Shafia legal appeals exhausted with top court decision

Hamed ShafiaCanada’s top court has mercifully put an end to the Shafia family charade of innocence claims and birthdate uncertainty. The Supreme Court of Canada announced today (April 13, 2017) that it will not hear the appeal of Hamed Shafia, who claimed he wasn’t 18 years old at the time he and his father and mother murdered four other family members, including three of Hamed’s five sisters. In essence, the court declared that the Shafias are mass murderers and liars, and that’s the end of it. They no longer have any legal recourse. The decision follows the unanimous rejection by Ontario’s top court of appeals by the trio. 

The victims (from left) Geeti, Sahar, Zainab, Rona
The victims (from left) Geeti, Sahar, Zainab, Rona

The decision by the Supreme Court finalizes a Shafia family portrait already thoroughly sketched. Patriarch Mohammad Shafia is a narrow-minded, greedy and domineering tyrant who ruled his big Afghan family with anger and violence. He demanded subservience and bullied others to do his bidding. He called three of his daughters “whores” because they defied his demands for obedience and modesty. Angered that they sought freedom, Shafia forced his wife and eldest son to help him murder half his family. Caught after killing his kin, Shafia and his second wife and son concocted fantastic lies and preposterous explanations in a desperate bid to elude justice. When that failed, Mohammad Shafia fabricated an elaborate scheme to extricate Hamed from the crushing weight of adult justice.

But no one has been taken in by the lies.

“Charitably put, the evidence of guilt was overwhelming,” Ontario’s top court said, when it rejected the appeals of the killer trio and refused to consider dubious new evidence of Hamed’s age.

The Court of Appeal for Ontario noted that there is one person who could have testified to Hamed’s age with certainty.

“Tellingly, the only accurate source of information about Hamed’s date of birth – Tooba – has not filed an affidavit on the motion,” the Ontario court stated, in its decision released in November 2016. “Her police statement and trial evidence supports the conclusion that Hamed was 18 when the deceased were killed.”

The Supreme Court didn’t provide reasons for refusing to grant Hamed an appeal hearing, but the court received hundreds of pages of information filed by lawyers.

The arguments of Hamed’s lawyers focused on the claim that he wasn’t 18 at the time of the murders. This assertion was built on a supposedly newly discovered document from Afghanistan establishing a different birthdate. Ontario’s top court said the document’s origin was “inherently suspect” and a critical entry on it was “suspect.”

In addition, the timeline of the Shafia family did not make any sense, when reconstituted to accommodate Hamed’s supposed new birthdate of Dec. 31, 1991, rather than Dec. 31, 1990.

The convicted killers (from left) Mohammad Shafia, son Hamed, wife Tooba
The convicted killers (from left) Mohammad Shafia, son Hamed, wife Tooba

The 1990 birthdate is recorded in his passport and numerous immigration documents. In order to reconcile Hamed’s purported 1991 birthdate with the births of the other siblings, Mohammad Shafia claimed 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. I obtained a transcript of the secret hearing.

At first, Shafia told Crown lawyer Jocelyn Speyer, who questioned him, 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 were puzzling. His shifting timeline didn’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 lied about the new timeline. During that closed-door hearing in October 2015 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. The photo, embedded at the bottom of this story, was included in the material filed with the Supreme Court of Canada.

Hamed Shafia and his father, Mohammad, and mother, Tooba Yahya, were each convicted in January 2012 of four counts of first-degree murder. Sisters Zainab, 19, Sahar, 17, Geeti 13 and Rona Amir, 50, who was Shafia’s first wife in the polygamous family, were found dead June 30, 2009, inside a sunken car resting at the bottom of a shallow canal in Kingston, in eastern Ontario.

Jurors during the murder trial 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 cultural rules around modesty and obedience and Rona, his infertile first wife, supported the defiant girls. Jurors heard that Hamed researched locations to dispose of the bodies and means to commit the murders. The victims may have been killed first, perhaps by being drowned in a bathroom or in a shallow pond, before they were placed inside a car that was shoved into the canal. A doctor concluded all of the victims died of drowning, but he could not say conclusively when or how they drowned.

The killers were each sentenced to life in prison with no chance of parole for 25 years.

A photo apparently taken in Pakistan in May 1993, showing Mohammad Shafia and Tooba holding an infant (Mina*), with children Zainab (from left), Hamed and Sahar in front. Mina's face is obscured to protect her identity, in compliance with a court order. (from Supreme Court of Canada file)
A photo apparently taken in Pakistan in May 1993, showing Mohammad Shafia and Tooba holding an infant (Mina*), with children Zainab (from left), Hamed and Sahar in front. Mina’s face is obscured to protect her identity, in compliance with a court order. (from Supreme Court of Canada file)

* These are pseudonyms for the three surviving Shafia children who are not in prison. These names are used throughout my book on the case, to comply with a court order that protects their identities. The order never expires.

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