By Canadian Press

Mother convicted of smothering disabled daughter wins new first-degree murder trial

May 28, 2021 | 2:13 PM

TORONTO — A mother found guilty of smothering her severely disabled daughter won a new first-degree murder trial on Friday because of faulty instructions to the jury that convicted her.

In a unanimous decision, Ontario’s top court found Cindy Ali deserved another chance to make her case given the trial judge’s error.

“The jury instructions wrongly narrowed the proper scope of the jury’s deliberations,” the Appeal Court found. “It is essential that all defences and verdicts reasonably available on the evidence be left with the jury for its consideration.”

The mother of four had, by all accounts, been a loving and devoted parent to Cynara, who was born with severe cerebral palsy. The girl was 16 when she died at home in east-end Toronto on Feb. 19, 2011.

At her first-degree murder trial in 2016, the Crown alleged Ali decided to kill her seizure-prone daughter by suffocating her with a pillow, then tried to cover up her crime by blaming a home invasion. The prosecution argued the robbery tale suggested Ali had planned the murder.

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Ali, however, stuck to her story about two robbers forcing their way into her home, and that Cynara was unconscious when they left. Her defence argued one of the men might have suffocated the girl, or that she might have had a stress-induced seizure and choked on food.

In quashing the conviction, the Court of Appeal faulted the trial judge’s instructions on how Cynara had died. The court also said Superior Court Justice Todd Ducharme was wrong in what he said jurors could infer if they decided Ali had lied about the robbery.

“On the path cut by the trial judge’s instructions, the jury’s verdict of guilty of first-degree murder could have been based almost entirely on finding the appellant fabricated the home invasion story,” the Appeal Court said.

In fact, the appellate court said, a jury could reasonably have concluded Cynara choked after a seizure and acquitted Ali.

Writing for the Appeal Court, Justice David Doherty said the jury could also have found Ali had simply failed to respond properly to a seizure as the defence had suggested. In that case, a finding she lied about the home invasion would have taken on a different significance for the jury, he said. 

“It may have concluded the home invasion narrative was fabricated by the appellant to hide her failure to do what she knew she should have done to help her daughter,” Doherty wrote. 

Ducharme, however, twice said he could see no other explanation than murder if the jury found Ali had lied. Instead, Doherty wrote, Ducharme should have told jurors to consider all reasonable possibilities.

While Ali might have lied to cover up a murder, Doherty said she could have simply been trying to hide her failure to protect her daughter, or she panicked, among possibilities.

“The trial judge should also have instructed the jury to consider those other possible reasonable explanations in the context of the entirety of the evidence,” the court said.

The appellate court did reject one defence argument: that a first-degree murder finding was unreasonable. Ali’s behaviour, especially related to the home invasion scenario, could have supported an inference that she had planned an excuse before killing Cynara, the court said.

“The evidence warranted leaving first-degree murder with the jury,” Doherty wrote.

This report by The Canadian Press was first published May 28, 2021

Colin Perkel, The Canadian Press