VANCOUVER — A British Columbia Supreme Court judge has rejected an application to throw out the conviction of Ibrahim Ali for the murder of a 13-year-old girl in Burnaby, B.C., over what his lawyers said were unreasonable delays in the trial process.
Justice Lance Bernard made the ruling Thursday moments after defence lawyer Kevin McCullough finished his final reply in the application that could have stayed the case and seen Ali go free.
"Given that this matter has gone over a two-week period, I've had some opportunity to consider the application," Bernard said.
"I'm satisfied that the application should be dismissed," he said, adding that he would issue his reasons at a later date.
Ali's sentencing date is to be determined at a hearing next Tuesday.
He faces a mandatory life term with no chance of parole for 25 years.
Crown lawyer Daniel Porte asked the judge for enough time to allow family members of the victim to travel from China to attend the sentencing.
Ali, who appeared by video wearing an orange sweat suit, was found guilty on Dec. 8 of first-degree murder in the death of the girl whose body was found in Burnaby's Central Park in July 2017. The girl's name is protected under a publication ban.
The jurors took less than 24 hours to reach their verdict at the end of an eight-month trial that had seen adjournments for various reasons, including the mental and physical health of the defendant, the death of an expert witness, cases of COVID-19 and other illnesses among jurors, and threats of violence against Ali's lawyers.
In the closing days of the trial, McCullough filed a sworn statement describing more than a dozen messages he received, some with graphic threats of violence.
In a notice of appeal, filed Dec. 11, McCullough accused the court of bias against Ali and his lawyers that "materially affected" the trial. It said the court failed to "properly address the safety concerns against the defence in light of clear and specific threats."
McCullough had filed the so-called Jordan application on the grounds that too much time had passed between his client being charged and the trial concluding, a limit the Supreme Court of Canada has set at 30 months.
He said his client had been in custody for 63 months, more than double the limit. There were about three years of pretrial proceedings before Ali entered a plea of not guilty on April 5, 2023.
McCullough told the judge most of the adjournments in the case were due to mismanagement by the court as well as "trickling disclosure" from the Crown.
But Porte blamed the delays mostly on the defence and "discrete exceptional events," including the COVID-19 pandemic.
He said there were halts due to health complaints from Ali, and the defence had filed dozens of applications before and during the trial.
If those events were subtracted, Porte said it would have only taken about 25 months to conclude the trial, which is within the High Court's threshold.
In his final reply to the court, McCullough said there should have been a complete transcript of the court proceedings related to Ali, and the judge should not rely on "snippets" provided by the Crown to inform a ruling on delays.
"They are inaccurate and they do not paint a full picture of the proceedings before you," he said.
"You should disregard the entirety of the hollow Crown submissions regarding anything that deals with the calculation of delay," he told the judge.
McCullough also noted that he hadn't worked on Ali's case for the first 23 months of the proceedings and he had "no idea what was said" before he took the job.
He told the judge last week at the start of the application that the most significant delay in the case could be traced back to August 2020, when Ali's previous lawyers requested an adjournment for upcoming trial dates due to a scheduling conflict.
He said the "defence team was offering a proposal to work with court and Crown to best facilitate the hearing of this trial in a timely fashion," but the judge did not agree. It then took nearly three years for the case to go to trial.
"You should know that this case — the moment you released the previous defence counsel from the case, didn't grant their adjournment — was doomed," he told the judge on Thursday.
Earlier this week, Porte said the previous defence team's lack of availability was a "recurring theme from October 2019 up until the time of their withdrawal in August of 2020."
This report by The Canadian Press was first published April 11, 2024.
Brenna Owen, The Canadian Press
