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Criminal - Appeals - Curative Proviso - s.686(1)(a,b) (2). 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 considers whether the failure to advise a jury of an included offence verdict could be subject of a curative proviso [under s.686(1)(a)(ii) and s.686(1)(a)(iii)]:[86] Failure to instruct the jury on a potential verdict is an error of law within the meaning of s. 686(1)(a)(ii) of the Criminal Code (Sarrazin, at para. 64). An error of law will warrant setting aside the conviction under s. 686(2). However, under s. 686(1)(b)(iii), a court of appeal may dismiss the appeal and uphold the conviction where the Crown can establish that no substantial wrong or miscarriage of justice flowed from the error (para. 65; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at para. 21).
[87] Specifically, the curative proviso set out in s. 686(1)(b)(iii) is available where: (1) the error or irregularity in question is minor or harmless, such that it had no impact on the verdict; or (2) the error or irregularity, despite being serious enough to warrant a new trial, caused no substantial wrong or miscarriage of justice because the evidence against the accused is so overwhelming that a trier of fact would inevitably convict (see R. v. Tayo Tompouba, 2024 SCC 16, at para. 76).
[88] In simple terms, the question is whether there is no reasonable possibility that the verdict would have been different had the legal error not been committed (Sarrazin, at para. 65). I am not satisfied that the Crown has met its burden in this regard.
[89] 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 (Haughton). In such circumstances, as mentioned above, there is always the risk that “the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable” (p. 517).
[90] Only in rare cases will it be possible to conclude that an error in failing to leave an available verdict with the jury did not cause a substantial wrong. As Doherty J.A. suggested in Ronald, the proviso may apply where “the court can take into account findings of fact implicit in the verdict or verdicts returned by the jury as long as those verdicts are not tainted by the legal error, and those findings are unambiguously revealed by the verdict” (paras. 68-69). With that said, the court must remain mindful of the risk that the jury convicted on the principal offence solely because an acquittal was the only other option. While I would not foreclose the possibility that, in rare instances, the air of reality to an included offence will be so marginal as to permit the application of the proviso, this is not one those cases.
[91] Had the jury been properly instructed on the included offence theories, it would have had to grapple with the evidence suggesting that Jennifer did not have the same animus towards her mother as she did towards her father. I would note that much of this evidence came from Jennifer herself, whose theory at trial was that the only plan in November 2010 was that she herself would be killed, and who thus had no interest in admitting any animus towards either parent. That she did admit her animus towards her father while maintaining that her mother was “the perfect mother” is not insignificant (A.R., part V, vol. L, at p. 310). Reasonable doubt about planning and deliberation, as I have stressed, is a low bar.
[92] I do not dispute that a conviction on one of the included offences, particularly second degree murder, which has a subjective mens rea element, would require the jury to draw important inferences based solely on circumstantial evidence. However, I would not consider a conviction on either one of those offences to be outside the realm of possibility. I therefore conclude that the curative proviso does not apply.
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