By Rob Tripp
KINGSTON, Ont. — Jurors began deciding the fate Friday of three members of a Montreal family accused of killing four other family members, unaware that there was an eyewitness to some events at the isolated spot where the victims were found dead.
The lone eyewitness did not testify at the trial and jurors were not told of his existence.
His account is among dozens of pieces of information that was withheld from the jurors, in some cases because of rulings by a judge before or during the trial. The information could not be reported publicly until the jury retired to begin deliberations.
Jurors are considering whether prosecutors proved that Afghan immigrant Mohammad Shafia, 58, his wife Tooba Mohammad Yahya, 42, and their son Hamed, 21, are each guilty of four counts of first-degree murder. The accused pleaded not guilty, prompting a trial that lasted more than three months and heard from 58 witnesses. Three of the 10-member Shafia family’s children were found dead in a submerged car discovered June 30, 2009, at the bottom of a shallow canal near Kingston, in eastern Ontario.
Sisters Zainab Shafia, 19, Sahar, 17, and Geeti, 13, along with Rona Amir Mohammad, 52, had drowned. Mohammad was Shafia’s first wife in the polygamous family, though her identity was concealed to circumvent Canadian immigration laws. Experts were not able to conclude how and where the victims drowned.
Prosecutors contend the victims were incapacitated, either by being drowned or rendered unconscious, before they were placed inside the family’s Nissan Sentra and the car was pushed into the canal.
The accused mother and father have maintained that their eldest daughter took the car without permission from the motel where the family had stopped overnight. They suggested she went for a joyride and crashed the vehicle into the water.
Prosecutors allege the family’s other vehicle, a Lexus SUV, was used to push the Sentra over a stone lip and into the water. The Lexus was not at the canal that morning, according to the statements and testimony of Shafia and Yahya.
An eight-year-old boy testified, at a hearing held in February 2010, that he saw two vehicles at the canal at 1:40 a.m. on June 30. The boy, who lives in a house on a spit of land 200 metres from the canal, was awake, getting a drink of water when he heard what he described as a “splash, kind of a crash.” The boy went to his rear deck, which affords a clear view of the canal. He saw two vehicles, one larger vehicle with its headlights on, illuminating another, smaller vehicle, with its headlights off.
Tooba and Mohammad Shafia at their wedding in Kabul in 1988.
The smaller vehicle was on the grass “near the water,” the boy testified at the preliminary hearing, a proceeding that was conducted to determine if there was enough evidence to put the accused on trial. The larger vehicle appeared to be on the road.
The boy said he also heard another sound, like a car horn, “like just ‘beep’ and then gone.” He heard it a few minutes after the “splash-crash.” He did not see or hear any people. The boy said he watched for a few minutes, then went back inside his house and went back to bed at 2 a.m. Police interviewed him later that morning.
The boy’s story appears to contradict the account of Hamed, who told a man in a jailhouse conversation, that he followed his joyriding sister to the canal in the family’s Lexus and rear-ended the Nissan before his sister accidentally drove into the water. But in Hamed’s account, the two vehicles did not go to the canal until after 2 a.m., the time at which the family checked into a motel.
Jurors also did not hear about an incident in which Shafia waved a knife at his wife, Yahya, and threatened to stab her, according to one witness.
Fazil Javid, Yahya’s brother, described the incident when he testified at the preliminary hearing on Feb. 23, 2010. Javid said it happened at the Shafia home in Montreal a week after the deaths, when many relatives had gathered to offer their sympathy to the grieving family.
“He had threatened . . . my sister,” said Javid, who lives in Sweden.
Javid said he was leaving the Shafia house, walking to a car, when he heard a commotion behind him. He turned to see that his sister, Yahya, was crying, coming after him, asking him not to leave and making some sort of gesture with her hand across her throat, suggesting that she was fed up.
Shafia was following her with a large kitchen knife that he estimated had a six-inch blade. Javid said another one of his brothers who was there was restraining Shafia.
“Hamed was trying to take his mother back inside and he was telling his father that don’t make too much noise,” Javid testified.
Lars Hagberg for National Post
Kingston Mils Locks, where the bodies of the Shafia sisters and Rona Amir Mohammad were found on June 30, 2009.
Javid testified during the trial, telling jurors that Shafia asked him for help with a plan to murder Zainab, but he was not asked about the knife incident. Lawyers had discussed the incident before the trial and noted that it was highly prejudicial to Shafia.
Jurors also did not hear about a purported scheme to send Rona Mohammad back to Afghanistan from Canada.
Montreal lawyer Sabine Venturelli, who handled the Shafia family’s immigration matters, testified at the trial but she was not permitted to recount a telephone conversation with Zarmina Fazel, an aunt of Yahya’s who lives in Montreal. Fazel helped the Shafia family and sponsored Mohammad to come to Canada on a visitor visa.
Venturelli testified at the preliminary hearing in February 2009 that Mohammad was seeking permanent residency and her application was progressing well, when the lawyer received a phone call from Fazel in April or May 2009. Fazel, who spoke French and often translated for Shafia, was speaking on his behalf.
“(She was) telling me that Mrs. Rona was causing problems to the Shafia family and that Mr. Shafia was asking me to close the file of Mrs. Rona and to have her sent back to Afghanistan,” Venturelli testified at the preliminary hearing. “He was offering me an honorarium of $10,000.”
Prosecutors argued at the trial that they should be permitted to ask Venturelli about the $10,000 offer but defence lawyers argued it was hearsay and that if the Crown wanted to put the evidence in front of jurors, they could call Fazel as a witness. Prosecutor Gerard Laarhuis told the judge “that’s another matter,” during a discussion held in the absence of jurors. It was an obtuse reference to the fact that Fazel cited sudden memory loss about the $10,000 call and other events when she testified at the preliminary hearing.
While jurors heard considerable evidence that revolved around a lengthy police interrogation of Yahya, they did not know that Yahya fought to keep the interrogation out of their hands.
During a hearing held in February 2010, David Crowe, Yahya’s lawyer, argued that Yahya did not understand the process during the interrogation and she was offered improper inducements in exchange for her answers.
Judge Stephen Hunter concluded that while the interrogator had a strategic plan, so, too, did Yahya.
“The entirety of the evidence suggests that her consistent search for what proof the police had continued throughout,” Hunter said, in ruling that her statements were made voluntarily and were admissible. The key decision permitted prosecutors to put the entire 7-1/2-hour videotape in front of the jurors.
During the recording, Yahya is seen telling the police officer that the three accused were at the canal when the Nissan Sentra plunged into the water. When Yahya testified during the trial, she said she was not at the canal. She said she had lied to the interrogator about being at the scene because she wanted him to leave her alone and she believed it would prevent her son Hamed from being tortured.