Background

[1] Cindy Ali is charged with the first degree murder of her daughter, Cynara Ali, who was sixteen years old at the time and severely disabled as a result of cerebral palsy. Cynara Ali lived at 150 Burrows Hall Boulevard, unit 118, in Scarborough, with her three sisters, father and mother, Cindy Ali.

[2] On the morning of February 19, 2011, Ms. Ali, who was the only person at home with her daughter at the time, had called 911 reporting a home invasion and that her daughter was not breathing. When emergency personnel arrived, they discovered Cynara Ali, lying flat on her back on a couch with a pillow over her forehead and a towel draped over her neck on the living room couch with vital signs absent. Paramedics were able to restore a pulse to Cynara Ali using CPR. Cynara Ali was rushed to Centenary Hospital and then transferred to Sick Kids Hospital where after approximately 36 hours she was taken off life support and died.

[3] The defence has an application for a directed verdict for acquittal on the charge of first degree murder. Mr. Hicks submits that, while the jury might convict Ms. Ali of second degree murder, there is no evidence that would permit a properly instructed jury to find that this murder was planned and deliberate.

Test for A Directed Verdict

[4] The question to be asked by a trial judge considering a motion for a directed verdict is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". Under this test, the motion must be dismissed "in any case in which there is admissible evidence which could, if it were believed, result in a conviction."

[5] In considering the merits of the directed verdict application, the judge may not assess the credibility of witnesses or weigh the evidence for competing inferences in determining whether there is sufficient evidence. Where there are competing inferences, I need only draw the inferences favourable to the Crown

Elements of First Degree Murder

[6] Planned and deliberate first degree murder contains four essential elements:

(i) that an accused caused the death of the deceased;

(ii) that an accused caused the death of the deceased by an unlawful act;

(iii) that an accused, in unlawfully causing the death of the deceased, had one of the states of mind required to make the unlawful killing murder; and

(iv) that the murder of the deceased was planned and deliberate on the part of the accused.

[7] It is element iv, the requirement that the murder be planned and deliberate, which serves as the basis for this classification of murder as first degree murder and it is this element which is the focus of this application.

[8] An accepted definition of "planned and deliberate" is the meaning assigned to those terms by Gale J., then a trial judge, in his instructions to the jury in R. v. Widdifield (1963-4), 6 Crim L.Q. 152, 153-4:

What is meant by the expression "planned and deliberate"? Again, gentlemen, let me repeat that it is a question of fact for you to decide whether there was that here and, secondly, that expression should be given its ordinary, natural meaning. It certainly does not include a killing which is perpetrated in hot blood without any premeditation, all of a sudden without consideration, upon impulse, or on the spur of the moment. Killing as a result of any of those things would not be a planned and deliberate killing.

[9] I think that in the Code "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

[10] The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

[11] As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered", "not impulsive", "slow in deciding", "cautious", implying that the accused must take time to weigh the advantages and disadvantages of his intend action. That is what, as it seems to me, "deliberate means".

[12] The planning and deliberation must precede the commencement of the conduct that causes death. See, for example, R. v. Reynolds (1978), 1978 1269 (ON CA), 44 C.C.C. (2d) 129 (Ont. C.A.); and R. v. Smith (1979), 1979 2233 (SK CA), 51 C.C.C (2d) 381 (Sask. C.A.). While the planning and deliberation must precede commencement of the conduct that causes death, evidence of post-offence or after-the-fact conduct may supply proof of the planned and deliberate character of the murder, The reasoning involves the inference of a prior mental state from subsequent conduct, in other words, the retrospective use of circumstantial evidence.

[13] In R. v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545, 552-3 (Ont. C.A.) Doherty J.A. explained the use of after-the-fact conduct to support an inference about a state of mind:

Evidence of after-the-fact conduct is a type of circumstantial evidence. Its potential probative value will depend upon the nature of the evidence, the issues in the case and the positions of the parties. Often, evidence of after-the-fact conduct will be probative of the accused's participation in the crime alleged, but will have no probative value in determining the level of the accused's culpability. Sometimes, however, as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind.: R. v. White and Cote (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 (S.C.C.) at 400-403.

The appellants' conduct as described by Ransome, from the time they fled the club until they disposed of evidence in the dumpster could, when viewed in its entirety, support the inference that they had done exactly what they had planned to do, that is, enter the club, commit a robbery and shoot Mr. Chow. This inference would lend considerable support to the Crown's claim that the murder was planned and deliberate. As the evidence had some probative value on the question of whether the appellants had engaged in a planned and deliberate murder as opposed to a robbery or some other illegal activity which had gone awry, the trial judge could not have instructed the jury that the evidence had no value in determining the appellants' level of culpability, The alleged non-direction does not constitute misdirection on the evidence adduced in this case.

See also, R. v. Mach, [1999] O.J. No. 2639, paragraphs (21-221 (C.A.).

[14] In R. v. Poitras (2002), 2002 23583 (ON CA), 57 O.R. (3d) 538, 1 C.R. (6th) 366, 371-2 (C.A.), Doherty J.A. considered the relevance of evidence of after-the-fact conduct to prove that a murder was planned and deliberate:

The relevance of after-the-fact conduct to the issue of whether a murder was planned and deliberate depends on the circumstances of the particular case: R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, 132 C.C.C. (3d) 545 (C.A.). If as a matter of common sense and human experience, the after-the-fact conduct considered in combination with the rest of the evidence is reasonably capable of supporting the inference that the murder was planned and deliberate, then the evidence is relevant to that issue. For example, evidence that the appellant dismembered the body and hid parts of the body in various locations could support the inference that the appellant did not want the body discovered and wanted people to think that Mr. Blake had left for Timmins. This would allow the appellant and Ms. Nelson to immediately assume cohabitation without attracting suspicion. If the jury drew that inference, it would go a long way toward finding that the murder was planned and deliberate.

[15] There is no suggestion in these authorities, at least according to my understanding of them, that there must also be evidence of pre-offence conduct to support an inference of planning and deliberation before reliance may be placed on after-the-fact conduct to establish the earlier state of mind.

The Use of Post-Offence Conduct

[16] As the Supreme Court of Canada has held in R. v. White, [2011] 1 S.C.R. 443, post-offence conduct evidence is circumstantial evidence, just like other circumstantial evidence, and there is no special rule governing when it is probative of guilt. I acknowledge that there are many appellate decisions holding that this type of evidence cannot be used to distinguish between different levels of homicidal liability. However, this is not always the case. As Doherty J.A. said in R. v. Teske (2005), 2005 31847 (ON CA), 32 C.R. (6th) 103 (Ont. C.A.), at paras. 84-85:

I do not think that any helpful generalization can be made about the potential relevance of after-the-fact conduct evidence. Counsel's position on behalf of the appellant is, however, understandable. Canadian courts, alone to my knowledge among common law jurisdictions, under the rubric "consciousness of guilt", developed an elaborate and confusing jurisprudence as to the proper instruction to be given to juries where the Crown relied on after-the-fact conduct of an accused to prove its case. That jurisprudence suggested that "consciousness of guilt" evidence was subject to its own set of special rules: R. v. Burdick (1975), 1975 1276 (ON CA), 27 C.C.C. (2d) 497 at 506 (Ont. C.A.); R. v. Marinaro, 1996 222 (SCC), [1996] 1 S.C.R. 462, 105 C.C.C. (3d) 95 (S.C.C.), adopting the dissenting reasons of Dubin C.J.O. (1995), 1994 1470 (ON CA), 95 C.C.C. (3d) 74 at 82 (Ont. C.A.).

More recent case law has, however, recognized that after-the-fact conduct evidence is simply a species of circumstantial evidence. The evidentiary value of this evidence depends on the reasonable inferences that a trier of fact can draw from it when considered in the context of the entirety of the evidence and the issues raised at trial: R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 at paras. 23-35 (Ont. C.A.); R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385 at paras. 19-35 (S.C.C.); R. v. Trochym (2004), 2004 1262 (ON CA), 186 C.C.C. (3d) 417 at paras. 16-25 (Ont. C.A.), leave to appeal to the Supreme Court of Canada granted, [2005] S.C.C.A. No. 16. Some after-the-fact conduct will, as a matter of common sense and human experience, when viewed in the context of the entirety of the evidence, be reasonably capable of supporting an inference as to an accused's state of mind at the time of the homicide in issue…

[17] In R. v. Poitras (2002), 2002 23583 (ON CA), 1 C.R. (6th) 366 (Ont. C.A.), the Court of Appeal upheld the trial judge’s refusal to grant a directed verdict on a count of first-degree murder that was based, in part, on post-offence conduct. As Doherty J.A. said at p. 371: “The relevance of after-the-fact conduct depends on the circumstances of the particular case….” See also R. v. Fatima (2006), 42 C.R. (6th) 230 (Ont. S.C.J.), at para. 100 and R. v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at p. 553.

Available Evidence

[18] At the outset I would observe that that the concession by the defence that there is sufficient evidence to support a verdict of guilty of second degree murder recognizes the probative value of the evidence with respect to Ms. Ali’s culpability in terms of her daughter’s killing.

[19] The issue on this application is whether there is any evidence that would permit the jury to find that the murder of Cynara was planned and deliberate. The evidence can be considered under the following headings:

Nature of the Killing

[20] Dr. Kapron testified that Cynara could have been mechanically asphyxiated and that the lack of injury to her face would be consistent with the use of a pillow to smother her. Cindy Ali in her statement admitted to moving Cynara from one end of the couch to the other and laying her on her back. Cynara was found lying on the couch with a towel rumpled over her neck and the pillow resting on the top of her head. The Crown submits that asphyxiating one’s daughter with a pillow is qualitatively different from other kinds of child killings such as shaking or beating. The Crown submits that this mode of child killing supports a finding of planning and deliberation.

Evidence of Possible Motive

[21] The Crown has led evidence that, during their application for permanent residency in Canada, the Ali family agreed to cover all of Cynara’s medical costs. The Crown submits that this provides evidence of motive and that this supports an inference that the killing was planned and deliberate.

Story of the Home Invasion

[22] Cindy Ali says in her statement that Amanda Ali left home at about 10:15 am and that she and Cynara were alone at home for 20 to 25 minutes before the intruders came to the door. The story of the home invasion is one that the jury might well disbelieve even without considering the evidence of whether or not there were footprints leading up to Unit 118 or whether there were wet footprints in the hallway. However, for the purposes of this application the relevant aspect of this story are the number of elements that it contains: (a) Two men dressed in black suits, shirts and ties, black leather shoes and black balaclavas; (b) the fact that the two men had Jamaican accents; (c) the fact that the one man was armed with a handgun which he pointed at Cindy Ali; (d) the fact that they were there to retrieve a package; (e) the details of the search of the second floor and the basement by the armed intruder; (f) the details of the second man who was with Cynara Ali; (g) the details of Cynara’s behaviour and the second man’s reaction to her; (g) Cindy Ali’s attempt to get to her daughter, her subsequent falling to the floor and being kicked; and (h) the first man’s statement that they must have come to the wrong house.

Staging of the Crime Scene

[23] The jury may well conclude that Cindy Ali staged the crime scene. This is most obvious from the fact that the rooms that were supposedly searched had little done to them but having drawers pulled out but with their contents left otherwise undisturbed. But here again, for the purposes of this application, the relevant aspects are the details of the staging and how long it might have taken to do. There are many elements in this: (a) she makes it look like all three second floor rooms were searched. (b) she makes it look like Amanda Ali’s bedroom and her husband’s office in the basement were searched and she unlocked the basement exit to the parking garage; (c) she tore the kitchen phone off the wall, threw knives on the floor; and (d) she broke the glass candle holders and left the glass shards and the candles they held at each end of the front hallway.

Letter from the Home Invaders

[24] The jury could well find that this letter was not from the home invaders but was instead written by Cindy Ali or by someone else acting on her instructions. Indeed, such a conclusion powerfully suggests that the story of the home invaders was nothing but a fabrication.

Permissible Inferences

[25] Cindy Ali said Amanda Ali left the house at 10:15 am and she called 9-1-1 at 11:37:45 a.m. During this time Cynara Ali was killed, the house was searched by the intruders or the crime scene was staged. If the jury rejects the home invasion story then they could find that Cindy Ali had killed Cynara, fabricated the home invasion story and staged the crime scene. The defence argues that this is equally consistent with the panicked response of someone has committed the second degree murder of her daughter. I disagree. There are a number of facts which would support an inference that the killing of Cynara was planned and deliberate.

[26] While I do not find the evidence of a possible motive particularly compelling, the jury might accept this and conclude that this was the reason, at least in part, for the killing of Cynara. Such a pre-existing motive certainly supports the inference that the killing was intentional. Moreover, while it is not a necessary conclusion, such a pre-existing motive could support an inference that the killing was planned and deliberate.

[27] The jury could infer that the killing involved moving Cynara from a seated position to a reclining position and then asphyxiating her with the pillow that was found on the top of her head. The fact that Cynara was moved into a position to be smothered and the deliberate nature of the smothering could also support the inference that the killing was planned and deliberate.

[28] However, in my view, the most important evidence with respect to planning and deliberation is the detail of the home invasion story and the related staging of the crime scene. If this was done before the killing of Cynara, or even if Cindy Ali had begun to formulate her cover story before the killing of Cynara, this would readily support the inference that the killing was planned and deliberate. The defence argues that it is pure speculation to infer that Cindy Ali devised the plan ahead of time. Rather they suggest that both the fabrication of the story and the staging of the crime scene could equally be the panicked response of Cindy Ali after she has committed the second degree murder of her daughter. I disagree. What is important here is the complexity of the story and the need for the staging of the crime scene to correspond to it. This is far more involved than mere flight from the scene of a crime as in Arcangeoli or the straightforward, but dishonest, disavowal of any involvement in a crime. The detail of the home invasion story and the number of steps involved in the staging both suggest that, at the very least, Cindy Ali was thinking about her cover story and the related staging of the crime scene before the killing. Cindy Ali had less than 1 ½ hours to kill Cynara, fabricate the home invasion story and stage the scene. Given the details of the story and the related staging of the scene, it would be open to the jury to infer that both of these were part of a plan that was hatched prior to the killing. From this conclusion, the jury could infer that the killing was planned and deliberate. Thus, even without the evidence of a possible motive or the mode of the killing, there is sufficient evidence to permit the jury to infer that the killing was planned and deliberate.

Conclusion

[29] For the foregoing reasons the application for a directed verdict of acquittal with respect to the charge of first degree murder is dismissed.

Ducharme J.

Released: March 29, 2016

CITATION: R. v. Ali, 2016 ONSC 2079

COURT FILE NO.: 14-30000399-0000

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

CINDY ALI

Defendant

DIRECTED VERDICT REASONS FOR JUDGMENT

Ducharme J.

Released: March 29, 2016

R. v. Ali, 2016 ONSC 2079

Case Summary

Background

Test for A Directed Verdict

Elements of First Degree Murder

The Use of Post-Offence Conduct

Available Evidence

Permissible Inferences

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 2