What the jury didn't hear at the murder trial of Umar Zameer

The judge overseeing the trial of a man accused of fatally running over a Toronto police officer repeatedly raised concerns over the prosecution's changing theory of what happened that night and at one point indicated she did not see how a jury could reach a guilty verdict on murder based on evidence presented in court.

During legal arguments not heard by the jury, Ontario Superior Court Justice Anne Molloy on several occasions asked the Crown to lay out its narrative for how Umar Zameer came to hit Det.-Const. Jeffrey Northrup with his car on July 2, 2021.

Prosecutors Michael Cantlon and Karen Simone raised new theories about where and how Northrup was struck after all their evidence had been presented to the jury, including some that were not brought up during their own expert's testimony.

One such theory that Northrup was "clearly visible" to Zameer when he was hit regardless of his position, which itself is in dispute was abandoned earlier this week, just days before lawyers were set to make their final arguments to the jury, after Molloy said she was struggling to understand it.

WATCH |The prosecution's case against Zameer:

The case against Umar Zameer, accused in Toronto cops death

5 months ago

Duration 5:14

Umar Zameer has pleaded not guilty to first-degree murder in the death of Det.-Const. Jeffrey Northrup, who died after he was hit by a car in an underground parking garage in Toronto on July 2, 2021. CBCs Greg Ross breaks down the evidence presented in court.

The Crown's position "keeps morphing," the judge said Monday during legal arguments over her instructions to the jury.

"Doesn't it trouble you at all that the first time we're hearing this theory of the mechanics of how this occurred is after all of the evidence is closed and the experts have finished?" she said at one point.

Arguments and evidence discussed in the absence of the jury cannot be published until deliberations begin and the jury is sequestered. Jurors began deliberating Thursday evening.

Prosecution allegedZameer drove dangerously

Zameer has pleaded not guilty to first-degree murder in Northrup's death. The officer died after being hit by a vehicle in an underground parking garage at Toronto City Hall.

The fact that Zameer ran over the officer is not in dispute. Rather, the case centres on whether he intended to do it or even knew that it happened as well as whether he was aware that the people who approached his family were police officers.

The defence has argued Northrup's death was a tragic accident but not a crime. Defence lawyers say Zameer and his pregnant wife did not know Northrup and his partner who were in plain clothes were police officers and the couple feared for their lives when two strangers rushed towards their car shortly after midnight. The couple's two-year-old son was also in the car.

Prosecutors have alleged Zameer chose to drive dangerously knowing police officers were nearby and drove directly at Northrup, causing the officer's death. They have argued the defence's position that Zameer didn't see Northrup or know he had hit someone is inconceivable given the officer's height and size.

Three police officers who witnessed the incident have testified that Northrup was standing with his hands raised in front of him in the middle of a laneway when he was run over. Two of them said Northrup fell on the hood of the car before dropping off and going under the wheels.

However, two crash reconstruction experts one called by the Crown and one by the defence told court they concluded Northrup had been side swiped and knocked down by the car as it was reversing and was already on the ground when he was run over. Both noted the absence of damage or marks in the dust on the front of the car, which they said they would expect to see if someone was hit head-on.

Barry Raftery, the expert called by the defence, also testified that Northrup would have been in the car's blind zone and not visible to Zameer when he was on the ground.

Court has also seen security footage in which an unidentified object believed to be Northrup appears on the ground in front of the car as it is driving forward. The front headlights can be seen going up and down as the car goes over the object.

Northrup cannot be seen at any other point in the video. Though the camera's view is partially blocked by a pillar on the left side, it has a clear shot of the laneway where the officers said they saw Northrup who measured more than six feet and weighed close to 300 pounds standing.

Raftery said the sudden appearance of Northrup's body in the video suggests he was pushed or dragged by the car on the ground until he came into view and went under the wheels.

Judge noted discrepancies between officers and expert

After the Crown finished presenting its evidence, Molloy noted the discrepancy between the witness officers' accounts and that of the prosecution's expert while speaking to lawyers in the absence of the jury. She pointed out another expert, Raftery, was set to give a similar opinion as part of the defence's case.

"Let's just be blunt I don't see how they can get to second-degree murder on this evidence because of the expert report and video," she said.

"Now there's going to be some second expert report that's going to say the same thing: he wasn't standing up in front of the car. So, is that a concession that the Crown can make?" she asked.

"No, Your Honour," Simone replied.

In order to find Zameer guilty of murder, jurors must believe beyond a reasonable doubt that he deliberately hit Northrup with the intent to kill or to cause bodily harm he knew was likely to result in death and was reckless as to whether death ensued.

Whether it is first- or second-degree murder then depends on if jurors find Zameer knew Northrup was a police officer. Under the Criminal Code, the murder of a police officer carrying out their duties is automatically first degree if the accused knew or was wilfully blind to that fact.

The Crown's position is that Northrup was standing but the officers were mistaken about his location, Simone said. Instead, Northrup was hidden from the camera by the pillar when he was struck by the car moving forward, she said, suggesting the officer left handprints on or near the hood of the car.

Court has heard a fingerprint associated with a right handprint on the edge of the driver side hood of the car was identified as belonging to Northrup. A smear the Crown argues is a left handprint was found near there but could not be identified.

There is no evidence on when the marks were made, and both Zameer and his wife testified Northrup and his partner were banging on the car at the beginning of the encounter.

Crown's scenario'not consistent with any evidence': judge

Molloy said the scenario proposed by the Crown that Northrup was hit while standing behind the pillar out of the view of the camera and left handprints on the car was "not consistent with any evidence other than what you're telling me now."

"This wasn't a scenario that you put to any of the witnesses, including the officers or the expert," Molloy added.

Simone disagreed, noting all three witness officers placed Northrup near the hood of the car.

The Crown then said Monday that it would bring forward an alternate theory that the officer was "clearly visible" to Zameer regardless of his position and Zameer drove directly at him.

Molloy agreed that could indicate the intent required for murder but asked prosecutors to explain where Northrup could have been visible to Zameer if he wasn't standing.

At multiple times in the discussion, the judge said she was struggling to understand the alternate theory.

"He's visible after being either standing and never been knocked down or knocked to the ground and not in a blind zone," Cantlon said.

The prosecutor suggested that somewhere behind the pillar, Northrup "connected" with the car and was picked up without being dragged on the ground, bringing him to the position where he appears in the video. At one point, Cantlon suggested Northrup may have been holding on to the car's grille.

"That's certainly an inference that can be drawn from the evidence," he said.

"No, it isn't," the judge replied. "That's a brand new theory," she said, adding the video does not show anyone holding on to the car.

The Crown later told Molloy they would not pursue the alternate theory and would argue only that Northrup was standing when he was struck.