



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ali, 2021 ONCA 362

DATE: 20210528

DOCKET: C63315

Doherty, Watt and van Rensburg
    JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Cindy Ali

Appellant

James Lockyer and Jessica Zita, for the
    appellant

Jamie Klukach and Kevin Rawluk, for the
    respondent

Heard: February 24 and 25, 2021 by video
    conference

On
    appeal from the conviction on a charge of first-degree murder entered by
    Justice T. Ducharme of the Superior Court of Justice, sitting with a jury,
    dated March 6, 2016.

Doherty J.A.:


I



overview

[1]

The appellant was, by all accounts, a loving and
    devoted mother to her 16-year old, profoundly disabled daughter, Cynara. The
    Crown alleged the appellant decided to murder her daughter and make it appear
    as though she had died during a home invasion. The Crown alleged, that in
    furtherance of this plan, the appellant suffocated Cynara with a pillow and
    then called 9-1-1, reporting a home invasion and indicating her daughter was
    unconscious. According to the Crowns theory, before the first responders
    arrived, and probably before she killed Cynara, the appellant went through her
    home attempting to make it look as though there had been a home invasion. When
    the first responders arrived, the appellant pretended to be disoriented and in
    shock. She described the home invasion to the police in some detail over the
    next several hours.

[2]

The first responders found Cynara on the couch.
    She was not breathing and did not have a pulse. The paramedics were able to
    restore Cynaras pulse and rushed her to the hospital. Sadly, Cynara was never
    able to breathe on her own. On medical advice, her parents removed her from
    life support and she died the next day.

[3]

The police initially charged the appellant with
    manslaughter, but later substituted a first degree murder charge.

[4]

At her trial, the appellant testified and told
    basically the same story she had been telling since she made the 9-1-1 call. Two
    robbers had entered her home, apparently looking for a package. One of the
    robbers rummaged through her home. The other remained with Cynara. They left
    when they decided they were at the wrong address. By the time they left, Cynara
    was unconscious. The defence argued the robber who stayed with Cynara may have
    suffocated her with a pillow, or she may have become upset during the robbery,
    suffered a seizure, choked and aspirated food into her lungs, causing
    respiratory distress, leading to cardiac arrest.

[5]

The defence called evidence of the appellants
    good character. Everyone agreed the appellant was a devoted and loving mother,
    particularly to Cynara. The defence contended there was no evidence of any
    motive for the appellant to murder her daughter.

[6]

The evidence at trial focused on the appellants
    claim she and her daughter had been the victims of a home invasion. It was
    central to the Crowns case that the appellant had fabricated an elaborate home
    invasion narrative. The Crown argued, if the jury was satisfied the appellant
    fabricated the home invasion story, her fabrication provided strong evidence,
    not only that the appellant had murdered Cynara, but that the murder was planned
    and deliberate. It was equally central to the defence case that the home
    invasion had occurred. The defence argued there was other evidence supporting
    the appellants testimony there had been a home invasion and that any doubt
    about whether the home invasion had occurred required the appellants
    acquittal.

[7]

The jury convicted the appellant of first degree
    murder.

[8]

The appellant raises four grounds of appeal.
    Three allege errors in the charge to the jury and one contends the conviction
    for first degree murder was unreasonable on the totality of the evidence.

[9]

I would allow the appeal. The trial judges
    instructions with respect to whether the appellant caused Cynaras death,
    combined with his instructions on the inference available if the jury found the
    appellant had fabricated the home invasion story, effectively invited the jury
    to convict the appellant of at least second degree murder if the jury was
    satisfied she had fabricated the home invasion story. For reasons I will set
    out below, this instruction amounts to reversible misdirection.


II



the evidence

A.

THE ALI FAMILY

[10]

In February 2011, the appellant, her husband,
    Allan, and their four daughters lived in a townhouse in Scarborough. Cynara was
    the second oldest daughter. They were a happy, busy family. Allan had a good
    job, the oldest daughter worked, and the two youngest, who were twins, attended
    high school. Their lives centered around church and family. The appellant is a
    deeply religious person. Her faith includes a strong belief in the sanctity of
    life.

[11]

Cynara was born with severe cerebral palsy. She
    could not talk, walk, feed herself, shake her head, or change her position
    without assistance. Cynara communicated by laughing or kicking. Different
    laughing sounds conveyed different meanings to Cynaras family. All of the
    family members, particularly the appellant, were very attentive to Cynaras
    needs.

[12]

Cynaras life was a difficult one from the day
    she was born. Her doctors did not expect her to live past the age of three.
    Cynara was prone to seizures and pneumonia. She had trouble swallowing her
    liquid food.

[13]

The appellant was Cynaras primary caregiver.
    She devoted herself to Cynara, making sure her daily needs were met and that
    Cynara participated in family activities to the extent possible. The
    appellants pastor, who had known her for over 10 years, testified the
    appellants care of Cynara set an example for others. She described her as an
    amazing mother of her children.

[14]

In her evidence, the appellant acknowledged
    there were days when it was difficult looking after Cynara. She insisted,
    however, she had no complaints and loved caring for her daughter. Other family
    members also described the importance of Cynara to the family and the joy she
    brought to all of them.

[15]

The Ali family first applied for permanent
    residence status in Canada in 2003. Cynara was declared inadmissible on health
    grounds. The family was able to obtain a waiver of Cynaras inadmissibility in September
    2010 by presenting a financial plan that satisfied the authorities Cynaras
    care would not impose a burden on the Canadian health care system. The plan
    required the family to assume any financial burden resulting from Cynaras
    health problems. The family became permanent residents in January 2011.

[16]

Most of Cynaras medical needs were covered by a
    combination of OHIP and the health insurance Mr. Ali had through his employer.
    That insurance covered the costs of devices like wheelchairs, and some medications.
    There was no evidence about the amount, actual or estimated, of any uncovered
    medical costs associated with Cynaras past or future care. The evidence indicated
    those costs had not been significant up to the time of Cynaras death. She did
    not require specialized care or housing, the family did not employ outside help
    and, all things considered, Cynara was relatively healthy.

[17]

The Ali family finances were unremarkable for a
    family living in Toronto with four children. They had a mortgage on the family
    home and credit card debt that had increased somewhat after the Christmas
    season. That debt was paid down in February. There was no evidence Mr. Ali or
    the appellant felt any unusual financial pressure as of February 2011.

B.

The Events of February 19, 2011

(i)

The appellants version of events

[18]

February 19, 2011 was the Saturday of a long
    weekend. Cynara had suffered three seizures on the Friday night. After the
    seizures subsided, the appellant medicated Cynara, bathed her and lay with her
    until she fell asleep. The appellant recalled seeing some blood around Cynaras
    mouth.

[19]

On the Saturday, the family members all had
    different things to do. The appellant planned to stay home with Cynara. As she
    did every day, the appellant gave Cynara a bath, brushed her teeth, dressed her
    and took her downstairs for breakfast. The appellant gave Cynara her breakfast
    in the living room. The appellant went to the kitchen to do dishes, leaving
    Cynara on the couch. Cynara was fussy, so the appellant returned to the
    living room and sat on the couch with Cynaras head resting on a pillow on the
    appellants lap. By 10:30 a.m., all of the other family members had left. The
    appellant expected her husband home around 1:00 p.m. The appellant testified,
    that after everyone left the townhouse, she sat on the couch with Cynara. She
    spoke briefly on the telephone with her sister at 10:47 a.m.

[20]

A short time after the appellant had spoken with
    her sister, the front doorbell rang. The appellant opened the door a little bit
    to see who was there. Two masked men burst through the door. The appellant
    described them as very dark skinned, 6 to 62, wearing black balaclavas, gloves
    and black coats over suits with white shirts and a tie.

[21]

The appellant tried to get to the phone, but one
    of the intruders pulled it off the wall. The appellant threw two or three
    knives from the kitchen counter at one of the intruders. He pointed a gun at
    her and, in a heavy Jamaican accent, demanded to know where the package was. He
    asked the question several times.  The appellant repeatedly told him she had no
    idea what he was talking about.

[22]

The man with the gun grabbed the appellant and
    dragged her upstairs. The other man remained with Cynara. Once they were
    upstairs, the intruder looked through various cupboards and drawers. The
    appellant could hear Cynara making a laughing noise. She panicked and tried to get
    to her daughter downstairs. The man with the gun caught her by the nightgown
    and pulled her back into one of the bedrooms. He continued to search for the
    package. The appellant could still hear Cynaras laugh, but it now sounded like
    she was in distress. The appellant tried again to get down the stairs. This
    time she got past the robber and made her way back down to the living room. She
    tripped on the rug. The man who had chased the appellant down the stairs threw something
    at her and kicked her as she lay on the floor.

[23]

The appellant saw the other robber standing in
    the living room holding a pillow to his chest. Cynara looked like her normal
    self. The robber with the gun pulled the appellant down to the basement. He
    continued his search, going through a bedroom and Mr. Alis home office.

[24]

The appellant again tried to escape. She pushed
    a chair toward the gunman and ran upstairs. She saw the other robber still
    holding the pillow in his hand, but now her daughter was very pale, quiet and
    not moving.

[25]

The robber with the gun followed the appellant
    up the stairs. He told the other robber they were in the wrong house. They left
    the appellants townhouse through the basement door, which led to the
    underground parking area that serviced the housing complex.

(ii)

The arrival of the first responders

[26]

The appellant called 9-1-1 at 11:37 a.m. She was
    hysterical, indicating someone had broken into her home and her baby was not
    breathing. The jury heard the recording of the 9-1-1 call. In the call, the
    appellant appears to be very upset. Near the end of the recording of the 9-1-1
    call, the first responders can be heard arriving at the scene. One paramedic
    quickly examined the appellant and then turned his attention to Cynara. A
    firefighter, who arrived with the paramedics, and who was aware the appellant
    had indicated in the 9-1-1 call that robbers had entered her home, could be
    heard on the 9-1-1 call saying to the appellant:

Get off the floor! There are no footprints in
    the front, dont bullshit me.

[27]

That firefighter testified there was an inch or
    two of fresh snow on the steps leading into the appellants townhouse. There
    were no footprints in that snow. He also indicated there were no signs of snow
    or water inside the appellants front door. The defence challenged the
    firefighters testimony, arguing the evidence showed there was no appreciable
    snow accumulation at the relevant time.

[28]

When the first responders arrived, the appellant
    was lying on the floor. She was unresponsive and appeared afraid. A quick
    physical examination revealed no injuries.

[29]

The first responders saw Cynara lying on the
    couch with one hand hanging off the side of the couch. She had a pillow on her
    head and a towel lying across her neck. Cynara had no vital signs. The
    paramedics worked on her for about 24 minutes and managed to restore her pulse.
    They rushed her to the hospital.

(iii)

The Appellants Statements to the Police

[30]

The appellant spoke with several police officers
    between the arrival of the first responders at her home and shortly after
    midnight, about 13 hours later. Her various descriptions of the relevant events
    were largely consistent with each other and the evidence she gave at trial.

[31]

The Crown did, however, rely on inconsistencies
    between what Officer Minhas testified the appellant said to him when they were driving
    to the hospital in the ambulance, and the appellants statements to other
    police officers, and her testimony. Two of those inconsistencies were arguably
    significant.

[32]

Officer Minhas testified the appellant told him Cynara
    was sitting on the loveseat when the robbers arrived. He also testified the
    appellant told him one of the robbers put a pillow over Cynaras face. In her
    other statements, and in her testimony, the appellant placed Cynara on the
    couch and described the robber as holding a pillow.

[33]

The defence challenged the reliability of
    Officer Minhas evidence, contending that he was relying on incomplete notes to
    refresh his recollection.

(iv)

The neighbours evidence

[34]

Ms. Sureerat Chariyaudom lived in the same
    housing complex as the appellant. They knew each other and were friendly. On
    the Saturday of the homicide, at about 11:20 a.m., Ms. Chariyaudom was driving
    out of the underground parking at the housing complex. She saw two men standing
    inside the garage by the garage door. They were about 6 feet tall and very,
    very dark skinned. They were dressed in dark clothing and wearing dark toques.
    The garage door opened and Ms. Chariyaudom drove out. From where the two men
    were standing, they could have walked out of the garage door before it closed and
    had ready and quick access to the front door of the appellants townhouse.

[35]

Ms. Chariyaudom gave a statement to the police
    the next day. There is no evidence she could have colluded with the appellant
    before making that statement.

[36]

Ms. Chariyaudom was shown a series of
    photographs of different styled coats. She picked the one with a hood as
    looking the most similar to the coats worn by the two men she saw in the
    garage. The appellant described the coats worn by the robbers as long, black
    coats made of sort of a wool material.

[37]

At trial, counsel for the appellant argued that
    the two men Ms. Chariyaudom described were the two persons who entered the
    appellants home in search of the package. Counsel pointed to aspects of Ms.
    Chariyaudoms description of the two men, which were consistent with the
    appellants description of the robbers. Counsel also relied on the timing of
    Ms. Chariyaudoms observations of the two men, which was consistent with the appellants
    evidence as to when the robbery occurred. The Crown argued there were
    significant differences in the descriptions provided by the appellant and Ms.
    Chariyaudom, particularly in respect of their descriptions of the coats worn by
    the two men.

(v)

The letter

[38]

Mr. Ali testified he found a letter in his
    mailbox on May 16, 2011, about two months after the homicide. On its face, the
    letter purported to have been written by the robbers. The letter provided
    details of the robbery that were consistent with the details in the appellants
    statements to the police. In the letter, the robbers indicated they had gone
    to the appellants home on the orders of their boss to pick up a package, but
    it turned out they had gone to the wrong home.

[39]

At trial, the Crown argued the letter had been
    written by, or at the direction of, the appellant, as yet another attempt to
    convince the authorities she had been the victim of a home invasion. The Crown
    argued the letter referred to details found in the appellants statement to the
    police, which only she could know she had given to the police. The Crown also
    argued that a part of the letter, which purported to offer an explanation for
    the absence of footprints at the appellants front door, could only have been authored
    by someone who appreciated the significance of the evidence concerning the
    presence or absence of footprints in the snow on the stairs.

[40]

At trial, the defence did not suggest the letter
    had actually been written by the robbers. The appellant testified she did not
    send the letter and did not know who had sent the letter. It made no sense to
    her. She wondered whether the police had sent the letter in an effort to prompt
    some kind of response from her. They had used other stimulation techniques
    while intercepting her private communications. The appellant also indicated
    there were many others who knew the details of her description of the events
    and the significance of the presence or absence of footprints at the front
    door. The defence argued the letter was written by someone other than the
    appellant, perhaps a well-meaning, but badly misguided friend.

C.

Cause of Death

[41]

Cynaras heart stopped for about 30 minutes,
    causing a fatal loss of blood and oxygen to the brain. The experts agreed there
    were three possible causes of the cardiac arrest:

·

manual suffocation;

·

aspiration pneumonia; or

·

sudden unexpected death in epilepsy (SUDEP).
[1]

[42]

Cynara had a long history of seizures and
    aspiration pneumonia. Aspiration pneumonia occurs when food is inhaled into the
    lungs. This may occur during choking or vomiting brought on by seizures. The
    appellant knew Cynaras seizures were dangerous and potentially life
    threatening. The autopsy revealed pneumonia and food particles in Cynaras
    lungs.

[43]

The pathologist who performed the autopsy testified
    for the Crown at trial. She indicated Cynara could have suffered a seizure and
    during that seizure aspirated food into her lungs. Food in her lungs could have
    led her to develop pneumonia. Pneumonia can lead to respiratory arrest and
    death. The pathologist further testified the process leading to pneumonia and
    ultimately to respiratory arrest could have been going on for hours or even a
    few days before Cynara lost consciousness. The pathologist indicated, however,
    that had the pneumonia been developing for some time, she would have expected
    Cynaras family to have noticed signs of illness. On their evidence, Cynara had
    not exhibited any such signs.

[44]

The pathologist identified a second possible
    scenario that could have led to Cynaras death. The pathologist testified that
    Cynara may have suffered a seizure leading to food aspiration within minutes or
    seconds of Cynara going into respiratory distress. On this scenario, the food
    aspirate would have gone into Cynaras trachea, blocked her airway and eventually
    led to cardiac arrest. The pneumonia found in her lungs at the autopsy would
    have developed after Cynaras resuscitation. The pathologist agreed the absence
    of any indication Cynara had vomited immediately before being attended by the first
    responders made this scenario less likely than it would have been had evidence
    of vomiting been found.

[45]

The defence expert was in substantial agreement
    with the pathologists evidence. In his view, aspiration pneumonia, in
    combination with the seizure disorder, was the more likely cause of death.

[46]

Both experts agreed manual suffocation was also
    a possible cause of death. There were no medical indicators to support a
    finding of manual suffocation. Nor, however, according to both experts, would
    one necessarily expect to find any such indicators had Cynara, who was unable
    to offer any resistance, been suffocated using a soft object like a pillow. The
    experts also agreed medical findings provided only part of the picture when it
    came to determining cause of death.

[47]

There was some physical evidence supporting the
    Crowns suffocation theory. Traces of Cynaras blood and saliva were found on the
    pillowcase of the pillow the investigators took from Cynaras head. There was,
    however, evidence Cynaras mouth had been bleeding the night before. In
    addition, traces of blood were found on the towel around Cynaras neck. The
    Crown relied on the evidence that the appellant put a clean towel around
    Cynaras neck every morning. The Crown argued the blood must have gotten on the
    towel that morning. There was, however, some evidence that a bloodstain could
    survive washing.

D.

did the appellant fabricate the home invasion
    story?

[48]

The veracity of the appellants home invasion
    narrative became the focus of the trial. The defence pointed to physical
    evidence in the house supporting the appellants version of events. The defence
    relied on evidence another unit in the townhouse complex had the same number as
    the appellants and that the two units had been confused in the past. The
    defence also relied on the evidence of the neighbour, Ms. Chariyaudom.

[49]

The Crown argued that the condition of the home
    supported the inference the appellant had made a somewhat ineffective attempt,
    before or after she killed Cynara, to make the house appear as though there had
    been a home invasion. The Crown also relied on the evidence of the absence of any
    footprints at the front door when the first responders arrived, and the
    evidence of the fabricated robbers letter provided to the police by Mr.
    Ali.

[50]

I do not propose to review the evidence in support
    of the competing arguments in detail. It is fair to say there was evidence
    supporting the arguments going both ways and counsel vigorously pressed those
    arguments before the jury.


III



the grounds of appeal

A.

Did the instruction on whether the appellant caused Cynaras death,
    combined with the instruction on the inferences available should the jury find
    the appellant fabricated the home invasion story, result in misdirection?

[51]

Jury instructions are assessed from a functional
    perspective in the context of the evidence and issues in the specific case:
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at para. 14;
R. v. Figliola
,
    2018 ONCA 578, at para. 11;
R. v. Largie
, 2010, ONCA, 548, at para.
    126. The error alleged by the appellant in this ground of appeal is the product
    of a combination of instructions given with respect to cause of death and
    after-the-fact conduct considered in the specific evidentiary context of this
    case. It is necessary to begin with some background before examining the actual
    instructions.

(i)

The parties closing arguments

[52]

The positions advanced by the Crown and the
    appellant before the jury were straightforward and diametrically opposed. The
    Crown argued the appellant had decided to kill her daughter and, in furtherance
    of that purpose, fashioned and implemented a false home invasion narrative intended
    to cover up the murder.

[53]

The Crown submitted the appellant had suffocated
    Cynara with the pillow found on her head by the first responders. The Crown
    relied heavily on evidence which the Crown said demonstrated the appellant had
    fabricated the detailed home invasion story. The fabrication included:

·

the staging of the scene in the house to make it
    appear as though there had been a home invasion;

·

making false statements to the 9-1-1 operator
    and the first responders alleging a robbery;

·

feigning physical injury and disorientation upon
    the arrival of the first responders;

·

giving a detailed and false narrative of the
    home invasion to the police on various occasions during questioning on the day
    of the homicide; and

·

providing a letter to the authorities supposedly
    written by the robbers confirming material parts of the appellants home
    invasion story.

[54]

The Crown argued that the evidence showing the
    appellant had fabricated the home invasion story was relevant to three crucial
    issues at trial:

·

Did the appellant kill Cynara?

·

Was the killing a murder?

·

Was the murder planned and deliberate?
[2]

[55]

Not surprisingly, given the appellants
    evidence, counsel advanced only one defence in his submissions to the jury. He
    argued, just as the appellant had insisted from the time she called 9-1-1 until
    she testified, Cynara had died during a home invasion and the appellant had
    nothing to do with her death. Counsel argued, while the exact cause of Cynaras
    respiratory distress and subsequent cardiac arrest could not be determined with
    certainty, it was more likely her death was connected to the consequences of a
    seizure than to suffocation. The defence pointed to the evidence supporting the
    appellants evidence about the home invasion, the strong character evidence,
    and the absence of any evidence lending an air of reality to the suggestion the
    appellant had a motive to kill Cynara.

(ii)

The pre-charge discussions

[56]

In pre-charge discussions, the Crown argued that
    a jury could convict the appellant only if satisfied beyond a reasonable doubt
    that the appellant had smothered Cynara. Crown counsel argued there was no air
    of reality to the contention the appellant had caused Cynaras death by some
    unlawful act other than smothering her. Counsel submitted, if the jury had a
    doubt whether the appellant smothered Cynara, the jury should be told to acquit
    the appellant. If, however, the jury was satisfied beyond a reasonable doubt
    the appellant smothered Cynara, the Crown argued a conviction on either first
    or second degree murder were the only available verdicts. Crown counsel argued
    manslaughter should not be left with the jury.

[57]

During pretrial discussions, defence counsel acknowledged
    the defence would go to the jury exclusively on the basis that Cynara had gone
    into cardiac arrest during the home invasion and the appellant had nothing to
    do with Cynaras death. However, the defence maintained the evidence supported
    an alternative possibility that the trial judge was obliged to leave with the
    jury. The defence argued the jury could conclude Cynara was not suffocated but
    that her death was seizure-related. They could further conclude that Cynara had
    died as a consequence of the appellants failure to take the steps necessary to
    assist Cynara after she suffered a seizure. The defence submitted, that on this
    view of the evidence, the appellant could be found to have caused Cynaras
    death by a culpable act (criminal negligence or failure to provide necessaries),
    other than suffocation.

[58]

The defence further argued that the jury could
    conclude the appellant had fabricated the home invasion story to hide her
    failure to take the proper steps to protect Cynara after she had a seizure. On this
    view of the evidence, the jury would conclude the appellant had caused Cynaras
    death by an unlawful act, but could well have a reasonable doubt as to whether she
    had the
mens rea
for murder. If that doubt existed, manslaughter was
    the proper verdict.

[59]

The defence contended leaving suffocation with
    the jury as the only possible culpable act would cause substantial prejudice to
    the appellant. Counsel submitted, if the jury was told suffocation was the only
    potential culpable act, and if the jury concluded the appellant fabricated the home
    invasion story, the jury would move directly from a finding the appellant had fabricated
    the home invasion story to a finding she had suffocated Cynara. That finding
    would, in turn, lead inevitably to a murder conviction. Counsel said:

And this is exactly the type of situation that
    the defence fears the jury will be put in where they could have a reasonable
    doubt on the smothering, but not on the post offence conduct and thus, be left
    only with coming to the conclusion that she murdered, even if they would have
    had otherwise a doubt about the intent to kill.

[60]

The trial judge, in large measure, accepted the
    Crowns position, stating:

To me, this case has always been about whether
    she smothered Cynara with a pillow.

[61]

The trial judge determined that, in the absence
    of evidence a prompter medical response could have saved Cynaras life, there
    was no evidentiary basis for a finding of liability based on criminal
    negligence or a failure to provide necessities. He said:

There is no medical evidence before me that
    talks about the importance of a prompt response to a seizure situation. 
    Neither pathologists gave any evidence with respect to what might have  what
    could have been done to save Cynaras life; what difference it made that some
    prompter response was made  was not made, and, in my view the jury would be
    speculating to come to the conclusion that Cynara died in those circumstances
    and that somehow Ms. Alis intentional failure to respond to her daughters
    situation of crisis was an unlawful act that led to her death resulting in a
    manslaughter charge.

[62]

Ultimately, the trial judge decided he would
    leave manslaughter with the jury, but only on the basis that the appellant had
    smothered Cynara with a pillow but had done so without the intent required for
    murder. Everyone thought it highly unlikely the jury would return a verdict of
    manslaughter if it was satisfied the appellant had suffocated Cynara.

(iii)

The charge to the jury

[63]

In keeping with his ruling, the trial judge told
    the jury that, to prove the appellant had caused Cynaras death, the Crown had
    to prove beyond a reasonable doubt the appellant smothered Cynara. He told the
    jury:

Did Cindy Ali cause Cynara Alis death? And in
    this case the central question is really Did Cindy Ali smother Cynara with the
    pillow?

This is the allegation Cindy Ali faces. If you
    find that Cynara Ali died for any other reason, or if you have any reasonable
    doubt about that, you must find Cindy Ali not guilty.

[64]

The trial judge proceeded to outline evidence
    relevant to whether the appellant had smothered Cynara. That evidence included the
    evidence of the alleged fabrication of the home invasion story. The trial judge
    referred to this as post-offence conduct.
[3]
He told the jury:

Consider the post-offence conduct, especially
    if you conclude that Cindy Ali fabricated stories and staged the crime scene
    because she was conscious of having killed Cynara.

[65]

Considered in isolation, the trial judges
    instructions would seem to benefit the appellant in that the jury was told to
    acquit if it had a doubt as to whether the appellant smothered Cynara.
    Certainly, the medical evidence indicated smothering was not the only possible
    cause of death.

[66]

The effect of the trial judges instructions on
    cause of death must, however, be considered along with his instructions
    relating to the use the jury could make of the appellants alleged fabrication
    of the home invasion story. The trial judge instructed the jury at length on
    the evidence the Crown alleged showed the appellant had fabricated the home
    invasion story. The detailed instructions reflected the importance that
    evidence took on in the course of the trial.

[67]

In his instructions, the trial judge explained
    to the jury that, if it concluded the appellant fabricated the home invasion
    story, that fabrication may or may not point to the appellants involvement in
    Cynaras death. The trial judge cautioned the jury to consider explanations
    other than that of the appellants involvement in Cynaras death.

[68]

After reviewing the evidence relevant to the Crowns
    claim, the appellant fabricated the home invasion story, the trial judge came
    back to the applicable law. He told the jury:

Now for all of this post-offence conduct, if
    you find that Cindy Ali did not do or say what she is alleged to have done or
    said after the offence was committed, you must not consider the evidence in
    reaching, or helping you reach your verdict.
On the other
    hand, if you find that Cindy Ali actually did or said what she is alleged to
    have done or said after the offence was committed, you must consider next
    whether this was because Cindy Ali committed the offence charged or whether it
    was for some other reason
. If you find that Cindy Ali actually did or
    said what she is alleged to have done or said after the offence was committed,
    you must be careful not to immediately conclude she did or said so because she
    was conscious of having committed the offence charged.

To decide the reason for what Cindy Ali did or
    said afterwards, you should consider all of the evidence, of particular
    importance is evidence that offers another explanation for this conduct, or
    these statements. But while you should consider the possibility of other
    explanations for this conduct, you must not speculate.
Any
    other explanations must be founded in the evidence.

I do not see any other evidence on the evidence before you, or
    any other explanations on the evidence before you, but that is for you to
    decide
. [Emphasis added.]

[69]

The trial judge repeated a similar instruction
    aimed specifically at the appellants statements to the police. He told the
    jury, that if they were satisfied those statements were fabricated, they could
    conclude she fabricated the events because she was conscious that she had
    killed Cynara. He instructed the jury they should also consider other possible
    explanations.

[70]

After a mid-charge discussion with counsel, the
    trial judge returned to the evidence relating to the alleged fabrication of the
    home invasion. He correctly told the jury the evidence may or may not assist
    them, depending on the inference they drew from the evidence. He reminded them
    to consider that evidence together with the rest of the evidence. He went on to
    instruct the jury:

I am cautioning you here, as I did to a
    certain degree already, about putting too much emphasis on the post-offence
    conduct. You have to consider it in the context of all of the evidence in the
    case. Now circumstantial evidence, evidence of after-the-fact conduct, has only
    an indirect bearing on the issue of Cindy Alis guilt, you must be careful
    about inferring that Cindy Ali is guilty on the basis of evidence of
    after-the-fact conduct because there might be other explanations for that
    conduct something unconnected with participation in the offence charged. You
    may use this evidence of after-the-fact conduct, along with other evidence, to
    support an inference of guilt only if you have rejected any other explanations
    for the conduct.
I have already suggested to you that on
    the evidence you have heard I do not see any other explanations for the
    post-offence conduct if you find that she did these things, but that is
    entirely for you to determine
. [Emphasis added.]

[71]

The trial judges instruction that if the jury
    concluded the appellant had fabricated the home invasion story, it could use
    that fabrication as evidence the appellant committed the offence, or was
    conscious she killed Cynara, or as evidence she participated in the offence
    charged must be read with the trial judges instruction that the only way the
    jury could find the appellant committed the offence, or participated in the
    offence was if she had smothered Cynara. By limiting the appellants potential
    culpable act to suffocation and telling the jury it could infer the appellant
    committed the offence if the jury concluded she fabricated the home invasion
    story, the trial judges instructions allowed the jury to reason as follows:

·

the
    appellant fabricated the home invasion story;


·

there was no innocent explanation for that
    fabrication, (bearing in mind the trial judge twice told the jury he could not
    see any possible innocent explanation on the evidence);


·

the
    appellant fabricated the home invasion story to hide her participation in
    Cynaras death;


·

on the
    trial judges instructions, the appellant could only have participated in
    Cynaras death by smothering her;


·

the appellant smothered Cynara.

[72]

On this reasoning, the jury could have concluded
    the appellant smothered Cynara without ever coming to grips with the expert
    evidence as to the cause of Cynaras death. That evidence, while certainly not
    determinative, was important and suggested other possible causes of death,
    including aspiration associated with seizures.

[73]

Furthermore, on the same reasoning, just as
    counsel for the appellant suggested in the pre-charge discussions, a finding by
    the jury the appellant fabricated the home invasion story would lead almost
    inevitably to the conclusion the appellant smothered Cynara and thereby committed
    at least second degree murder. That finding would also go a long way to the determination
    the murder was planned and deliberate. On the path cut by the trial judges
    instructions, the jurys verdict of guilty of first degree murder could have
    been based almost entirely on finding the appellant fabricated the home
    invasion story.

[74]

In my view, the jury instructions wrongly
    narrowed the proper scope of the jurys deliberations. It is essential that all
    defences and verdicts reasonably available on the evidence be left with the
    jury for its consideration. Similarly, any defence theory realistically
    available on the totality of the evidence should be left with the jury:
R.
    v. Grewal
, 2019 ONCA 630, at paras. 36-37;
R. v. Ronald
, 2019
    ONCA 971, at paras. 43-48.

[75]

I agree with the submission made by defence
    counsel at trial. On this evidence, it was reasonably open to the jury to conclude,
    or at least have a doubt as to whether Cynara was suffocated. The jury could
    have determined, or at least had a doubt, that Cynara died as a result of a respiratory
    failure brought on by the aspiration of food during a seizure leading to
    Cynaras unconsciousness and eventual cardiac arrest. In fact, the Crown
    accepted that respiratory distress brought on by the aspiration of food during
    a seizure was a possible cause of death. The Crown took the position, however, that
    if the death was seizure-related, the appellant should be acquitted.

[76]

I also think it was open to the jury to conclude
    that the appellant failed to properly respond to Cynaras seizure. Cynara was
    prone to seizures and the appellant knew those seizures could lead to sequelae,
    endangering Cynaras life. The appellant was well aware of the dangers and the
    steps required to protect Cynara once she began to experience a seizure. Just
    the night before, the appellant had responded appropriately when Cynara
    suffered a series of seizures. Cynara did not lose consciousness, and did not
    stop breathing.

[77]

In my view, it was open to the jury to conclude
    the appellant, who was responsible for Cynaras wellbeing, failed to take the
    steps necessary to protect Cynara once she began to experience a seizure. The
    jury could have concluded the appellants failure to respond to Cynaras
    seizure, as she knew she was required to do, caused Cynaras condition to
    worsen to the point where she lost consciousness and stopped breathing. On those
    findings, it was open to the jury to conclude the appellant caused Cynaras
    death by her failure to respond appropriately to the seizure suffered by Cynara.
    That failure could constitute criminal negligence under s. 219 of the
Criminal
    Code
, or the failure to provide necessaries under s. 215. Either
    characterization would render the appellants conduct culpable homicide for the
    purposes of s. 222 of the
Criminal Code
.

[78]

If the jury concluded the appellants failure to
    take the appropriate steps to help Cynara after she had a seizure caused
    Cynaras death, the jury could well have returned a verdict of guilty on the
    included offence of manslaughter, although a conviction for murder would still
    have been available, depending on the appellants state of mind when she failed
    to render the necessary care.

[79]

A finding by the jury that the appellant fabricated
    the home invasion narrative would also take on a very different significance
    had the jury been left with the possibility that the appellant caused Cynaras
    death by failing to provide the appropriate assistance once Cynara suffered a
    seizure. If the jury had been left with that option, 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. That inference, while
    still pointing to the appellants culpability, could have led to a manslaughter
    verdict.

[80]

Crown counsel, in their factum, offer several
    submissions to support the trial judges instruction that the appellant could
    be convicted only if the jury was satisfied Cynara had been smothered to death.
    First, counsel submits the trial judge correctly held there was no evidence
    that a faster response, once Cynara lost consciousness, would have made any
    difference in the outcome.

[81]

This submission takes an unduly narrow view of
    the appellants potential liability if she failed to properly respond to
    Cynaras seizure. If the appellant did not respond appropriately, the jury
    could conclude the appellants failure to do so caused Cynaras condition to
    worsen to the point where she lost consciousness and stopped breathing. On that
    view, the appellants culpability lies in her failure to intervene when the
    seizure that ultimately led to Cynaras death began. It is irrelevant to that
    basis of liability that once Cynara stopped breathing, there was no evidence
    that a more timely intervention could have saved her life. The appellants culpable
    conduct on this view of the case rests in her failure to respond, as she should
    have, from the outset of the seizure.

[82]

Crown counsel also argues, there is no realistic
    basis in the evidence for a finding of any culpable act other than smothering.
    Counsel submit, that of the potential causes of death put forward by the
    medical experts, only suffocation is consistent with an intentional action by
    another person.

[83]

I cannot agree with this submission. The medical
    experts agreed that cardiac arrest as a consequence of respiratory distress
    brought on by seizure-induced aspiration of food into the lungs was a
    possibility. The defence expert saw this as the most likely cause of death. There
    was uncontested evidence that Cynara regularly suffered seizures and that the aspiration
    of food into her lungs was associated with those seizures. In addition, the
    evidence showed the appellant knew seizures posed a life-threatening danger to
    Cynara. The appellant knew how to respond to those seizures to mitigate the
    risk they posed to Cynara. On all this evidence, the jury could reasonably conclude
    Cynara suffered a seizure and for some reason the appellant failed to take the
    steps she knew were necessary to protect her daughter. That failure, in light
    of the appellants obligations to Cynara, could, on an appropriate jury
    instruction, be viewed as an intentional culpable act causing Cynaras death.

[84]

Crown counsel also make the point that the
    suggestion the appellant failed to take the necessary steps in respond to a
    seizure by Cynara flies in the face of the appellants own testimony and every
    statement she gave to the police. That is true. However, an inconsistency
    between the position advanced through an accuseds testimony and an alternative
    defence theory will not justify the refusal to leave that theory with the jury,
    if, on the totality of the evidence, there is an air of reality to the theory and
    the verdict that theory could generate:
R. v. Grover
, [2007] 3 S.C.R.
    510, at paras. 512-13;
R. v. MacLeod
, 2014 NSCA 63, at paras. 121-23.

[85]

I accept that the appellants statements to the
    police and her testimony might well make it less likely the jury would conclude
    the appellant caused Cynaras death by failing to take the necessary steps to help
    Cynara after she suffered a seizure. The jury could have rejected outright the
    appellants evidence without necessarily accepting the Crowns claim Cynara was
    smothered. It the jury rejected both the appellants testimony and the theory
    of the Crown, it could have found the appellant caused Cynaras death by
    failing to provide the necessary assistance.

[86]

This is also not a case in which it could be
    argued that the failure to put a defence theory inconsistent with the
    appellants testimony reflected a tactical decision made at trial. Defence
    counsel specifically asked the trial judge to instruct the jury on the
    possibility the appellant caused Cynaras death by failing to take the
    necessary steps when Cynara suffered a seizure. The appellant takes the same
    position on appeal as she took at trial.

[87]

Finally, the Crown argues, the jurys verdict
    of guilty of first degree murder renders any failure to instruct the jury on
    the appellants potential liability for an unlawful act other than smothering
    irrelevant to the outcome. The Crown submits, the jurys finding the murder was
    planned and deliberate makes it absolutely clear the jury would have rejected
    any suggestion the appellant caused Cynaras death by failing to take the
    necessary steps after Cynara suffered a seizure.

[88]

In some situations, an argument moving backwards
    from the verdict returned can be persuasive in demonstrating that a failure to
    leave a certain theory of the defence or an included offence with a jury had no
    effect on the verdict returned:
R. v. Sarrazin
, 2011 SCC 54, at paras.
    30-31. Given the structure of this charge, that reasoning does not assist the
    Crown.

[89]

The jury was told if it determined the home
    invasion story was fabricated, it could infer the appellant participated in
    Cynaras death. On the instructions as given, the only way the appellant could
    have participated in Cynaras death was by smothering her. On the trial judges
    instructions, the jury would have only reached the question of planning and
    deliberation after deciding the appellant had smothered her profoundly disabled
    daughter with a pillow.

[90]

Had the jury been properly instructed, and
    assuming it concluded the appellant had fabricated the home invasion story, the
    jury may have inferred that she fabricated that story to hide her failure to
    properly react to the seizure suffered by Cynara. If the jury concluded the
    appellants failure to act caused Cynaras death, I do not see how it could
    have concluded that a murder, based on that culpable act, was planned and
    deliberate. Indeed, the jury may not have been satisfied it was murder at all.
    The jurys verdict of guilty on first degree murder provides no insight into
    what it might have done had the possibility of a culpable act other than
    suffocation been left with the jury.

[91]

In addition to wrongly narrowing the ambit of
    the jurys deliberations by excluding the possibility the appellant caused
    Cynaras death by a culpable act other than suffocation, the trial judge unduly
    restricted the jurys consideration of what inference, if any, it should draw
    from a finding the appellant fabricated the home invasion narrative.

[92]

In his instructions, the trial judge told the
    jury more than once that, if it determined the appellant fabricated the home
    invasion story, it must consider other possible explanations for the
    fabrication, before inferring that the appellant fabricated the story because
    she had killed Cynara. The trial judge cautioned the jury against jumping too
    quickly to the conclusion the home invasion story was fabricated to cover up
    the killing. He reminded the jury they could draw that inference only if they
    first rejected any other explanations.

[93]

All of these instructions were legally correct
    and necessary in a case like this one, when so much turned on what the jury
    made of the evidence said to demonstrate the appellant had fabricated the home
    invasion story: see
R. v. Calnen
, 2019 SCC 6, per Martin J., at paras.
    116-17 (in dissent but not on this point);
R. v. White
, 2011 SCC 13,
    at para. 23.

[94]

The trial judge also instructed the jury,
    however, that any alternative explanation for the fabrication of the home
    invasion story must be based on the evidence. He said:

But while you should consider the possibility
    of other explanations for this conduct, you must not speculate. Any other
    explanations must be founded in the evidence.

[95]

The trial judge reinforced this instruction by
    twice offering the opinion he could see no other explanation in the evidence
    should the jury conclude the appellant fabricated the home invasion story.

[96]

The Crown relied on evidence, which it claimed
    showed the appellant had fabricated the home invasion, as circumstantial
    evidence of the appellants guilt. In
Calnen
, Martin J., at para. 112,
    drawing on the judgment of Watt J.A. in
R. v. Smith
, 2016 ONCA 25, at
    para. 77, aptly described the jurys function when considering the Crowns claim,
    it should draw an inference of guilt from an accuseds after-the-fact conduct:

In order to draw inferences, the decision maker
    relies on logic, common sense and experience. As with all circumstantial
    evidence a range of inferences may be drawn from after-the-fact conduct
    evidence. The inferences that may be drawn must be reasonable according to the
    measuring stick of human experience and will depend on the nature of the
    conduct, which is sought to be inferred from the conduct, the parties
    positions, and the totality of the evidence. [citation omitted] That there may
    be a range of potential inferences does not render the after-the-fact conduct
    null.

[97]

An inference of guilt drawn from circumstantial
    evidence must be rooted in the evidence and must be the only reasonable
    inference available on the totality of the evidence. However, when the jury is considering
    whether the Crown has met its burden to show that guilt is the only reasonable
    inference, the jury is not engaged in fact-finding and is not limited to
    considering alternative explanations founded on the evidence. Instead, the jury
    is testing the force of the inference urged by the Crown against the reasonable
    doubt standard. In doing so, the jury can consider other reasonable alternative
    explanations for the conduct. Those alternative explanations may or may not
    lead the jury to conclude the Crown has failed to prove that guilt is the only
    reasonable inference available on the evidence:
R. v. Villaroman
, 2016
    SCC 33, at paras. 28, 35-42.

[98]

In determining whether the Crown has met that
    burden in a circumstantial evidence case, the jury may apply its logic and
    common sense to the totality of the evidentiary picture, including gaps in that
    picture, and consider whether other reasonable possibilities not only exist,
    but preclude a finding that an inference of guilt is the only reasonable
    inference available. As explained in
Villaroman
, at para. 36:

a reasonable doubt or theory alternative to
    guilt, is not rendered speculative by the mere fact that it arises from a
    lack of evidence  a certain gap in the evidence may result in inferences other
    than guilt. But those inferences must be reasonable given the evidence and the
    absence of evidence, assessed logically, and in light of human experience and
    common sense.

[99]

The jury should have been instructed that, if it
    concluded the appellant fabricated the home invasion story, it should, in
    deciding what inference, if any, to draw from that finding, consider other
    reasonable possibilities which, as a matter of logic and human experience, arose
    from the totality of the evidentiary picture, including any gaps in the
    evidence.

[100]

In my view, human experience and common sense suggested various
    explanations, should the jury conclude the appellant fabricated the home
    invasion story. Some of those possibilities point toward guilt, others do not.

[101]

It was a reasonable possibility the appellant fabricated the story
    to hide the fact she smothered Cynara to death. It was also reasonably possible
    she fabricated the story to hide the fact she had failed in her duty to protect
    Cynara after Cynara suffered a seizure. Alternatively, it was reasonably
    possible that the appellant fabricated the story because she felt responsible
    for what had happened to Cynara, regardless of whether her conduct would
    actually attract criminal responsibility, and she was attempting to shift the
    blame elsewhere. Finally, it was reasonably possible that the fabrication of
    the home invasion story was explained by the appellants panic associated with a
    fear of being accused by the authorities of killing Cynara, regardless of
    whether the appellant was in fact responsible for her death:
Calnen
, at
    para. 117.

[102]

I do not suggest the possibilities listed above exhaust the reasonable
    possibilities that the jury would have been entitled to consider in deciding
    what inference, if any, to draw from the fabrication of the home invasion. Nor
    do I suggest the trial judge was required to catalogue the reasonable
    possibilities. He was required, however, to instruct the jury, that when it was
    considering whether the Crown had met its onus, it should consider reasonable
    possible explanations for fabricating the home invasion story, other than the
    explanation urged by the Crown. One or two examples of what the trial judge
    regarded as reasonable possibilities open for consideration may have been
    helpful in explaining to the jury how it should approach its task if it
    concluded the appellant fabricated the home invasion story.

[103]

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. For example, while the appellants character and long-time
    devotion to Cynara might suggest a non-culpable explanation for the fabrication
    of the home invasion story, the details and effort involved in constructing and
    repeating the fabricated story might well suggest a more sinister explanation.
    Ultimately, it was for the jury, having considered other possible reasonable
    explanations, to decide whether, on the totality of the evidence, the Crown had
    proved the case against the appellant.

B.

did the trial judge unfairly review ms. Chariyaudoms
    evidence in his instructions to the jury?

[104]

The appellant submits the trial judge unfairly reviewed the evidence
    of Ms. Chariyaudom and made a series of misstatements in the course of that
    review. According to the appellant, the trial judges treatment of Ms.
    Chariyaudoms evidence substantially undermined its potential value to the
    defence.

[105]

The trial judge referred to Ms. Chariyaudoms evidence several times
    during his instructions. In his review of Ms. Chariyaudoms evidence, the trial
    judge identified features of her evidence supporting the appellants position
    and other aspects of her evidence relied on by the Crown. For example, the
    trial judge referred to the timing of Ms. Chariyaudoms sighting of the two men,
    and her general description of those men, as supporting the defence. He also
    told the jury to take into account the arguably significant difference between
    the appellants description of the coats worn by the robbers and the coat
    identified by Ms. Chariyaudom in the coat lineup.

[106]

The appellant contends there was in fact no inconsistency between
    the appellants evidence and Ms. Chariyaudoms evidence about the coats worn by
    the persons they saw. The appellant argues, Ms. Chariyaudoms vantage point did
    not allow her to see below the chest level of the two men she observed in the
    garage. The appellant, on the other hand, saw the full figures of the robbers.

[107]

The interpretation of the evidence advanced in this argument comes
    for the first time on appeal. At trial, the defence acknowledged some
    inconsistencies in the descriptions of the coats but pointed to various
    explanations for those inconsistencies. In any event, the extent to which the
    descriptions of the coats were inconsistent, and the significance of any
    inconsistencies, were questions for the jury. The trial judge reviewed the
    relevant evidence and properly left it with the jury.

[108]

The appellants suggestion that the trial judge made several
    misstatements about Ms. Chariyaudoms evidence identifying the men in the
    garage is not supported by a review of the jury instructions. The trial judge
    arguably made one error in his review of the evidence pertaining to Ms.
    Chariyaudoms identification. One passage from the jury charge, although
    somewhat ambiguous, would appear to indicate that Ms. Chariyaudom had picked
    out more than one photograph from the coat lineup shown to Ms. Chariyaudom. She
    had in fact picked out only one photograph.

[109]

There was no objection to the trial judges instructions relating to
    the evidence of Ms. Chariyaudom. At its highest, the appellant has demonstrated
    an error in the review of Ms. Chariyaudoms evidence. Bearing in mind the jury was
    told it was their recollection of the evidence that mattered, a single minor
    factual error in the course of an extensive review of the evidence by the trial
    judge is no reason to set aside a conviction.

[110]

I would not give effect to this ground of appeal.

C.

the instruction on motive

[111]

The appellant submits the jury instructions on motive reveal two errors.
    First, the trial judge failed to correct improper submissions made by Crown
    counsel in her closing and, second, the trial judge should have told the jury
    the evidence showed the appellant had no motive to kill Cynara. Counsel
    contends the trial judge should have told the jury a proved absence of motive
    constituted circumstantial evidence supporting the defence position the
    appellant did not cause Cynaras death.

[112]

Motive is usually not an element of the offence and the Crown is not
    required to prove motive. Motive describes a state of mind. That state of mind
    can constitute circumstantial evidence relevant to proof of the
actus reus
and/or
mens rea
of the offence:
R. v. McDonald
, 2017 ONCA
    568.

[113]

If the Crown asks the jury to infer from the evidence that an
    accused had a certain motive, the evidence must be reasonably capable of
    supporting that inference. If the inference does not arise reasonably from the
    evidence, the trial judge should tell the jury to disregard the Crowns
    submission.

[114]

In her closing, Crown counsel acknowledged that the appellants
    motive may never be known. She went on to suggest at least three possible
    motives.

[115]

The Crown argued, based on a conversation the appellant had with her
    pastor many years earlier, that the appellant had let Cynara go from her
    heart and stopped loving her. There was simply no evidence to support this
    submission. In fact, all of the evidence was to the contrary. If anything, the
    conversation with the pastor indicated that the appellant, a devout Christian,
    had come to grips with Cynaras tenuous mortality and was prepared to accept
    the will of God. The trial judge effectively put this interpretation of the
    conversation with the pastor to the jury when he characterized the conversation
    with the appellant as a theological discussion.

[116]

Crown counsel also suggested the timing of Cynaras death could be
    explained by the appellants desire to avoid attracting the suspicion of the
    immigration authorities. It was only after the family obtained permanent
    residence status that the appellant felt she could proceed with the plan to
    kill Cynara without attracting that attention. This submission suggests the
    appellant had decided to kill Cynara months before she put the plan into
    motion.

[117]

Once again, there was no evidence to support this submission.
    Unfortunately, the submission could also have played into the false and
    negative stereotypes that some people have about immigrants who are attempting
    to gain permanent status in Canada. The trial judge should have told the jury
    there was no basis in the evidence for the claim the appellant may have been
    planning to kill Cynara for months and was only waiting until the family had
    its permanent residence status.

[118]

The Crown also argued that Cynaras killing may have been motivated by
    financial concerns. I have difficulty finding any firm evidentiary basis for
    this argument. It is true the Ali family, like many families, had debts and
    were far from well off. It is also true that Cynaras future care may well have
    involved costs not covered by Mr. Alis insurer or OHIP. However, there is no
    evidence that Cynaras care and medical needs imposed a significant burden on the
    familys finances, or that the appellant believed Cynaras future needs would
    overwhelm the familys financial resources.

[119]

The trial judge left financial stress as a possible partial
    motive. He did so in a single sentence, followed immediately by the
    observation the defence says there is no evidence of any motive.

[120]

In my view, the evidence capable of supporting the submission the
    killing of Cynara was motivated by financial stress was so meagre as to
    render the inference that the killing was motivated by financial stress
    speculative. The suggestion that the appellant was motivated by financial
    stress should not have been left with the jury as a possible motive: see
R.
    v. Johnson
(2010), 262 C.C.C. (3d) 404 (Ont. C.A.), at paras. 99-101,
    119-20.

[121]

While I am satisfied the Crown put suggestions of motives to the
    jury unsupported by the evidence, I do not agree with the appellants
    submission the evidence justified a proved absence of motive instruction. No
    such instruction was sought at trial. There is a well recognized difference
    between the absence of evidence of motive and a proved absence of motive:
R.
    v. Lewis
, [1979] 2 S.C.R. 821, at para. 38;
R. v. Barton
, 2019
    SCC 33, at paras. 133-36;
R. v. White
(1996), 29 O.R. (3d) 577 (C.A.),
    at para. 101, affd [1998] 2 S.C.R. 72, at para. 59. The trial judge made it
    clear to the jury that it was the defence position there was no evidence of
    motive. He was not required to go further than that on this evidence.

[122]

As I would allow the appeal on another ground, I need not decide
    whether the trial judges failure to remove certain motives suggested by the
    Crown from the jurys consideration would constitute reversible error. Hopefully,
    and assuming no material changes in the evidence, my comments will provide some
    assistance at the retrial.

D.

was the conviction for first degree murder
    unreasonable?

[123]

The appellant submits a conviction on the charge of first degree
    murder was not reasonably open on the evidence. Counsel contends, even if the
    jury concluded the appellant killed her daughter and fabricated the home
    invasion story to cover up the killing, the only reasonable inference from the
    evidence is that the cover up occurred after the appellant killed Cynara.
    Counsel submits, that if the cover up followed the killing, there was no basis
    for a finding the murder was planned and deliberate.

[124]

I agree a finding the home invasion story was fabricated was
    essential to a conviction for first degree murder. I also agree that the fabrication
    of the home invasion story could only assist in proving first degree murder if
    the fabrication, or at least the planning for the fabrication, occurred before
    the appellant killed Cynara.

[125]

I do not, however, agree it would have been unreasonable, on the
    totality of the evidence, to infer that the fabrication of the home invasion
    story, if not the actual staging of the home invasion, took place before the
    appellant killed Cynara.
As Crown counsel argued, the details of the story provided to
    the police, almost immediately by the appellant, the steps taken throughout the
    house to corroborate the home invasion narrative, and the brief time period the
    appellant would have had to take all those steps after killing Cynara, but
    before calling 9-1-1, were capable of reasonably supporting the inference the
    appellant had thought about and planned what she would do and say to explain Cynaras
    death before killing her daughter.


[126]

The
    evidence warranted leaving first degree murder with the jury.

conclusion

[127]

I would
    allow the appeal, set aside the conviction and order a new trial on the charge
    of first degree murder.

[128]

The
    appellant will attend before the trial court as required. She will remain
    subject to the terms of her bail order dated February 25, 2021, subject to
    variation by this court or the trial court.

Released: DD May
    28, 2021

Doherty
    J.A.

I
    agree David Watt J.A.

I
    agree K. van Rensburg J.A.





[1]

As I understand the medical evidence, SUDEP will only be
    described as the cause of death in the absence of evidence pointing to other
    causes. Here, both experts agreed there was evidence of other causes.



[2]

The trial judge instructed the jury that all of the evidence
    said to show the appellant fabricated the home invasion story, with the
    exception of the robbers letter, was relevant to all three issues. He instructed
    the jury the letter was not relevant to the question of planning and
    deliberation. The appellant does not take issue with this part of the instructions.



[3]

The appellant argued that the trial judges repeated use of
    phrases like post-offence conduct and staging of the crime scene prejudiced
    the appellant in that they may have led the jury to assume an offence had
    occurred. I would not go that far, but phrases like post-offence conduct and
    consciousness of guilt are best avoided in jury instructions:
R. v. Peavoy
(1997), 117 C.C.C. (3d) 226, at para. 23
    (Ont. C.A.);
R. v. Campbell
(1998), 122 C.C.C.
    (3d) 44, at para. 24 (B.C.C.A.), affd, [1998] 3 S.C.R. 533.


