Convicted multiple murderer Hamed Shafia has filed documents with Ontario’s top court in a bid to establish that he was unfairly tried as an adult in the sensational 2009 honour killing case. The exact contents of the application to admit fresh evidence, filed Feb. 19, aren’t yet known. It’s being kept secret by the Court of Appeal for Ontario until a hearing is held on March 3-4 at the court in Toronto but, as I reported previously, a secret hearing was held in Kingston, Ontario last October, at which his father and co-accused, Mohammad Shafia, testified that newly obtained documents show that Hamed was not 18 at the time of the murders on June 30, 2009. Hamed must convince Ontario’s top court to permit him to introduce evidence of the age discrepancy. He claims that his birthdate is December 31, 1991, and not 1990 as first believed. Next week’s hearing also will consider the broader arguments of all three convicted family members. Mohammad Shafia, 62, his wife Tooba, 46, and their son Hamed, were each convicted of four counts of first-degree murder but they have appealed, claiming that their trial was unfair because of “overwhelmingly prejudicial evidence” and “cultural stereotyping.”
The trio was convicted in January 2012 of killing 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. 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.
After the guilty verdict, trial judge Robert Maranger said the crimes were based on a “twisted notion of honour.”
If Ontario’s top court accepts the new information that suggests Hamed was not 18 at the time of the killings, it would have several options, legal experts have told me. The court could order a new trial for Hamed in youth court, where penalties would be substantially less. The court also could act essentially as a trial court and impose the penalty it deems appropriate.
The three Shafias filed a 110-page legal document in March 2015, outlining their appeal arguments.
They attacked the evidence of University of Toronto professor Shahzrad Mojab, who was permitted to testify at the trial about the origins of honour killings. She wasn’t permitted to offer an opinion about whether the deaths of the four Shafia family members were honour killings.
“Dr. Mojab’s evidence was overwhelmingly prejudicial and should not have been admitted,” states the document filed with the appeal court. “Her evidence invited the jury to improperly find that the Appellants had a disposition to commit family homicide as a result of their cultural background and to reject their claim that they held a different set of cultural beliefs.”
The manner in which Mojab’s evidence was presented “created enormous prejudice” and invited jurors to decide contested factual issues by relying on “cultural stereotyping,” according to the document.
“By reinforcing pre-existing stereotypes of violent and primitive Muslims, it created the risk that the jury’s verdict would be tainted by cultural prejudice,” the document states. It was prepared jointly by three lawyers representing the trio and argues that while some of Mojab’s evidence may have been admissible, the judge failed to “limit its scope and its potential for prejudice.”
Crown prosecutors filed a 93-page document with the Court of Appeal, rejecting the argument that Mojab’s evidence was improperly admitted and led to “cultural stereotyping.” Cancrime obtained a copy of the document.
“The appellants have mischaracterized the evidence of Dr. Mojab, so as to raise concerns regarding its prejudicial effect that did not, in fact, exist,” states the document. “More particularly, the evidence did not amount to ‘profiling’ or ‘cultural similar fact evidence.’ Her evidence did not invite the jury to find that the deaths in this case resembled a category of murders or invite the jury to engage in cultural stereotyping.”
The Crown argues that the trial judge’s decision to admit Mojab’s evidence is “entitled to deference.”
“The appellants have failed to demonstrate that the trial judge misapprehended the evidence, erred in principle, or reached an unreasonable conclusion so as to justify appellate interference,” the document states. “The evidence was properly admitted. The charge to the jury regarding Dr. Mojab’s evidence was balanced and fair.”
The appeal hearing will be held in Courtroom Number 10 at the court, in Osgoode Hall in downtown Toronto, beginning Thursday, March 3. Appeal hearings are open to the public.