Lawyers have final chance to sway Shafia jurors

Ten days before four members of a Montreal family were found dead, someone typed “where to commit a murder” into a Google search, using a laptop computer accessible to everyone in the family’s Montreal home. Is it evidence of a diabolical plot or a clumsy mistake by a suicidal teenage boy seeking information on how to kill himself? The dozen jurors at the Shafia murder trial, underway at the Frontenac County courthouse in Kingston, have heard both these suggestions.

This week, those 12 citizens – among them a truck mechanic, a music store worker, a utility supervisor – face the extraordinary task of considering whether the computer search, along with hundreds of other pieces of information, prove that the victims were murdered by three fellow family members, as prosecutors contend.

The jurors, seven women and five men, will review the evidence of 58 witnesses they heard during the three-month-long trial of Mohammad Shafia, 58, his wife Tooba Mohammad Yahya, 42, and their son Hamed, 21. They each pleaded not guilty to four counts of first-degree murder.

They are accused of a shocking crime, murdering Shafia sisters Zainab, 19, Sahar, 17, and Geeti, 13, along with Rona Amir Mohammad, 52, in what prosecutors allege was an honour killing, an ancient cultural practice in some South Asian and Middle Eastern countries. Perpetrators believe the only way to cleanse a family of the shame of promiscuity and disobedience of girls and women is to kill them.

The victims were found dead in a car discovered on June 30, 2009, submerged at the bottom of a shallow canal in Kingston, in eastern Ontario. They had drowned, but doctors and scientists were not able to establish where and how the victims drowned.

Rona Mohammad was Shafia’s first wife. He married her in his native Afghanistan, before the family moved to Canada in 2007.

Jurors heard evidence that two of the Shafia girls were secretly dating, dressing in revealing clothes and defying their parents. Geeti had reportedly asked to be removed to a foster home and Rona Mohammad wanted a divorce, jurors were told, an act that would have exposed the family’s polygamy, which had been concealed when they immigrated to Canada.

The trial, underway since Oct. 20, enters a critical stage today (January 24), as lawyers begin to make closing submissions to the jurors. The submissions are expected to last two days, followed by the judge’s charge to the jury.

All three defence lawyers will speak. Peter Kemp, acting for Shafia, speaks first, followed by David Crowe for Yahya and Patrick McCann for Hamed. The speaking order is based on the order on which the names of the accused appear on the indictment.

The Crown has the coveted final speaking slot because the accused presented evidence. If none of the three accused had presented evidence – and they were not required to submit any – the Crown would have been required to address jurors first.

The submissions by the lawyers, speeches that outline their views of the case, afford them a chance to speak directly to jurors and to draw together the disparate threads of evidence into one cogent argument. It is a moment when some litigators shine, putting to use oratory and emotion in a bid to sway the jurors. Some lawyers believe it is the most important phase of a criminal case, particularly if the trial has been long and complex.

Shafia jurors listened to dozens of witnesses testify in French, Spanish and Dari, one of two official languages of Afghanistan. The jurors wore headsets throughout most of the trial, and heard simultaneous interpretation of the testimony of witnesses who did not speak English. It was clear that at times, jurors and spectators struggled to follow the interpretation while trying also to read the body language and demeanour of witnesses.

Jurors watched dozens of hours of videotaped statements of the accused, hours of secret wiretap recordings and audio recordings.

When the jurors retire to their private room to deliberate, they will take with them 162 exhibits, including thousands of pages of translations of interviews and wiretaps. A transcript of one police interview of Yahya is 215 pages.

There are hundreds of photographs – of the scene where the victims were found, snapshots the family took while on a vacation that preceded the deaths and pictures taken on cellphone cameras by the victims. There are thousands of pages of information in more than a dozen reports from medical, scientific and technical experts.

Jurors also must consider the key evidence of Shafia and Yahya, who testified at the trial. Hamed did not testify.

The jurors will be addressed by Ontario Superior Court Justice Robert Maranger, the Ottawa judge who presided over the trial, before they begin deliberations.

Maranger’s jury charge is likely to be long and complex. He will review the evidence and provide jurors a crash course in the nuances of applicable criminal law, including rules of evidence and the elements of murder that must be proved.

The judge will explain that the prosecution must have proved, in order for jurors to find the accused guilty of first-degree murder: that the accused committed an unlawful act; that the unlawful act caused the deaths; that the accused had the “intent” required for murder and, that the killings were “planned and deliberate.”

Deliberate means, according to the criminal law, “considered, not impulsive” and planned refers to a “calculated scheme or design” though the plan need not be complex.

Jurors also will be told that prosecutors must have proved their case “beyond a reasonable doubt,” a high standard, but not a standard that requires absolute certainty. If jurors believe only that the accused are “probably” or “likely” guilty, they must acquit them. The judge is likely to explain that reasonable doubt is not, according to the criminal law, “far fetched” or “frivolous.” It is doubt based on “reason” and “common sense.”

Most importantly, the jurors will be told in Maranger’s charge that they must be unanimous, in order to render a verdict. Jurors are likely to begin deliberating late Thursday at the earliest. There is no time limit for their deliberations.

If the accused are found guilty of first-degree murder, they will automatically be sentenced to life in prison with no chance of parole for 25 years. For parole purposes, the sentence would be considered to have begun on the date of arrest, July 22, 2009. The trio has been in custody since that day.

(this appeared first at the Montreal Gazette)

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