Honour on Trial

by Paul Schliesmann

  "Shafie had one custom — he used to talk. He used to talk a lot," she said. "If it was a small thing, he made it a big thing." Tooba said the children were tired of his incessant nagging about small issues so they kept information from their father.

  Crowe raised the issue of Rona's being restricted in her telephone use in the home and having to make calls from a pay phone in the park. Tooba said it was directly related to one incident in which Rona made a call that lasted 75 minutes while the school was unsuccessfully trying to contact the home.

  "I told her very nicely and she said, yes, it was the wrong thing to do," Tooba recalled. She knew nothing about what was in Rona's memoir, having only seen it when the family cleaned up the house and put it in a closet where it was later found by police.

  Tooba had a different take on the incident in which Sahar attempted suicide. Her daughter didn't ingest pills, she said, but a preservative used to keep flowers fresh. She also thought her daughter was prone to exaggeration.

  "Sahar had a habit," said Tooba. "If she was missing a movie she wanted to see, she would say, I'll kill myself." Tooba said Rona returned from a walk that day to discover Sahar, her adopted child, in distress. "Rona yelled at me," she recalled. "She swore at me. This is what I remember." It was on one such occasion that Rona recorded in her diary that Tooba said, "She can go to hell. Let her kill herself." Tooba denied she ever called Rona her "servant."

  In her two interviews with police, Tooba told different versions of what happened on the night of June 29-30. In the first, she had stayed with the four women in the Nissan while Hamed and Shafia went to find a motel. In the second, she told rcmp inspector Shahin Mehdizadeh that she waited with them at the locks and, when they returned, she and Hamed were together when they heard the Nissan splash into the water.

  On the witness stand, she had a new story to tell. She was now saying that they never went to the locks that night but specifically waited in the car along Highway 15 while the men went just down the road to the Kingston East Motel.

  "I was very tired. I reclined the seat and I lay down. I don't know how long it took them," she said.

  The men returned in the Lexus and she followed them to the motel. This differs from Hamed's and Shafia's versions. They said by the time they were pulling out of the motel lot to go back to the Nissan, Tooba was already driving in their direction. The motel manager said he stayed up for at least a half-hour watching for the Lexus to return. It didn't. He never saw the Nissan at all.

  Tooba still insisted that everyone, including Rona and her daughters who died, got to the motel that night. She and Shafia and their three surviving children were in their room when "there was a knock at the door. Zainab came and said, 'Mother, can you give me the keys to the car because there's clothing in the trunk [and] I want to get it.'" Tooba changed for bed and went to sleep.

  "I don't know anything until the next morning," she told the court.

  Tooba's explanation for the story she told Mehdizadeh about hearing the car go into the water was that she was only trying to protect Hamed. She claimed to have gotten only "three hours totally" of sleep from the time of the deaths on June 30 to the day of their arrests on July 21. Specifically, she wanted to protect Hamed from torture. She claimed that when they were arrested, a Persian-speaking female police officer from Toronto told her that Hamed would be tortured with cold water. Tooba said it evoked recollections of torture performed in Afghanistan.

  "I didn't want to send Hamed to torture," she said. "I put myself in that spot to show Hamed was innocent … None of that was true. I said this to show I was there to get Hamed out of that position. I didn't know what else to say."

  Again, police had placed a wiretap in the police cruiser and recorded the conversation between Tooba and the police officer. What the officer actually told her was that Hamed was arrested and would be cooling his heels and drinking cold water in jail. There was no mention of torture.

  Gerard Laarhuis's cross-examination of Tooba began with trying to establish when she might be telling the truth or not, even on the witness stand. Tooba said the only time she lied was during her interrogation, to protect her son. Laarhuis pointed out that she had not been forthcoming at any time about the fact that Rona was Shafia's first wife.

  "I didn't see it was necessary to say that to the police," she said. "He was not an immigration lawyer." In other words, she would lie to a police officer but not to an immigration official.

  "You said she was a cousin and not Shafie's wife. That was a lie and you knew it," Laarhuis pressed her. ("Shafie" was the named used by both Tooba and Rona to address Mohammad.)

  "I had a lot of pain in front of me. I lost my three daughters," she replied.

  "Does stress turn you into a liar?" Laarhuis asked.

  "In that condition, sir, that wasn't a lie. We told the Canadian government she was a cousin," she said. "Indeed, sometimes when a person is under stress, that person will tell lies."

  "Do you feel under pressure now?"

  "That pressure, no," said Tooba.

  When police searched the house on July 21, they found the black suitcase containing a number of photos of Sahar, Zainab, and Rona inside. It was the Crown's assertion that Hamed planned to take those pictures, downloaded from the girls' phones, to Dubai to show his father that the girls had been deceptive — and that they incited Shafia to kill his daughters and then to make the angry statements captured on wiretaps.

  Tooba said she had found Sahar's pink Disney album with the photos of Sahar and Zainab and took them out and hid them in the suitcase sometime around July 4, 5, or 6, just prior to the funerals. This would imply that the photos were not available to provoke Shafia to plan the murders. On July 2, however, the Shafias allowed a CTV news crew into their home to talk about their loss. In the video, Shafia is crying and showing the reporter the pink photo album with pictures of his daughters.

  Laarhuis suggested that if her husband had been looking at the album containing the inflammatory pictures of his daughters, "Shafie would be ballistic."

  Tooba said there was more than one album of that type in the house. "I can tell you that I have one or two. Maybe one or two," she said.

  "Do you have one or two?" Laarhuis continued.

  "Two or one," Tooba replied. "We have many albums."

  "You're seen flipping through this photo album. It was this one, wasn't it?" Laarhuis asked.

  "The one we showed to the media was another one. The one with the naked pictures I didn't show to the media," Tooba insisted.

  Frustrated by her answers, Laarhuis arranged to show the actual CTV interview in court. "It's clearly the princess book … we have in the courtroom today," he said after the viewing.

  "Yes, that's correct," Tooba admitted, adding that perhaps Shafia didn't flip to the back of the album where the photos were located.

  Tooba denied receiving a call from her brother Fazil, warning her that Shafia was plotting to murder Zainab. She also said she had never heard of the concept of honour killing in Afghanistan.

  She added new information about the Niagara Falls trip: that Shafia had left them twice, once to go to Toronto with Hamed to open a bank account, and a second time to go to Montreal for business. "I remember the children asking, where is your father?" Tooba testified. "He told me once he was going to Montreal."

  She acknowledged that she was upset at Hamed for not telling them about having followed the women to Kingston Mills that night and watching them drown. "If it was accidental, he should have told us," she said.

  The wiretaps were more difficult for Tooba to explain. Why did they return to the van after being shown around the locks on July 18 and talk about being there several times before — but not tell police about that? Why didn't she tell the rcmp's Mehdizadeh they had stopped there for a bathroom break on June 24 on the way to Niagara Falls? The officer had shown her an aerial photo of Kingston Mills. "I didn't know the name of the place to specifically tell him," she said.

 
; Laarhuis was relentless in his questioning. Plan A of their murder plot, he said to Tooba, was to tell police that Zainab took the keys. When Mehdizadeh pressured her, she went to Plan B, which was to implicate Shafia but not herself and Hamed. When Mehdizadeh established that Hamed was the lone driver of the Lexus that night, and it was used to push the Nissan into the water, Tooba had to resort to Plan C, saying she couldn't remember and then, eventually, that she had lied to save Hamed from torture.

  Defence summations…

  THE jury began to hear the defence lawyers' summations on January 24, 2012. Hamed Shafia never took the stand. Instead, the jury was left to consider his role in the deaths based on the statements he had made to Moosa Hadi — essentially, that he had left his sisters and Rona to drown inside the Nissan; that he did not call police; and that he stole off into the night to Montreal where he staged an accident to cover up damage to the Lexus that had, according to him, been an accident in the first place.

  Peter Kemp was first up in front of the jury, describing his client, Mohammad Shafia, as a man who directed all of his life's efforts and energies to his family. When his first wife couldn't bear him children, he found a woman who could — that is how much he wanted to have a family.

  Despite all the allegations of physical abuse in the family, said Kemp, none of the photographs entered as evidence during the trial showed any marks on the four dead women. He portrayed Rona's sister Diba as "one of the worst witnesses I've ever heard." He wondered why Fahima Vorgetts never called police when Rona was making so many awful disclosures of abuse to her over the phone. Kemp said it was Latif Hyderi who broke up the marriage between Zainab and Ammar Wahid and that he was lying about Shafia's statement that he wanted to kill his daughter Zainab. The lawyer characterized the murder plot described by Rona's brother Fazil Javid as "totally unbelievable."

  As for the wiretap evidence, Kemp reminded the jury that it was a habit of Shafia's to swear and that he did so to calm himself. It was only the hurt caused by his daughters' actions that made him talk that way. "Mohammad Shafia took his duties as a father very seriously. He insisted on giving his daughters the best advice he could and let them decide," said Kemp.

  Kemp's response to the Crown's murder theory was that there was no time for the four separate killings to occur. "It was an accident that could happen very quickly. For a murder, it's a totally different time frame," he said. He addressed the Crown's insinuation that the four women may have been pre-drowned by arguing that four people would not sit calmly inside the Nissan while the others disappeared one by one. Even then, how could the bodies be placed back in the car without being seen in such a public place? "The problem would have been almost insurmountable," said Kemp.

  He explained the bruising on the victims' heads as resulting from the car's plunge into the water. "Water is gushing in through the window. You would immediately become disoriented," said Kemp. "They would have been climbing all over each other trying to get out of the car. They would have been unsuccessful."

  Kemp referred to Hamed's account of that night as told to Moosa Hadi. Until that confession became public, Shafia had no idea what had really happened to his daughters and first wife. "He didn't know about the fake accident in Montreal and he didn't know about any damage to the Lexus," said Kemp.

  Tooba's lawyer, David Crowe, also challenged the Crown's murder theory in some detail. If the four women had been pre-drowned in the basin at Kingston Mills, they would have had to agree to go into that area in the first place. "You could not do that in the bathrooms because those bathrooms are locked up," he said, with only boaters being provided keys at night.

  Crowe described Mehdizadeh's interrogation of Tooba as "unrelenting" and that he "had her cornered for several hours," calling her a liar at least "500 times." Even when she fabricates a story, he said, "at no point does she acknowledge she was involved in the deaths of the deceased." Besides, she recanted everything the next day.

  Even though Tooba had come across Rona's diary after her death, Crowe pointed out that she didn't throw it away. "Certainly they [the entries] weren't complimentary to her and showed relations between her and Rona at times weren't good," he said. "It wasn't hidden. It was there for police to find."

  Hamed's lawyer Patrick McCann led off his summation by also challenging the speculative nature of the murder theory. The women would not have submitted to such a scenario, he said, therefore they had to have been incapacitated. However, there was no bruising on their bodies to suggest a struggle, no wet clothes found among the accused and no drugs in the victims' bodies. "The whole thing simply defies logic," he said.

  McCann suggested that the women displayed contradictory behaviours. Zainab claimed to have loved Ammar Wahid yet made a 911 call to police on June 2, saying that he was threatening her. "What can we say about Zainab? … I don't want to criticize someone who's deceased," he said. "Maybe she's a bit spoiled. Maybe she's used to getting her way. Unfortunately, we don't know because we haven't seen her."

  McCann suggested that Sahar was equally erratic in her behaviour, which he attributed largely to the fact that she was dating her first boyfriend. "Geeti was a bit of rebel and didn't care much," he said. "Is that a motive to murder Geeti? You just have to shake your head and wonder." "Boy crazy" teenagers "pushing the envelope" is how he summed up their actions.

  McCann decided to tackle Hamed's interview with Moosa Hadi head-on by presenting it as the final version of what happened the night the women died. "He ran to the edge. Called their names. Ran back to the Lexus and grabbed a rope out of the Lexus. We've seen that rope," McCann began.

  "He dropped the rope in. Called their names. Honked the horn a couple of times. Nothing … Then he made a terrible, terrible decision, thinking: 'No one knows I came here.' And he's 18 at the time. He's a kid. 'If I go to Montreal, no one will know the difference.'"

  Hamed sat in the prisoners' box staring straight ahead as his lawyer continued. McCann told the jurors that the only reason the deaths attracted such wide attention was because of how the story was labelled. "This is not a big story if it's not an honour killing," he said. "It's an accident."

  The lawyer asked the jury to focus on what was known for certain about the case, not on the circumstantial evidence. "We know that the Crown theory cannot work unless Rona and the girls were incapacitated by drowning beforehand. That is impossible. The evidence just doesn't stand up," he said.

  "Hamed is guilty of being stupid — morally blameworthy. Other than that, he is not responsible for the girls' deaths, nor were his parents. It's time to put an end to this Kafka-esque two years."

  Crown summation…

  IN her summation, Crown attorney Laurie Lacelle chose to re-focus the trial on the victims. Rona, Zainab, Sahar, and Geeti, she said, had one thing in common: they all desired their freedom. They wanted to go out with friends, to have boyfriends, to wear the clothes they liked, to be free of surveillance, and to escape the physical and mental abuse in the Shafia home.

  Their lives, however, were in the hands of the people who should have been their protectors — Shafia, Tooba, and Hamed. "No one else had the exclusive opportunity to kill them," said Lacelle. "And no one else thought they should die."

  For the next two hours, Lacelle would repeat the Crown's case. She stopped partway through her summation, at around 4 pm, planning to finish the next day.

  At about 9:15 the next morning, with the usual throng of Kingston trial watchers and growing media contingent waiting for the courtroom doors to open, Kingston Police detective Chris Scott appeared on the landing of the courthouse stairway and calmly asked everyone to leave the building. Someone had phoned in a bomb threat to police that morning. The entire courthouse was evacuated as a heavy contingent of specialized tactical squad police and sniffer dogs arrived. The jury was sent away but asked to remain on standby. The three accused were quickly ushered into a waiting van and taken away from the site.

  As enthralling as the testimony had been a
t times, this interruption gave the satellite TV news trucks something new to report on. The Kingston Mills murder trial had spilled into the streets of the city. It wasn't until 1:30 that news reporters began to hear that they might soon be admitted back into the building. When they were, the entire scene inside the courthouse had radically changed. Where before maybe one or two police officers and scattered security personnel had represented the sum total of security, the foyer was now crawling with cops in full swat gear. The dormant metal detector that sat gathering dust outside the courtroom was brought down to the main front door and shocked into life. One at a time, reporters and members of the public had to give their names, present photo identification, submit to baggage checks, and clear the detector. It had all gone so smoothly, so low-key and Kingston-like, until now, in the waning days of the trial.

  Just after 2 pm, the three accused were brought back into the courtroom. Justice Maranger arrived shortly after, while members of the public continued to filter in. The jury returned and settled back into the job at hand. "I tell you, expect the unexpected," the judge told them.

  Lacelle launched back into her summation as two alert young tactical squad cops sat at attention at either front corner of the courtroom. However, in order to reduce the distraction caused by people coming in, Maranger recessed again until 2:45 pm.

  When the trial re-started for the second time, Lacelle wasted no time getting back to the heart of the Crown case. She said the four women who died were considered by Shafia, Tooba, and Hamed to be "the diseased limb on the family tree. Their solution was to remove the diseased limb in its entirety and trim the tree back to the good wood."

  She reminded the jury of the serious plotting going on behind the scenes: Hamed's Google searches about "where to commit a murder" and "can a prisoner control his real estate"; his trip to Grand-Remous on June 20 to search for a suitable murder site; the purchase of the 2004 Nissan — a "relatively cheap car" — that could be more easily submerged than the family van. When the Grand-Remous sites didn't pan out, they abruptly changed course. They turned south and ended up, not coincidentally, at Kingston Mills where Hamed and Shafia scouted some more.