The lawyer for a man found guilty of killing a 13-year-old Burnaby, B.C., girl is asking a judge to stay the jury’s verdict over unreasonable delays in getting the man to trial.
Ibrahim Ali had been in custody and charged with first-degree murder for more than 63 months by the time his trial ended, which his lawyer Kevin McCullough told a B.C. Supreme Court judge on Tuesday is more than double the allowable threshold set out by the Supreme Court of Canada.
McCullough brought the so-called Jordan application before the court in an attempt to stay the proceedings against Ali on the grounds it took too long for their client to get to trial, a limit the High Court has set at 30 months.
If granted, Ali would go free without sentencing.
Ali, who appeared by video wearing an orange sweat suit and medical gloves, was found guilty on Dec. 8, less than 24 hours after jurors’ deliberations began. He now faces a mandatory life term with no chance of parole for 25 years.
The body of the girl, whose name is covered by a publication ban, was found in Burnaby’s Central Park in July 2017. Ali was charged about one year later.
There were about three years of pretrial proceedings before Ali entered a plea of not guilty on April 5, 2023.
The Jordan application was filed on Dec. 7, before the jury began its deliberations, McCullough said.
Ali had several other defence lawyers before McCullough and his co-counsel Ben Lynskey took over the case in 2021.
In his arguments Tuesday, McCullough said many of the adjournments in the years after Ali was charged were due to case mismanagement by the court.
While there was some unforeseen delay due to the COVID-19 pandemic, he said much of the holdup stemmed from the Crown providing “trickling disclosure” to defence, something he noted the judge had flagged to prosecutors in April 2019.
McCullough also pointed to the Crown’s 14-month delay in filing Ali’s direct indictment after his arrest, which is meant to accelerate the trial process by skipping a preliminary inquiry for the accused.
“The ceilings in Jordan, I’d argue, are meant to be upper limits. Any trial lasting that long is presumptively unreasonable,” he said. “I say the Crown naturally bears the burden of rebutting that presumption.”
The only way the Crown can rebut that is to “establish exceptional circumstances” that it could not “reasonably mitigate,” McCullough said.
The Crown couldn’t do that in this case, he told the judge.
“My overarching point is that this is not a complex case.”
McCullough focused on an adjournment application previous lawyers requested in August 2020, saying that was the turning point.
He noted that after the application was denied, that defence team stepped down citing “ethical reasons.”
“The net result of declining the application rather than attempt to solve the problem so obviously was going to cause this case to be over 30 months and well over the ceiling,” McCullough said.
“To simply make no effective inquiry, to make no effort to case manage [or] to solve the problem was going to cause the delay that would result in a new defence team 23 months in, but it also deprived the accused of the defence team he had been working with.”
McCullough said after reviewing transcripts, the logical reason the defence team sought the application was due to scheduling conflicts with another case.
“Any suggestion by anyone that the ethical reason was something other than the denial of the adjournment application would defy not only the logic of everything that happened ... but it denies the truth.”
He argued 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.
“On the 28th of August, 2020, there is, I say, significant problems with the case management, significant problems with the way the Crown approached it, and all of the delay up to that point, 100 per cent minus the two days Mr. Ali was sick, was not a defence delay.”
It was nearly three years later that the trial began. McCullough said that did not “jive” with the decision to adjourn and asserted that had Ali’s lawyers not stepped down, the case would have proceeded to trial much more quickly.
The Crown has not yet made its submissions in the application and McCullough is expected to continue his arguments tomorrow.
The Crown’s case against Ali focused on the discovery of his semen inside the victim. He was arrested on Sept. 7, 2018, after a DNA match was confirmed.
The trial also dragged on for eight months with several adjournments for various reasons, including the mental and physical health struggles of a defendant, the death of an expert witness before she could complete her testimony, cases of COVID-19 and other illness among jurors and threats of violence against Ali’s lawyers.
The court also dealt with other applications in the case earlier this year.
Most notably, it was alleged that the murdered girl’s father brought a gun to court on the day of the verdict. Ali’s lawyers had been refusing to come to court citing safety concerns and sent a colleague instead to argue the girl’s father should be excluded from post-trial proceedings.
Justice Lance Bernard ruled that the father could attend the proceedings virtually through a Mandarin interpreter.
The father attended Surrey provincial court Tuesday in relation to the disposal of items police seized from him on Dec. 9, the day after the verdict in Ali’s case.
The man’s lawyer, Brock Martland, said in an interview that his client gave up two firearms for which he was licensed.
Court records show the man, who can’t be named to protect the identity of his daughter, was also handed a five-year weapons ban.
Martland said his client had to endure the “unbelievably torturous trial process” after the murder of his daughter and then had to defend himself after being accused of “endangering” people in the court system.
“Obviously from the fact that the police and Crown aren’t proceeding with the case that’s unfounded,” Martland said.