CITATION: R. v. Ali, 2016 ONSC 2109
COURT FILE NO.: 14-30000399-0000
DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CINDY ALI
Defendant
R. Juginovic, J. Hanna, for the Crown
C. Hicks, K. Bailey, for the Defendant
HEARD: January 29, 2016
ducharme j.:
RULING ON CROWN APPLICATION TO USE A MANNEQUIN
[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] As part of their case the Crown intends to call Semahj Bujokas, a firefighter with 19 years’ experience. He was the first person in the living room and found Cindy Ali lying on the floor. While he was assessing her, he noticed Cynara lying on the couch with her right arm hanging off the couch and her right hand was contorted back. Her legs are together completely flat in a very natural resting straight plane. She had a pillow on her head like “a napoleon hat” covering most of her head. There was a towel scrunched up and lying across her neck. He picked up the towel and checked for a pulse and found none. He picked Cynara up to put her on the floor so he could work on her. He went to step back but Cindy Ali was still lying on the floor. He yelled to her to move and tapped her foot with my foot. She did not move. Gino Toth another firefighter also told Cindy Ali to move but she did not. Mr. Toth moved the couch and Mr. Bujokas put Cynara on the floor and began to resuscitate her.
[4] The Crown has brought an application to bring a couch identical to that in the Ali home and a mannequin identical to Cynara brought into court in order that Mr. Bujokas can describe the position Cynara was in. Ms. Juginovic concedes that Mr. Bujokas can readily explain the position Cynara was in but essentially asserts that, as a picture is worth a 1,000 words, the Crown should be able to proceed in this fashion using demonstrative evidence.
[5] There is no doubt that the Crown can, in an appropriate case, use demonstrative evidence. However, in assessing its admissibility a trial judge must consider its probative value against its prejudicial effect. In this case I think the probative value is slight. I had no difficulty clearly understanding Mr. Bujokas’ testimony about how Cynara was positioned and I am sure the jury will equally understand what he has to say. Thus, the use of the couch and the mannequin will have very little added probative value.
[6] In terms of prejudicial effect, there would be some disruption involved in rearranging the courtroom to accommodate the use of a couch and a mannequin although I do not regard this as particularly significant. More seriously, there is the possibility that using the couch and the mannequin might lead the jury to conclude that (a) the initial position of Cynara is more important than it actually is; and/or (b) that the testimony of Mr. Bujokas is more credible or is entitled to more weight given that it involves demonstrative evidence.
[7] Given the minimal probative value and the possibility of real prejudicial effect, the Crown shall not be permitted to use this demonstrative evidence when leading the evidence of Mr. Bujokas.
Ducharme J.
Released: March 29, 2016
CITATION: R. v. Ali, 2016 ONSC 2109
COURT FILE NO.: 14-30000399-0000
DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CINDY ALI
Defendant
RULING ON CROWN APPLICATION TO USE A MANNEQUIN
Ducharme J.
Released: March 29, 2016