Hamed Shafia (inset), the Montreal man convicted, along with his father and mother, of murdering four family members in what the trial judge called a “heinous” and “despicable” mass honour killing, is poised to present a new claim to Ontario’s top court in the appeal of his conviction. The youngest Shafia killer maintains that he was not 18 years old at the time of the murders on June 30, 2009, and he has documents newly obtained from Afghanistan, his birthplace, that purport to prove it, Cancrime learned.
Shafia was tried and sentenced as an adult, based on documents that indicated he was born in Kabul on Dec. 31, 1990. Those records established that he was 18-and-a-half years old at the time of the killings, and therefore subject to adult criminal law.
After a 45-day trial, he was convicted of four counts of first-degree murder and sentenced to the mandatory term of 25 years in prison before parole eligibility. If convicted of murder in youth court and sentenced as a youth, he would be eligible for parole much sooner, perhaps in as few as five years, calculated from the date of his arrest, July 2009, according to Nicholas Bala, a Queen’s University law professor and expert on youth criminal law.
“He would have significantly earlier parole eligibility,” Bala said. The legal scholar, who has studied youth criminal law for more than 30 years, said it might be the first case in Canada in which a killer sought to prove he was underage after his adult conviction.
“I don’t think it’s ever been litigated in this way,” he said.
Veteran Toronto criminal defence lawyer James Lockyer said this case is unique.
“I’ve never heard of such a case,” he said.
Hamed Shafia was tried jointly with his father, Mohammad Shafia, now 62, and his mother Tooba Yahya, now 45, in the murder of his sisters, Zainab, 19, Sahar, 17, and Geeti, 13, and of Roma Amir, 50, who was Mohammad Shafia’s first wife. The polygamous Afghan family settled in Montreal in 2007. Two years later, the victims were found dead inside a sunken car resting at the bottom of a shallow canal in Kingston, in eastern Ontario.
The trial was held in Kingston from October 2011 to January 2012. After the guilty verdict, trial judge Robert Maranger said the crimes were based on a “twisted notion of honour.” Jurors heard that Mohammad Shafia orchestrated the killings, believing it would restore his family honour. He felt it was tarnished because three of his daughters violated strict cultural rules around modesty and obedience and Rona supported them. Jurors heard that Hamed researched locations and means to commit the murders.
The Montreal Gazette has learned that a secret hearing was held on Oct. 23 in a courtroom in Kingston, during which Mohammad Shafia testified that the newly obtained documents correctly show that his son was born Dec. 31, 1991. It would make Hamed 17-and-a-half at the time of the killings, and 23 today.
The three killers already filed a 110-page document with the Court of Appeal in March 2015, complaining that they were victims of “cultural stereotyping” and “overwhelmingly prejudicial evidence” that should not have been admitted at their trial. A hearing of those claims was to be heard Dec. 14, but it appears the new claim will derail the plan.
“I have every reason to believe it’s going to be rescheduled,” Crown lawyer Jocelyn Speyer said. She declined to answer questions about the Oct. 23 hearing or Hamed’s new claims.
“I’m not prepared to comment on anything that’s not public record at this time,” said Speyer.
Hamed’s Toronto lawyer, Scott Hutchison, is filing an application seeking to put the new birthdate documents before the Court of Appeal as fresh evidence. Hutchison also declined to comment.
Mohammad Shafia, who is serving his sentence at medium-security Warkworth Institution, near Campbellford, Ont., was quietly whisked to Kingston from the penitentiary for the Oct. 23 hearing. He was the only witness, called to answer questions under oath about an affidavit he has signed, explaining how the new identity documents were obtained. Shafia claims that while he always knew his son’s correct birthdate, he did not learn of the existence of the documents establishing Hamed’s 1991 birthdate until after the trio was convicted.
Justice Michael Tulloch of the Court of Appeal for Ontario travelled to Kingston from Toronto to preside over the daylong hearing last month. Speyer cross-examined Shafia, who testified in his native Dari, with his answers interpreted. Hutchison also was present, along with another lawyer from his firm. Hamed was not present.
If the Court of Appeal is satisfied that the new documents establish that Hamed was not 18 at the time of the killings, it would have several options, Lockyer said, including the possibility of ordering a new trial in a youth court.
“He’s been tried under an adult process and … does that mean his trial’s vitiated as well?” he said. “I don’t know.”
Lockyer said the Appeal Court also could “choose to become effectively a trial court and impose the sentence it thinks would be appropriate,” or refer the case to a youth court for a new sentencing decision.
Bala said that a Crown prosecutor would almost certainly seek to have Hamed Shafia sentenced as an adult, even if convicted as a youth. A 17-year-old convicted of first-degree murder can be sentenced as an adult, but the maximum term is life imprisonment, without parole eligibility for 10 years.
A youth sentencing decision is based on the notion that someone under age 18 has diminished moral blameworthiness.
Media lawyer Brian Rogers says he is puzzled by the secrecy surrounding last month’s hearing.
“While I don’t know the facts involved, it seems extraordinary for a Court of Appeal hearing to be conducted in camera, particularly if oral testimony was heard — unless it involved a confidential police informant,” Rogers said. “It is crucial to ensure public scrutiny at every stage of proceedings, as the Supreme Court of Canada has made clear.”
Hamed Shafia is behind bars at maximum-security Millhaven Institution, near Kingston, one of Canada’s toughest penitentiaries. He did not testify at his trial but jurors heard from another witness that Hamed claimed to have been at the canal the night his four family members died. He said that they drove into the water by accident and drowned. He did not call 9-1-1 or try to rescue them.
Bala expressed skepticism about the birthdate issue.
“I think there may be a significant credibility issue here,” he said.
(this story was first published by the Montreal Gazette newspaper)
» Read all of my news coverage of the story, including my newspaper reports from the 45-day trial
» Want the complete story? Read my book on the case, Without Honour: The True Story of the Shafia Family and the Kingston Canal Murders