R. v. Ali, 2024 ONSC 225

COURT FILE NO.: CR-14-30000399-0000

DATE: 20240119

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and -

cindy ANN SHERRY ali

Bev Olesko and Craig Coughlan, for the Crown

James Lockyer and Jessica Zita, for Cindy Ali

HEARD: October 16, 17, 18, 31, November 1, 2, 3, 6, 8, 9, 10, 14, 21, 22, 23, 24, December 4, 5, 7 and 18, 2023

KELLY J.

Reasons for judgment

[1] Mrs. Cindy Ali is charged with one count of first-degree murder in the death of her daughter, Cynara. Cynara died on February 20, 2011. Over one year later, Mrs. Ali was arrested. It is alleged that Mrs. Ali smothered Cynara thereby causing her death and that the death was planned and deliberate.

[2] On March 6, 2016, Mrs. Ali was convicted by a jury of first-degree murder. Following an appeal, the conviction was set aside, and a new trial was ordered.[^1] Pursuant to s. 473(1) of the Criminal Code, and with the consent of the Attorney General, Mrs. Ali proceeded to trial before me, sitting without a jury.

[3] Mrs. Ali appears before me now for judgment.

Overview of the Case

[4] Cynara was one of four children in the Ali family. She was 16 years of age at the time of her death and had a severe disability. She suffered from cerebral palsy. She was unable to walk, talk, feed, or move herself without assistance. On occasion, Cynara suffered from seizures and pneumonia, but other than that, she was relatively healthy. Mrs. Ali was Cynara’s primary caregiver.

[5] On February 18, 2011, Cynara suffered three seizures. She awoke the next morning, showing no signs of distress.

[6] On February 19, 2011, Mr. Allan Ali (Mrs. Ali’s husband) and the other three daughters left the home for various reasons. Mrs. Ali remained at home with Cynara, alone.

[7] Mrs. Ali testified at trial. It was her evidence that sometime after 11:00 a.m., she heard the doorbell ring. She answered it. When she opened the door, two intruders pushed their way inside looking for a package. One of the intruders (hereinafter referred to as “Intruder 1”) escorted Mrs. Ali through the home, at gunpoint, looking for the package. The second intruder (hereinafter referred to as “Intruder 2”) remained with Cynara in the living room. After searching for the package in various rooms without success, both intruders left the home. When they did, Mrs. Ali noticed that Cynara was in distress. Mrs. Ali called Cynara’s name and shook her. Cynara was unresponsive.

[8] At 11:37 a.m., Mrs. Ali called 911. Firefighters, ambulance attendants and members of the Toronto Police Service (the “TPS”) attended within minutes. When they arrived, Mrs. Ali was lying on the floor. Cynara was on the couch, vital signs absent (“VSA”). Efforts began, immediately, to resuscitate Cynara. At approximately 12:14 p.m., Cynara’s heartbeat resumed, but she was not breathing on her own.

[9] Cynara was transported to the Centenary Hospital in Scarborough. She was eventually transported to The Hospital for Sick Children (hereinafter referred to as “SickKids”). On February 20, 2011, at 11:55 p.m., and on the advice of medical professionals, Mr. and Mrs. Ali agreed to have Cynara taken off life support and she died.

The Positions of the Parties

Crown Counsel’s Position

[10] Crown counsel submits that Mrs. Ali’s evidence should not be believed and that it should not raise a reasonable doubt. They submit there was no home invasion, and Mrs. Ali is solely responsible for Cynara’s death. They submit that the evidence discloses three routes to Mrs. Ali’s conviction.

First-Degree Murder

[11] Crown counsel submits that Mrs. Ali deliberately planned to end Cynara’s life by smothering her. The planning started after Cynara suffered three seizures on February 18, 2011, the day before her death. The succession of the seizures, followed by Cynara’s difficulty breathing, was unusual. It was at this point that Mrs. Ali realized that Cynara’s health was not going to improve. There is no question that Mrs. Ali loved Cynara. However, Crown counsel’s position is that it is Mrs. Ali’s love that caused her to end Cynara’s life. Her death would prevent Cynara from living a life riddled with seizures, sickness, difficulties eating, difficulties swallowing and suffering. In effect, Crown counsel submits that this was a mercy killing.

[12] The day after Cynara suffered the three seizures and on February 19, 2011, Crown counsel submits that Mrs. Ali had the opportunity to follow through with her plan to kill Cynara because she was at home alone with her. She staged the home to make it appear that she and Cynara were the victims of a home invasion so that she would not be blamed for Cynara’s death and then she smothered her.

Second-Degree Murder

[13] In the alternative, Crown counsel submits that Mrs. Ali snapped due to frustration and/or exhaustion from years of care for Cynara. She smothered Cynara without any forethought. She then quickly staged the home to make it appear that she and Cynara were the victims of a home invasion so that she would not be blamed for Cynara’s death.

Unlawful Act: Manslaughter

[14] In the further alternative, Crown counsel submits that if the court has a doubt that Mrs. Ali smothered Cynara, she may still be found guilty of manslaughter. They submit that if Mrs. Ali was aware that Cynara was in medical distress that could lead to death (i.e., perhaps because of a seizure) and did not take necessary steps to intervene while it was still possible to save Cynara, she could be found guilty of criminal negligence pursuant to s. 219 of the Criminal Code for failing to provide the necessaries of life pursuant to s. 215 of the Criminal Code. Her failure to provide care to Cynara in these circumstances would be an unlawful act that could result in a conviction for manslaughter.

Defence Counsel’s Position

[15] Counsel for Mrs. Ali submits that Mrs. Ali’s evidence (and all the evidence favouring her) should be believed. She did nothing to cause Cynara’s death. She had no motive to do so. The evidence of Mrs. Ali’s care of Cynara suggests that Mrs. Ali was a loving mother to her. Counsel for Mrs. Ali submits that there is a proved absence of motive that constitutes powerful circumstantial evidence of Mrs. Ali’s innocence.

[16] The defence posits the following reasons for Cynara’s death. Firstly, Intruder 2 (who stayed with Cynara during the home invasion robbery) might have suffocated Cynara with the pillow. Alternatively, Cynara may have become frightened during the home invasion and suffered a seizure. She could have choked and aspirated food into her lungs, causing respiratory distress, leading to cardiac arrest and her death. On the defence theories, Mrs. Ali did not participate and/or contribute to the death of Cynara.

[17] I have carefully considered the whole of the evidence in this case, including the viva voce evidence and the exhibits that have been filed. I have done so recognizing that every person charged with a criminal offence is presumed to be innocent, unless and until Crown counsel proves their guilt beyond a reasonable doubt.

[18] For the reasons set out below, I have a reasonable doubt as to whether Mrs. Ali caused her daughter’s death. Accordingly, I find her not guilty of any criminal offence.

The General Legal Framework

[19] The onus is on the Crown to prove all elements of the offence charged. Crown counsel must prove beyond a reasonable doubt that Mrs. Ali is guilty. Mrs. Ali does not have to prove anything.

[20] Mrs. Ali testified at trial. Several of her statements provided to various first responders were introduced into evidence by Crown counsel. Also led during the Crown’s case was a statement given by Mrs. Ali (videotaped and under oath) to Det. Renata Louhikari, a member of the TPS Homicide Squad at the time. The statement is exculpatory and is, for the most part, consistent with Mrs. Ali’s trial evidence. Mrs. Ali has consistently denied any involvement in the death of Cynara.

[21] The testimony of the defence witnesses, including Mrs. Ali, conflicts with the evidence of the Crown. As such, when addressing the conflicts in the evidence, I am required to assess the credibility and reliability of all evidence, including the credibility and reliability of the exculpatory evidence advanced by the defence.

[22] When examining the evidence favouring Mrs. Ali, I am required to consider the principles set out in R. v. W.(D.).[^2] I remind myself of those principles, which are as follows:

i. If I believe the evidence of Mrs. Ali, I must acquit.

ii. If I do not believe the evidence of Mrs. Ali but it raises a reasonable doubt as to her guilt, I must acquit.

iii. Even if I am not left in doubt by the evidence of Mrs. Ali, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of Mrs. Ali’s guilt.

[23] In applying W.(D.), there are three possible results relating to the exculpatory evidence, “total acceptance, total rejection, or something in between.”[^3] Those results are explained as follows:

First: If I believe Mrs. Ali’s account, i.e., that she had no involvement in Cynara’s death, I must find her not guilty.

Second: If I do not positively believe Mrs. Ali’s exculpatory account, but it nevertheless leaves me in a state of uncertainty such that I am not sure where the truth lies, I must find Mrs. Ali not guilty of the offence charged (or any included offence). In that case, I would not be able to resolve the conflict in the evidence, which means that there is reasonable doubt.

Third: Even if I completely reject the exculpatory account advanced by the defence, I may only go on to convict Mrs. Ali if the rest of the evidence that I do accept proves Mrs. Ali’s guilt beyond a reasonable doubt.

[24] When considering Mrs. Ali’s evidence and the evidence that favours her, I have done so in the context of the evidence as a whole. I have not isolated it in a vacuum.

Analysis and Decision

Cynara’s General Health and Care

[25] At the time of Cynara’s death, the Ali family lived at 150 Burrows Hall Blvd., Unit 118 in Scarborough. Mrs. Ali shared this home with her husband, Allan (who worked for Hewlett-Packard) and her four daughters: Amanda (who was working at Hallmark), Cynara (the deceased) and twins Clarissa and Carissa (who were attending high school).

[26] As stated above, Cynara suffered from cerebral palsy from birth. Despite her disabilities, Cynara was treated as an equal. The evidence at trial shows that Cynara was well cared for by all family members and the Ali family’s church community. She was considered a blessing by her family and never a burden.

[27] Cynara could not talk. Over the years, Mrs. Ali (and other family members) developed an understanding of Cynara’s sounds and what they meant.

[28] Cynara’s mobility was limited. She could not do much, but she could kick and move her hands to a limited extent. She could turn her head slightly from side to side, but she was unable to keep her head in an upright position. She could not move her body (i.e., she could not roll), save and except during a seizure when her body would jerk, sometimes violently.

[29] Cynara was well groomed and dressed. Her room was filled with her favorite stuffed animals (frogs). Her clothes were clean. There was a healthy supply of diapers, towels and other supplies that she needed. Cynara was fed using bottles. Her foods had to be liquified so that she could digest them.

[30] Cynara went on trips with the family (i.e., to Marineland, Walt Disney World, Niagara Falls, etc.). She attended special events, such as weddings and birthday parties. Her 16th birthday was celebrated in style. On the weekend that Cynara died, the family was planning to go to the Joy Bible Camp near Bancroft to enjoy the outdoors. They made arrangements for Cynara to attend.

[31] Cynara required 24-hour care, all of which was provided by the family, although Mrs. Ali was Cynara’s primary caregiver. As one witness testified, the family played musical chairs to meet the needs of Cynara. Mrs. Ali was described as a “self-sacrificing mother who personified true love”.

[32] The family did not seek or need financial help to care for Cynara. Mr. Ali testified, “that was my duty and Cindy’s duty as parents to take care of Cynara, however, as best we could”. At no time did Mrs. Ali (or anybody else) express any dissatisfaction with the time and effort required to care for Cynara. By all accounts, the Ali home was a happy one. As Mr. Ali described, they were living the Canadian dream.

[33] Despite suffering from cerebral palsy, Mr. and Mrs. Ali described Cynara as healthy. On occasion, however, she would suffer seizures and bouts of pneumonia, both of which are relevant to the cause of death described below.

Pneumonia

[34] Mrs. Ali testified that when Cynara suffered from pneumonia, her lungs would become clogged. The signs of pneumonia included a high fever, a “really hot” chest and back, as well as a cry with tears identified as pain. Depending on the severity of a cold, Cynara could get pneumonia.

[35] In the beginning, Mr. and Mrs. Ali took Cynara to the hospital when they believed she was suffering from pneumonia. One of the doctors suggested they treat Cynara at home and recommended they use a nebulizer to administer the medication. Mr. Ali testified that they took that advice and treated Cynara at home. Mr. Ali recalls that Cynara had a bout of pneumonia approximately one month before she died.

Seizures

[36] Both Mr. and Mrs. Ali testified that Cynara’s seizures could be triggered by lack of sleep, being in the presence of “strange people”, unknown people, fright, sickness, etc. Mr. Ali testified that seizures could be brought on by a loud noise and/or an unexpected movement by a third party.

[37] Mr. Ali testified that Cynara would have a noticeable seizure, approximately, once a month. Mrs. Ali could not remember the last time Cynara suffered one. Mr. and Mrs. Ali described the severity of Cynara’s seizures as serious, mild, and silent. The symptoms of the seizures were explained as follows:

Serious seizures: During serious seizures, Cynara’s whole body would shake “really bad”. Sometimes Cynara’s eyes would roll back.

Mild seizures: During mild seizures, Cynara would “stretch out”. Her body would stiffen, and she would lay motionless. She would not shake as much as she did during serious seizures. Her eyes would sometimes roll back.

Silent seizures: Silent seizures were difficult to identify because they were not able to “physically see” Cynara having a seizure. The family only learned that Cynara suffered silent seizures when she was undergoing a scan at the hospital. The doctor advised that during the 45-minute test, Cynara was having seizures. Mrs. Ali testified that sometimes Cynara’s eyes would cross and that is when she believed that Cynara was suffering a “silent seizure”. Mr. Ali described “a laugh” that would accompany a silent seizure.

[38] There were other occasions when Cynara would react to a new environment but not necessarily suffer a seizure. For example, at Christmas time, the home could be crowded with family. Cynara would start to “tense up”. Her muscles would stiffen. She would stretch out. She would make certain murmuring sounds that would communicate discomfort. Sometimes, Cynara did the same when going to new places and when there were too many people in her presence. On those occasions, the family would remove Cynara from the situation to avoid a seizure.

[39] Mr. and Mrs. Ali testified that everyone in the immediate family knew how to help Cynara when she was suffering a seizure. Mr. Ali testified that when they identified that Cynara was going into a seizure, they would “grab a hold of her, hold her limbs, her hands, and try to hold her feet close to their chest”. They would insert their finger (usually wrapped in a towel) into Cynara’s mouth to stop her jaw from locking and to prevent her from biting her tongue. They would caress her, using their voices. On occasion, Cynara would bite the inside of her mouth and her lip. The seizures would last a couple of seconds and up to a minute, which would be the longest in duration. When she calmed down, they would give her valium.

[40] Mrs. Ali testified that she had taken Cynara to the hospital following seizures many times, but they did so less frequently over time. The doctors were familiar with the Ali family, so they were advised to give Cynara medication rather than taking her to the emergency room. Valium was prescribed and was to be given as needed. The Ali family followed that advice.

The Night Before the Incident

[41] Mrs. Ali testified that Cynara suffered three seizures on February 18, 2011. The first started when Mrs. Ali was at Tim Horton’s with her husband and her husband’s uncle, Mr. Eddie Lutchman. They returned home immediately. Cynara had two more seizures. Mrs. Ali noticed that Cynara was breathing heavily after the third seizure.

[42] While the succession of seizures on the night before Cynara’s death was unusual, and despite Mrs. Ali’s concern about Cynara’s breathing, they did not take Cynara to the hospital. As a result of their ongoing care for Cynara, they were adept at responding to seizures such as these ones. Cynara having seizures was not out of the norm, and they did what they had always done that had met with success. Like on other occasions, Cynara responded well to this care, following which she was put to bed, initially in the company of Mrs. Ali and then with one of the twins.

[43] There is no evidence to suggest that Mrs. Ali viewed the succession of seizures suffered by Cynara as particularly troubling, such that she believed that Cynara was suffering and would live a life of misery as a result. Further, there was no evidence that Mrs. Ali was distraught or frustrated following the seizures on February 18, 2011 or the following morning.

The Morning of the Incident

[44] February 19, 2011 was the Saturday of the Family Day long weekend. When Cynara woke up, she seemed to be fine. She was playful, laughing and appeared to be happy.

[45] Hewlett-Packard was hosting a family event at Downsview Park. Mr. Ali departed the home early to help prepare for it (he was volunteering at the bouncy castle). The twins left the home later with their aunt (Anissa Boodoo) and her two children. It was anticipated that Mr. Ali, the twins, Anissa and her children would return to the home for lunch at around 1:00 p.m.

[46] Amanda went to the gym and then to work. She was not expected to join the family lunch. Mrs. Ali remained at home with Cynara alone. This was not unusual.

[47] Mrs. Ali testified that she followed the usual morning routine. She bathed Cynara, brushed her teeth, dressed her, and brought her downstairs. She placed Cynara on the couch, propping her up with two pillows, one of which I will describe as a “floral pillow” (a standard size pillow used for sleeping with a floral pillowcase on it) and a “decorative pillow” (smaller and brown in colour). She went to the kitchen to prepare Cynara’s formula (oatmeal with milk). She returned and fed Cynara using the bottles.

[48] When Mrs. Ali finished feeding Cynara, she went to the kitchen to wash the bottles. Cynara started fussing so she went back to the living room and picked her up. Both were on the couch together. The TV was on.

[49] During that morning, Mrs. Ali spoke with her sister (Anissa) and Mr. Ali on the telephone.

The Incident in Question: Mrs. Ali

[50] Mrs. Ali testified that after 11:00 a.m. on February 19, 2011, she and Cynara were victims of a home invasion and that following the home invasion, Cynara was unresponsive. She denies that she had anything to do with her daughter’s condition and/or death.

[51] Upon discovering Cynara in a state of distress, Mrs. Ali panicked. She called and spoke with the 911 operator, several first responders and various members of the TPS. She eventually provided a videotaped statement to Det. Louhikari hours after the incident. She testified at the first trial and again at this trial. What Mrs. Ali said at this trial (almost 13 years after the death of her daughter) is largely consistent with her previous accounts.

[52] I will summarize the content of Mrs. Ali’s evidence regarding the incident itself, that is relevant to my analysis, as follows:

a. While she was sitting on the couch with Cynara, the doorbell rang. Mrs. Ali believed that it might be Amanda returning home because she had forgotten something. Mrs. Ali laid Cynara on the couch, propping her in place with the two pillows described above.

b. Mrs. Ali pulled open the door without looking to see who was on the other side of it. She observed two masked men. Mrs. Ali immediately tried to close the door, but she was not able to do so. The intruders entered the home.

c. Mrs. Ali took a few steps into the kitchen and grabbed the receiver off the phone affixed to the wall. She was not able to call for help because Intruder 1 pulled the phone off the wall. He said, “we’re here to pick up the package”.

d. Mrs. Ali turned her back to the intruders and ran through the kitchen toward the entrance to the living room, where Cynara was located. As she did, Mrs. Ali grabbed two or three knives and threw them backwards over her shoulder. That is when she noticed Intruder 1 had a gun.

e. Mrs. Ali went into the living room. Intruder 1 was behind her. Intruder 2 was already in the living room, in front of the television.

f. Mrs. Ali said that the intruders were asking for a package. She testified that she said that she did not know anything about it. That is when Intruder 1 grabbed her right hand and said, “we’re going upstairs”. They did so. Intruder 1 went “through the stuff in the cupboards and the drawers” in various rooms. He took $100 out of one of the boxes in the master bedroom.

g. Intruder 2 stayed with Cynara.

h. While upstairs, Mrs. Ali said that she could hear Cynara laughing. To her, it sounded like a “happy laugh”. Mrs. Ali decided to run. She ran down a few steps. Intruder 1 grabbed her and pulled her back to the second floor.

i. After going looking through the rooms occupied by the twins and Cynara, Intruder 1 and Mrs. Ali came downstairs.

j. As she was running towards the living room, Mrs. Ali grabbed a glass candle holder and threw it over her shoulder in the direction of Intruder 1. She tripped on an area rug placed over the wall to wall carpeting in the living room and fell on the floor. Intruder 1 threw a glass candle holder at her. She heard it shatter. Almost immediately after that, Intruder 1 kicked her on her right shoulder. It was at this point that Mrs. Ali saw Intruder 2 “standing with Cynara, holding a pillow in his hands”.

k. Intruder 1 then directed Mrs. Ali to get up because they were going to the basement. He looked in Amanda’s room (opening some drawers) and then in the office belonging to her husband (disturbing some items). He saw a cardboard box in her husband’s office. He took it out of the closet, went through it, threw it, and then said, “this is not it”.

l. Mrs. Ali pushed the office chair into Intruder 1 and left to go back upstairs. Intruder 1 followed.

m. Intruder 1 advised Intruder 2 that they were in the wrong house and said they had to go. The two intruders descended the stairs to the basement and left the home through the exit to the garage.

n. When they left, Mrs. Ali went to Cynara. Mrs. Ali described that Cynara had slid a little off her pillow. One of her hands and one of her legs were hanging out. Mrs. Ali panicked.

o. Cynara appeared “pale” and a “little bit blue”. Her eyes were open, and she was warm to the touch. Mrs. Ali gently put her hand on Cynara, shaking and calling her. Because she was not responding, Mrs. Ali called 911.

p. Mrs. Ali testified that she passed out a couple of times when on the phone to the 911 operator. Thereafter, the first responders arrived.

[53] After Mrs. Ali provided her account to the first responders, the TPS and Det. Louhikari, members of the TPS made efforts to determine the veracity of her version of events. The investigation was thorough.

The Confirmatory Evidence: Supportive of Mrs. Ali’s Account

[54] Aspects of what Mrs. Ali said during her evidence is supported by other evidence. This, Counsel for Mrs. Ali submits, confirms the veracity of Mrs. Ali’s evidence, and accordingly, it should be believed, resulting in an acquittal.

The State of the Home

[55] Counsel for Mrs. Ali submits that the state of the home following the incident confirms Mrs. Ali’s evidence that a home invasion occurred:

i. Mrs. Ali testified that after she answered the door, she reached for the phone, but that Intruder 1 ripped it from the wall. Photos taken by Officers Gary James and Rhonda Haley, members of the Forensic Identification Service (“FIS”), show that the phone jack on the wall is approximately two steps from the front door. The phone has been pulled off the wall and is lying on the floor below the jack. The phone was examined for fingerprints. There were no prints on it, but there were “smudges” (defined as a mark where something interfered with the surface, but that that “something” cannot be identified).

ii. Mrs. Ali testified that she threw two or three knives at the intruders. The FIS photographs show three knives on the floor of the kitchen. They appear to have come from a knife block that is adjacent to the door from the kitchen to the living room, where Cynara was located at the time.

iii. Mrs. Ali testified that the intruders were looking for a package. Intruder 1 initially took her upstairs to look for it and then downstairs to the basement. The FIS investigator, Officer James, testified that the home did not look “ransacked”. However, FIS photographs show that closets and drawers in some rooms were opened and that some of the contents were disturbed. Of note is a cardboard box, akin to a package, that was found opened on the desk chair in Mr. Ali’s office. It appears to have been turned on its side with some of its contents removed. It looks out of place. This is consistent with the intruders looking for a package.

iv. Mrs. Ali testified that when she ran into the living room after having been upstairs with Intruder 1, she threw a glass candle holder at him. He then threw one at her. Both broke. The FIS photos show broken glass at the front entrance of the home consistent with Mrs. Ali’s evidence that she threw the candle holder at Intruder 1 as he approached her from behind. The FIS photos also show glass around the threshold of the living room consistent with Ms. Ali’s evidence that Intruder 1 threw the glass candleholder at Mrs. Ali.

v. Mrs. Ali said that she tripped on the area rug as she ran into the living room. There is an FIS photograph that shows a ripple in the area rug that could have caused Mrs. Ali to trip or was rippled as a result of her fall.

vi. There are also photographs of injuries on Mrs. Ali’s legs that are consistent with a “rug burn”, perhaps caused by tripping on the area rug and falling on it.

vii. Mrs. Ali testified that after the intruders concluded they were in the “wrong” home, they left. There is evidence to suggest that there are two similar addresses in the complex and that, perhaps, Intruder 1 was right, they were in the wrong home. The unit occupied by the Ali family is identified as 150 Burrows Hall Blvd., Unit 118. The other is 118 Burrows Blvd. Both are townhomes. The occupants of 118 Burrows Blvd. were interviewed by the TPS. They agreed that, on occasion, they receive mail and food deliveries that are intended for the unit occupied by the Ali family. Mr. Ali testified that sometimes he would get mail and food deliveries meant for the other address. As such, there is confusion regarding the addresses.

viii. Mrs. Ali called 911, and she later said that she may have fainted during the call. There are significant gaps of silence during the 911 call that would support Mrs. Ali’s evidence that she fainted.

The Evidence of Ms. Sreerat Chariyaudom

[56] Counsel for Mrs. Ali also submits that there is confirmatory evidence of her account because of the evidence provided by Ms. Sreerat Chariyaudom, a neighbour. Mrs. Ali gave the following description of the intruders immediately following the incident: both were wearing ski masks, long black coats, black suits, black leather shoes, white shirts, ties and gloves. They had thick “pretty dark lips”. They spoke with Jamaican accents.

[57] Ms. Chariyaudom was identified as a witness the day after the incident during a TPS canvass of the neighbourhood. She gave a statement to the police that same day, February 20, 2011. She testified at the first trial but could not be located to testify at this trial despite the efforts of both Crown counsel and Counsel for Mrs. Ali. As such, her evidence was admitted for the truth of its contents.

[58] Mrs. Chariyaudom testified that she drove out of the parking garage at 11:20 a.m. on February 19, 2011. When she did, she noticed two men standing at the garage door, which was a short walk to the Ali home. She could see them from the chest up and described them as follows: both were about 6’ tall; one was a heavier build; their skin was “very, very dark”; they were wearing black knit caps; both appeared to be wearing “North Face” type jackets (i.e., parkas with hoods). She did not see them wearing suits, although she does not know if the jackets were “done up or opened”. She left the garage and does not know where the two men went when she did so. Ms. Chariyaudom said that she lived in the complex from 2009 to 2014. She had never seen these two men before, and she never saw them after the incident.

[59] Counsel for Mrs. Ali submits that it is the similarity, the coincidences of the descriptions given by both Mrs. Ali and Ms. Chariyaudom of the two men that is powerful evidence that a home invasion occurred as Mrs. Ali describes. It is the similarity of the number of men (two), the colour of skin (dark/pretty dark lips), their height (6’/6’-6’2”), the nature of the clothing (black coats, black hats (caps/ski masks)), their location (in the vicinity of Unit 118) and time of their presence in the area (at approximately 11:20 a.m.) that provides compelling evidence that two men were in the area of Mrs. Ali’s home at the relevant time and that they were the men who entered it, conducting a home invasion as she describes.

Other Confirmatory Evidence

[60] There is other, arguably more peripheral evidence, that confirms portions of Mrs. Ali’s evidence, such as the fact that Mrs. Ali and her husband were called the night before, while they were at Tim Horton’s, and asked to return home because Cynara was suffering a seizure; the time the twins were picked up to attend the Family Day celebration at Downsview Park; the fact that Amanda did go to the gym and then to work on the day in question; and numerous telephone calls made to and from the home on both February 18 and 19, 2011, etc.

[61] Counsel for Mrs. Ali submits that this evidence supports Mrs. Ali and confirms the veracity of her account. As such, she should be believed and acquitted.

The Confirmatory Evidence: Supportive of the Crown Theory

[62] While there is evidence that is capable of confirming Mrs. Ali’s version of evidence, there is evidence that leaves me in a state of uncertainty about it. There is also evidence that supports the theory of the Crown, that the home invasion was staged.

The State of the Home

[63] Crown counsel submits that the evidence of the state of the home supports its theory that the home was staged to make it appear that a home invasion occurred. Amongst other things, the Crown points to the following:

a. Based on the account provided by Mrs. Ali, two men were prepared to engage in serious criminal conduct to find the package (perhaps containing drugs). They approached the Ali home in broad daylight and masked themselves in balaclavas. They stood outside the door, adjacent to a common walkway, in a densely populated complex, where anyone passing by could have seen them. They rang the doorbell and waited for the door to be answered. Thereafter, they forced their way into the home.

b. It was the practice of all Ali family members to lock both the screen door and the front door after somebody left the home. Amanda testified that she had told her mother to do so when she left on the morning of February 19, 2011. Despite the practice and the direction of Amanda, Mrs. Ali did not lock the screen door prior to the entry of the home invaders, which appears unusual in the circumstances. Had the screen door been locked, Mrs. Ali would have observed the intruders at the door. The locked screen door may have prevented their entry.

c. Mrs. Ali says that after having forcefully entered the home, Intruder 1 took her through the home at gunpoint in search of the package. The search appears superficial. Many of the cupboards and closets in the home remained largely undisturbed. In particular, the drawers of the desk in Mr. Ali’s office were not opened, although Mrs. Ali testified that the office was of interest because the cardboard box addressed to Mr. Ali was removed from the closet, opened, upended, and its contents pulled out. One can infer from this evidence that this is the size and type of package that the intruders were looking for during the invasion. And yet, many drawers that would not have accommodated this size of box were opened, and many of those that could, were not.

d. For example, the closet immediately inside the front hall was not searched. No cupboards in the kitchen were opened. Nothing was disturbed in the three bathrooms. In the master bedroom, there is a large bureau which had only two thirds of the drawers opened. The nightstands on either side of the bed remained unopened. While a few items appear to have been removed from Mr. Ali’s closet, it remained largely organized. Nothing appeared to have been disturbed in Mrs. Ali’s closet. Other closets and drawers in the home appeared untouched.

e. There are numerous boxes in the Ali home that remained undisturbed. For example, there is a cupboard in Mr. and Mrs. Ali’s bedroom under a television that remained closed. From the outside, it looked big enough to contain a box similar to the one found and upended in the basement. Had it been opened, Intruder 1 may have seen a box similar, inside, to the one found in the basement. Based on Intruder 1’s conduct vis-a-vis the box in the basement, one would have thought it would have been removed from the closet and searched. It was not. The box in the master bedroom remained where it was, behind closed doors. Another box in the laundry room, similar in size to that in the office, appears to have been of no interest to Intruder 1, despite being visible.

f. While there were several small boxes in each of the bedrooms, only one appears to have been disturbed. There is a box found on the chest of drawers in Mr. and Mrs. Ali’s bedroom. Mrs. Ali testified that Intruder 1 opened the box and removed $100 in cash from it. Despite that, he did not open the numerous other boxes on the bureau, or any other similar boxes found in other rooms.

g. Mrs. Ali testified that in a panic and after Intruder 1 pulled the phone off the wall, she grabbed a couple of knives out of the knife block and threw them at him as she was trying to get to Cynara. The knives were taken from a knife block on a microwave stand behind one of its metal arms that separates the shelves. It is behind what appears to be a porcelain sugar bowl. The knife block remains undisturbed and rightfully in its place. One would have thought that in the panic described by Mrs. Ali after the intruders entered the home, the knife block and the area in which it was found would have been askew. It was not.

h. Mrs. Ali gives inconsistent evidence about whether (or not) she went into Cynara’s room with Intruder 1 before going downstairs. At the first trial, she said that she did not go into Cynara’s room because she saw an opportunity to flee downstairs to get to Cynara. She did not see what Intruder 1 did in Cynara’s room. At this trial, Mrs. Ali testified that she was in Cynara’s room, standing next to Intruder 1. She said that she saw him search it. She said that it was after she left Cynara’s room that she ran downstairs. This, Crown counsel submits, undermines her story that two intruders entered the home searching for a package, as Mrs. Ali was unable to keep the details straight.

i. Despite Intruder 2 remaining with Cynara, who was immobile, he did not take the opportunity to search either the television stand or the cabinet behind the couch in the living room. A box the size of the one found in the basement could have been stored in either one.

j. Mrs. Ali testified that she was in her nightgown and bare feet when the home invasion occurred. Crown counsel submits that had the glass candleholder been broken at the entrance to the living room as she describes, Mrs. Ali would have had to walk through the broken glass in her bare feet — both when she left the living room to go downstairs and when she returned. There is no evidence that Mrs. Ali suffered any injury to her feet. In fact, Firefighter Toth testified that he “whipped down” to the front entrance, grabbed a pair of shoes and put them on Mrs. Ali before she was taken to the ambulance to avoid her being injured. When he put the shoes on Mrs. Ali’s feet, he did not notice any cuts or injuries to the bottom of them.

The Fingerprint Evidence

[64] Crown counsel submits that there is compelling evidence based on the fingerprints found on the broken glass candleholders. As I have stated above, Officers James and Haley were the FIS officers who attended at the home to photograph and collect evidence. Amongst other things, D.C. Haley collected the glass in the hallway at the entrance to the home as well as glass from the entrance to the living room. She testified that she kept the groupings separate when she did so. The glass at both ends of the hallway contained fingerprints belonging to Mrs. Ali, supporting Crown counsel’s theory that she threw both glass candleholders to make the home appear as though it was invaded.

[65] Officer James testified that Mrs. Ali’s fingerprints (identified as R3A and R3B) were found on a large piece of broken glass near the entrance to the home, which is consistent with Mrs. Ali’s account of throwing the glass candleholder at Intruder 1. Both were found on the outside of the glass. R3A was identified as a fingerprint from the left middle finger of Mrs. Ali’s hand. R3B had insufficient detail to identify the fingerprint.

[66] Officer James also testified that Mrs. Ali’s fingerprints (identified as R1 and R2) were found on the broken glass at the entrance to the living room. This is the glass candleholder that Mrs. Ali says was thrown by Intruder 1. Both were found on the inside of the glass. R1 was identified as a fingerprint from Mrs. Ali’s right index finger. R2 was identified as a fingerprint from Mrs. Ali’s right middle finger.

[67] Although there were three other glass candles on the same stand, no fingerprints were observed. They appear to have been untouched.

[68] In cross-examination, D.C. Haley testified that it is possible that the fingerprint identified as R3A (found at the front entrance) could have come from the same candleholder as the fingerprints identified as R1 and R2 (from the entrance to the living room). It is possible that some of the glass was transferred from the front of the home to the living room area due to the traffic of the first responders coming in and out of the home. Crown counsel submits that this is unlikely because there were no other large pieces of glass observed in the middle of the hallway – they were only at either end, where Mrs. Ali testified they were thrown, landed and broke. Further, Crown counsel submits that the first responders were careful not to disturb the scene, making the transfer unlikely.

[69] It is true that some of the first responders testified that they tried not to disturb the scene upon their arrival. For example, Firefighter Jeno Toth testified that he observed glass in the hallway. When asked if he did anything in terms of the way he walked down the hallway, he said, “I exercise avoidance, if there is glass there you sidestep it. You don’t touch it.” Paramedic David Bruce testified that he saw the broken glass and was careful because of it. That said, Firefighter Semahj Bujokas testified that there was glass “scattered all over”. Because firefighters wear big boots, “it’s very easy that we could have kicked some of that around too. I can’t say that that’s where it all was when we arrived. When I look back at how many people went in and out of that house for just the medical situation, that glass could have been moved around.”

[70] While the fingerprint of Mrs. Ali was found on the glass near the entrance to the living room, I am unable to come to the conclusion that it is because Mrs. Ali staged the scene by throwing and breaking the candleholders. It is possible that that piece of glass was transferred from the front of the home to the back of the home because of the traffic of the first responders. Crown counsel argued that the fingerprint evidence was compelling forensic evidence that should cause the court to reject Mrs. Ali’s evidence completely. For reasons I have just explained, I do not agree. However, I have considered the evidence, together with all of the other evidence in this case in coming to my ultimate conclusion.

Footprints in the Snow

[71] Crown counsel submits that Mrs. Ali should not be believed because at the time of the home invasion, there was fresh snow on the pathway leading to Unit 118. Had the home invasion occurred as described by Mrs. Ali, there would have been footprints in the snow, and yet, there were none. In support of this submission, Crown counsel relies on the evidence of Firefighter Bujokas and P.C. Alechia Cracknell.

[72] Firefighter Bujokas was a first responder on scene. When he arrived, he saw EMS paramedics in the area. They were awaiting the arrival of the TPS. They expressed concern for their personal safety, as they had been told that the call was a “break and enter domestic”. Firefighter Bujokas was undeterred because the information the firefighters received was that it was a “medical call”.

[73] But even if it was a “domestic break and enter”, Firefighter Bujokas testified that there was no evidence to suggest that anyone had recently entered the home. He testified that there was snow that had blown up at the front door to the Ali home. The snow started at the door to the unit and ended about 10 feet from the door. He described the pathway as being covered in snow at a depth of zero to two inches. He testified, “we debated, we discussed like that it’s possible that EMS, Ambulance, had it incorrect with a home invasion. Because, yes, we saw the front door ajar, but there’s no footprints in or out, and then it was discussed like even if they hopped out the window, there would be footprints in the snow. So, we decided to proceed.”

[74] When Firefighter Bujokas arrived inside the unit, Ms. Ali was lying on the floor in the middle of the living room. Firefighter Bujokas can be heard interacting with Ms. Ali. She asks him not to hurt her, and he tells her that it is “okay”. The tone of his voice, however, quickly changes. He can be heard on the 911 call audio saying the following to Ms. Ali, “There’s no other footprints so there’s no one inside here. Can you please get up? Hey you, get up”. When Ms. Ali says, “what” he says, “Get off the floor. There are no footprints in the front, don’t bullshit me.”

[75] P.C. Cracknell attended at the scene on February 19, 2011, at 11:54 a.m. When she approached Unit 118, she described the pathway to the unit as “snow covered”. She was able to follow the footprints from the paramedics, police and firefighters “right to the door”.

[76] Firefighter Bujokas’ evidence, that there was fresh snow on the pathway to the unit that was undisturbed before his arrival and P.C. Cracknell’s evidence of seeing footprints in the snow, if accepted, is potentially powerful evidence to suggest that Mrs. Ali fabricated the story of the home invasion. This in turn would be significant circumstantial evidence that she had concocted a story to cover up her role in her daughter’s death. The evidence of Firefighter Bujokas and that of P.C. Cracknell is contradicted by several others who testified about the weather and state of the snow on the pathway to the unit when they arrived. This evidence raises significant reliability concerns regarding the evidence of Firefighter Bujokas and P.C. Cracknell. For example:

Firefighter Toth:[^4] Firefighter Toth arrived at the scene with Firefighters Bujokas and Gary Keogh. He was the third person to enter Unit 118. He described the weather as overcast. It was not snowing. He was asked, “No accumulation of snow on the ground?” to which he responded, “I don’t think there was any.”

Paramedic Chris Rotolo: Paramedic Rotolo was also a first responder on scene. He testified that it was not snowing when he drove to the scene (i.e., the roads were clear), and there was no accumulation of snow. Although he could not be definitive, he said the following to the TPS the day after the incident: “When we walked up to the door, I’m pretty sure it was clear.”

Paramedic Bruce: Paramedic Bruce was also a first responder on the scene. He recalled “little mounds of snow” on the common walkway and blowing snow. When asked if he recalled snow on the pathway to the unit, he responded that he did not have a recollection of specific “areas like that”.

Paramedic Al Grenier: Paramedic Grenier was a Level 3 Paramedic who arrived on scene in his own vehicle after other paramedics had arrived. He testified that the weather conditions that day were clear: sunny and dry. There was no snow on the roadway or the pathway to the unit.

Paramedic Ed Owen: Paramedic Owen arrived at the scene at 12:13 p.m. He was asked about the weather conditions. He described them as follows: clear and cool. In particular, the roads were dry. He recalls no new accumulation of snow. When asked if there was any snow on the pathway to and from the unit, he said there was “no snow”; it was “clear”.

Mr. Allan Ali: Mr. Ali testified that he left the home through the front door at approximately 8:15 a.m. At that time, it was snowing lightly, but nothing was “accumulating”. There was no snow on the pathway to the unit.

Ms. Amanda Ali: Amanda left the home through the front door at approximately 10:35-10:36 a.m. She testified that there was no fresh snow on the pathway to the unit when she did so.

[77] There is other evidence to suggest that there was no fresh snow on the pathway to the unit when the first responders arrived.

[78] There is CTV News footage of Cynara being taken by ambulance on a stretcher from Unit 118 at approximately 12:20 p.m. Paramedics and the TPS are seen outside the unit at the time. Although there do appear to be mounds of snow in certain areas, there does not appear to be any snow under the feet of the members of the first responders or under the wheel of the stretcher (which are both visible in the footage). Had there been a fresh snowfall as suggested, it would be reasonable to expect to have seen snow under both.

[79] Mr. Jarrod Stark is an expert in film and video production techniques, including lens selection and characteristics, camera blocking and video composition. Mr. Stark assessed the CTV News camera footage as I have just described. He concluded that the zoomed-in lens used to create the CTV screenshots impedes the viewer’s ability to gauge the depth of certain components, namely the location of the snow in the image. Although the accumulated snow appears to be close to Cynara’s stretcher, it is his opinion that it is a snow pile in front of Unit 108, approximately 20 metres to the northwest of Unit 118.

[80] There is also the evidence of Dr. Kent Moore, a Professor of Physics at the University of Toronto. He has over 35 years of experience researching various aspects of weather and climate, including lake effect snowstorms. He provided a lengthy report and addendum. He also testified. He based his opinion on a number of things, including the radar images of snow fall in the Burrows Hall Blvd. area, the evidence from property management about salting, a videotape of the driveway area of 90 Burrows Hall Blvd. at the relevant time, the wind force and direction, the CTV News video and photographs taken by the FIS.

[81] Dr. Moore’s primary opinion was that there would have been little or no accumulation of snow – at most, 0.3 inches – on the pathway leading to Unit 118 in the late morning of Saturday, February 19, 2011.

[82] Alternatively, if the snow had been accumulating to any degree on the pathway to Unit 118, it would have continued to accumulate as snow fell. In Dr. Moore’s opinion, such an accumulation between 11:20 a.m. (the approximate time the intruders are alleged to have entered the unit) and 11:48 a.m. (when the first responders arrived) would have been sufficient to obscure any footprints made in the snow before 11:20 a.m. This assumes that there was accumulation, which Dr. Moore concludes “in all probability” did not happen.

[83] The court was advised that approximately 17 people comprised of those from the fire department, EMS and TPS entered and exited the home prior to FIS attending to take photos approximately five hours later. There is no evidence of water stains on the hardwood floor that extends from the front door to the living room, where Mrs. Ali and Cynara were located.

[84] FIS arrived at the scene at approximately 4:05 p.m. and began taking photos at approximately 5:00 p.m. Officer James testified that when he and D.C. Haley first entered Unit 118, he “made no note of any wet footwear whatsoever in the place”. He testified that there was “dust” in the hallway and “the dust is the footwear but it’s not wet, it’s dust marks”. He assumed that the dust was tracked in by the first responders and/or the Ali family.

[85] After a review of the abovementioned evidence, I have concluded that, as a matter of fact, there is no reliable evidence that there was snow on the pathway leading to the unit when the first responders arrived.

The Letter, March 16, 2011

[86] A letter was found by Mr. Ali in the mailbox of their home on March 6, 2011. Mr. Ali began to read the contents of the letter and then stopped. He immediately called Det. Frank Skubic (the homicide officer in charge of the investigation). He was invited to attend at the police station to turn the letter over. He did. Mr. Ali was asked to provide a statement to Det. Wayne Banks of the TPS. Again, he did.

[87] The letter is unusual, to say the least. On its face, it purports to have been written by the intruders who invaded the Ali home weeks earlier. It is handwritten. Although grammatically incorrect, it provides details referred to in the accounts provided by Mrs. Ali to the TPS, amongst others. For example, the letter states that the intruders had attended at the home to pick up a “package”, but it turned out that they were in the wrong home. An explanation was contained in the letter as to why there were no footprints at the scene, a point of significance in the Crown’s case. The letter states, exactly, as follows: “… but the focking police cant catch we because we shoes has a cover over it but the woman are see that so take that because you have to be close up to see it and we kno that she was not that close…”.

[88] Crown counsel submits that this letter was written and delivered by Mrs. Ali to bolster the account she provided to the TPS – that she and Cynara were victims of a home invasion, following which Cynara was VSA. Crown counsel submits that the letter is not something “that a criminal would do”, was not sent by the intruders, and was likely sent by Mrs. Ali.

[89] Crown counsel submits that it is the detail about the shoe covering that points, strongly, to Mrs. Ali being the author of the letter. It is only Mrs. Ali who heard Firefighter Bujokas say, “there are no footprints, quit bullshitting me, there’s no one here”. Further, there was no reason for Mrs. Ali to tell anyone that the firefighter accused her of “bullshitting” him because there were no footprints, so she must have written the letter. I do not agree.

[90] On the whole of the evidence presented in this case, I am unable to conclude that Mrs. Ali wrote the letter. Although I am suspicious of the theory that it was written by intruders for the reasons argued by the Crown, there is no sufficient basis in the evidence to conclude that it must have been Mrs. Ali who authored it.

[91] As I have stated above, it is Mr. Ali who found the letter. He immediately delivered it to the TPS. He provided a statement that same day. He inquired of his family, including Mrs. Ali, as to whether they had written the letter. He even asked Mrs. Ali twice. She and everyone else denied that they had done so.

[92] In the spirit of cooperation and two days after delivering the letter to the TPS, all members of the Ali family gave samples of their handwriting, fingerprints and DNA to the TPS. Despite this, nothing suggested that any of the Ali family members wrote and delivered the letter, including Mrs. Ali.

[93] Further, this investigation was thorough. Following the discovery of this letter, various investigative techniques were employed by the TPS. For example, judicial authorization was granted to intercept the personal communications of the entire Ali family and several members of their extended family (aunts, uncles, mothers, fathers, friends, cousins, etc.). The communications of the Pastors of the Church of the Rock (where the Ali family attended) were also intercepted. Tracking devices were installed in the Ali and Boodoo family vans. One of the twins won a raffle simulated by the TPS. The prize? The family would be going to Niagara Falls for the weekend, all expenses paid. The reason? The Ali family would be out of the home, which would permit the TPS installation of tracking devices (one on the main floor and one in the basement). On February 24, 2012, a stimulation letter was sent by the TPS to the Ali home. It contained a Facebook post regarding a TPS news alert regarding Cynara. The letter included comments disparaging Mrs. Ali in the hopes of prompting a response. None came. Again, Mr. Ali immediately turned the letter over to the TPS.

[94] In the end, there is no evidence linking Mrs. Ali to having authored the letter delivered on March 16, 2011. To rely on this evidence as after the fact conduct evidence consistent with her guilt in these circumstances would engage in speculation. To be clear, although I remain suspicious that the letter was not in fact written by the intruders, I am unable to conclude that it was Mrs. Ali, as opposed to some other person (including other family members or friends) who authored it.

[95] I do not rely on the letter as after the fact evidence that is related to the commission of the offence charged or to something else. Put simply, I make no inferences from the letter whatsoever.

Body Fluid Identification and the Significance of the Pillow

[96] As I have stated above, Mrs. Ali testified that she saw Intruder 2 with a pillow in his hands when he was standing next to Cynara. This evidence permits the inference that if Cynara was smothered, she was smothered by him. Based on the biological evidence and the submissions of counsel, he would have used the floral pillow.

[97] The evidence of the use of the floral pillow is significant evidence in this case. Crown counsel submits that Mrs. Ali is inconsistent in her evidence about what pillow was in the hands of Intruder 2, when she saw him with it and what he did with it. As such, the veracity of her account is undermined. I will begin this analysis with the biological evidence.

a. The Biological Evidence

[98] Ms. Alison Morris is a biologist who is employed by the Centre of Forensic Sciences (“CFS”). She was qualified as an expert in forensic science biology and in particular, body fluid identification as well as DNA analysis and interpretation.

[99] Ms. Morris analyzed a number of items seized from the home, one of which was the floral pillowcase located on the pillow in the living room (the “floral pillow”). The floral pillow was tested for the presence of blood and amylase. Amylase is found in things such as tears and perspiration, but it is present in very high amounts in saliva and fecal matter. Blood and amylase attributable to Cynara were found on the floral pillow.

[100] Both counsel agree that the inference to be drawn from the biology evidence is that if Cynara was smothered (by either Mrs. Ali or Intruder 2), the floral pillow was used. The forensic evidence supports such a finding. As such, the floral pillow is of significance in the case.

b. Inconsistencies in Mrs. Ali’s Evidence Regarding the Pillow

i. The description of the pillow Intruder 2 was holding:

[101] Mrs. Ali was inconsistent in her description of the pillow that Intruder 2 was holding during her statement to Det. Louhikari and at this trial:

Statement to Det. Louhikari: Mrs. Ali was asked which pillow Intruder 2 was holding in his hand. She replied, the “big one” (which is the floral pillow).

At this trial: When Crown counsel, in cross-examination, suggested that Mrs. Ali saw Intruder 2 holding the floral pillow, she replied, “no, it’s not the big floral pillow, it’s the small one because Cynara was lying on the big one”.

[102] Mrs. Ali was not confronted with this inconsistency at trial, so she gave no explanation for it. However, based on her evidence, she does not appear to have been confused by the question asked in cross-examination. Further, at no time did she correct this answer.

ii. Coming downstairs from upstairs:

[103] Mrs. Ali gave the following inconsistent evidence regarding her observation of the pillow in the hands of Intruder 2 when she came downstairs after being upstairs with Intruder 1:

Statement to Det. Louhikari: When she came downstairs with Intruder 1, she saw Intruder 2 with a pillow in his hands, in front of him, at a height between his waist and chest.

First trial, in chief: When she was in the living room and before she went downstairs, Mrs. Ali testified that she believed the “pillows” were still under Cynara’s head. She was then asked the following question and gave the following answer:

Question: Okay. Did you see the second man, the man who did not have a gun, did you see him doing anything?

Answer: Not while I was there, no.

First trial, in cross-examination: Mrs. Ali testified that she saw a pillow in the hands of Intruder 2 when she came downstairs. The following questions were asked by the trial judge and following answers were given by Mrs. Ali:

Ducharme J.: When did you see him holding a pillow? Was it when you came downstairs or was it when you came upstairs?

Answer: Downstairs and upstairs, Your Honour.

Ducharme J.: Both times?

Answer: Both times, that’s correct.

At this trial: Mrs. Ali testified that although she could only see his back, she was able to see Intruder 2 “standing right next to Cynara … and he was holding a pillow in his hand”.

[104] Mrs. Ali gave an explanation for the inconsistencies about observing the pillow when she came down from upstairs: that her evidence at the first trial on this issue “could” have been a mistake. Further, she explained, “… it was a tragedy that was happening in my home. Cynara was my main focus. I may have got not everything correct but this is what I could remember and this is how I put it and this is how I said it”.

iii. Coming upstairs from downstairs:

[105] Mrs. Ali gave inconsistent evidence about the pillow when she came upstairs from downstairs:

Statement to Det. Louhikari: When asked if Intruder 2 “still” had a pillow in his hand when she came upstairs from the basement, Mrs. Ali said “no”. When asked where the pillow was, she said, “honestly, I don’t – I can’t remember”.

At the first trial: As set out above in para. 102, in response to Ducharme J.’s questions, Ms. Ali stated that Intruder 2 had the pillow in his hands when she came up from the basement.

At this trial: When asked, specifically, what Intruder 2 was doing when she returned to the living room from the basement, she said, “He was holding the pillow”, and then, “he dropped the pillow”.

[106] Mrs. Ali explained the discrepancy in her evidence about observing the pillow when coming upstairs from downstairs as follows: that she may have seen the pillow in the hands of Intruder 2. She cannot say. She was not focused on what he was holding, she was focused on her daughter.

iv. Holding the pillow over Cynara:

[107] Mrs. Ali denies that she ever told Paramedic Bruce or Officer Gurminder Minhas (in the ambulance) or anyone else, that she saw Intruder 2 holding “the pillow over Cynara”. As described above, she said that Intruder 2 was holding the pillow in front of him, although he was close to Cynara.

[108] The location of where Intruder 2 held the pillow is inconsistent with the evidence of Officer Minhas, who made notes of what Mrs. Ali was saying while they were in the ambulance and on their way to Centenary Hospital. He recorded that Mrs. Ali said that Intruder 2 was holding a pillow over Cynara’s face. This was confirmed by Paramedic Bruce, who was present in the ambulance at the time.

Statement to Minhas:

[109] Officer Minhas testified that he was in the ambulance with Mrs. Ali. He was “just writing what she [Mrs. Ali] was saying”. He was trying to document as much of what she was saying as possible. He recorded, “(M) put a pillow over her face”.

[110] At the first trial, Officer Minhas testified that “a pillow over her face” may not be the exact words that Mrs. Ali used; however, “a pillow over her face male downstairs” is what he recorded when she was speaking. He testified that what he recorded in his supplementary report is the following, “Put a pillow over her face”. Despite a vigorous cross-examination, Officer Minhas testified that “put a pillow over her face” were the words used by Mrs. Ali.

[111] Mrs. Ali agreed that most items recorded by Officer Minhas in the ambulance were accurate. For instance, he accurately recorded that the door was pushed in when the intruders entered; her daughter was in the sitting room; she ran through the kitchen into the sitting room; the intruder was asking about a package; he was wearing a ski mask; he was wearing all black and had a Jamaican accent; he took her upstairs through the house; she attempted to get away from him; he had a small gun; when the intruders went to the basement and went into rooms, they were pulling out drawers; the male suspect said, “maybe we have the wrong house”; he was 6’ to 6’2” and had a big build because he had a coat; she pushed her husband’s chair against him to leave the basement; she fell on the main floor on the red carpet; he kicked her; the kick occurred when she came from downstairs into “the room with the baby”; they ran downstairs and through the basement; she “thinks they live in the complex because they knew about the basement exit”.

[112] No issue is taken with the rest of the content of Mrs. Ali’s statement given to Officer Minhas in the ambulance. The only detail that Mrs. Ali says he got wrong was the location of the pillow in Intruder 2’s hands (i.e., that the intruder put a pillow over Cynara’s face). This is compelling evidence, that the words Officer Minhas recorded were taken verbatim from Mrs. Ali. This record is also supported by Paramedic Bruce’s evidence.

Paramedic Bruce:

[113] Paramedic Bruce was in the ambulance at the time that Officer Minhas recorded his notes. When testifying in chief, he said that he heard Mrs. Ali say that when she was brought down from upstairs, Intruder 2 was close to her daughter “with a pillow at that point, I believe, a pillow on her face”. When asked, again, what Mrs. Ali said about the pillow, he said, “that the second person had a pillow on her daughter’s face”.

[114] In cross-examination, Paramedic Bruce agreed that he said basically the same thing at the preliminary hearing and during the voir dire (on two occasions) at the first trial (i.e., that Intruder 2 had a pillow over Cynara’s face). However, he agreed that it is “possible” that Mrs. Ali said that Intruder 2 was standing over Cynara “holding a pillow” as opposed to “the man had a pillow over Cynara’s face”. During re-examination, Paramedic Bruce testified that his recollection at this trial is that Intruder 2 was “holding a pillow over Cynara – sorry, not that he was over Cynara, but that he was holding the pillow over her”.

[115] The evidence of the statement in the ambulance, that Intruder 2 was holding the pillow over Cynara (and, in particular, her face), is inconsistent with Mrs. Ali’s other evidence. On all other occasions, Mrs. Ali testified that Intruder 2 was simply holding a pillow in his hands.

[116] In my view, the differences in the evidence regarding the pillow relate to a matter of importance in this case: whether Intruder 2 had a pillow in his hands while standing next to Cynara and perhaps used it causing her death. Mrs. Ali’s inconsistent evidence about what pillow it was when she saw Intruder 2 holding it and how he was holding it, are significant. Even though 13 years have elapsed since the incident, these inconsistencies raise some concerns regarding the credibility of Mrs. Ali’s evidence.

Pathology

[117] The evidence of the forensic pathologist, Dr. Kepron, is largely equivocal. It supports the theories of both the Crown and the defence. Dr. Kepron testified that she does not know why Cynara’s heart and lungs stopped working. She testified that the cause of death was hypoxic ischemic encephalopathy due to the consequence of cardiac arrest of undetermined ideology. In other words, Cynara’s brain was deprived of oxygen to the point that the damage was such that she could not maintain organ function without mechanical assistance.

[118] Dr. Kepron posits three reasons for Cynara’s cause of death. All three are possible.

Aspiration of stomach contents

[119] Dr. Kepron testified that it is possible that Cynara vomited and inhaled that material into her lungs. Because of her severe cerebral palsy, Cynara did not have the working mechanisms to prevent the vomitus from going into her lungs. Dr. Kepron gave two possibilities for Cynara’s heart stopping in these circumstances: (1) she had a seizure, vomited and aspirated; or (2) she just vomited and aspirated as a consequence of her cerebral palsy.

[120] Dr. Kepron also posited that there can be an aspiration event where material ends up in the lungs and creates aspiration pneumonia. That results in a failure of the lungs and ultimate failure of the heart because the lungs are not working properly. The pneumonia would have to be severe to cause death. Because it was reported that Cynara was happy and her normal self just prior to her death and because the physician at SickKids (Dr. Hadi Mohsenibod) did not find a lung infection, Dr. Kepron opined that it is not probable that the pneumonia caused Cynara’s cardiac arrest.

Sudden Unexpected Death in Epilepsy (“SUDEP”)

[121] A person is diagnosed as dying from SUDEP only if there is no other evidence of trauma, i.e., another competing cause of death. Dr. Kepron concluded that, in this case, “sudden death during a seizure cannot be completely excluded”.

[122] Dr. Kepron agreed that seizures can be brought on by fear and sleep deprivation. However, Dr. Kepron was unable to diagnose SUDEP positively in this case because: (a) the death could have been caused by asphyxiation by a third party (smothering); or, (b) it could have resulted from lung infection (aspiration). For those two reasons, she cannot conclude that “this was a case of SUDEP” because SUDEP requires benign circumstances and nothing else.

Mechanical asphyxiation due to smothering or other cause

[123] Dr. Kepron testified that death by smothering was raised when she was advised of the possibility that a man with a pillow was seen standing over Cynara shortly before she was found in cardiac arrest. Dr. Kepron testified that a person can be smothered by a soft object without any actual visible injury. This is especially so in a case like Cynara’s where she was unable to effectively struggle against the object or pressure being applied to the face.

[124] As I have stated above, Dr. Kepron is unable to definitively say what caused Cynara’s death. Her evidence supports the Crown theory that Cynara was smothered by Mrs. Ali. It also supports the defence theory that Intruder 2 suffocated Cynara with the pillow or that she died as a result of aspiration of her stomach contents.

Conclusion Re: First- and Second-Degree Murder

[125] In coming to my conclusion, I remind myself of the duties of the trier of fact. I must decide the facts and make my decision from all the evidence given at trial. I am entitled to come to common-sense conclusions based on the evidence that I accept. However, I must not speculate about what evidence there might have been or permit myself to guess or make up theories without evidence to support them. Although I have made particular findings of fact in explaining my reasons in this case, I have not improperly isolated the evidence. I have considered it as a whole.

[126] Having reviewed all the evidence presented in this case and based on the analysis above, I have a reasonable doubt about Mrs. Ali’s guilt. I have considered the exculpatory evidence and the evidence that is said to confirm it. Having done so, I have concluded that the account provided by Mrs. Ali of the intruders entering the home, searching for a package following which Cynara was VSA, and the Crown’s theory that Mrs. Ali staged her home to make it appear that she and Cynara had been the victims of a home invasion to cover up her role in her daughter’s death are equally consistent with the evidence.

[127] After careful consideration of all the evidence, I am left in a state of uncertainty, such that I am not sure where the truth of the matter lies. I am unable to resolve the conflicting evidence, and accordingly, I am left in a state of reasonable doubt as to Mrs. Ali’s guilt.[^5] Applying the presumption of innocence and the requirement that the Crown prove the charge (and included offences) beyond a reasonable doubt, this state of uncertainty precludes the court from making a finding of guilt. It is reasonable doubt.[^6] The Crown has not proven that Mrs. Ali caused Cynara’s death.

[128] For the abovementioned reasons, I acquit Mrs. Ali of first-degree murder and the included offence of second-degree murder. For the reasons set out below, Mrs. Ali is also acquitted of manslaughter.

Manslaughter

[129] Crown counsel submits that if the court is not satisfied that Mrs. Ali committed first- or second-degree murder, Mrs. Ali could be found guilty of manslaughter. They submit that Mrs. Ali could and should have been taking steps necessary to assist Cynara after finding her in distress rather than simply calling 911 and then lying on the floor awaiting the arrival of the first responders. Mrs. Ali’s failure to assist Cynara heightened Cynara’s underlying conditions and as such, Mrs. Ali failed to provide Cynara with the necessaries of life and committed the offence of criminal negligence. That is an unlawful act and as such, Mrs. Ali is guilty of manslaughter.

[130] There is no question that Mrs. Ali owed a legal duty to Cynara to provide her the necessaries of life. The evidence at this trial and described in paragraphs 25 to 43 above, demonstrates that she had been doing so since Cynara’s birth and for over 16 years. Again, there is no question that Cynara was well taken care of by the family and more particularly by Mrs. Ali. Further, Mrs. Ali is somebody who knew how to assist her daughter as she had done in the past when Cynara had suffered bouts of pneumonia and epileptic attacks. She had done so the night before. However, this is different.

[131] Following the incident in question, and when the intruders left, Mrs. Ali testified that she went to Cynara. Cynara appeared “pale” and a “little bit blue”. Her eyes were open, and she was warm to the touch. Mrs. Ali gently put her hand on Cynara, shaking and calling her. Because she was not responding, Mrs. Ali panicked and called 911. It does not appear that she did anything else vis-a-vis Cynara for approximately 11 minutes because the call to 911 was made at 11:37 a.m. The first responders arrived at 11:48 a.m.

[132] There are gaps of silence on the 911 call when the operator was making inquiries but getting no response. Mrs. Ali testified that she was passed out during these times. When the first responders arrived, she was lying on the floor and mainly unresponsive.

[133] The Crown’s theory regarding manslaughter requires a finding that Mrs. Ali was capable of assisting Cynara while she was in distress, but that Mrs. Ali failed to do so. I am not in a position to draw that conclusion.

[134] To make this finding, I would have to accept the evidence of Firefighter Bujokas, who says that Mrs. Ali was “not out of it per se” and therefore capable of assisting Cynara. However, his evidence is, again, contradicted by the evidence of the other first responders.

Firefighter Bujokas

[135] Firefighter Bujokas testified that when he went inside the Ali home, he saw Mrs. Ali on the floor with her face down but looking towards the door. He announced, “Toronto Fire” and said, “Hello”, attempting to get her attention. She opened her eyes and looked at him as he approached. She closed her eyes and then reached for a cordless phone. She said, “please don’t hurt me” or something similar. From this interaction, Firefighter Bujokas concluded that Mrs. Ali’s eyes were equal and reactive. She had lifted her head, so she was not concussed. He did not see any blood. Her eyes were not glazed over, so she was not dizzy or “out of it per se”.

[136] Firefighter Bujokas assessed Mrs. Ali, checking her body, listening to her breathing, feeling her pulse, etc. It was during this examination that he noticed Cynara. He jumped up and went to her. He conducted an examination of Cynara and began lifesaving efforts. When he lifted Cynara off the couch, Mrs. Ali’s feet were in the way. He asked her, both physically and verbally, to move them. Mrs. Ali did not move, so the couch was pushed back towards the wall.

[137] Firefighter Bujokas said that he reacted to “Cindy Ali being aggressive off the couch”. He testified that she was lunging at him. His focus was taken away from Cynara every time he had to stop Mrs. Ali from grabbing on to him. He believes that Mrs. Ali lunged at him twice.

[138] As I have stated above, Firefighter Bujokas testified that Mrs. Ali was not “out of it per se” and lunged at him. However, his observations of Mrs. Ali are contradicted by other first responders.

Paramedic Bastani

[139] When Paramedic Bastani arrived, he observed Mrs. Ali on the loveseat. He tried to engage her to obtain information about Cynara. She did not respond. She was just staring straight ahead. On occasion she did blurt out, “what’s going on” or “what’s happening” or something along lines. She appeared traumatized, frozen and panicked.

Paramedic Bruce

[140] Paramedic Bruce attended to Mrs. Ali at the scene. He recalls that Mrs. Ali was “quite upset and distraught”. He was unable to make eye contact for the most part; she was staring off blankly into the distance and appeared to be in shock. She was catatonic. His impression was that she might have fainted. At times, she would blurt things out, such as “my baby, my baby”, but not in response to questions. She would occasionally start to breathe quickly and hyperventilate.

[141] Paramedic Bruce decided that Mrs. Ali should be taken to the hospital. He wanted her assessed because he was worried about her mental health and her shoulder.

Paramedic Grenier

[142] Paramedic Grenier testified that he tried to obtain some information from Mrs. Ali. He did not get any response. He recalls that Ms. Ali sat there “sort of staring off”. One time, she stared towards him, “possibly looking through [him]”. She never moved from the couch. She was in a catatonic state and “obviously extremely distraught”, although not in the way of “crying and wailing and screaming”. He testified that Mrs. Ali did not appear to be in good shape.

[143] Paramedic Grenier called for another medical team to attend to assess Mrs. Ali. When asked why he did that, he responded as follows:

Well, I felt, I guess at the time–- I don’t recall, but the way she was acting, I mean, how do you act in a situation like that? What’s normal? But the way she was acting was not what I had seen prior. Unfortunately, this was not the first time that I’ve dealt with a young child who had no heartbeat and not breathing, and the first time that I dealt with the mother who didn’t respond to any of my questions or appeared to attempt to help in any way, you know, by giving me information. And so, I’m sure I felt, well, something might be wrong with her, so I'd better call for another unit and, you know, have them assess her. If nothing else, you know, she should go to the hospital and get assessed by a physician.

Officer Kelloway

[144] Officer Kelloway arrived at the Ali home at 11:48 a.m. He testified that he observed Mrs. Ali on the couch. He described her appearance as “disoriented, confused”. The paramedics advised him that she was “possibly passing out, going into shock”.

[145] Officer Kelloway stated, “I was asking her just the basic questions of like what happened. She was responding to me but what she was saying was incoherent to me. I couldn’t understand what she was saying. She finally was able to tell me that somebody knocked in the door, they pushed their way in, they asked for a package of some sort. She also said that she threw things at them and that’s why there was glass on the floor and that a guy went into the basement.” It took Officer Kelloway approximately two minutes to get this information from Mrs. Ali. He agrees that it is possible that Mrs. Ali did not know who he was.

Officer Minhas

[146] Officer Minhas arrived on scene at 11:53 a.m. He observed Mrs. Ali seated on the loveseat. He asked her what had happened. She was looking straight ahead and did not make eye contact with him. She was not looking around the room and she did not answer his question. He recalls that she began shaking as if she was having a seizure. Both her hands and her legs were shaking. This lasted approximately 10 seconds.

[147] Officer Minhas recalls Mrs. Ali saying “where’s my baby? Is she okay”. A little later, Officer Minhas asked Mrs. Ali, again, what happened? She did not respond to that inquiry but said, “I’m sorry, please don’t hurt me”. Eventually she provided some details to Officer Minhas about the incident.

[148] Contrary to Firefighter Bujokas’ evidence, no witness testified that Mrs. Ali ever lunged at Firefighter Bujokas, distracting him from attending to Cynara’s medical care.

Conclusion Re: Manslaughter

[149] While I accept that it is possible Mrs. Ali was feigning her state to leave the impression that she was not capable of assisting Cynara, I am unable to conclude that she was. Further, there is no evidence to suggest that Mrs. Ali was in such a state of frustration or exhaustion as a result of caring for Cynara that she abandoned her when she found her in distress. To accept the Crown’s argument would require me to speculate about matters that have not been the subject of credible and reliable evidence in this case.

[150] I am not satisfied beyond a reasonable doubt that Mrs. Ali failed, without lawful excuse, to provide Cynara with the necessaries of life after finding her in distress on February 19, 2011, and committed criminal negligence. As such, Mrs. Ali is found not guilty of unlawful act manslaughter.

Conclusion

[151] For the abovementioned reasons, Mrs. Ali is found not guilty of first-degree murder. She is also found not guilty of the included offences of second-degree murder and manslaughter.

Kelly J.

Released: January 19, 2024

COURT FILE NO.: CR-14-30000399-0000

DATE: 20240119

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and -

cindy ANN SHERRY ali

REASONS FOR judgment

Kelly J.

Released: January 19, 2024

[^1]: R. v. Ali, 2021 ONCA 362

[^2]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[^3]: R. v. Challice (1979), 45 C.C.C. (2d), at p. 557; R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, at para. 27.

[^4]: Counsel tried to locate Firefighter Toth to testify in person, but they were unable to do so. As such, it was agreed that his transcript, dated January 6, 2014, would be admitted for the truth of its contents.

[^5]: Challice, supra, at pp. 556-557

[^6]: R. v. Ryon, 2019 ABCA 36, 371 C.C.C. (3d) 225, at para. 38; R. v. Edwards, 2012 ONSC 3373, 93 C.R. (6th) 387, at para. 20.