VANCOUVER — A British Columbia Supreme Court jury has retired to deliberate in the first-degree murder trial of Ibrahim Ali, more than eight months after he pleaded not guilty to killing a 13-year-old girl in a Metro Vancouver park in 2017.
The judge's instructions to the jury on Thursday had been delayed, after Ali's lawyer Kevin McCullough said the defence team had received death threats over the case.
McCullough on Tuesday read a message in court that said his family faced "a violent and brutal death" before Christmas, remarks that can only now be reported with the jury sequestered. Police were investigating the threat, he said.
The defence lawyer was unable to attend court in person the next day because he was at home in Victoria due to the threats, and his helicopter flight to Vancouver was cancelled due to fog, forcing the instruction of the jury to be postponed.
Justice Lance Bernard on Thursday told the jurors the Crown's case is circumstantial, requiring them to infer as the only reasonable conclusion that Ali forced the girl off a path and into a wooded area in Burnaby's Central Park, where he raped her and strangled her to death in July 2017.
The trial heard semen found inside the girl's body was a match with Ali's DNA, and if the jurors accepted that evidence, Bernard said they must next ask themselves whether it was "deposited" inside her bodyin the same place where she was found.
If the jury concludes that it does not support that element of the Crown prosecutors' theory, it "fatally undermines" their case, the judge said.
He said Ali's lawyers had argued the semen could have been the result of an earlier encounter with an "innocent explanation" and Ali isn't the person who killed the girl.
"The defence says another plausible explanation is that on the day of her death, the accused and (the girl) met up with one another and had consensual, unprotected sexual intercourse at some unspecified time and place, before she was killed later, by one someone else, and then dumped where the police found her body," he said.
The body of the girl, whose name is covered by a publication ban, was found just hours after her mother reported her missing.
McCullough told the jury earlier in the trial that the defence team would not be calling evidence, saying the Crown hadn't met the burden of proof.
Thursday's hearing began with a request from Crown lawyers to enter in-camera proceedings, without the public or media present.
When the hearing opened to observers about an hour later, McCullough told the judge he wanted to make submissions about the instructions to the jury, saying they were "fraught" with mistakes. He later said Bernard had got the "burdens wrong" and accused the judge of harbouring bias in favour of the Crown.
Bernard told him to "save your complaints about me for another time and place."
The judge told the jurors they had four possible options for the verdict: finding Ali guilty of first-degree murder as charged, finding him guilty of the lesser charges of second-degree murder or manslaughter, or finding him not guilty entirely.
Bernard addressed the issue of intent, saying an intent to murder is a "state of mind" that typically must be inferred from all of the surrounding circumstances.
Someone could have intent to kill if they are reckless by carrying on despite the knowledge that their actions carried a substantial risk of causing death, he said.
"If you are not satisfied beyond a reasonable doubt that the accused had one of the two intents required for murder at the time he strangled (the girl) ... you must return a verdict of manslaughter, and this will end your deliberations," Bernard said.
The judge told the jurors they may disagree on issues, but their ultimate verdict must be unanimous.
Bernard outlined to the jury how murder is classified as first degree if committed alongside certain other offences, which include sexual assault, regardless of whether the killing is planned or deliberate.
That doesn't mean an assault and the act causing death must have occurred at exactly the same time. Rather, it would be sufficient that the acts were "temporallyand causally connected" in a "continuing domination" over the victim, he said.
Bernard said the Crown relied on the evidence of a neuropathologist and a forensic pathologist to conclude the girl died of strangulation, while Ali's lawyers argued the cause of death is a "mystery," in part because of the absence of "defensive wounds" on her body. During his closing remarks last week, McCullough had referred to the evidence around the cause of her death as "garbage," the judge said.
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Bernard took the jury through evidence provided by several Crown witnesses, including Dr. Jason Morin, the forensic pathologist who examined the girl's body and testified that he observed injuries to her vagina, and semen "pooling" inside.
The judge said Morin had testified that semen is subject to gravity and it would have run out of the girl's body and onto her underwear had she stood up after the sexual encounter, but the trial heard no such stains were found.
"If the Crown has not satisfied you beyond a reasonable doubt that (the girl) was sexually assaulted, then you must find the accused not guilty," Bernard said.
"The Crown says that if you are satisfied beyond a reasonable doubt that the accused sexually attacked (her) at the site where her body was found, then the only reasonable conclusion you can draw ... is that he is also the person who killed her."
Bernard said McCullough had summarized the defence position by saying that "apart from (the girl) and Ibrahim Ali having sex, everything else is speculation."
The defence lawyer had also said the Crown had no evidence to prove the sex was non-consensual, Bernard recalled in his instructions to the jury.
In his closing remarks, McCullough told the jury the girl wasn't the "innocent" depicted in a "rose-coloured" portrayal by the Crown.
McCullough said the girl may have found Ali attractive, and Crown witnesses were trying to "play on (the jurors') emotions" when they referred to her as "a child" instead of a teenager.
Ali's expression appeared mostly neutral as he listened to Bernard through an interpreter on Thursday.
At one point, moments after Bernard announced a lunch break, Ali stood to address the judge and motioned to the jury.
McCullough rose to speak with his client, who was then escorted from the courtroom.
The defence lawyer attempted to address Bernard about his instructions to the jury, saying, "no reference to cross-examination, only to direct examination, is that how it goes?"
Bernard told McCullough there was no place for his comments at that time.
On Wednesday, appearing by video from Victoria, McCullough told the court that police had identified the IP address where death threats against him originated, although they couldn't yet say who was behind them.
He told Bernard that he had gone home to Victoria on Tuesday night because he didn't have a "safety plan" in place for staying in Vancouver that night.
The jury resumes deliberations Friday morning.
— With files from Brieanna Charlebois
This report by The Canadian Press was first published Dec. 7, 2023.
Brenna Owen, The Canadian Press