British Columbia Premier David Eby is promising that his government will press for reforms in the justice system, after a trial that convicted a man of murdering a 13-year-old girl exposed the victim’s family to what the Premier described as profoundly offensive arguments by the defence.
On Dec. 8, a B.C. Supreme Court jury found that Ibrahim Ali had sexually assaulted and strangled the girl, then left her body on the forest floor of a park in Burnaby, B.C., in July, 2017. He was convicted of first-degree murder.
During the lengthy trial, Mr. Ali’s defence counsel suggested consensual sex could have been the cause of the young girl’s injuries, argued that the Crown had wrongly portrayed the victim as an innocent child, and said it wasn’t “outlandish” to suggest she may have found Mr. Ali attractive.
“For this young victim of crime, an appalling and awful crime, there’s no question she deserved better than she got in the courtroom, and her family deserved better. And the system clearly has work to do,” Mr. Eby said in an interview.
B.C. Attorney-General Niki Sharma has started work on facilitating change in the courts, he said, “because this case is an example of, in my opinion, how the system failed the 13-year-old girl and her family.”
The victim’s name is protected under a publication ban.
Mr. Ali’s lawyers, who have filed an appeal of his conviction, say they have been subjected to death threats related to the trial. Mr. Eby said he is also troubled by those threats.
“It took too long to get to trial. When it got to trial, arguments were made that were profoundly offensive to her memory, and to her family and to British Columbians. And even the defense lawyer who made those arguments said that there was insufficient security in the courtroom to ensure that the trial was held safely,” the Premier said.
“So literally everybody who was involved in this says that it should have gone better. And the difficulty with the legal system is, it is extremely conservative in being willing to examine how things are done, or to find ways to respond to public concern.”
Mr. Ali’s lead defence lawyer, Kevin McCullough, called the Premier’s remarks “disgusting” and said they could have a chilling effect on the work of defence counsel. “The Premier is stoking the flames of hatred, all the while undermining zealous representation, which will all lead to wrongful convictions,” he said in an interview.
He said Mr. Eby, who is both a lawyer and a former attorney-general, should not be commenting on a case when he wasn’t in court. “I’ve been very disheartened by the response of people in authority, particularly politicians – for them to try and take advantage and politicize an issue like this is sad and shallow,” Mr. McCullough said.
He noted that it is up to the judge and Crown prosecutors to raise objections if the defence oversteps the boundaries that are in place to protect victims. “The court and Crown both are there to make sure that only appropriate arguments, appropriate cross-examination, and appropriate evidence is put before the jury. There is little doubt that the experienced trial judge and the experienced Crown counsel only allowed whatever is appropriate.”
The victim’s family members have said they will file a formal complaint seeking to have Mr. Ali’s lawyers disbarred. Speaking to reporters outside the court on Dec. 12, the victim’s brother said the family was retraumatized by the way the defence was conducted.
In 2022, the Supreme Court of Canada upheld key privacy protections for alleged sex-assault victims under Canada’s rape shield law. “The criminal trial process can be invasive, humiliating and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system,” Chief Justice Richard Wagner and Justice Michael Moldaver wrote in the majority opinion.
In a 2019 decision in a case known as Barton, the Supreme Court issued a strong rebuke to a lower court judge for failing to hold a hearing under the rape shield law, in the jury’s absence, to determine whether sexual activity between the accused and his victim could be introduced as evidence.
Defence counsel did not seek such a hearing in the Ali case and the Crown has confirmed to the Globe that there was none.
The Barton ruling established that the accused does not have to be charged with sexual assault for the principles of the rape shield law to apply, said Elaine Craig, a leading authority on sexual-assault law and a professor at Dalhousie University’s Schulich School of Law.
“The Supreme Court was clear in Barton that it is just as important that we not permit discriminatory stereotypes about women and girls from infecting and distorting trials, and violating victims’ equality and dignity rights, in murder trials involving sexual violence, as it is in cases in which attackers did not kill their victims,” she said.
“If the defence lawyer in this trial attempted to introduce evidence or make submissions regarding this girl’s supposed sexual history with the accused or anyone else without having complied with Canada’s rape shield regime, that was unlawful and unethical, full stop.”
With a report from Xiao Xu
Editor’s note: A previous version of this article included a sentence noting that the Crown prosecutor did not seek a hearing under Canada's rape-shield law in the case. In fact, it is defence counsel's duty to seek such a hearing and the Crown confirms one was not held.