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Criminal - Jury - Evidence Allowed into Jury Room. R. v. Pan
In R. v. Pan (Ont CA, 2023) the Court of Appeal considered whether a prosecution Power Point presentation was itself 'evidence' or "merely a re-organizing of evidence already tendered", here for purposes of allowing it into the jury room for their deliberations:[112] In 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 CanLII 74050 (Ont. S.C.), at para. 29. However, in his October 30, 2010 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, 2010 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. [113] In reaching his conclusion, the trial judge relied heavily on the British Columbia Court of Appeal’s decision in R. v. Bengert (1980), 1980 CanLII 321 (BC CA), 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), 2002 CanLII 23583 (ON CA), 57 O.R. (3d) 538 (C.A.).
[114] In 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.
[115] Nevertheless, 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.
[116] In 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. The court further considers, and ultimately endorses on these facts, letting the Power Point into the jury room (paras 117-125).
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