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Electronic Court Interface (ECI) - Criminal. R. v. Pan
In R. v. Pan (SCC, 2025) the Supreme Court of Canada dismissed a Crown criminal appeal, here from an Ontario Court of Appeal set aside of convictions for first degree murder, and the ordering of a new trial.
Here the court considered the use of 'jury aids', both electronic and otherwise:(2) Did the Trial Judge Err in Permitting the Crown Slide Show to Go to the Jury Room?
[116] This next ground of cross-appeal raises an issue of broader significance about the use of jury aids. Exponential advances in technology have rendered both criminal activity and police investigations increasingly complex. This growing complexity means that the evidence presented at modern criminal trials is often vast and thorny. Jury aids, which synthesize and explain evidence, play an important role in the pursuit of truth in these cases. At the same time, jury aids pose risks that require the careful attention of trial judges. Here, I consider when they ought to be permitted to go to the jury room to assist in deliberations.
(a) Background and Decisions Below
[117] Shortly before the close of its case, the Crown disclosed a 231-slide PowerPoint presentation. That slide show summarized evidence from disparate sources, including call detail records, cell tower evidence, data recovered from cell phones, bank withdrawal records, the time of the 9-1-1 call, and video surveillance footage records. Slides detailed how over 400 calls, almost 100 text exchanges, and the contents of over 250 individual text messages implicated all of the co-accused.
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(b) Defining Jury Aids
[121] Jury aids are tools to elucidate the significance of a piece or collection of testimonial, documentary, or real evidence. They include maps, timelines, casts of characters, charts, and slide shows. Whereas testimonial, documentary, and real evidence “provides the trier of fact with an opportunity to draw a relevant first hand impression”, jury aids perform a secondary function, namely “to assist the jury [to] interpret, understand or analyze” this evidence (S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), at § 23.1).
[122] Unlike evidence, jury aids do not provide a standalone basis for factual findings or legal conclusions. Their utility is wholly dependent on whether the trier of fact independently accepts the evidence on which they are based (R. v. Scheel (1978), 1978 CanLII 2414 (ON CA), 42 C.C.C. (2d) 31 (Ont. C.A.), at p. 34; see also R. v. Kanagasivam, 2016 ONSC 2250, 29 C.R. (7th) 201, at para. 41; R. v. Shaw, 2004 NBQB 260, 277 N.B.R. (2d) 306, at para. 8).
[123] Jury aids come in all forms and vary in their sophistication, and the distinction between jury aids and evidence may sometimes be difficult to draw (see Hill, Tanovich and Strezos, at § 23.1). In some instances, tools that may accurately be classified as jury aids will nonetheless be admitted as evidence through a witness and made exhibits in accordance with the ordinary rules of evidence. This case does not concern the practice of admitting jury aids as evidence in accordance with those rules.
[124] Rather, the issue raised is when jury aids may be permitted to go to the jury room outside of the normal rules of evidence for use by the jury in the course of its deliberations. In the Court of Appeal, Nordheimer J.A. observed that, in the usual course, only two categories of material will go to the jury room: trial exhibits and jury aids proffered on consent (para. 114). As he rightly pointed out, notwithstanding the consent of the parties, the trial judge retains discretion not to send an aid to the jury room, and conversely, the trial judge has discretion to permit a contested aid to go to the jury room in some circumstances. I turn to those circumstances now.
(c) Framework for Permitting the Use of Jury Aids in the Jury Room
[125] As a conceptual matter, the discretion to permit jury aids to go to the jury room falls within the domain of the trial judge’s trial management powers, which flow from the court’s inherent or implied jurisdiction to control its own processes and to “ensure that trials proceed in an effective and orderly fashion” (R. v. Samaniego, 2022 SCC 9, [2022] 1 S.C.R. 71, at para. 20; see also R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58).
[126] The party seeking to have a jury aid go to the jury room should disclose it to the opposing party as soon as reasonably possible after it is prepared and make an application to the court to tender the aid. Where the opposing party contests the aid going to the jury room, the trial judge should solicit submissions. Aids that satisfy the criteria laid out below should be permitted to go into the jury room and should be formally marked in a manner that distinguishes them from the evidence.
[127] If an aid is permitted for use by the jury, it is incumbent on the trial judge to instruct the jury as to the proper and improper uses of the aid (see, e.g., R. v. Hovila, 2013 CarswellAlta 2965 (Q.B.), at para. 20). For an example of a well-formulated caution, I would point to the trial judge’s instruction in this case, reproduced below. Proper instruction is vital to ensure that the jury does not rely on an aid as “a convenient shortcut” in lieu of examining the evidence (R. v. Belcourt, 2012 BCSC 2128, at para. 10).
[128] Determining what procedural mechanisms and instructions are necessary in the circumstances will depend on the nature of the aid, the purpose to which it is being put, and the positions of the parties. For instance, a straightforward jury aid such as a map or cast of characters may call for a streamlined or informal approach. By contrast, a complex or obscure aid may require the proffering party to call a witness to explain and authenticate the aid. The trial judge should make decisions with a view to preventing unfairness, preserving trial efficiency, and enhancing the jury’s truth-seeking capacity.
[129] With respect to substantive criteria, I agree with Nordheimer J.A. that the trial judge erred in relying on the statement from R. v. Bengert (1980), 1980 CanLII 321 (BC CA), 15 C.R. (3d) 114 (B.C.C.A.), that “the members of the jury [are] entitled to anything which would assist them in dealing with the evidence reasonably, intelligently and expeditiously” (p. 160). This test is too broad and fails to recognize the potential prejudice flowing from overreliance on aids.
[130] Instead, I would adopt the test laid out by Nordheimer J.A. in the Court of Appeal, with some slight modification. Before permitting a jury aid to go to the jury room during deliberations, the trial judge must be satisfied that the aid is reasonably necessary, accurate, and fair. These criteria serve to balance the value that these aids can provide in elucidating the evidence against their potential to distract or mislead the jury. Jury aids should be permitted to go to the jury room if the former outweighs the latter.
[131] The first criterion is that the aid must be reasonably necessary for the jury to understand the evidence. An aid will be reasonably necessary where the evidence that it incorporates is so vast, complex, or technical in nature that a jury would struggle to make sense of it without assistance or without expending an unreasonable amount of effort and time. The trial judge need not be satisfied that it would be impossible for the jury to perform its task without the aid; it is enough to show that it would be unreasonably onerous, or unreasonably time-consuming, for the jury to sift through the relevant data points required to understand the evidence without the aid. As Fairburn J. (as she then was) explained in Kanagasivam, at para. 42:Using demonstrative aids of this nature can serve to truncate what might otherwise take days of evidence to amplify. It can also ease the jury’s task by abbreviating what could be countless hours spent wading through and distilling data during the fact finding process. [132] Juries are not expected to “locate needles in haystacks” (Kanagasivam, at para. 48). However, where the aid merely repackages already accessible evidence in a more attractive or convenient way, the necessity criterion will not be met.
[133] Second, the aid must summarize the evidence accurately. It cannot distort, misstate, or obscure any evidence, whether intentionally or unintentionally (Kanagasivam, at para. 52). In R. v. Poitras (2002), 2002 CanLII 23583 (ON CA), 57 O.R. (3d) 538 (C.A.), Doherty J.A. described the imperative of accuracy as follows, at para. 48:Any inaccuracy or inadequacy in the written material, or any confusion or unfairness created by that material is likely to have a serious impact on the validity of any verdict returned by the jury. The high premium placed on ensuring that written material is accurate and fair should not discourage the use of written material but, should encourage careful preparation of any written material that is to be given to the jury. An aid that might be misleading on its own may be deemed sufficiently accurate if accompanied by other aids that fill out the evidentiary picture. However, fairness concerns may arise if there is an expectation placed on parties to respond to one-sided jury aids, as I elaborate on below.
[134] Additionally, an aid may be deemed inaccurate if it fails to capture the complexity of the evidence. As Conlan J. warned in Woods v. Jackiewicz, 2019 ONSC 2069, “we must be cautious to avoid oversimplification of technical evidence through the use of a demonstrative aid” (para. 13(vi)). Abbreviation is not always possible without sacrificing accuracy.
[135] Third and finally, the trial judge must be satisfied that permitting the aid to go to the jury room would be fair. Assessing fairness involves an overarching inquiry into the aid’s explanatory value and prejudicial effect (see Jackiewicz, at para. 13(iii)). A key consideration is the extent to which the aid reflects one party’s theory of the case, though there is no strict prerequisite that an aid be completely free of the proffering party’s perspective. If the aid does reflect one party’s theory of the case, the opposing party should have an opportunity to submit its own aid, or to submit alterations or additions to the aid. Neutral aids that do not reflect either party’s perspective will more easily satisfy the dictates of fairness.
[136] In exercising their discretion with respect to jury aids, trial judges should aim to preserve the proper and fair operation of the adversarial system. Trial judges must be alive to resource imbalances and should not permit a one-sided aid to go to the jury room where it would be unduly burdensome for the opposing party to provide competing material. An important consideration is how quickly an aid can reasonably be disclosed after it is prepared. Some aids may need to be updated throughout the trial to satisfy the accuracy criterion or to fairly represent all the evidence. Naturally, it will be more burdensome for a party to provide competing material if the original aid is disclosed for the first time shortly before it is to be presented to the jury.
[137] The ultimate aims of these criteria are to prevent improper reasoning on the part of the jury and to avoid the appearance of unfairness. The decision to send a jury aid to the jury room or not to do so is, in the end, a discretionary decision for the trial judge to make. As a trial management decision, it is owed deference absent an error in principle or an unreasonable exercise of discretion (Samaniego, at para. 26).
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[142] The slide show was reasonably necessary, because the cell phone evidence that it summarized was voluminous and fragmented across thousands of data points from three separate service providers. Slide shows have been used in courtrooms to synthesize and summarize cell phone tower data (see, e.g., Kanagasivam; R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208). It would have been unreasonable to expect the jury to piece together a timeline on its own when this slide show already existed. The cell phone evidence was a significant portion of the evidence in this case, and it was reasonably necessary to provide the jury with a tool that would assist in interpreting it.
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[146] Overall, it was fair to admit the Crown slide show and to send it to the jury room. Although the slide show reflected the Crown’s theory, in the unique circumstances of this case, its explanatory value outweighed any potential prejudice. The 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. The trial judge’s decision to permit the slide show to go to the jury room is owed deference.
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