Ibrahim Ali’s lawyers had a problem.
They couldn’t get him to understand a key point — that he was still on trial for the first-degree murder of a 13-year-old girl.
“He’s useless to us,” defence lawyer Kevin McCullough told B.C. Supreme Court Justice Lance Bernard on July 24.
“We might as well have a hologram of the man sitting there. He thinks he’s been found not guilty.”
It was one of many conversations the jury didn’t hear in a trial delayed by months, as the court and lawyers grappled with the mental and physical health struggles of a defendant who is unable to read or write in any language.
There was also the death of an expert witness before she could complete her testimony, cases of COVID-19 and other illness among jurors, and violent threats against Ali’s lawyers.
Jury members are now sequestered, debating their verdict on the death of the girl, whose body was found in a Burnaby’s Central Park in July 2017. Her name is covered by a publication ban.
Ali’s ability to engage with and comprehend a process that could result in him being sentenced to life imprisonment has repeatedly been tested.
The trial was originally expected to last three months. It has now been more than eight since Ali entered his plea of not guilty.
As the case dragged on, Ali complained of illnesses that included auditory hallucinations. His lawyers twice asked for an evaluation to determine whether he was mentally fit to stand trial.
In response to the July 24 incident, Crown attorney Daniel Porte accused Ali of “holding the court hostage.” The judge dismissed the application for an evaluation.
‘FIT BUT FRAGILE’
The Crown’s case against Ali has been focused on the discovery of his semen inside the victim.
He was arrested on Sept. 7, 2018, after a DNA match was confirmed.
Police said Ali, who was 28 at the time of his arrest, had arrived in Canada as a refugee from Syria 17 months earlier and had no previous criminal record. He has remained in custody since then.
It took about three years of pretrial proceedings before Ali entered a plea of not guilty on April 5 this year.
It swiftly became clear the trial was facing hurdles.
On April 11, the judge granted an assessment of Ali’s fitness for trial after McCullough said his client did not understand the point or consequences of the proceedings. Ali was, he said, “completely unable to communicate” with his lawyers.
McCullough said Ali had a Grade 6 education from Lebanon and was illiterate. He said his client had “serious mental health issues.”
He said he had previously been involuntarily hospitalized for mental health issues, and once had booked a trip to Ottawa to see Prime Minister Justin Trudeau, although he never left the airport. He was also on antipsychotic medication.
“For the past two weeks, he has deteriorated substantially (such) that I am unable to have any type of rational conversation with him,” McCullough told Bernard.
An attending psychiatrist concluded Ali was “fit but fragile.”
The trial continued, with Ali detained in a forensic psychiatric hospital when he wasn’t in court.
It was clear by June the trial would not finish on schedule. A litany of further delays would ensue.
Ali’s interpreter, who spoke both Arabic and Kurdish, became unavailable and needed to be temporarily replaced. A juror fell absent when a family member died. Other jurors sought breaks due to medical appointments.
A juror contracted COVID-19 in late August, which delayed the trial by several days. Within two weeks, two other jurors reported being sick — though they didn’t say specify their illnesses — resulting in more adjournments.
Ali had meanwhile been complaining of multiple illnesses, in exchanges that occurred without the jury present.
He said he was having auditory hallucinations and that antipsychotic medication was giving him headaches. At one point, he said his arm hurt so badly from an injection that he could not continue.
On Sept. 19 the jury got a taste of what had been happening outside their presence.
Ali was slumped over and was leaning against the defendant’s box. He had draped his dark sport jacket over his head.
Crown counsel was questioning sexual assault expert Dr. Tracy Pickett about the victim’s injuries when Ben Lynskey, another lawyer for Ali, stood up to draw the court’s attention to his client.
“You know Mr. Ali isn’t feeling well … He has a headache,” Lynskey said to Bernard.
Porte said the court was in a “catch-22.” He said Ali was either suffering debilitating headaches, or he was medicated for the pain and became too sedated to understand the proceedings.
After the lawyers consulted with hospital staff, it was decided that Ali would return to court the next day without sedation.
Bernard later apologized to the jury about the delays, saying “matters arise that are unpredictable.”
“I want you to be confident that I’m doing what I can to try and avoid these delays, but there is only so much I can do,” he said.
‘YOUR FAMILY WILL SUFFER’
Bernard’s caveat proved prescient.
The next week, Pickett had been due to continue facing cross-examination. But she never turned up in court — the specialist in emergency and clinical forensic medicine was missing.
At 7:17 a.m. on Sept. 28, her brother posted to social media that she hadn’t been seen since two nights earlier, a few hours after she was last on the stand.
Police confirmed her death in a news release later that day, saying her body had been found, that they believed no crime had occurred and there was no risk to the public.
How would the trial proceed with Ali’s lawyers unable to complete their cross-examination?
They brought a mistrial application but it was dismissed by Bernard. Instead, he told the jury on Nov. 7 to completely disregard Pickett’s testimony and forget her evidence about the girl’s injuries.
Despite the marathon nature of the trial, it would end without the defence calling any evidence or witnesses of its own. Ali never took the stand — although, on Nov. 21, Ali rose to tell the court in English that he wished to testify. The judge and his lawyers urged him to sit down.
In his closing arguments Porte reiterated the Crown’s narrative about what took place in the park on July 19, 2017. Ali accosted the girl. He forced her off the path to a wooded area. He sexually assaulted her. Then he strangled and killed her.
McCullough, though, said the case had not been proven.
He said the only evidence the Crown had against Ali was his semen inside the girl’s body and prosecutors had come up with a “crazy theory” where no one saw or heard anything connecting Ali to the murder.
McCullough said the girl was not an “innocent,” that witnesses who called her a child instead of a teenager had been trying to play on the juror’s emotions, and it wasn’t “outlandish” to suggest the girl may have found Ali attractive.
He said jury members could not convict Ali of murder simply because they “find it reprehensible” that he was a 27-year-old man who “had sex” with a 13-year-old.
The trial had drawn intense interest — there had been protests outside, and its closing stages played out before a packed gallery, with long queues to get inside for closing remarks and a video of proceedings being played in an overflow room.
Not all of the attention has been welcome.
McCullough told the judge on several occasions that the defence had been receiving death threats, one of which put the lawyers “in a terrible position,” he told Bernard on Tuesday without the jury present.
He said police were investigating the threat and read it aloud in court.
“Your family will suffer before you meet a violent and brutal death. It will happen before Christmas. The last thing you will know is that your family suffers like the child suffered. I am suicidal due to childhood predators looking for someone to cause pain to. I’ll burn myself alive. You’re it,” McCullough read.
As a result, he told Bernard that defence was considering filing an application to drop Ali as its client.
They did not think they could “zealously represent the accused as a result of what are imminent death threats,” he said.
But the application was not heard.
On Wednesday, in the trial’s final stages, there was one more hitch. McCullough was stuck at home in Victoria — dealing with issues related to the threats — after his helicopter flight to Vancouver was cancelled by bad weather.
Bernard agreed to delay instructing the jury by one day, adjourning until Thursday to allow McCullough to appear in person.
McCullough said by video that he would be there, “short of getting killed.”