The trial continues…

AS the trial broke for Christmas on December 14, it was unclear whether Tooba and Hamed would be called to testify in the New Year. The non-communication order preventing the Shafias from talking to their children in Montreal was vacated after being in place for three years. Then lawyer Patrick McCann told the court that his client Hamed Shafia would take the stand.

When the trial resumed on January 9, 2012, it wasn't Hamed but his mother, Tooba, who made her way to the witness stand. Tooba's lawyer, David Crowe, led her through her early life. Born in Kabul, Tooba said she came from a family of 16 children. Her father, a pharmacist who owned three drug stores in the city, had 10 sons and six daughters with two wives. Her father's first wife died of breast cancer and Tooba's mother was a divorcée. Most of her siblings were university-educated with professional jobs. Tooba only got to Grade 7 because life was interrupted by the war in Afghanistan. She was home-schooled before being married to Shafia in 1988.

Tooba confirmed that before their family left Dubai for Canada in 2007, there had been an agreement reached with the children. "We decided that until the child graduated, they are not allowed to have a girlfriend or boyfriend or get married," she told the court. There was no physical punishment in the home except the single time Shafia slapped the children when they came home late.

"Shafie had one custom — he used to talk. He used to talk a lot," she said. "If it was a small thing, he made it a big thing." Tooba said the children were tired of his incessant nagging about small issues so they kept information from their father.

Crowe raised the issue of Rona's being restricted in her telephone use in the home and having to make calls from a pay phone in the park. Tooba said it was directly related to one incident in which Rona made a call that lasted 75 minutes while the school was unsuccessfully trying to contact the home.

"I told her very nicely and she said, yes, it was the wrong thing to do," Tooba recalled. She knew nothing about what was in Rona's memoir, having only seen it when the family cleaned up the house and put it in a closet where it was later found by police.

Tooba had a different take on the incident in which Sahar attempted suicide. Her daughter didn't ingest pills, she said, but a preservative used to keep flowers fresh. She also thought her daughter was prone to exaggeration.

"Sahar had a habit," said Tooba. "If she was missing a movie she wanted to see, she would say, I'll kill myself." Tooba said Rona returned from a walk that day to discover Sahar, her adopted child, in distress. "Rona yelled at me," she recalled. "She swore at me. This is what I remember." It was on one such occasion that Rona recorded in her diary that Tooba said, "She can go to hell. Let her kill herself." Tooba denied she ever called Rona her "servant."

In her two interviews with police, Tooba told different versions of what happened on the night of June 29-30. In the first, she had stayed with the four women in the Nissan while Hamed and Shafia went to find a motel. In the second, she told rcmp inspector Shahin Mehdizadeh that she waited with them at the locks and, when they returned, she and Hamed were together when they heard the Nissan splash into the water.

On the witness stand, she had a new story to tell. She was now saying that they never went to the locks that night but specifically waited in the car along Highway 15 while the men went just down the road to the Kingston East Motel.

"I was very tired. I reclined the seat and I lay down. I don't know how long it took them," she said.

The men returned in the Lexus and she followed them to the motel. This differs from Hamed's and Shafia's versions. They said by the time they were pulling out of the motel lot to go back to the Nissan, Tooba was already driving in their direction. The motel manager said he stayed up for at least a half-hour watching for the Lexus to return. It didn't. He never saw the Nissan at all.

Tooba still insisted that everyone, including Rona and her daughters who died, got to the motel that night. She and Shafia and their three surviving children were in their room when "there was a knock at the door. Zainab came and said, 'Mother, can you give me the keys to the car because there's clothing in the trunk [and] I want to get it.'" Tooba changed for bed and went to sleep.

"I don't know anything until the next morning," she told the court.

Tooba's explanation for the story she told Mehdizadeh about hearing the car go into the water was that she was only trying to protect Hamed. She claimed to have gotten only "three hours totally" of sleep from the time of the deaths on June 30 to the day of their arrests on July 21. Specifically, she wanted to protect Hamed from torture. She claimed that when they were arrested, a Persian-speaking female police officer from Toronto told her that Hamed would be tortured with cold water. Tooba said it evoked recollections of torture performed in Afghanistan.

"I didn't want to send Hamed to torture," she said. "I put myself in that spot to show Hamed was innocent … None of that was true. I said this to show I was there to get Hamed out of that position. I didn't know what else to say."

Again, police had placed a wiretap in the police cruiser and recorded the conversation between Tooba and the police officer. What the officer actually told her was that Hamed was arrested and would be cooling his heels and drinking cold water in jail. There was no mention of torture.

Gerard Laarhuis's cross-examination of Tooba began with trying to establish when she might be telling the truth or not, even on the witness stand. Tooba said the only time she lied was during her interrogation, to protect her son. Laarhuis pointed out that she had not been forthcoming at any time about the fact that Rona was Shafia's first wife.

"I didn't see it was necessary to say that to the police," she said. "He was not an immigration lawyer." In other words, she would lie to a police officer but not to an immigration official.

"You said she was a cousin and not Shafie's wife. That was a lie and you knew it," Laarhuis pressed her. ("Shafie" was the named used by both Tooba and Rona to address Mohammad.)

"I had a lot of pain in front of me. I lost my three daughters," she replied.

"Does stress turn you into a liar?" Laarhuis asked.

"In that condition, sir, that wasn't a lie. We told the Canadian government she was a cousin," she said. "Indeed, sometimes when a person is under stress, that person will tell lies."

"Do you feel under pressure now?"

"That pressure, no," said Tooba.

When police searched the house on July 21, they found the black suitcase containing a number of photos of Sahar, Zainab, and Rona inside. It was the Crown's assertion that Hamed planned to take those pictures, downloaded from the girls' phones, to Dubai to show his father that the girls had been deceptive — and that they incited Shafia to kill his daughters and then to make the angry statements captured on wiretaps.

Tooba said she had found Sahar's pink Disney album with the photos of Sahar and Zainab and took them out and hid them in the suitcase sometime around July 4, 5, or 6, just prior to the funerals. This would imply that the photos were not available to provoke Shafia to plan the murders. On July 2, however, the Shafias allowed a CTV news crew into their home to talk about their loss. In the video, Shafia is crying and showing the reporter the pink photo album with pictures of his daughters.

Laarhuis suggested that if her husband had been looking at the album containing the inflammatory pictures of his daughters, "Shafie would be ballistic."

Tooba said there was more than one album of that type in the house. "I can tell you that I have one or two. Maybe one or two," she said.

"Do you have one or two?" Laarhuis continued.

"Two or one," Tooba replied. "We have many albums."

"You're seen flipping through this photo album. It was this one, wasn't it?" Laarhuis asked.

"The one we showed to the media was another one. The one with the naked pictures I didn't show to the media," Tooba insisted.

Frustrated by her answers, Laarhuis arranged to show the actual CTV interview in court. "It's clearly the princess book … we have in the courtroom today," he said after the viewing.

"Yes, that's correct," Tooba admitted, adding that perhaps Shafia didn't flip to the back of the album where the photos were located.

Tooba denied receiving a call from her brother Fazil, warning her that Shafia was plotting to murder Zainab. She also said she had never heard of the concept of honour killing in Afghanistan.

She added new information about the Niagara Falls trip: that Shafia had left them twice, once to go to Toronto with Hamed to open a bank account, and a second time to go to Montreal for business. "I remember the children asking, where is your father?" Tooba testified. "He told me once he was going to Montreal."

She acknowledged that she was upset at Hamed for not telling them about having followed the women to Kingston Mills that night and watching them drown. "If it was accidental, he should have told us," she said.

The wiretaps were more difficult for Tooba to explain. Why did they return to the van after being shown around the locks on July 18 and talk about being there several times before — but not tell police about that? Why didn't she tell the rcmp's Mehdizadeh they had stopped there for a bathroom break on June 24 on the way to Niagara Falls? The officer had shown her an aerial photo of Kingston Mills. "I didn't know the name of the place to specifically tell him," she said.

Laarhuis was relentless in his questioning. Plan A of their murder plot, he said to Tooba, was to tell police that Zainab took the keys. When Mehdizadeh pressured her, she went to Plan B, which was to implicate Shafia but not herself and Hamed. When Mehdizadeh established that Hamed was the lone driver of the Lexus that night, and it was used to push the Nissan into the water, Tooba had to resort to Plan C, saying she couldn't remember and then, eventually, that she had lied to save Hamed from torture.