The three convicted Shafia family killers want new trials and Hamed Shafia, the youngest of the trio, wants to be retried or, at least, re-sentenced, as a youth. A panel of judges of Ontario’s top court is grappling with these demands following a two-day hearing this week in Toronto at the Court of Appeal for Ontario. The judges reserved judgment. There’s no timetable for a decision from the court. I think it’s unlikely the Shafias will be successful, on any of their grounds, because, as with some of their outlandish claims during their murder trial, they just can’t be believed.
Number 1: The Shafias are admitted liars who have not given reasonable and believable answers to key questions: During her testimony during the murder trial, Tooba said she told “all lies” to a police interrogator about being at the canal when the four family members died because she wanted to “save” Hamed from what she believed was impending torture by police. Convincing the appeal court Hamed wasn’t an adult at the time of the murders and is entitled to parole much sooner might also amount to “saving” him.
Mohammad Shafia admitted during his trial testimony that he lied on immigration documents. When he applied to bring his family to Canada, he falsely claimed that Rona Amir was his cousin and housekeeper, concealing her true identity as his first wife. He continued the charade, even after Rona’s death.
Although Hamed didn’t testify at trial, his conversation with a private investigator was admitted as evidence. It revealed that Hamed lied repeatedly to police interrogators. He told officers that he wasn’t at the canal the night his sisters and Rona went into the water. But Hamed told the PI he was there. He spun a story that stretched credulity about following the Nissan Sentra carrying his four family members to the canal, while he was driving the family’s other vehicle, an SUV. In the interview with the PI, Hamed said Zainab drove the Sentra into the water by accident. Hamed said he stood at the lip of the canal, called out to them and dangled a rope, but did not jump in to try to save them and did not call 9-1-1 or his parents. Immediately afterward, he drove to Montreal from Kingston, Ontario. Hamed never told his parents this story, he claimed. Hamed’s explanation for doing virtually nothing to try to save his four family members was wholly inconsistent with the portrait the family presented at trial of a loving, happy and caring clan; he told the PI that he feared he’d get in trouble so he chose to tell no one that he’d watched his beloved sisters and other mother drown.
Zafar*, the youngest Shafia boy, testified at the trial that he lied to and manipulated police and teachers in claims of physical abuse by his father and older brother – claims that he later recanted. The boy, 18 at the time of his testimony at the murder trial, insisted that he was telling the truth when he testified that he might have done an incriminating online search using a family computer (recovered by a forensic police examiner) for “where to commit a murder,” during a depressed state. He claimed he didn’t understand the word “suicidal” and wrongly inserted “murder.” The boy had attended an English school in Dubai until age 13.
Number 2: The reconstituted timeline of the Shafia family, based on Hamed’s birth in December 1991, doesn’t make sense: Mohammad Shafia claims that after the murder trial ended in January 2012, he obtained new documents from Afghanistan – during the process of a land transaction – that purport to show Hamed’s birthdate is Dec. 31, 1991, and not Dec. 31, 1990, as originally thought and as is recorded in his passport and numerous immigration documents. In order to reconcile Hamed’s purported 1991 birthdate with the births of the other six children, Mohammad Shafia now claims that the birthdates of three other children – also recorded in many official documents – are also wrong. Shafia claims that Sahar was born in 1992, not 1991; Mina* was born in 1993 and not 1992 and Zafar*, his other son, was born in 1994 and not 1993. Shafia was cross-examined about this seismic shifting of the family timeline, under oath, during an in-camera hearing held in a Kingston courtroom in October 2015.
At first, Shafia told Crown lawyer Jocelyn Speyer that he remembered the years that three of his children were born, but “not precisely” when the others were born. He claimed that he knew when Hamed, Zainab and Sahar were born but, during further questioning, his memory seemed to improve and he suddenly remembered when Zafar and Mina were born.
“I thought you just told me you only remember, exactly, the years for Zainab, Hamed and Sahar?” Speyer asked.
“I remember somehow of Zafar, Mina, I remember that, because, after a while when we got, so, she was born,” Shafia answered. “The other ones? No.”
Speyer responded: “I didn’t understand any of that answer.”
It’s not surprising that Shafia’s convoluted answers are puzzling. His shifting timeline doesn’t align with other information.
There’s good evidence that the family fled civil war in Afghanistan in August 1992, moving to Pakistan. Shafia has repeatedly confirmed 1992 is the year they left Kabul, with three young children – Zainab, Hamed and Sahar. But in order to explain Hamed’s new birthdate, Shafia has moved Sahar’s date of birth to October 1992, after the family left Kabul. He doesn’t appear to have an explanation for a timeline in which Sahar is born both before and after the family moved to Pakistan.
There’s more evidence that Shafia is either mistaken or lying about the new timeline. During that closed-door hearing in October in Kingston, the Crown showed Shafia a photograph, date stamped May 22, 1993 and taken in Pakistan. The photo shows Shafia and three children, Zainab, Hamed, Sahar and Tooba, who appears to be pregnant, holding an infant.
“It has to be Mina,” Shafia testified.
He wasn’t asked to explain this significant inconsistency. In Shafia’s new Hamed-wasn’t-born-in-1990 timeline, Mina was born in December 1993, seven months after the Pakistan photo that shows Tooba holding Mina.
Number 3: The key argument of the joint appeal is pure speculation. The trio argue that they were victims of “cultural stereotyping” and “overwhelmingly prejudicial evidence” that should not have been admitted at their murder trial.” Their argument fills 110 pages but, the gist is: they believe jurors convicted them because of the evidence of an honour killing expert, academic Shahzrad Mojab, who testified about the origins and nature of the practice across cultures and geography. Her evidence led jurors, the Shafias argue, to improperly conclude that the Shafias are the kind of people of would commit honour killings and, because these deaths fit the pattern that Mojab outlined, these deaths must be honour killings. But the lawyers who prepared this argument are essentially guessing. Jury deliberations in Canada are secret. The Shafia jurors decided their guilt behind closed doors. The 12 people are forever forbidden by law from publicly discussing how they came to the unanimous conclusion that Shafia, Tooba and Hamed killed the four family members. The appeal court judges can’t ask the jurors to explain how they arrived at the guilty verdicts. Perhaps, the jurors simply decided the Shafas were untrustworthy liars (see above) whose fanciful alibi about Zainab taking the car for a late-night joyride that ended in the canal was unbelievable. The jurors were given a mountain of circumstantial evidence linking the trio to the canal on the night the four victims died. Of course, they also had damning, secret wiretap recordings of Shafia, cursing his dead daughters as “whores” who were “treacherous” and who betrayed and dishonoured him by having boyfriends and wearing western clothing.
“They’re gone now; shit on their graves,” Shafia said, in a recording captured inside the family’s minivan on July 20, 2009, between him and his wife and Hamed. “I am happy and my conscience is clear.”
In another recording, Shafia said: “Even if they hoist me up onto the gallows … nothing is more dear to me than my honour.”
* The names of three surviving Shafia children who are not behind bars have been changed to comply with a court-ordered publication ban that never expires. It protects their identities.