‘What motive would this person have?’ What the jury didn’t hear at the murder trial of Umar Zameer

In turbulent discussions over the four-week trial, mostly when jurors were absent from the courtroom, Superior Court Justice Anne Molloy repeatedly pushed prosecutors to explain how they planned to prove Zameer knew Const. Jeffrey Northrup was a police officer and intended to kill him by deliberately running him over head-on.

What the judge found perplexing was that surveillance video and two experts had undermined the testimony of three police witnesses who claimed Zameer drove directly at Northrup as he stood in a laneway with his arms raised. Relying on the officers’ evidence to convict Zameer of murder was “problematic,” “inconsistent” and based on “speculation,” Molloy said.

The courtroom conversations culminated earlier this week with Molloy’s blunt prediction: Jurors will ultimately reject the Crown’s theory that Zameer is guilty of first-degree murder.

“I don’t see it having any possibility of success,” Molloy said — but, the judge told prosecutors Michael Cantlon and Karen Simone, “You can argue it.”

As Zameer’s jury retired to begin its deliberations Thursday evening, it did so without knowledge of these exchanges.

Here’s what the jury didn’t hear:

‘The elephant in the room’

Not long after the trial began in mid-March, Molloy — in the absence of the jury — began identifying gaps in the evidence needed to support a first-degree murder conviction.

When a police officer is killed in the line of duty, it is treated as first-degree murder under the Criminal Code, but to convict Zameer, the Crown still had to show he knew Northrup was a police officer wearing plainclothes, and that he acted with the intent to cause bodily harm that could cause death or was reckless as to whether death ensued.

But what about the “elephant in the room,” Molloy asked prosecutors a few weeks into the trial, with the jury absent. “What motive would this person have to deliberately run down a police officer in front of three other police officers when he has done nothing wrong?”

At trial, the defence argued Zameer — a law-abiding family man who had been out with his pregnant wife and toddler celebrating Canada Day — was trying to escape a “grave danger” posed by people he didn’t know were police.

“Motive is always relevant, never essential,” Cantlon answered the judge, citing legal doctrine.

“Absence of motive is sufficient to give rise to reasonable doubt,” Molloy replied. 

The exchange was a preview of the mounting behind-the-scenes tension between the two, which heightened as the trial progressed.

The Crown’s shifting theories

One of the biggest challenges facing prosecutors Cantlon and Simone was that two experts — one a Toronto police employee called by the prosecution — contradicted the eyewitness accounts of Northrup’s colleagues, who testified Zameer ran over Northrup as he stood in front of his BMW with his arms raised. 

The traffic collision reconstructionists both agreed Zameer was reversing when he knocked Northrup to the ground and that the tall, 300-pound officer remained there when Zameer drove forward over him, unable to see the ground in front of his BMW. (During her final instructions Thursday, Molloy told the jury it was “rare” for two experts to agree.)

Both experts told the jury that what the officers said had happened wasn’t possible based on video surveillance footage showing Northrup was neither standing up bracing for impact nor in the laneway where the officers said he was hit.

That gave the Crown few avenues to argue Zameer ran Northrup over deliberately, flummoxing the judge.

“Three officers swore to that … is the Crown going to stick to that position,” she challenged the prosecution. “All the experts say he can’t be seen … there’s just no evidence at all.”

At one point, Cantlon “clarified” to Molloy that the officers got the location wrong, and that Northrup was instead struck behind a pillar out of view of the camera.

But how exactly did Northrup end up prone in the laneway? Cantlon couldn’t immediately say.

In another spirited exchange on April 12, Molloy pressed the veteran prosecutor — who oversees one of Toronto’s four crown attorney offices — for answers: “I still don’t have your theory of the case, I really need that.”

Then, earlier this week, after Cantlon had taken three more stabs at explaining the prosecution case for what happened, the judge grew exasperated. She called the Crown’s “alternate” theory “mush” and said it didn’t jibe with the evidence, such as the lack of visible damage on the front of Zameer’s car.

“I don’t even understand what your alternative is,” the judge said. “I don’t even understand what you’re saying.”

She even appeared to mock the prosecution for its inability to pinpoint how the 55-year-old officer’s body ended up where it did. “Was he levitated somehow?” the judge sarcastically asked Cantlon as Simone sat nearby with her face buried in her hands.

After these exchanges, defence lawyer Nader Hasan said it appeared the Crown had two theories of what happened: Either “Northrup was standing in front of the vehicle directly, as described by three officers, except they’re wrong about the exact location,” or Northrup was “somehow visible to Zameer … but the Crown can’t explain where, how, why or when.”

On Monday, after the lunch break, Cantlon told Molloy the Crown had abandoned the “second theory,” and would only be “relying on eyewitness identification of the officers, with Northrup standing in front of the vehicle.”

“OK,” Molloy said.

Toronto defence lawyer Monte MacGregor, one of many legal observers who followed the case closely, said prosecutors were “grasping at straws” to construct a theory.

“How can you suggest to the jury that they should find Zameer guilty, when their theory is contradicted and has no support in the evidence?”

MacGregor explained that in criminal trials, the Crown is entitled to change its theory based on evidence that rolls out during a trial — “it’s the evidence that always dictates the parameters of what theory they can and cannot propose.”

But what baffles him is that the Crown knew the officers’ testimony “would be contradicted by both the video and reconstructionist … (it) sort of makes them look a tad foolish to say these eyewitnesses will tell you what happened, except it’s easily disproven by the objective evidence.”

Final conversations

Ultimately, during her closing address to the jury on Wednesday, prosecutor Simone told jurors they should acquit Zameer of first-degree murder if they had a reasonable doubt, and invited them to find him guilty of dangerous-driving-based manslaughter.

“The officers were mistaken,” as to where Northrup was initially knocked to the ground, she said, adding that a “reasonable explanation” is they conflated the location where he was hit to where “he ultimately was run over.”

She also suggested the experts got things wrong, and that they had based their opinions on areas in the parking garage not covered by the surveillance camera — the implication being that Northrup could still have been hit head-on, but it just wasn’t captured on video.

Hasan urged the jury to reject all of this and acquit Zameer outright.

On Thursday, Molloy finished her lengthy legal instructions to the jurors, explaining they can consider lesser charges. These include second-degree murder — if they find Zameer had the intent to kill, but didn’t know Northrup was an officer — and manslaughter — if they find he committed an unlawful act that caused Northrup’s death but didn’t intend to kill him. 

If the latter, she explained that the unlawful act is dangerous driving, and the prosecution had to prove Zameer had no lawful justification for operating his car in that manner — “You must focus on the manner of the driving, not the tragic consequences that occurred.” 

The jury can also acquit Zameer of all charges if they find Nothrup’s death to be an accident, or that he was acting in self-defence, Molloy said.

Zameer’s jury is sequestered until it can make a unanimous decision.

Earlier this week, as Molloy and the lawyers held final discussions on those instructions without the jury present, the judge revisited her “problem” with the Crown’s case for first-degree murder.

The theory relies on three officers testifying Northrup was standing in front of the vehicle with his arms raised and saying “Stop, police!” before a man with no criminal background made a choice to deliberately run him down.

“Didn’t happen,” the judge said.

“Can’t imagine the jury finding that that happened,” she continued. “That’s the problem with the murder charge.” 

“I understand, your honour,” Simone responded. “That’s the evidence.”

“The evidence is what the evidence is,” the judge said as the lawyers prepared to pack up. “The unfortunate thing is that we’ve spent all this time talking about murder.”