KINGSTON, Ont. - There are simply too many unknowns to be able to convict a Montreal couple of four counts of first-degree murder in the deaths of their daughters and other polygamous wife, a jury in eastern Ontario heard Tuesday in a case prosecutors allege is a so-called honour killing.
The Crown alleges Mohammad Shafia, 58, his wife Tooba Yahya, 42, and their son Hamed, 21, killed Hamed's three sisters and Shafia's other wife. The bodies were found June 30, 2009 in a car at the bottom of a canal in Kingston, Ont., but the Crown did not present evidence specifically detailing how it believes the four died.
The Crown has suggested it believes they were dead before the car plunged into the water, but in his closing address Tuesday Shafia's lawyer told the jury they can't rely on theories.
"You don't know where, you don't know how, you don't know when that happened, you don't know who would have been involved in that and you don't have an explanation that there was simply no time for a murder," Peter Kemp said.
"The Crown has the burden of establishing his guilt beyond a reasonable doubt...With all these unknowns it's only speculation that can provide answers and speculation, ladies and gentlemen, is not proof beyond a reasonable doubt. Mohammad Shafia has not had the case proven against him and should be acquitted."
Yahya's lawyer, David Crowe, also told the jury there are too many unanswered questions and his client should be found not guilty.
In his closing remarks, Kemp outlined a possible murder scenario, with the accused luring the victims out of the car one by one, drowning them in a nearby pond, stashing the bodies off to the side so each subsequent victim wouldn't see them, then carrying four bodies back to the car, before manoeuvring the vehicle into place.
Kemp estimated how long each step would take and said there was not nearly enough time for all that activity before cellphone records indicate the family's next known whereabouts.
Both Crowe and Kemp said the Crown's evidence concerning motive is flimsy.
Court has heard Shafia had a troubled relationship with his teenage daughters, but Crowe told the jury Shafia had forgiven Zainab, 19, for her transgressions — namely dating, marrying then quickly divorcing her Pakistani boyfriend — and that he wasn't aware before her death that Sahar, 17, was dating.
The conflict with Geeti, 13, mostly related to school attendance, Crowe said. If Shafia truly wanted his first wife Rona Amir Mohammad, 52, out of his life, he wouldn't have brought her when the family immigrated to Canada in 2007, Kemp said.
Crowe went over evidence from an expert on "honour killings" and said this case does not fit.
"The concept of honour killing has no application to the events before you," Crowe said. "It should be disregarded in its totality when you're deliberating."
The jury is expected to begin its deliberations Friday. The judge told the jury that Hamed's lawyer would address them Wednesday, followed by the Crown, whose remarks would spill into Thursday. Judge Robert Maranger said he expects to give the jury its final instructions Thursday and Friday.
Crowe suggested that a version of events Hamed laid out four months after their arrest placing only himself at the scene is legitimate. Police wiretaps indicate that Yahya, at least, did not know how her daughters and Rona had died, Crowe said.
"God so took away their common sense," Yahya is heard saying after police showed the family the scene on July 18, 2009. "They didn't think. They had no business there." Shafia replied, "God knows and his works."
Hamed told a private investigator hired on the sly by Shafia that he had seen his sisters and Rona drive out of a motel the family was staying in during a road trip. He said he followed in the family's other vehicle, a Lexus, and they ended up at the locks, where he rear-ended them accidentally and urged them to turn around. As he was picking up some pieces of a broken head light, he heard a splash, he said. The car had plunged into the water.
Hamed said he sounded the horn of the Lexus as a call for help, then took a rope from the trunk and dangled it in the water. Seeing no signs of life, he said he drove straight home to Montreal, calling police only to report an accident he later admitted he staged to mask damage to the Lexus.
The wiretaps, which captured Shafia spewing vitriol about his dead daughters, calling them treacherous and whores, and invoking the devil to defecate on their graves were a focal point of the trial.
Crowe called the language clearly "disturbing," and said it needed to be explained.
The defence says the phrase about the devil is common in Afghanistan, and what the wiretaps show is Shafia blowing off steam after discovering pictures of Sahar in a bikini and finding out she didn't tell him she had a boyfriend. The Crown contends that was all discovered before the deaths and gave Shafia motive.
What's notable about the wiretap evidence is what's absent, Crowe told the jury.
"At no point do the intercepts say, 'We drowned them,'" he said. "At no point do the intercepts say, 'We have regained our honour by drowning them.'"
Kemp also said the narrow spot into which the car plunged at Kingston Mills locks is not a logical murder scene. There are easier places to submerge a car, he said, and better choices to make it look like an accident.
Court has heard evidence it appears the four made no attempt to escape the car through an open window, and the bodies were found eerily suspended inside.
Kemp suggested that's plausible in an accident scenario.
"If it's an accident then there's no real panic until the vehicle all of a sudden isn't on the ground anymore, it's going in the water," Kemp said.
"It's pitch black, it's raining, there's no moon, there's no stars...water is gushing in through a window. You would immediately become disoriented. You wouldn't know where up was. You wouldn't know where down was...They'd have been climbing all over each other trying to get out of the vehicle and they weren't successful."