A Montreal man, convicted along with his mother and father of murdering four family members, has complained to Ontario’s top court that the trial was “unfair” because of “abusive” questioning of his mother by a Crown lawyer during the trial. The new claim is contained in a document (read it after the jump) filed at the Court of Appeal for Ontario on behalf of Hamed Shafia, 21, (inset) who was convicted in January of four counts of first-degree murder, along with his mother Tooba Yahya Mohammad, 43, and his father, Mohammad Shafia, 59. The three, natives of Afghanistan who came to Canada in 2007, were sentenced to life in prison with no chance of parole for 25 years.
“The cross examination of the Appellant’s co-accused, Tooba Yahya Mohammad, was protracted, abusive and repetitious to the extent that it rendered the trial unfair,” states the notice of appeal filed by Patrick McCann, the lawyer acting for Hamed Shafia. McCann also represented him during the trial. Immediately after the convictions, all three Shafias filed appeals but Hamed is the first of the trio to file a more detailed notice setting out grounds. The notice asks that the convictions be quashed and a new trial ordered.
The appeals of the three Shafias took a significant step toward a hearing with the completion recently of a transcript of the 47-day murder trial. The 4,500-page document has been sent to the appeal court and to the lawyers. This clears the way for the lawyers to complete and file their detailed appeal documents, after which a date will be set to hear the appeals.
Hamed’s appeal cites two others grounds: the trial judge erred in admitting the hearsay statements allegedly made by the victims to friends, family, teachers, child protection workers and police officers who testified; and a Crown expert on honour killings, Professor Shahrzad Mojab, should not have been permitted to testify because her knowledge of the Afghan diaspora in Canada was “mainly anecdotal,” she wasn’t objective and the prejudicial effect of her evidence outweighed its probative value. (A formal ruling on admissibility was made on this by trial judge Robert Maranger)
McCann said he’s not sure how long it will take the court to schedule the hearing once the lawyers file their factums.
“I’m not sure what the standard lag is these days at the Court of Appeal for an appeal like this, but I would think probably in the neighbourhood of six months,” McCann said, in an interview. He has taken the lead in shepherding the appeals, in part because he is the only lawyer among the three who was involved in the trial. Mohammad Shafia is represented by Toronto lawyer Michael Dineen. His wife is represented by Toronto lawyer Frank Addario.
“They haven’t looked at the case yet,” McCann said. “They’re going on sort of my general description of what it’s all about.”
Appeal court rules stipulate that the lawyers have 90 days to finalize their appeals after the transcript is completed, but the court often extends latitude in complex cases.
Shafia, Tooba and Hamed were convicted after a trial that heard 58 witnesses (all of my trial coverage). A host of Crown witnesses testified that Mohammad Shafia, who brought his 10-member family to Canada, including two wives, was a controlling and abusive patriarch who subscribed to a cultural code of honour that required subservience and modesty from the women and girls in his family. Shafia became enraged when his daughters defied him, began dressing in Western clothes that he considered immodest and secretly dated. Shafia plotted to kill them, along with his defiant first wife, Rona Amir Mohammad, the trial heard.
Sisters Zainab Shafia, 19, Sahar, 17, and Geeti, 13, and Rona Amir Mohammad, 50, were found dead inside a submerged car that was discovered June 30, 2009 in a shallow canal in Kingston, in eastern Ontario. All of the victims had drowned. The Shafias told investigators that they believed Zainab took the family car without permission and crashed it into the canal in a joyride that ended in tragedy.
Investigators were not able to determine conclusively how the victims were killed, but speculated that they were incapacitated or rendered unconscious, perhaps even drowned elsewhere, and then were placed inside the car that was pushed into the canal.
Yahya was on the witness stand over six days during the trial, though on four of those her testimony lasted only half the day. Her cross-examination by Crown lawyer Gerard Laarhuis began at 2:40 p.m. the afternoon of her second day on the stand. Laarhuis assailed her over memory lapses regarding critical events and her changing account of her movements. Yahya told a police interrogator that the three were at the canal early on the morning of June 30 when the car carrying the victims plunged into the canal. She later disavowed the statement and, during her testimony, claimed “these were all lies” she had concocted to escape the interrogation and to somehow save her son Hamed from torture.
Addario said he has not yet filed a detailed notice of appeal because he hasn’t read the transcript or seen the exhibits.
“I don’t know anything about the grounds of appeal,” he said.
The transcript includes 11 days of evidence and discussions during pre-trial motions heard in the year before the trial began.
Here’s the document filed with the Court of Appeal for Ontario on behalf of Hamed Shafia: