Honour on Trial Page 12

  Reconstruction…

  THE physical evidence gathered from the cars was crucial. Constable Chris Prent, a collision reconstruction expert with the Ontario Provincial Police, was brought onto the case in September of 2009 to recreate what happened at the locks the night of June 29-30, and conducted a careful examination of the two Shafia vehicles. With Gananoque Police constable Gordon Boulton, a licensed mechanic, Prent went to see both vehicles at the Kingston Police station.

  They took the wheels off the Nissan and found the brakes in good working order. They checked the throttle. Both vehicles were mechanically sound. Prent noted the other irregularities about how the Nissan was found — the headlights off, no one wearing seatbelts, the ignition off, and the car in the lowest gear.

  The reclined seats, he said, would have made it "unnatural to be operating this motor vehicle." Prent turned his attention to the vehicles in relation to the physical layout at Kingston Mills. Even though the Nissan was facing back towards the edge it had fallen over, he decided the car had gone in head first. He determined that, from the scrapes on the left side of the Nissan, the car had gotten hung up on the wooden step attached to the lock gate. (This was probably because the car had front-wheel drive, which meant it needed traction to keep moving.) "When it resisted the step, it resisted forward motion and got hung up," Prent said.

  There was another snag. As the front axle of the Nissan rolled over the edge of the lock wall, the undercarriage would have dropped down, again stopping the forward motion. "It would require a certain force to be applied to the rear of the vehicle to keep it moving," said Prent. "It's my opinion the Lexus [was] being applied to the left rear of the Nissan … and [was] being rotated away from the step into the canal."

  When they put the Nissan on the hoist, Prent could see where undercoating had been peeled away and there was excessive gouging to the frame, signs of how the car rotated as it went over the edge into the water. As it hit the water, the Nissan began a slow, counter-clockwise rotation until it was facing where it had gone in.

  Prent was asked about the additional damage to the Lexus that Hamed had reported to Montreal police in the grocery store lot. It was, he said, a clear attempt to cover up the damage from the locks.

  Examining the damage to both cars, and in particular the scrapes along the bottom of the Nissan, Prent was unequivocable in his conclusion: "It's my opinion the Lexus was used to push the Nissan over the edge of the canal into the water."

  This contact also explained the damages to the Lexus's headlight and missing letters from the back of the Nissan. Prent was adamant that only by applying force from behind could the Nissan have finished its deadly slide.

  Yet there remained a hitch to the Crown and police theory. If the Nissan was being driven while being bumped into the gate step, who was driving?

  Gordon Boulton, the cop-mechanic, testified as to how the car operated and how the scenario described by Chris Prent could have been acted out. In fact, Boulton got a 2004 Nissan Sentra just like the Shafias' and did some experimenting of his own. The particular model of Nissan owned by the Shafias was equipped with an automatic stick shift located in the console between the two front seats. To get the car out of park, the ignition must be turned on and taken out of the lock position and the brake pedal must also be pressed down.

  If the car was running and put into neutral, Boulton said, the driver could get out of the vehicle and leave it sitting stationary. With the driver's side window rolled down — as it was found on the bottom of the lake — all a person would have to do is reach in and pull the shift stick back to put the car in gear — again, as it was found in the water.

  Boulton ran this exact experiment on the test Nissan. "I was surprised," he told the court. "It accelerated rather quickly." If the car were to jump forward and get stuck on the step, it would be possible for the person now outside the car to reach back in and merely shut the car off using the key situated on the steering column, turning out the headlights in the process.

  When the car was recovered, police found the key was off and the stick shift was in the lowest gear. This scenario, of course, raised further questions. Were the four women dead or alive, conscious or unconscious, when the car entered the lake and water began to seep inside? Why would anyone who was conscious not have tried to escape from the car? Great expectations were held out for the man who might answer these and other nagging questions — Dr. Christopher Milroy, the forensic pathologist who examined the bodies at the Ottawa General Hospital.

  The autopsies…

  GOING into the trial, Kingston Police never said exactly how and when the women died or why they would have passively remained in the car as it filled with water — unless, of course, they were already dead or, at the very least, unconscious. And if they were unconscious, had they been drugged, gassed, strangled, or smothered — or struck over the head?

  The post-mortem and toxicology reports did not offer the precise conclusions everyone had been hoping for. "Nothing significant came out of toxicology," said Dr. Milroy. No traces of barbituates, carbon monoxide, cocaine, hydromorphine, oxycontin, or sedatives such as valium were found in the bodies. No alcohol. None of the date rape drug, gama-hydroxibuterate (ghb). No sleeping pills. "There was nothing we could have tested for that really wasn't tested for," concluded Milroy.

  Even two bottled drinks and a Thermos bottle of tea found in the Kingston East Motel room tested negative for anything unusual. What Milroy could say for certain was that the four women died by drowning. From the pathologist's point of view, the Shafia case was an easy one to investigate because of the freshness of the bodies. In such situations, the bodies will display expanded lungs that overlap in the middle and frothy fluid in the airway — signs of a "wet drowning" — which is typical of 90% of cases. The women, in other words, were alive when they drowned. Water went into the airways with the result that their bodies were unable to transfer oxygen to their blood supply. The chemical changes in the blood then affected their heart function.

  What Milroy couldn't say for certain — and this was crucial — was where the women drowned. "We were not able to determine whether they were alive and drowned [in the car] or had drowned elsewhere and been placed in the car," he said. "I cannot say with any certainty whether they were conscious or unconscious when they were drowned … They were not incapacitated by drugs. They were not incapacitated by natural disease."

  Milroy was asked by Crown attorney Gerard Laarhuis what would have happened if the women had been drowned, taken out of the water, and placed in the car — a suggestion of pre-drowning. A victim might involuntarily cough out the water, the doctor responded, but at some point the damage is irreversible and the heart will stop.

  Milroy then noted another common drowning symptom that he found on the bodies — bruising in the necks. As people drown and become unconscious, he said, they may have seizures that cause head and neck movements that result in bruising. "I would call it seizure-related bruising," he concluded.

  However, Milroy then described something unusual: bruising on the inside of the scalp on the crown of the heads of three of the four victims — Rona, Zainab, and Geeti. Photos taken by Kingston Police of the scalps cut and peeled back were shown in the courtroom.

  The pathologist described what he found on Rona's head. "It's a fairly substantial area of bruising. They could occur in one impact or they could represent two impacts," he said. "It's not the severest of impacts. I would call this a moderate impact." He reckoned it occurred in the hours leading up to Rona's death. "It's a moderate force or firm impact. But neither is it a trivial tap," he said.

  Zainab's scalp bruising was described as "less significant" and could have been produced by minor bumps on the head. Geeti's bruising was the result of "one impact to the head." Bruising can only take place, said Milroy, when a person is alive and the heart is beating.

  "All the bruising is fresh. They could have occurred in the period just before death." Of significance to Mil
roy was the fact that the bruises were found in similar areas on the heads of three victims. "It clearly requires explanation," he said. "There is a relative absence of injury elsewhere on the bodies."

  He was asked if the bruises could have been caused by their heads hitting the ceiling of the car as it plunged into the water. "It would have to be a relatively firm surface for that to occur," he replied.

  In his cross-examination of the doctor, defence lawyer Peter Kemp created a hypothetical scene of panic in the car as it tumbled into the lake and began to fill with water. He suggested the women, alive and fully conscious, would try to move upward where a pocket of air remained near the car's ceiling.

  "They might strive to get out of the car," Milroy agreed. "They could even flail out. Clash heads. These are all possibilities." Kemp suggested they could have hit the rear window. "Possibility," said Milroy.

  Kemp asked the doctor how long it would take someone to drown if their head was held under water. "It's probably gonna take two or three minutes," said Milroy, "about ten minutes for the heart to stop."

  Kemp wanted to know the likelihood of someone's being able to hit three different people over the head with just enough force to render all of them unconscious, yet not kill them. Milroy said that would be hard to say. "It would be unpredictable when they would lose consciousness," he answered.

  Lawyer Patrick McCann would also pursue this line of questioning. "I think it's unlikely," Milroy told him, "[that] you could deliver three blows and render them unconscious with just three blows." Milroy acknowledged that he had not found the bruising suspicious at the time of examination.

  "There was no evidence they'd been subject to an attack or subject to a restraint by other parties," he said. "I certainly released the bodies that day."

  In his re-examination, Laarhuis reinforced the Crown position as to the similarity of the bruising to three of the victims. "What the jury has to consider is a scenario in which," said Laarhuis, "alive and in the dark, why you only get bruises in one area."

  Mojab…

  THE Crown called its final witness on December 5, 2011, Professor Shahrzad Mojab, an academic from the University of Toronto, specializing in Middle Eastern honour killings. Since Justice Maranger had declared Mojab qualified as an expert witness, the Crown had to be careful not to lead Mojab with questions that would result in her speaking specifically about the Shafia case, but to allow her to speak in general terms about honour killings.

  In her testimony, Mojab described a woman's body as "the repository of family honour" in some Middle Eastern cultures — that family status depends on the control of female sexuality. She testified that, in such cultures, things like a woman's refusing to enter an arranged marriage, or being implicated in an alleged adultery, or being the victim of a sexual assault, "can trigger an attack upon her life."?Mojab was also quick to point out that honour killings are not particular to Islam — that Hindus, Jews, and Christians around the world may also practise forms of it. The notion of honour as something that must be protected, she said, "predates religion."

  "The honour," she continued, "belongs to the patrilineal, the male gender of the family. That's where it belongs and that's why the act of killing is acted and perpetrated by male members of the family." Yet, she said, "there are cases [where] female members of the family and, in particular mothers, participate."

  While speaking in general terms, Mojab's testimony clearly supported the Crown's theory about how and why the four women might have been killed.

  "The patriarch is known," she said. "It's clear who is in power in the family … through the control of the woman's body and sexuality and women's behaviour."

  The jury had already heard the wiretaps with Mohammad Shafia ranting about how his daughters had shamed him, offended his honour with their photos of themselves and their boyfriends. They'd also heard Tooba carefully defending one of her surviving daughters and one of her sons to Mohammad, telling him they were good children.

  "Mothers are often in the middle," testified Mojab, "because they have to negotiate the powers of the male members of the family."

  This would also become an important point of law that Justice Maranger would cover with the jury when he sent them out to deliberate. Even if one of the accused didn't directly participate in the act of murder, they could be found guilty of first-degree murder by assisting in the killing, by giving tools, acting as a lookout or, without even being present when the killing took place, by making it easier for the murder to be committed.

  Mojab went further in her testimony, pointing out that the female body itself represents the structure of the family. If the woman or girl is promiscuous, "it means they are not obeying the order. They are not submitting to the power of the patriarch of the family." Compliance, she said, covered everything from appearance, to choosing a partner, to "submitting to the power of the patriarch of the family." Control is exerted in the control of social relations, divorce requests, and forced marriages. For young women, particularly in Western cultures, said Mojab, "it's a very difficult task to negotiate and navigate" all of these controls and demands.

  Mojab pointed out that even fathers who kill for honour love their daughters. Family honour is also "for the sake of children, for also giving them honour. It is part of the continuum of love and care." With this kind of thinking, she said, killing becomes an "expected act. It is expected the honour of the family [will] be restored and controlled."

  Experts have also documented that the planning of honour killings may take place over several years. It begins, said Mojab, with disappointment, moving into physical violence, psychological pressure, financial restrictions, leading to "the gradual escalation of violence and then the moment of killing."

  Then, reminiscent of Mohammad's rantings on the wiretaps, Mojab described how the women are ultimately blamed for their own deaths. If the woman had only listened, said Mojab, "she would have saved her life. These are the arguments we hear all the time, that it was only a matter of dressing differently. Small matters like that cause the death of the woman."

  The members of the jury would have to ask themselves what any citizen of Canada would ask: "But does this justify the murders of four women, three of them the young daughters of their killer? Can anything justify that?"

  In his own defence…

  AS the trial moved into its second full month, defence lawyer Peter Kemp rose on the morning of December 8 and called his client to testify. Mohammad Shafia stood up in the prisoners' box and calmly made his way to the witness stand. He tested the interpreters' headset and then swore an oath on the Koran to tell the truth before Justice Robert Maranger and the jury.

  This was a significant development, considering that on November 3, the court learned that Shafia had been taken to hospital the previous night with an unspecified "serious" medical condition. At that point, the trial went into limbo until November 8 when Shafia returned to his regular seat in the prisoners' docket, wearing his usual checked sport jacket and looking none the worse for wear.

  Now, a month later, he was relaxed and clearly prepared to talk. Under questioning by Kemp, through the usual series of interpretations, Shafia related his early life in Kabul, his rise to success as an electronics businessman, and the family's many moves to escape persecution and find a better life. He talked about how he met both his wives, Rona and Tooba, and came to marry them.

  Kemp's strategy soon became clear. He was asking Shafia the difficult questions up front, or at least working around the fringes of the more damning evidence heard and seen so far.

  Was he a devout Muslim? "I am a Muslim, normal, like other Muslims," he answered.

  The Koran prevents Muslims from murdering or killing anyone? Yes.

  Births and deaths are predetermined by God? "It is God who determines the date of someone's death," said Shafia. "No one else."

  Kemp asked him about the importance of religion in marriage. "Mr. Kemp," he replied, "this depends on the girl. If she wants some
one to be out of my religion, I will ask my daughter and tell her this is not good. If she insists on this, this is not good — but this is her life."

  Shafia also insisted he never had any issues with any of his daughters' clothing or makeup. The father and daughter clashed over Ammar, her Pakistani boyfriend. He said he approached Zainab, advising her to continue with her education instead of marrying him. Zainab told him she would consider it.

  "I did what a father will do," he testified.

  After the marriage broke down, Shafia said Zainab called him in Dubai. "We had greetings and she said, Daddy, I want to offer my apologies to you that I didn't listen to what you told me," he recounted. "I said, 'I have already forgiven you.'"

  Shafia began crying on the witness stand, recalling how Zainab came to his room after he returned from Dubai to apologize to him once more. "I gave her a hundred dollars and I kissed her face. I didn't say anything else to her," he said.

  Shafia also insisted that there was never any plan to leave Rona in Europe after the family came to Canada. "My conscience and our conscience never allowed this."

  Why, then, did he lie and tell immigration authorities she was a cousin? "Because the lawyer told me, and I knew that [also], two wives will not be accepted."

  He insisted Rona was always welcome to eat at the table with the family and that she did so. "I never hit Rona but I swore at her," he said.

  Then he talked about the photographs of Zainab and Sahar that provoked him to swear and curse them on the police wiretaps.

  Shafia claimed he never saw the provocative pictures of his daughters until around the time of their funerals when his sons were cleaning the bedrooms for guests to stay. Only then did he learn about Sahar's boyfriend Ricardo.