What does an “air of reality” to an included offence mean?

PUBLISHED ON December 24, 2025

As criminal defence lawyers, we are frequently faced with trial judges acting as gatekeepers, deciding whether our alternative theories of liability ever reach the jury’s ears. When the Crown’s case is overwhelmingly geared toward a principal offence, getting a lesser included offence left to the jury can be an uphill battle. The issue was recently addressed in R. v. Pan (2025 SCC 12), where the Supreme Court of Canada upheld the Ontario Court of Appeal’s decision to order a new trial for Jennifer Pan and her co-accused on the charge of first-degree murder. The SCC firmly established the metes and bounds of the “air of reality” test for included offences, strictly curtailed the trial judge’s ability to weigh evidence, and settled the standard of review as correctness.

The Facts: A Home Invasion “Gone Wrong”

In November 2010, three armed intruders entered the Pan family home, taking Jennifer’s parents into the basement, where they were both shot. Her mother died at the scene, while her father survived. At trial, the Crown’s theory was that Jennifer Pan orchestrated a joint plan with her co-accused to have both of her parents murdered. During the pre-charge conference, the defence requested that the lesser included offences of second-degree murder and manslaughter be left to the jury regarding the mother’s death. The defence theory—grounded in party liability under s. 21 of the Criminal Code—was that the accused only planned to kill the father, but either knew the mother’s death was a probable consequence or that there was a foreseeable risk of bodily harm to her. The trial judge refused to leave these included offences to the jury, concluding the alternative theory lacked an “air of reality”. The jury convicted all the accused of first-degree murder.

The Law: The “Air of Reality” Threshold

Writing for the majority, Chief Justice Wagner clarified exactly what it means for an included offence to have an air of reality. An included offence must be left with the jury if there is a realistic possibility of an acquittal on the principal offence and a conviction on the included offence. To meet this standard, the trial judge must look at the totality of the evidence and ask:

Is there a reasonable view of the evidence upon which a properly instructed jury could be left with a reasonable doubt about the distinguishing elements of the principal offence, while accepting beyond a reasonable doubt all the elements of the included offence?

In Pan, the distinguishing element was the planning and deliberation to kill the mother. Could the jury have a reasonable doubt that the mother was an intended target, while accepting the remaining inferences needed to convict on second-degree murder or manslaughter based on the plan to kill the father?

The “Limited Weighing” Exercise: No Comparing Inferences

Where a case relies on circumstantial evidence, the trial judge must conduct a “limited weighing” of the evidence to determine if an air of reality exists. However, the SCC issued a reminder to trial judges about the boundaries of this exercise:

No Assessing Credibility: The judge must assume the evidence is true and cannot make determinations about witness reliability or credibility

No “Substantive” Weighing: Trial judges cannot draw factual inferences or choose between competing inferences. The exercise is strictly to determine the field of factual inferences that could reasonably be drawn.

In Pan, the Crown pointed to powerful circumstantial evidence suggesting both parents were targeted—such as text messages about double payments, the fact that both parents were shot execution-style, and the attackers waiting for the mother to return home. However, the SCC noted there was also evidence supporting the defence: Jennifer had a much warmer relationship with her mother than her father, and she had previously arranged an aborted hit on only her father. Even if the Crown’s interpretation of the evidence seems stronger or more plausible, a trial judge cannot use the “limited weighing” exercise to select between competing inferences. That is usurping the role of the jury. Because there was no undisputed evidence contradicting the idea that the plan was only to kill the father, the lesser included offences had an air of reality.

Standard of Review: “Correctness”

Perhaps the most significant doctrinal takeaway is the SCC’s final word on the standard of review. Some intermediate appellate courts had previously suggested that trial judges are owed “deference” on their air of reality determinations because they have the advantage of sitting through the trial. The dissenting justices in Pan (Karakatsanis and Martin JJ.) agreed with this deferential approach, arguing appellate courts shouldn’t second-guess a trial judge’s assessment of the record. Chief Justice Wagner firmly rejected this. The determination of whether there is an air of reality is a question of law, reviewable strictly on a standard of correctness. Introducing deference into this analysis “would only invite confusion and unnecessary complication”. Appellate courts are free to replace the trial judge’s opinion with their own.

Conclusion

When advocating for a lesser included offence to be left to the jury, you only need to point to some evidence upon which a properly instructed jury, acting reasonably, could acquit on the main charge and convict on the lesser as per Brian Ross. Selecting the “most plausible” inference is the jury’s job, not the judge’s. If an alternative theory relies on a reasonable inference—even if the Crown has a competing, stronger inference—the offence must be left to the jury. By holding the line on the correctness standard and reaffirming the strict limits of the trial judge’s gatekeeping role, R. v. Pan ensures that the jury’s truth-seeking function remains intact.

What is written here is simply a brief and general case summary. This is not legal advice and is not intended to be so. Should you require legal advice about your case, you should consult with an experienced criminal defence lawyer.