. The reality of Pan suggests that the inclusion of multiple lesser included offences—each turning on nuanced distinctions regarding intent and scope of planning—risked presenting the jury with a deeply complex matrix of verdict options in an already lengthy and factually dense trial. Such complexity can increase deliberation time, complicate jury instructions, and raise the possibility of confusion, particularly in multiple-accused cases involving overlapping theories of liability. A confused jury, no less than an over-directed one, may impair the truth-seeking function of the trial process.
Ultimately, however, Pan reveals that this risk does not justify pre-emptively narrowing what juries can consider while deliberating. Rather, in finality, the SCC has effectively reaffirmed the message that it is not the efficiency of its operations that anchors criminal verdicts, but that juries must be allowed to carry out their fact-finding duties in a diligent fashion.