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Death threat looms over last days of delay-plagued Burnaby murder trial

With the jury sequestered for deliberations Thursday, reasons for major delays in the eight-month Ibrahim Ali murder trial can be made public for the first time.
Homicide investigators were at Burnaby's Central Park on July 19, 2017 after a missing 13-year-old girl was found dead inside the park.

More than eight months after Ibrahim Ali pleaded not guilty to killing a 13-year-old girl found dead in Burnaby's Central Park in July 2017, his fate was put into the hands of a Vancouver jury Thursday.

Ali has been on trial since April 5 for first-degree murder in the death of the girl, whose half-naked body was found in the park just after 1 a.m. on July 19, 2017, less than two hours after her family reported her missing.

The girl cannot be named because of a publication ban.

B.C. Supreme Court Justice Lance Bernard was scheduled to give final instructions to the jury at 10 a.m. Wednesday, but in a trial plagued by delays from beginning to end, the instructions were put off two more times.

During the trial, jurors have spent long periods in the jury room, at times being sent home without hearing any evidence, while Crown prosecutors, defence lawyers and Bernard dealt with issues in their absence. 

Media are banned from reporting anything that happens when the jury isn't in court, but that ban ended when the jury was sequestered for deliberations Thursday, so the reasons for the trial's many delays can now be made public for the first time.

Death threat

Bernard's final instructions were first delayed Wednesday because defence lawyer Kevin McCullough's Helijet flight back from Victoria was grounded because of the weather.

Appearing remotely, he told the court he had gone to Victoria because of a chillingly specific death threat sent to his office after his closing remarks to the jury Friday.

McCullough read out the threat in court:

"Your family will suffer before you meet a final and brutal death, you piece of shit. It will happen before Christmas. The last thing you will know is that your family suffered like the child suffered. I'm suicidal due to childhood predators, looking for someone to cause pain to before I burn myself alive. You're it."

McCullough said police had identified the IP address the threat was sent from and is investigating. Safety protocols have been put in place, he said.

McCullough asked Bernard to delay his final instructions until the following day. Bernard was clearly reluctant, saying McCullough could listen in on the phone.

"The jury has waited over and over and over again," Bernard said, before agreeing to the adjournment.

On Thursday, when Bernard was again ready to give his final instructions, Crown prosecutor Daniel Porte rose unexpectedly to ask Bernard to clear the court for an in camera hearing.

Bernard agreed after reading a note from Porte, and the media and public were kept out of the courtroom for about one hour.

After the courtroom was reopened, McCullough, who had been part of the in camera proceeding, rose to say the public should not have been excluded, but no explanation for the delay was provided before Bernard began his final instructions.

Defence takes back DNA admissions

Before Ali entered his plea on April 5, his trial was expected to last three months, and jurors were told it would be over by the end of June.

But one development two weeks earlier added "significant additional time" to the trial before it even began.

At a pretrial conference in January, the defence had agreed to admit that Ali's sperm been found inside the 13-year-old girl's vagina and anal area – an admission that would have eliminated the need for most of the Crown's DNA witnesses.

"This admission of fact, at least in my view, focuses the issue," McCullough said at the January conference. "We've gotten rid of 12 witnesses that the Crown was going to have to call."

Less than two weeks before the trial, however – after watching the Crown take those witnesses off its list – the defence said it wouldn't be admitting the DNA after all.

Defence lawyer Ben Lynskey later argued the admissions had been proposed but never actually made, and the document had never been signed.

Bernard rejected his argument, saying it defied common sense, but he ultimately allowed the defence to take back the admissions because it was his understanding that would not "irreparably" prejudice the Crown’s case.

The DNA witnesses were re-notified and their testimony took weeks to complete, but McCullough ultimately rendered their evidence irrelevant in his closing remarks.

He acknowledged the semen found inside the girl was Ali's. 

As an alternative to the Crown's theory – that Ali had pulled the girl off a Central Park path and strangled her while sexually assaulting her – he suggested Ali and the girl had had sex earlier somewhere outside of the park and someone else had killed her and dumped her body in the park.

Fit to stand trial

A number of significant delays were connected to Ali himself.

On the second day of the trial he refused to leave his North Fraser Pre-Trial cell to attend court, citing a "tooth problem, amongst other things," according to McCullough.

Porte said similar issues had come up during the pre-trial process and that "Ali must not be allowed to thwart the court process."

After a four-day adjournment for the Easter long weekend, the jury was sent home again without hearing any evidence, after McCullough said his client's mental health had deteriorated and he doubted his fitness to stand trial.

Bernard made an order the following day, April 12, for Ali to be assessed by forensic psychiatric services.

"The onset of this deterioration unfortunately coincides with the start of the trial by jury, which was preceded in this case by a very lengthy period of three years of pre-trial applications during which Mr. Ali's fitness was not an issue," Bernard said.

Before the start of the trial, Bernard said Ali been capable of participating in the court process, including giving testimony from time to time.

Bernard said Ali should be assessed as soon as possible, but the jury wasn't called back until 16 days later.

A psychiatrist had found Ali was fit to stand trial, but he was moved from North Fraser Pretrial Centre to the Forensic Psychiatric Hospital for the rest of the trial.

On April 28, 23 days after Ali entered his plea, the Crown finally made its opening statement.

Ali 'not well'

But that wasn't the end of the challenges with Ali's health.

More than once, court time was lost because Ali arrived at the courthouse "not well," complaining of headaches and "out of it," according to his lawyers, but the nature and cause of his ailments was often unclear.

"I’m at my wit's end," Lynskey once said to Bernard about the difficulty of communicating with hospital staff to get to the bottom of things.

"Join the club, Mr. Lynskey," Bernard replied.

Things came to a head, on Sept. 19 during testimony from the Crown's sexual assault expert, Dr. Tracy Pickett.

Ali, who had complained of a headache and drowsiness, addressed Bernard directly at one point through his interpreter, asking if he could rest "at least a day."

Bernard told him he had the weekend to rest and was required to be in court for just four hours out of a 24-hour day.

"You can find time outside of court hours to rest," Bernard said, declining to delay the start of the day's proceedings.

After testimony got underway that day, however, Ali covered his head with his jacket and fell asleep.

When Lynskey complained, Bernard said, "Well, that was his choice. I didn't direct him to put a jacket over his face."

In the end, the matter ended up taking another day-and-a-half of court time before Bernard told the jury on Sept. 21 that he had "resolved that question" to the point he didn't expect it to be an issue again.

Behind the scenes, hospital officials had been contacted and a protocol for Ali's health complaints put in place.

Judge absent

Benard himself was connected to another significant delay.

On July 23, he was unexpectedly absent from court, and Associate Chief Justice Heather Holmes came into court to dismiss the jury.

Bernard wasn't back until 12 days later.

His absence was never explained, even in the absence of the jury.

Crown expert dead, defence files for mistrial

The most dramatic turn of events during the trial, however, was the disappearance and death of the Crown's sexual assault expert two days into a combative cross-examination by Lynskey.

Pickett went missing from her Vancouver home on Sept. 26, and police found her body two days later in the Southlands area but said no foul play was suspected.

The defence launched a mistrial application, arguing Pickett's death had prevented her evidence from being fully challenged.

There had been about two days of cross-examination left and 62 areas remaining to question Pickett about, according to the defence.

The defence argued Pickett had provided "key" evidence for the Crown and that it was too prejudicial and too interwoven into the other evidence for the jury to disregard.

The defence further argued the circumstances of Pickett's death should be revealed to the jury.

Bernard rejected that idea and the mistrial application.

"These are neither in evidence at the trial nor would they likely ever become so," Bernard said of the circumstances of Pickett's death. "They were disclosed to Mr. Ali's counsel, but their potential usefulness was as a tool in cross-examining Dr. Pickett … It is not known what Dr. Pickett would have said if she had not died and was confronted with the disclosure on the witness stand and what effect it would have had on the weight to be given to her evidence."

Bernard also rejected the argument that Pickett's evidence had been crucial to the Crown's case, noting the defence had argued earlier that Pickett's testimony shouldn't be allowed because it would be just a "repackaging" of the conclusions of forensic pathologist Dr. Jason Morin.

Bernard also brushed aside the idea the jury wouldn't be able to disregard "speculation and uninformed opinion about Dr. Pickett's death" online.

“While some of this commentary attributed blame to either Mr. Ali or his counsel, there is no realistic basis for concern that the jury has been tainted by it or that they would act contrary to their duty to decide the case without prejudice or bias, based solely on the evidence presented at the trial."

Instead of a mistrial, which he described as a "remedy of last resort," Bernard opted to throw out all of Pickett's evidence because her cross-examination had been incomplete. 

On Nov. 7, he gave the jury a "strongly worded" instruction to put all of Pickett's evidence out of their minds and not use any of it to come up with their verdict.

Final instructions

When Bernard eventually gave his final instructions to the jury Thursday, he repeated that mid-trial instruction in its entirety, saying that abiding by it was "critical" to their "role and duty" as jurors.

During the rest of his instructions, Bernard explained the jurors' role, saying it was their job to decide the facts of the case based on the evidence they've seen and heard over the last eight months.

He explained the law around murder and reasonable doubt, and summarized the evidence they had heard, as well as the positions of the Crown and defence.

He told the jury they could find Ali not guilty or find him guilty of first-degree murder, second-degree murder or manslaughter.

He reminded them their ultimate verdict must be unanimous and said they must make "all reasonable efforts" to see if they can agree.

"Please always keep in mind that you have sworn or affirmed to reach a just and proper verdict based solely on the evidence," Bernard said.

Ali addressed Bernard directly at one point while the jury was about to go on a break.

"Mr. Justice, can I speak to the jury today, please?" he said.

Bernard ignored him and excused the jury.

(The defence did not call witnesses or present evidence, and Ali did not testify in his own defence.)

Juror dismissed

In a final step before the jury retired for deliberations, one juror who had served on the jury for eight long months was dismissed through a random draw to bring the number down to 12.

Bernard said 14 jurors had been selected because of the estimate of the length of the trial (at three months), the risk the trial could run much longer than estimated, and the importance of having the trial end in a verdict rather than a mistrial from a loss of jurors.

"Somehow, against all odds, we have reached the stage of jury deliberations in the ninth month of a three-month trial with 13 jurors," he said. "Your commitment, patience and dedication has been outstanding, and I am truly appreciative of it and very, very thankful."

Follow Cornelia Naylor on Twitter @CorNaylor