No time for murder, defence lawyer tells Shafia jurors

Mohammad Shafia (inset), an Afghan immigrant who brought his 10-member family to Montreal in 2007, had no motive to kill four of them and he did not have time to murder them on the morning they were found dead, jurors at his murder trial were told Tuesday. “They all drowned accidentally,” lawyer Peter Kemp, who represents Shafia, said, in his two-hour closing address to jurors.

Kemp spoke first as the three-month long honour killing trial moved into its final phase, with lawyers and the judge addressing jurors before they begin deliberating.

Shafia, 58, his second wife Tooba Mohammad Yahya, 42, and their son Hamed, 21, have each pleaded not guilty to four counts of first-degree murder. They are accused of killing Shafia sisters Zainab, 19, Sahar, 17, and Geeti, 13, along with Rona Amir Mohammad, 52, who was Shafia’s first wife in the polygamous family.

The victims, who had drowned, were found dead inside a Nissan Sentra that was discovered submerged on June 30, 2009, at Kingston Mills, a lock station on the Rideau Canal in eastern Ontario.

Forensic experts could not determine where and how the victims drowned. Prosecutors allege the scene was staged to look like an accident and the victims were slain in an honour killing. It is an ancient practice in some South Asian and Middle Eastern cultures in which a woman or girl can be killed if she is perceived to have shamed the family, often through promiscuity or disobedience.

Kemp told jurors that friction in the Shafia household and allegations of mistreatment and restrictive family rules were blown out of proportion and that some of the children were prone to exaggeration and lying. The lawyer said Shafia was a liberal and loving father who moved his family to four new countries in a bid to ensure the children had access to good education and freedom from oppression. This is at odds, he suggested, with the prosecution’s portrait of a tyrannical and murderous parent.

“You would have to accept that the father of seven children, who had spent the last 20 years providing for them all around the world, who was in the process of building a large new home for them, for no apparent reason, became so black, so dark, so evil, that he would cold bloodedly plan the execution of three of them and carry out that plan,” Kemp said, his voice rising.

The lawyer also sketched a suggested timeline for the critical eight-hour period, beginning at midnight June 29. The Shafia family was returning to Montreal from a vacation in Niagara Falls, Ont., travelling in two vehicles, when they decided to stop in Kingston and stay overnight at a motel.

Kemp said cellphone records and highway camera recordings establish there was no time for the three accused to carry out a complex murder in which the victims were drowned at another location, then put into the Nissan before it was pushed into the canal.

“There was simply no time for a murder as opposed to an accident,” Kemp said.

Shafia testified that after they checked into the Kingston motel around 2 a.m., his daughter Zainab asked for and received the keys to the Nissan, ostensibly to retrieve clothes. In the morning, Shafia and Yahya realized that the car and the four family members were missing. They surmised, after the deaths, that Zainab took the car for a joyride and crashed it into the canal at the isolated and unlit location.

“You don’t know why the girls did not get out of the Nissan after it went into the water,” Kemp said. “If it’s the Crown theory that they all were drowned elsewhere, you don’t know where. You don’t know how, you don’t know when that happened.

“You don’t know who may have been involved in that and you don’t have any explanation for the fact that there was simply no time for a murder as opposed to an accident.”

Kemp reminded them that Shafia is presumed innocent.

“With all these unknowns, it’s only speculation that can provide answers and speculation, ladies and gentlemen, is not proof beyond a reasonable doubt,” Kemp said. “Mohammad Shafia has not had the case proven against him and should be acquitted.”

Defence lawyer David Crowe, who represents Yahya, noted that police officers who interviewed the Shafia sisters several months before they died said the girls described Yahya as an “angel.”

“Her reason for living, which is to raise her family, to raise her children, to care for her children, to protect her children, why would that change now?” Crowe asked, rhetorically.

He said Yahya’s relationship with Shafia’s first wife was “complicated” but he said there was no corroborative evidence for suggestions that Yahya isolated or abused Mohammad.

Crowe said Yahya should be believed when she testified that she lied to a police interrogator, making the seemingly incriminating statement that the trio was at Kingston Mills the night of the deaths. Yahya testified during the trial that she fabricated a story, which she later recanted, to convince the interrogator to leave her alone and because she believed it would save her son Hamed from torture.

Crowe said the story Yahya told the officer was clearly a lie.

“Her description of what occurred at the scene simply makes no sense,” he told jurors.

“There are too many unanswered questions in this investigation,” Crowe said. “My client’s explanation, coupled with the corroborative evidence … and certainly the lack of motive on her part, the strong, positive relationship she had with all her daughters, should clearly raise a reasonable doubt as to whether she was involved in any scheme to get rid of those daughters.”

Defence lawyer Patrick McCann, who represents Hamed, will address jurors Wednesday, followed by prosecutor Laurie Lacelle.

(this appeared first at the Montreal Gazette)

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