Jury ‘straitjacketed’ in murder case: defence
Appeal court hears case of mother found guilty of killing disabled daughter
A jury that convicted a Toronto mother of murdering her 16year-old disabled daughter was “straitjacketed” into a decision that limited their choice to either acquitting her or finding she had committed a planned and deliberate killing, a defence lawyer argued at the Ontario Court of Appeal this week.
Over a day and a half, Cindy Ali and her husband watched a virtual appeal of her 2016 conviction for first-degree murder in the 2011 death of her daughter Cynara Ali, from her Toronto living room, having been released on bail this year.
James Lockyer, Ali’s lawyer, argued five grounds for a new trial before a three-judge panel at the Court of Appeal. The reasons included the trial judge’s failure to charge the jury with an alternative option that Ali might have “panicked” and made up a story about a home invasion after her daughter, who had cerebral palsy, became ill.
At trial, Ali testified she was home alone on Feb. 11, 2011, when two male intruders barged into the family home looking for a package and Cynara, who could not speak or move around on her own, suffered a seizure.
The Crown argued Ali smothered Cynara with a pillow, saying she had done so, in part, because caring for her had become too much and for financial reasons. The Crown argued she had fabricated the home invasion and “staged” the townhouse to support the story.
Lockyer argued there was no motive for Ali to kill her daughter. Ali had been Cynara’s primary caregiver and, according to evidence presented at the trial, the girl was well cared for.
The Ali family had some debt at the time of Cynara’s death, said Lockyer, which made them no different than “hundreds of thousands” of Canadians. The jury should have been told there was no proven motive in the case, he said.
“Why would the appellant want to kill her own beloved daughter,” Lockyer said. “All the evidence suggested she loved her to bits, as did their whole family, in a funny way as often happens when you have a disabled child in the family. Cynara kept the family together.”
Justice David Doherty, one of the appeal judges, questioned Crown counsel on this point. “Don’t you need something in the evidence? And the evidence in this case is of a devoted, loving family who literally their lives revolved around looking after their daughter,” Doherty said.
At trial, Ali’s defence lawyer asked Justice Todd Ducharme to instruct the jury that there had been a “proved absence of motive,” but was denied. In his charge to the jury, Ducharme pointed to the Crown’s assertion that financial reasons were a motive.
Crown counsel agreed in the appeal hearing that the case hinged on the home invasion, and whether the jury believed it had happened.
The Ali family claimed to have received a letter from the home invaders — at trial, the Crown argued that was also made up. The handwritten letter said the invaders had gone to the wrong address in search of a package.
A neighbour testified at trial to seeing two men near the Ali townhouse, placing them there 15 to 20 minutes prior to Ali calling 911.
The appeal argues that descriptions of the home invaders given by Ali and the men the witness saw were “strikingly similar,” but the judge “minimized” the weight of that testimony.
Lockyer presented a chart of all of the similarities between the two descriptions and said the evidence was “horribly undermined” at trial by the Crown and Justice Ducharme in his charge to the jury.
“Her testimony was compelling evidence that the appellant was truthful in describing the home invasion,” Lockyer told the appeal court.
Forensic evidence in the case was a “wash,” Lockyer said. He pointed to the possibility of a seizure, pneumonia or manual suffocation as possible causes of death.
Cynara was resuscitated by first responders after Ali called 911 and later died in hospital.
Much was made at her appeal on whether there was snow on the ground, as a firefighter first on scene had insisted there was, and who testified at trial that there were no footprints inside the house.
News footage and CCTV camera footage, Lockyer argued, show no snow.
There were “substantial errors” in Ducharme’s charge to the jury, Lockyer argued, and enough for the court to order a new trial.
Ducharme used the term “post-offence conduct” a total of 48 times in his charge to the jury, in reference to the alleged staging of the scene and the letter, Lockyer said, and “each time it prejudices” and presumes guilt by Ali.
That “all but” took away the option for the jury to consider a possibility that something other than a home invasion happened, and that Ali panicked, said Lockyer. By focusing on the home invasion and the letter, the jury was not allowed to consider an alternative explanation and was “straitjacketed” decision, he said.
Crown counsel argued otherwise, and countered Lockyer’s arguments on a total of five grounds for appeal.
The jury convicted Ali of firstdegree murder, which comes with a life sentence. She was released on bail from Grand Valley Institution for Women amid the pandemic. She remains on bail pending the court’s decision.