COURT OF APPEAL FOR ONTARIO DATE: 20210528 DOCKET: C63315

Doherty, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Cindy Ali Appellant

Counsel: James Lockyer and Jessica Zita, for the appellant Jamie Klukach and Kevin Rawluk, for the respondent

Heard: February 24 and 25, 2021 by video conference

On appeal from the conviction on a charge of first-degree murder entered by Justice T. Ducharme of the Superior Court of Justice, sitting with a jury, dated March 6, 2016.

Doherty J.A.:

I

Overview

[1] The appellant was, by all accounts, a loving and devoted mother to her 16-year old, profoundly disabled daughter, Cynara. The Crown alleged the appellant decided to murder her daughter and make it appear as though she had died during a home invasion. The Crown alleged, that in furtherance of this plan, the appellant suffocated Cynara with a pillow and then called 9-1-1, reporting a home invasion and indicating her daughter was unconscious. According to the Crown’s theory, before the first responders arrived, and probably before she killed Cynara, the appellant went through her home attempting to make it look as though there had been a home invasion. When the first responders arrived, the appellant pretended to be disoriented and in shock. She described the home invasion to the police in some detail over the next several hours.

[2] The first responders found Cynara on the couch. She was not breathing and did not have a pulse. The paramedics were able to restore Cynara’s pulse and rushed her to the hospital. Sadly, Cynara was never able to breathe on her own. On medical advice, her parents removed her from life support and she died the next day.

[3] The police initially charged the appellant with manslaughter, but later substituted a first degree murder charge.

[4] At her trial, the appellant testified and told basically the same story she had been telling since she made the 9-1-1 call. Two robbers had entered her home, apparently looking for a package. One of the robbers rummaged through her home. The other remained with Cynara. They left when they decided they were at the wrong address. By the time they left, Cynara was unconscious. The defence argued the robber who stayed with Cynara may have suffocated her with a pillow, or she may have become upset during the robbery, suffered a seizure, choked and aspirated food into her lungs, causing respiratory distress, leading to cardiac arrest.

[5] The defence called evidence of the appellant’s good character. Everyone agreed the appellant was a devoted and loving mother, particularly to Cynara. The defence contended there was no evidence of any motive for the appellant to murder her daughter.

[6] The evidence at trial focused on the appellant’s claim she and her daughter had been the victims of a home invasion. It was central to the Crown’s case that the appellant had fabricated an elaborate home invasion narrative. The Crown argued, if the jury was satisfied the appellant fabricated the home invasion story, her fabrication provided strong evidence, not only that the appellant had murdered Cynara, but that the murder was planned and deliberate. It was equally central to the defence case that the home invasion had occurred. The defence argued there was other evidence supporting the appellant’s testimony there had been a home invasion and that any doubt about whether the home invasion had occurred required the appellant’s acquittal.

[7] The jury convicted the appellant of first degree murder.

[8] The appellant raises four grounds of appeal. Three allege errors in the charge to the jury and one contends the conviction for first degree murder was unreasonable on the totality of the evidence.

[9] I would allow the appeal. The trial judge’s instructions with respect to whether the appellant caused Cynara’s death, combined with his instructions on the inference available if the jury found the appellant had fabricated the home invasion story, effectively invited the jury to convict the appellant of at least second degree murder if the jury was satisfied she had fabricated the home invasion story. For reasons I will set out below, this instruction amounts to reversible misdirection.

II

The Evidence

A. The Ali Family

[10] In February 2011, the appellant, her husband, Allan, and their four daughters lived in a townhouse in Scarborough. Cynara was the second oldest daughter. They were a happy, busy family. Allan had a good job, the oldest daughter worked, and the two youngest, who were twins, attended high school. Their lives centered around church and family. The appellant is a deeply religious person. Her faith includes a strong belief in the sanctity of life.

[11] Cynara was born with severe cerebral palsy. She could not talk, walk, feed herself, shake her head, or change her position without assistance. Cynara communicated by laughing or kicking. Different laughing sounds conveyed different meanings to Cynara’s family. All of the family members, particularly the appellant, were very attentive to Cynara’s needs.

[12] Cynara’s life was a difficult one from the day she was born. Her doctors did not expect her to live past the age of three. Cynara was prone to seizures and pneumonia. She had trouble swallowing her liquid food.

[13] The appellant was Cynara’s primary caregiver. She devoted herself to Cynara, making sure her daily needs were met and that Cynara participated in family activities to the extent possible. The appellant’s pastor, who had known her for over 10 years, testified the appellant’s care of Cynara set an example for others. She described her as “an amazing mother of her children”.

[14] In her evidence, the appellant acknowledged there were days when it was difficult looking after Cynara. She insisted, however, she had no complaints and loved caring for her daughter. Other family members also described the importance of Cynara to the family and the joy she brought to all of them.

[15] The Ali family first applied for permanent residence status in Canada in 2003. Cynara was declared inadmissible on health grounds. The family was able to obtain a waiver of Cynara’s inadmissibility in September 2010 by presenting a financial plan that satisfied the authorities Cynara’s care would not impose a burden on the Canadian health care system. The plan required the family to assume any financial burden resulting from Cynara’s health problems. The family became permanent residents in January 2011.

[16] Most of Cynara’s medical needs were covered by a combination of OHIP and the health insurance Mr. Ali had through his employer. That insurance covered the costs of devices like wheelchairs, and some medications. There was no evidence about the amount, actual or estimated, of any uncovered medical costs associated with Cynara’s past or future care. The evidence indicated those costs had not been significant up to the time of Cynara’s death. She did not require specialized care or housing, the family did not employ outside help and, all things considered, Cynara was relatively healthy.

[17] The Ali family finances were unremarkable for a family living in Toronto with four children. They had a mortgage on the family home and credit card debt that had increased somewhat after the Christmas season. That debt was paid down in February. There was no evidence Mr. Ali or the appellant felt any unusual financial pressure as of February 2011.

B. The Events of February 19, 2011

(i) The appellant’s version of events

[18] February 19, 2011 was the Saturday of a long weekend. Cynara had suffered three seizures on the Friday night. After the seizures subsided, the appellant medicated Cynara, bathed her and lay with her until she fell asleep. The appellant recalled seeing some blood around Cynara’s mouth.

[19] On the Saturday, the family members all had different things to do. The appellant planned to stay home with Cynara. As she did every day, the appellant gave Cynara a bath, brushed her teeth, dressed her and took her downstairs for breakfast. The appellant gave Cynara her breakfast in the living room. The appellant went to the kitchen to do dishes, leaving Cynara on the couch. Cynara was “fussy”, so the appellant returned to the living room and sat on the couch with Cynara’s head resting on a pillow on the appellant’s lap. By 10:30 a.m., all of the other family members had left. The appellant expected her husband home around 1:00 p.m. The appellant testified, that after everyone left the townhouse, she sat on the couch with Cynara. She spoke briefly on the telephone with her sister at 10:47 a.m.

[20] A short time after the appellant had spoken with her sister, the front doorbell rang. The appellant opened the door a little bit to see who was there. Two masked men burst through the door. The appellant described them as “very dark skinned, 6’ to 6’2, wearing black balaclavas, gloves and black coats over suits with white shirts and a tie”.

[21] The appellant tried to get to the phone, but one of the intruders pulled it off the wall. The appellant threw two or three knives from the kitchen counter at one of the intruders. He pointed a gun at her and, in a heavy Jamaican accent, demanded to know where “the package” was. He asked the question several times. The appellant repeatedly told him she had no idea what he was talking about.

[22] The man with the gun grabbed the appellant and dragged her upstairs. The other man remained with Cynara. Once they were upstairs, the intruder looked through various cupboards and drawers. The appellant could hear Cynara making a laughing noise. She panicked and tried to get to her daughter downstairs. The man with the gun caught her by the nightgown and pulled her back into one of the bedrooms. He continued to search for the package. The appellant could still hear Cynara’s laugh, but it now sounded like she was in distress. The appellant tried again to get down the stairs. This time she got past the robber and made her way back down to the living room. She tripped on the rug. The man who had chased the appellant down the stairs threw something at her and kicked her as she lay on the floor.

[23] The appellant saw the other robber standing in the living room holding a pillow to his chest. Cynara “looked like her normal self”. The robber with the gun pulled the appellant down to the basement. He continued his search, going through a bedroom and Mr. Ali’s home office.

[24] The appellant again tried to escape. She pushed a chair toward the gunman and ran upstairs. She saw the other robber still holding the pillow in his hand, but now her daughter was very pale, quiet and not moving.

[25] The robber with the gun followed the appellant up the stairs. He told the other robber they were in the wrong house. They left the appellant’s townhouse through the basement door, which led to the underground parking area that serviced the housing complex.

(ii) The arrival of the first responders

[26] The appellant called 9-1-1 at 11:37 a.m. She was hysterical, indicating someone had broken into her home and her “baby” was not breathing. The jury heard the recording of the 9-1-1 call. In the call, the appellant appears to be very upset. Near the end of the recording of the 9-1-1 call, the first responders can be heard arriving at the scene. One paramedic quickly examined the appellant and then turned his attention to Cynara. A firefighter, who arrived with the paramedics, and who was aware the appellant had indicated in the 9-1-1 call that robbers had entered her home, could be heard on the 9-1-1 call saying to the appellant:

Get off the floor! There are no footprints in the front, don’t bullshit me.

[27] That firefighter testified there was an inch or two of fresh snow on the steps leading into the appellant’s townhouse. There were no footprints in that snow. He also indicated there were no signs of snow or water inside the appellant’s front door. The defence challenged the firefighter’s testimony, arguing the evidence showed there was no appreciable snow accumulation at the relevant time.

[28] When the first responders arrived, the appellant was lying on the floor. She was unresponsive and appeared afraid. A quick physical examination revealed no injuries.

[29] The first responders saw Cynara lying on the couch with one hand hanging off the side of the couch. She had a pillow on her head and a towel lying across her neck. Cynara had no vital signs. The paramedics worked on her for about 24 minutes and managed to restore her pulse. They rushed her to the hospital.

(iii) The Appellant’s Statements to the Police

[30] The appellant spoke with several police officers between the arrival of the first responders at her home and shortly after midnight, about 13 hours later. Her various descriptions of the relevant events were largely consistent with each other and the evidence she gave at trial.

[31] The Crown did, however, rely on inconsistencies between what Officer Minhas testified the appellant said to him when they were driving to the hospital in the ambulance, and the appellant’s statements to other police officers, and her testimony. Two of those inconsistencies were arguably significant.

[32] Officer Minhas testified the appellant told him Cynara was sitting on the loveseat when the robbers arrived. He also testified the appellant told him one of the robbers put a pillow over Cynara’s face. In her other statements, and in her testimony, the appellant placed Cynara on the couch and described the robber as holding a pillow.

[33] The defence challenged the reliability of Officer Minhas’ evidence, contending that he was relying on incomplete notes to refresh his recollection.

(iv) The neighbour’s evidence

[34] Ms. Sureerat Chariyaudom lived in the same housing complex as the appellant. They knew each other and were friendly. On the Saturday of the homicide, at about 11:20 a.m., Ms. Chariyaudom was driving out of the underground parking at the housing complex. She saw two men standing inside the garage by the garage door. They were about 6 feet tall and “very, very dark skinned”. They were dressed in dark clothing and wearing dark toques. The garage door opened and Ms. Chariyaudom drove out. From where the two men were standing, they could have walked out of the garage door before it closed and had ready and quick access to the front door of the appellant’s townhouse.

[35] Ms. Chariyaudom gave a statement to the police the next day. There is no evidence she could have colluded with the appellant before making that statement.

[36] Ms. Chariyaudom was shown a series of photographs of different styled coats. She picked the one with a hood as looking the most similar to the coats worn by the two men she saw in the garage. The appellant described the coats worn by the robbers as long, black coats made of “sort of a wool material”.

[37] At trial, counsel for the appellant argued that the two men Ms. Chariyaudom described were the two persons who entered the appellant’s home in search of the package. Counsel pointed to aspects of Ms. Chariyaudom’s description of the two men, which were consistent with the appellant’s description of the robbers. Counsel also relied on the timing of Ms. Chariyaudom’s observations of the two men, which was consistent with the appellant’s evidence as to when the robbery occurred. The Crown argued there were significant differences in the descriptions provided by the appellant and Ms. Chariyaudom, particularly in respect of their descriptions of the coats worn by the two men.

(v) The letter

[38] Mr. Ali testified he found a letter in his mailbox on May 16, 2011, about two months after the homicide. On its face, the letter purported to have been written by the robbers. The letter provided details of the robbery that were consistent with the details in the appellant’s statements to the police. In the letter, the “robbers” indicated they had gone to the appellant’s home on the orders of their “boss” to pick up a package, but it turned out they had gone to the wrong home.

[39] At trial, the Crown argued the letter had been written by, or at the direction of, the appellant, as yet another attempt to convince the authorities she had been the victim of a home invasion. The Crown argued the letter referred to details found in the appellant’s statement to the police, which only she could know she had given to the police. The Crown also argued that a part of the letter, which purported to offer an explanation for the absence of footprints at the appellant’s front door, could only have been authored by someone who appreciated the significance of the evidence concerning the presence or absence of footprints in the snow on the stairs.

[40] At trial, the defence did not suggest the letter had actually been written by the robbers. The appellant testified she did not send the letter and did not know who had sent the letter. It made no sense to her. She wondered whether the police had sent the letter in an effort to prompt some kind of response from her. They had used other stimulation techniques while intercepting her private communications. The appellant also indicated there were many others who knew the details of her description of the events and the significance of the presence or absence of footprints at the front door. The defence argued the letter was written by someone other than the appellant, perhaps a well-meaning, but badly misguided friend.

C. Cause of Death

[41] Cynara’s heart stopped for about 30 minutes, causing a fatal loss of blood and oxygen to the brain. The experts agreed there were three possible causes of the cardiac arrest:

• manual suffocation;
• aspiration pneumonia; or
• sudden unexpected death in epilepsy (SUDEP). [1]

[42] Cynara had a long history of seizures and aspiration pneumonia. Aspiration pneumonia occurs when food is inhaled into the lungs. This may occur during choking or vomiting brought on by seizures. The appellant knew Cynara’s seizures were dangerous and potentially life threatening. The autopsy revealed pneumonia and food particles in Cynara’s lungs.

[43] The pathologist who performed the autopsy testified for the Crown at trial. She indicated Cynara could have suffered a seizure and during that seizure aspirated food into her lungs. Food in her lungs could have led her to develop pneumonia. Pneumonia can lead to respiratory arrest and death. The pathologist further testified the process leading to pneumonia and ultimately to respiratory arrest could have been going on for hours or even a few days before Cynara lost consciousness. The pathologist indicated, however, that had the pneumonia been developing for some time, she would have expected Cynara’s family to have noticed signs of illness. On their evidence, Cynara had not exhibited any such signs.

[44] The pathologist identified a second possible scenario that could have led to Cynara’s death. The pathologist testified that Cynara may have suffered a seizure leading to food aspiration within minutes or seconds of Cynara going into respiratory distress. On this scenario, the food aspirate would have gone into Cynara’s trachea, blocked her airway and eventually led to cardiac arrest. The pneumonia found in her lungs at the autopsy would have developed after Cynara’s resuscitation. The pathologist agreed the absence of any indication Cynara had vomited immediately before being attended by the first responders made this scenario less likely than it would have been had evidence of vomiting been found.

[45] The defence expert was in substantial agreement with the pathologist’s evidence. In his view, aspiration pneumonia, in combination with the seizure disorder, was the more likely cause of death.

[46] Both experts agreed manual suffocation was also a possible cause of death. There were no medical indicators to support a finding of manual suffocation. Nor, however, according to both experts, would one necessarily expect to find any such indicators had Cynara, who was unable to offer any resistance, been suffocated using a soft object like a pillow. The experts also agreed medical findings provided only part of the picture when it came to determining cause of death.

[47] There was some physical evidence supporting the Crown’s suffocation theory. Traces of Cynara’s blood and saliva were found on the pillowcase of the pillow the investigators took from Cynara’s head. There was, however, evidence Cynara’s mouth had been bleeding the night before. In addition, traces of blood were found on the towel around Cynara’s neck. The Crown relied on the evidence that the appellant put a clean towel around Cynara’s neck every morning. The Crown argued the blood must have gotten on the towel that morning. There was, however, some evidence that a bloodstain could survive washing.

D. Did the appellant fabricate the home invasion story?

[48] The veracity of the appellant’s home invasion narrative became the focus of the trial. The defence pointed to physical evidence in the house supporting the appellant’s version of events. The defence relied on evidence another unit in the townhouse complex had the same number as the appellant’s and that the two units had been confused in the past. The defence also relied on the evidence of the neighbour, Ms. Chariyaudom.

[49] The Crown argued that the condition of the home supported the inference the appellant had made a somewhat ineffective attempt, before or after she killed Cynara, to make the house appear as though there had been a home invasion. The Crown also relied on the evidence of the absence of any footprints at the front door when the first responders arrived, and the evidence of the fabricated “robbers’’” letter provided to the police by Mr. Ali.

[50] I do not propose to review the evidence in support of the competing arguments in detail. It is fair to say there was evidence supporting the arguments going both ways and counsel vigorously pressed those arguments before the jury.

III

The Grounds of Appeal

A. Did the instruction on whether the appellant caused Cynara’s death, combined with the instruction on the inferences available should the jury find the appellant fabricated the home invasion story, result in misdirection?

[51] Jury instructions are assessed from a functional perspective in the context of the evidence and issues in the specific case: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 14; R. v. Figliola, 2018 ONCA 578, at para. 11; R. v. Largie, 2010 ONCA 548, at para. 126. The error alleged by the appellant in this ground of appeal is the product of a combination of instructions given with respect to cause of death and after-the-fact conduct considered in the specific evidentiary context of this case. It is necessary to begin with some background before examining the actual instructions.

(i) The parties’ closing arguments

[52] The positions advanced by the Crown and the appellant before the jury were straightforward and diametrically opposed. The Crown argued the appellant had decided to kill her daughter and, in furtherance of that purpose, fashioned and implemented a false home invasion narrative intended to cover up the murder.

[53] The Crown submitted the appellant had suffocated Cynara with the pillow found on her head by the first responders. The Crown relied heavily on evidence which the Crown said demonstrated the appellant had fabricated the detailed home invasion story. The fabrication included:

• the staging of the scene in the house to make it appear as though there had been a home invasion;
• making false statements to the 9-1-1 operator and the first responders alleging a robbery;
• feigning physical injury and disorientation upon the arrival of the first responders;
• giving a detailed and false narrative of the home invasion to the police on various occasions during questioning on the day of the homicide; and
• providing a letter to the authorities supposedly written by the robbers confirming material parts of the appellant’s home invasion story.

[54] The Crown argued that the evidence showing the appellant had fabricated the home invasion story was relevant to three crucial issues at trial:

• Did the appellant kill Cynara?
• Was the killing a murder?
• Was the murder planned and deliberate? [2]

[55] Not surprisingly, given the appellant’s evidence, counsel advanced only one defence in his submissions to the jury. He argued, just as the appellant had insisted from the time she called 9-1-1 until she testified, Cynara had died during a home invasion and the appellant had nothing to do with her death. Counsel argued, while the exact cause of Cynara’s respiratory distress and subsequent cardiac arrest could not be determined with certainty, it was more likely her death was connected to the consequences of a seizure than to suffocation. The defence pointed to the evidence supporting the appellant’s evidence about the home invasion, the strong character evidence, and the absence of any evidence lending an air of reality to the suggestion the appellant had a motive to kill Cynara.

(ii) The pre-charge discussions

[56] In pre-charge discussions, the Crown argued that a jury could convict the appellant only if satisfied beyond a reasonable doubt that the appellant had smothered Cynara. Crown counsel argued there was no air of reality to the contention the appellant had caused Cynara’s death by some unlawful act other than smothering her. Counsel submitted, if the jury had a doubt whether the appellant smothered Cynara, the jury should be told to acquit the appellant. If, however, the jury was satisfied beyond a reasonable doubt the appellant smothered Cynara, the Crown argued a conviction on either first or second degree murder were the only available verdicts. Crown counsel argued manslaughter should not be left with the jury.

[57] During pretrial discussions, defence counsel acknowledged the defence would go to the jury exclusively on the basis that Cynara had gone into cardiac arrest during the home invasion and the appellant had nothing to do with Cynara’s death. However, the defence maintained the evidence supported an alternative possibility that the trial judge was obliged to leave with the jury. The defence argued the jury could conclude Cynara was not suffocated but that her death was seizure-related. They could further conclude that Cynara had died as a consequence of the appellant’s failure to take the steps necessary to assist Cynara after she suffered a seizure. The defence submitted, that on this view of the evidence, the appellant could be found to have caused Cynara’s death by a culpable act (criminal negligence or failure to provide necessaries), other than suffocation.

[58] The defence further argued that the jury could conclude the appellant had fabricated the home invasion story to hide her failure to take the proper steps to protect Cynara after she had a seizure. On this view of the evidence, the jury would conclude the appellant had caused Cynara’s death by an unlawful act, but could well have a reasonable doubt as to whether she had the mens rea for murder. If that doubt existed, manslaughter was the proper verdict.

[59] The defence contended leaving suffocation with the jury as the only possible culpable act would cause substantial prejudice to the appellant. Counsel submitted, if the jury was told suffocation was the only potential culpable act, and if the jury concluded the appellant fabricated the home invasion story, the jury would move directly from a finding the appellant had fabricated the home invasion story to a finding she had suffocated Cynara. That finding would, in turn, lead inevitably to a murder conviction. Counsel said:

And this is exactly the type of situation that the defence fears the jury will be put in where they could have a reasonable doubt on the smothering, but not on the post offence conduct and thus, be left only with coming to the conclusion that she murdered, even if they would have had otherwise a doubt about the intent to kill.

[60] The trial judge, in large measure, accepted the Crown’s position, stating:

To me, this case has always been about whether she smothered Cynara with a pillow.

[61] The trial judge determined that, in the absence of evidence a prompter medical response could have saved Cynara’s life, there was no evidentiary basis for a finding of liability based on criminal negligence or a failure to provide necessities. He said:

… There is no medical evidence before me that talks about the importance of a prompt response to a seizure situation. … Neither pathologists gave any evidence with respect to what might have – what could have been done to save Cynara’s life; what difference it made that some prompter response was made – was not made, and, in my view the jury would be speculating to come to the conclusion that Cynara died in those circumstances and that somehow Ms. Ali’s intentional failure to respond to her daughter’s situation of crisis was an unlawful act that led to her death resulting in a manslaughter charge.

[62] Ultimately, the trial judge decided he would leave manslaughter with the jury, but only on the basis that the appellant had smothered Cynara with a pillow but had done so without the intent required for murder. Everyone thought it highly unlikely the jury would return a verdict of manslaughter if it was satisfied the appellant had suffocated Cynara.

(iii) The charge to the jury

[63] In keeping with his ruling, the trial judge told the jury that, to prove the appellant had caused Cynara’s death, the Crown had to prove beyond a reasonable doubt the appellant smothered Cynara. He told the jury:

Did Cindy Ali cause Cynara Ali’s death? And in this case the central question is really ‘Did Cindy Ali smother Cynara with the pillow?’

This is the allegation Cindy Ali faces. If you find that Cynara Ali died for any other reason, or if you have any reasonable doubt about that, you must find Cindy Ali not guilty.

[64] The trial judge proceeded to outline evidence relevant to whether the appellant had smothered Cynara. That evidence included the evidence of the alleged fabrication of the home invasion story. The trial judge referred to this as “post-offence conduct”. [3] He told the jury:

Consider the post-offence conduct, especially if you conclude that Cindy Ali fabricated stories and staged the crime scene because she was conscious of having killed Cynara.

[65] Considered in isolation, the trial judge’s instructions would seem to benefit the appellant in that the jury was told to acquit if it had a doubt as to whether the appellant smothered Cynara. Certainly, the medical evidence indicated smothering was not the only possible cause of death.

[66] The effect of the trial judge’s instructions on cause of death must, however, be considered along with his instructions relating to the use the jury could make of the appellant’s alleged fabrication of the home invasion story. The trial judge instructed the jury at length on the evidence the Crown alleged showed the appellant had fabricated the home invasion story. The detailed instructions reflected the importance that evidence took on in the course of the trial.

[67] In his instructions, the trial judge explained to the jury that, if it concluded the appellant fabricated the home invasion story, that fabrication may or may not point to the appellant’s involvement in Cynara’s death. The trial judge cautioned the jury to consider explanations other than that of the appellant’s involvement in Cynara’s death.

[68] After reviewing the evidence relevant to the Crown’s claim, the appellant fabricated the home invasion story, the trial judge came back to the applicable law. He told the jury:

Now for all of this post-offence conduct, if you find that Cindy Ali did not do or say what she is alleged to have done or said after the offence was committed, you must not consider the evidence in reaching, or helping you reach your verdict. On the other hand, if you find that Cindy Ali actually did or said what she is alleged to have done or said after the offence was committed, you must consider next whether this was because Cindy Ali committed the offence charged or whether it was for some other reason. If you find that Cindy Ali actually did or said what she is alleged to have done or said after the offence was committed, you must be careful not to immediately conclude she did or said so because she was conscious of having committed the offence charged.

To decide the reason for what Cindy Ali did or said afterwards, you should consider all of the evidence, of particular importance is evidence that offers another explanation for this conduct, or these statements. But while you should consider the possibility of other explanations for this conduct, you must not speculate. Any other explanations must be founded in the evidence. I do not see any other evidence on the evidence before you, or any other explanations on the evidence before you, but that is for you to decide. [Emphasis added.]

[69] The trial judge repeated a similar instruction aimed specifically at the appellant’s statements to the police. He told the jury, that if they were satisfied those statements were fabricated, they could conclude she fabricated the events because “she was conscious that she had killed Cynara.” He instructed the jury they should also consider other possible explanations.

[70] After a mid-charge discussion with counsel, the trial judge returned to the evidence relating to the alleged fabrication of the home invasion. He correctly told the jury the evidence may or may not assist them, depending on the inference they drew from the evidence. He reminded them to consider that evidence together with the rest of the evidence. He went on to instruct the jury:

I am cautioning you here, as I did to a certain degree already, about putting too much emphasis on the post-offence conduct. You have to consider it in the context of all of the evidence in the case. Now circumstantial evidence, evidence of after-the-fact conduct, has only an indirect bearing on the issue of Cindy Ali’s guilt, you must be careful about inferring that Cindy Ali is guilty on the basis of evidence of after-the-fact conduct because there might be other explanations for that conduct something unconnected with participation in the offence charged. You may use this evidence of after-the-fact conduct, along with other evidence, to support an inference of guilt only if you have rejected any other explanations for the conduct. I have already suggested to you that on the evidence you have heard I do not see any other explanations for the post-offence conduct if you find that she did these things, but that is entirely for you to determine. [Emphasis added.]

[71] The trial judge’s instruction that if the jury concluded the appellant had fabricated the home invasion story, it could use that fabrication as evidence the appellant “committed the offence”, or “was conscious she killed Cynara”, or as evidence she “participated in the offence charged” must be read with the trial judge’s instruction that the only way the jury could find the appellant “committed the offence”, or “participated in the offence” was if she had smothered Cynara. By limiting the appellant’s potential culpable act to suffocation and telling the jury it could infer the appellant committed the offence if the jury concluded she fabricated the home invasion story, the trial judge’s instructions allowed the jury to reason as follows:

• the appellant fabricated the home invasion story;
• there was no innocent explanation for that fabrication, (bearing in mind the trial judge twice told the jury he could not see any possible innocent explanation on the evidence);
• the appellant fabricated the home invasion story to hide her “participation” in Cynara’s death;
• on the trial judge’s instructions, the appellant could only have participated in Cynara’s death by smothering her;
• the appellant smothered Cynara.

[72] On this reasoning, the jury could have concluded the appellant smothered Cynara without ever coming to grips with the expert evidence as to the cause of Cynara’s death. That evidence, while certainly not determinative, was important and suggested other possible causes of death, including aspiration associated with seizures.

[73] Furthermore, on the same reasoning, just as counsel for the appellant suggested in the pre-charge discussions, a finding by the jury the appellant fabricated the home invasion story would lead almost inevitably to the conclusion the appellant smothered Cynara and thereby committed at least second degree murder. That finding would also go a long way to the determination the murder was planned and deliberate. On the path cut by the trial judge’s instructions, the jury’s verdict of guilty of first degree murder could have been based almost entirely on finding the appellant fabricated the home invasion story.

[74] In my view, the jury instructions wrongly narrowed the proper scope of the jury’s deliberations. It is essential that all defences and verdicts reasonably available on the evidence be left with the jury for its consideration. Similarly, any defence theory realistically available on the totality of the evidence should be left with the jury: R. v. Grewal, 2019 ONCA 630, at paras. 36-37; R. v. Ronald, 2019 ONCA 971, at paras. 43-48.

[75] I agree with the submission made by defence counsel at trial. On this evidence, it was reasonably open to the jury to conclude, or at least have a doubt as to whether Cynara was suffocated. The jury could have determined, or at least had a doubt, that Cynara died as a result of a respiratory failure brought on by the aspiration of food during a seizure leading to Cynara’s unconsciousness and eventual cardiac arrest. In fact, the Crown accepted that respiratory distress brought on by the aspiration of food during a seizure was a possible cause of death. The Crown took the position, however, that if the death was seizure-related, the appellant should be acquitted.

[76] I also think it was open to the jury to conclude that the appellant failed to properly respond to Cynara’s seizure. Cynara was prone to seizures and the appellant knew those seizures could lead to sequelae, endangering Cynara’s life. The appellant was well aware of the dangers and the steps required to protect Cynara once she began to experience a seizure. Just the night before, the appellant had responded appropriately when Cynara suffered a series of seizures. Cynara did not lose consciousness, and did not stop breathing.

[77] In my view, it was open to the jury to conclude the appellant, who was responsible for Cynara’s wellbeing, failed to take the steps necessary to protect Cynara once she began to experience a seizure. The jury could have concluded the appellant’s failure to respond to Cynara’s seizure, as she knew she was required to do, caused Cynara’s condition to worsen to the point where she lost consciousness and stopped breathing. On those findings, it was open to the jury to conclude the appellant caused Cynara’s death by her failure to respond appropriately to the seizure suffered by Cynara. That failure could constitute criminal negligence under s. 219 of the Criminal Code, or the failure to provide necessaries under s. 215. Either characterization would render the appellant’s conduct culpable homicide for the purposes of s. 222 of the Criminal Code.

[78] If the jury concluded the appellant’s failure to take the appropriate steps to help Cynara after she had a seizure caused Cynara’s death, the jury could well have returned a verdict of guilty on the included offence of manslaughter, although a conviction for murder would still have been available, depending on the appellant’s state of mind when she failed to render the necessary care.

[79] A finding by the jury that the appellant fabricated the home invasion narrative would also take on a very different significance had the jury been left with the possibility that the appellant caused Cynara’s death by failing to provide the appropriate assistance once Cynara suffered a seizure. If the jury had been left with that option, it may have concluded the home invasion narrative was fabricated by the appellant to hide her failure to do what she knew she should have done to help her daughter. That inference, while still pointing to the appellant’s culpability, could have led to a manslaughter verdict.

[80] Crown counsel, in their factum, offer several submissions to support the trial judge’s instruction that the appellant could be convicted only if the jury was satisfied Cynara had been smothered to death. First, counsel submits the trial judge correctly held there was no evidence that a faster response, once Cynara lost consciousness, would have made any difference in the outcome.

[81] This submission takes an unduly narrow view of the appellant’s potential liability if she failed to properly respond to Cynara’s seizure. If the appellant did not respond appropriately, the jury could conclude the appellant’s failure to do so caused Cynara’s condition to worsen to the point where she lost consciousness and stopped breathing. On that view, the appellant’s culpability lies in her failure to intervene when the seizure that ultimately led to Cynara’s death began. It is irrelevant to that basis of liability that once Cynara stopped breathing, there was no evidence that a more timely intervention could have saved her life. The appellant’s culpable conduct on this view of the case rests in her failure to respond, as she should have, from the outset of the seizure.

[82] Crown counsel also argues, there is no realistic basis in the evidence for a finding of any culpable act other than smothering. Counsel submit, that of the potential causes of death put forward by the medical experts, only suffocation is consistent with an “intentional action by another person”.

[83] I cannot agree with this submission. The medical experts agreed that cardiac arrest as a consequence of respiratory distress brought on by seizure-induced aspiration of food into the lungs was a possibility. The defence expert saw this as the most likely cause of death. There was uncontested evidence that Cynara regularly suffered seizures and that the aspiration of food into her lungs was associated with those seizures. In addition, the evidence showed the appellant knew seizures posed a life-threatening danger to Cynara. The appellant knew how to respond to those seizures to mitigate the risk they posed to Cynara. On all this evidence, the jury could reasonably conclude Cynara suffered a seizure and for some reason the appellant failed to take the steps she knew were necessary to protect her daughter. That failure, in light of the appellant’s obligations to Cynara, could, on an appropriate jury instruction, be viewed as an intentional culpable act causing Cynara’s death.

[84] Crown counsel also make the point that the suggestion the appellant failed to take the necessary steps in respond to a seizure by Cynara flies in the face of the appellant’s own testimony and every statement she gave to the police. That is true. However, an inconsistency between the position advanced through an accused’s testimony and an alternative defence theory will not justify the refusal to leave that theory with the jury, if, on the totality of the evidence, there is an air of reality to the theory and the verdict that theory could generate: R. v. Grover, [2007] 3 S.C.R. 510, at paras. 512-13; R. v. MacLeod, 2014 NSCA 63, at paras. 121-23.

[85] I accept that the appellant’s statements to the police and her testimony might well make it less likely the jury would conclude the appellant caused Cynara’s death by failing to take the necessary steps to help Cynara after she suffered a seizure. The jury could have rejected outright the appellant’s evidence without necessarily accepting the Crown’s claim Cynara was smothered. It the jury rejected both the appellant’s testimony and the theory of the Crown, it could have found the appellant caused Cynara’s death by failing to provide the necessary assistance.

[86] This is also not a case in which it could be argued that the failure to put a defence theory inconsistent with the appellant’s testimony reflected a tactical decision made at trial. Defence counsel specifically asked the trial judge to instruct the jury on the possibility the appellant caused Cynara’s death by failing to take the necessary steps when Cynara suffered a seizure. The appellant takes the same position on appeal as she took at trial.

[87] Finally, the Crown argues, the jury’s verdict of guilty of first degree murder renders any failure to instruct the jury on the appellant’s potential liability for an unlawful act other than smothering irrelevant to the outcome. The Crown submits, the jury’s finding the murder was planned and deliberate makes it absolutely clear the jury would have rejected any suggestion the appellant caused Cynara’s death by failing to take the necessary steps after Cynara suffered a seizure.

[88] In some situations, an argument moving backwards from the verdict returned can be persuasive in demonstrating that a failure to leave a certain theory of the defence or an included offence with a jury had no effect on the verdict returned: R. v. Sarrazin, 2011 SCC 54, at paras. 30-31. Given the structure of this charge, that reasoning does not assist the Crown.

[89] The jury was told if it determined the home invasion story was fabricated, it could infer the appellant “participated” in Cynara’s death. On the instructions as given, the only way the appellant could have participated in Cynara’s death was by smothering her. On the trial judge’s instructions, the jury would have only reached the question of planning and deliberation after deciding the appellant had smothered her profoundly disabled daughter with a pillow.

[90] Had the jury been properly instructed, and assuming it concluded the appellant had fabricated the home invasion story, the jury may have inferred that she fabricated that story to hide her failure to properly react to the seizure suffered by Cynara. If the jury concluded the appellant’s failure to act caused Cynara’s death, I do not see how it could have concluded that a murder, based on that culpable act, was planned and deliberate. Indeed, the jury may not have been satisfied it was murder at all. The jury’s verdict of guilty on first degree murder provides no insight into what it might have done had the possibility of a culpable act other than suffocation been left with the jury.

[91] In addition to wrongly narrowing the ambit of the jury’s deliberations by excluding the possibility the appellant caused Cynara’s death by a culpable act other than suffocation, the trial judge unduly restricted the jury’s consideration of what inference, if any, it should draw from a finding the appellant fabricated the home invasion narrative.

[92] In his instructions, the trial judge told the jury more than once that, if it determined the appellant fabricated the home invasion story, it must consider other possible explanations for the fabrication, before inferring that the appellant fabricated the story because she had killed Cynara. The trial judge cautioned the jury against jumping too quickly to the conclusion the home invasion story was fabricated to cover up the killing. He reminded the jury they could draw that inference only if they first “rejected any other explanations”.

[93] All of these instructions were legally correct and necessary in a case like this one, when so much turned on what the jury made of the evidence said to demonstrate the appellant had fabricated the home invasion story: see R. v. Calnen, 2019 SCC 6, per Martin J., at paras. 116-17 (in dissent but not on this point); R. v. White, 2011 SCC 13, at para. 23.

[94] The trial judge also instructed the jury, however, that any alternative explanation for the fabrication of the home invasion story must be based on the evidence. He said:

But while you should consider the possibility of other explanations for this conduct, you must not speculate. Any other explanations must be founded in the evidence.

[95] The trial judge reinforced this instruction by twice offering the opinion he could see no other explanation in the evidence should the jury conclude the appellant fabricated the home invasion story.

[96] The Crown relied on evidence, which it claimed showed the appellant had fabricated the home invasion, as circumstantial evidence of the appellant’s guilt. In Calnen, Martin J., at para. 112, drawing on the judgment of Watt J.A. in R. v. Smith, 2016 ONCA 25, at para. 77, aptly described the jury’s function when considering the Crown’s claim, it should draw an inference of guilt from an accused’s after-the-fact conduct:

In order to draw inferences, the decision maker relies on logic, common sense and experience. As with all circumstantial evidence a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn ‘must be reasonable according to the measuring stick of human experience’ and will depend on the nature of the conduct, which is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence. [citation omitted] That there may be a range of potential inferences does not render the after-the-fact conduct null.

[97] An inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence. However, when the jury is considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the jury is not engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the jury is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the jury can consider other reasonable alternative explanations for the conduct. Those alternative explanations may or may not lead the jury to conclude the Crown has failed to prove that guilt is the only reasonable inference available on the evidence: R. v. Villaroman, 2016 SCC 33, at paras. 28, 35-42.

[98] In determining whether the Crown has met that burden in a circumstantial evidence case, the jury may apply its logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available. As explained in Villaroman, at para. 36:

… a reasonable doubt or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence … a certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[99] The jury should have been instructed that, if it concluded the appellant fabricated the home invasion story, it should, in deciding what inference, if any, to draw from that finding, consider other reasonable possibilities which, as a matter of logic and human experience, arose from the totality of the evidentiary picture, including any gaps in the evidence.

[100] In my view, human experience and common sense suggested various explanations, should the jury conclude the appellant fabricated the home invasion story. Some of those possibilities point toward guilt, others do not.

[101] It was a reasonable possibility the appellant fabricated the story to hide the fact she smothered Cynara to death. It was also reasonably possible she fabricated the story to hide the fact she had failed in her duty to protect Cynara after Cynara suffered a seizure. Alternatively, it was reasonably possible that the appellant fabricated the story because she felt responsible for what had happened to Cynara, regardless of whether her conduct would actually attract criminal responsibility, and she was attempting to shift the blame elsewhere. Finally, it was reasonably possible that the fabrication of the home invasion story was explained by the appellant’s panic associated with a fear of being accused by the authorities of killing Cynara, regardless of whether the appellant was in fact responsible for her death: Calnen, at para. 117.

[102] I do not suggest the possibilities listed above exhaust the reasonable possibilities that the jury would have been entitled to consider in deciding what inference, if any, to draw from the fabrication of the home invasion. Nor do I suggest the trial judge was required to catalogue the reasonable possibilities. He was required, however, to instruct the jury, that when it was considering whether the Crown had met its onus, it should consider reasonable possible explanations for fabricating the home invasion story, other than the explanation urged by the Crown. One or two examples of what the trial judge regarded as reasonable possibilities open for consideration may have been helpful in explaining to the jury how it should approach its task if it concluded the appellant fabricated the home invasion story.

[103] The trial judge should also have instructed the jury to consider those other possible reasonable explanations in the context of the entirety of the evidence. For example, while the appellant’s character and long-time devotion to Cynara might suggest a non-culpable explanation for the fabrication of the home invasion story, the details and effort involved in constructing and repeating the fabricated story might well suggest a more sinister explanation. Ultimately, it was for the jury, having considered other possible reasonable explanations, to decide whether, on the totality of the evidence, the Crown had proved the case against the appellant.

B. Did the trial judge unfairly review Ms. Chariyaudom’s evidence in his instructions to the jury?

[104] The appellant submits the trial judge unfairly reviewed the evidence of Ms. Chariyaudom and made “a series of misstatements” in the course of that review. According to the appellant, the trial judge’s treatment of Ms. Chariyaudom’s evidence substantially undermined its potential value to the defence.

[105] The trial judge referred to Ms. Chariyaudom’s evidence several times during his instructions. In his review of Ms. Chariyaudom’s evidence, the trial judge identified features of her evidence supporting the appellant’s position and other aspects of her evidence relied on by the Crown. For example, the trial judge referred to the timing of Ms. Chariyaudom’s sighting of the two men, and her general description of those men, as supporting the defence. He also told the jury to take into account the arguably significant difference between the appellant’s description of the coats worn by the robbers and the coat identified by Ms. Chariyaudom in the “coat lineup”.

[106] The appellant contends there was in fact no inconsistency between the appellant’s evidence and Ms. Chariyaudom’s evidence about the coats worn by the persons they saw. The appellant argues, Ms. Chariyaudom’s vantage point did not allow her to see below the chest level of the two men she observed in the garage. The appellant, on the other hand, saw the full figures of the robbers.

[107] The interpretation of the evidence advanced in this argument comes for the first time on appeal. At trial, the defence acknowledged some inconsistencies in the descriptions of the coats but pointed to various explanations for those inconsistencies. In any event, the extent to which the descriptions of the coats were inconsistent, and the significance of any inconsistencies, were questions for the jury. The trial judge reviewed the relevant evidence and properly left it with the jury.

[108] The appellant’s suggestion that the trial judge made “several misstatements” about Ms. Chariyaudom’s evidence identifying the men in the garage is not supported by a review of the jury instructions. The trial judge arguably made one error in his review of the evidence pertaining to Ms. Chariyaudom’s identification. One passage from the jury charge, although somewhat ambiguous, would appear to indicate that Ms. Chariyaudom had picked out more than one photograph from the “coat lineup” shown to Ms. Chariyaudom. She had in fact picked out only one photograph.

[109] There was no objection to the trial judge’s instructions relating to the evidence of Ms. Chariyaudom. At its highest, the appellant has demonstrated an error in the review of Ms. Chariyaudom’s evidence. Bearing in mind the jury was told it was their recollection of the evidence that mattered, a single minor factual error in the course of an extensive review of the evidence by the trial judge is no reason to set aside a conviction.

[110] I would not give effect to this ground of appeal.

C. The instruction on motive

[111] The appellant submits the jury instructions on motive reveal two errors. First, the trial judge failed to correct improper submissions made by Crown counsel in her closing and, second, the trial judge should have told the jury the evidence showed the appellant had no motive to kill Cynara. Counsel contends the trial judge should have told the jury a proved absence of motive constituted circumstantial evidence supporting the defence position the appellant did not cause Cynara’s death.

[112] Motive is usually not an element of the offence and the Crown is not required to prove motive. Motive describes a state of mind. That state of mind can constitute circumstantial evidence relevant to proof of the actus reus and/or mens rea of the offence: R. v. McDonald, 2017 ONCA 568.

[113] If the Crown asks the jury to infer from the evidence that an accused had a certain motive, the evidence must be reasonably capable of supporting that inference. If the inference does not arise reasonably from the evidence, the trial judge should tell the jury to disregard the Crown’s submission.

[114] In her closing, Crown counsel acknowledged that the appellant’s motive may never be known. She went on to suggest at least three possible motives.

[115] The Crown argued, based on a conversation the appellant had with her pastor many years earlier, that the appellant had let Cynara “go from her heart” and stopped loving her. There was simply no evidence to support this submission. In fact, all of the evidence was to the contrary. If anything, the conversation with the pastor indicated that the appellant, a devout Christian, had come to grips with Cynara’s tenuous mortality and was prepared to accept the will of God. The trial judge effectively put this interpretation of the conversation with the pastor to the jury when he characterized the conversation with the appellant as a “theological discussion”.

[116] Crown counsel also suggested the timing of Cynara’s death could be explained by the appellant’s desire to avoid attracting the suspicion of the immigration authorities. It was only after the family obtained permanent residence status that the appellant felt she could proceed with the plan to kill Cynara without attracting that attention. This submission suggests the appellant had decided to kill Cynara months before she put the plan into motion.

[117] Once again, there was no evidence to support this submission. Unfortunately, the submission could also have played into the false and negative stereotypes that some people have about immigrants who are attempting to gain permanent status in Canada. The trial judge should have told the jury there was no basis in the evidence for the claim the appellant may have been planning to kill Cynara for months and was only waiting until the family had its permanent residence status.

[118] The Crown also argued that Cynara’s killing may have been motivated by financial concerns. I have difficulty finding any firm evidentiary basis for this argument. It is true the Ali family, like many families, had debts and were far from well off. It is also true that Cynara’s future care may well have involved costs not covered by Mr. Ali’s insurer or OHIP. However, there is no evidence that Cynara’s care and medical needs imposed a significant burden on the family’s finances, or that the appellant believed Cynara’s future needs would overwhelm the family’s financial resources.

[119] The trial judge left “financial stress” as a possible “partial motive”. He did so in a single sentence, followed immediately by the observation “the defence says there is no evidence of any motive”.

[120] In my view, the evidence capable of supporting the submission the killing of Cynara was motivated by “financial stress” was so meagre as to render the inference that the killing was motivated by “financial stress” speculative. The suggestion that the appellant was motivated by “financial stress” should not have been left with the jury as a possible motive: see R. v. Johnson (2010), 2010 ONCA 646, 262 C.C.C. (3d) 404 (Ont. C.A.), at paras. 99-101, 119-20.

[121] While I am satisfied the Crown put suggestions of motives to the jury unsupported by the evidence, I do not agree with the appellant’s submission the evidence justified a proved absence of motive instruction. No such instruction was sought at trial. There is a well recognized difference between the absence of evidence of motive and a proved absence of motive: R. v. Lewis, [1979] 2 S.C.R. 821, at para. 38; R. v. Barton, 2019 SCC 33, at paras. 133-36; R. v. White (1996), 29 O.R. (3d) 577 (C.A.), at para. 101, aff’d , [1998] 2 S.C.R. 72, at para. 59. The trial judge made it clear to the jury that it was the defence position there was no evidence of motive. He was not required to go further than that on this evidence.

[122] As I would allow the appeal on another ground, I need not decide whether the trial judge’s failure to remove certain motives suggested by the Crown from the jury’s consideration would constitute reversible error. Hopefully, and assuming no material changes in the evidence, my comments will provide some assistance at the retrial.

D. Was the conviction for first degree murder unreasonable?

[123] The appellant submits a conviction on the charge of first degree murder was not reasonably open on the evidence. Counsel contends, even if the jury concluded the appellant killed her daughter and fabricated the home invasion story to cover up the killing, the only reasonable inference from the evidence is that the cover up occurred after the appellant killed Cynara. Counsel submits, that if the cover up followed the killing, there was no basis for a finding the murder was planned and deliberate.

[124] I agree a finding the home invasion story was fabricated was essential to a conviction for first degree murder. I also agree that the fabrication of the home invasion story could only assist in proving first degree murder if the fabrication, or at least the planning for the fabrication, occurred before the appellant killed Cynara.

[125] I do not, however, agree it would have been unreasonable, on the totality of the evidence, to infer that the fabrication of the home invasion story, if not the actual staging of the home invasion, took place before the appellant killed Cynara. As Crown counsel argued, the details of the story provided to the police, almost immediately by the appellant, the steps taken throughout the house to corroborate the home invasion narrative, and the brief time period the appellant would have had to take all those steps after killing Cynara, but before calling 9-1-1, were capable of reasonably supporting the inference the appellant had thought about and planned what she would do and say to explain Cynara’s death before killing her daughter.

[126] The evidence warranted leaving first degree murder with the jury.

Conclusion

[127] I would allow the appeal, set aside the conviction and order a new trial on the charge of first degree murder.

[128] The appellant will attend before the trial court as required. She will remain subject to the terms of her bail order dated February 25, 2021, subject to variation by this court or the trial court.

Released: May 28, 2021 Doherty J.A. I agree David Watt J.A. I agree K. van Rensburg J.A.