CALGARY- A mother accused of strangling her teenage daughter is to face a new trial.
The Alberta Court of Appeal has overturned an October 2013 ruling that found that Aset Magomadova was too ill from cancer to face another second-degree murder trial.
Two of three Appeal Court judges wrote that while her medical condition evokes sympathy, the judge failed to explicitly address the community’s interest in seeing a murder charge proceed to trial.
“While the evidence of Ms. Magomadova’s medical condition evokes sympathy, one must focus on whether that evidence is sufficient to have established that her medical condition made it impossible for her to be fairly tried, or is sufficient to lead me to conclude that the characteristics of fair play and decency under our social order cannot tolerate trial in her circumstances,” said Justice Myra Bielby and Justice Paul Jeffrey in a ruling released Thursday.
“Sympathy, as understandable as it may be, cannot fill gaps in meeting the required legal standard.”
Magomadova was charged with second-degree murder in 2007 after her 14-year-old daughter, Aminat, was choked to death with a scarf in Calgary. The family emigrated to Canada from Chechnya in 2003. Court heard that Aminat was having trouble adapting to her new home and had a number of scrapes with the law.
The Calgary mother was convicted of manslaughter in 2009 and given a suspended sentence with three years probation, which the Crown successfully appealed.
When the second trial was to begin, Magomadova applied for a stay, which she ultimately obtained on the grounds that her illness precluded her from receiving a fair trial.
In 2013, Magomadova’s oncologist told court her prognosis was dismal and the woman’s chance of surviving another five years was “less than one per cent.”
During that proceeding Magomadova was wheeled into court on a gurney.
Justice Brian O’Ferrall wrote a dissenting ruling.
“In my view, the Crown’s appeal is not grounded in a question of law alone and must therefore be dismissed,” he said.
“What is beyond doubt is that the respondent’s defence, self-defence, requires her to comprehend the evidence against her and to take the stand and explain what transpired during that fatal altercation with her daughter.”
Alain Hepner, Magomadova’s lawyer, said he will appeal the decision to the Supreme Court. He says his client is bedridden and her condition has worsened.
Hepner says he expects the trial date to be no sooner than 2016.
With files from Global New