The man who, along with his parents, was found guilty in the “honour” killings of his three sisters and step-mother is appealing to Canada’s highest court to get a new trial after losing an appeal last year.
Hamed Shafia is arguing the Ontario Court of Appeal applied the wrong test for admitting new evidence, when it rejected documentation he claims would prove he was a young offender at the time of the killings and should not have been tried as an adult.
Scott Hutchison, of the Toronto law firm Henein Hutchison LLP, filed an application for leave to appeal to the Supreme Court of Canada on behalf of Hamed on Jan. 6.
Hamed Shafia, his father Mohammad Shafia, and his mother, Tooba Yahya, each lost an appeal after the Ontario Court of Appeal unanimously rejected their arguments in a ruling in November 2016.
The three were convicted of four counts of first-degree murder in January 2012 for the killings that a trial judge described as a “twisted concept of honour.”
The couple’s three teen daughters and Mohammad’s first wife, Rona Amir Mohammad, were found at the bottom of the Rideau River in Kingston, Ont., in June 2009. The trial heard the cause of death was drowning.
In his argument to the Ontario Court of Appeal, Hamed introduced birth documents from the Afghanistan government he said showed he should not have been tried as an adult because he was 17 – not 18 – at the time of their deaths. He argued that he should have been tried separately from his parents.
The appeal court did not admit the evidence to support the claim.
In a factum filed with the Supreme Court and obtained by the Citizen, Hamed points to the “troubling uncertainty” surrounding the rules of admissibility of fresh evidence.
He argues the documents should have been admitted under what’s known as the Palmer test to show he should have been tried in youth court – which carries with it different legal procedures and outcomes – and that this jurisdictional issue is more than just a technicality.
“The consequences were significant and certain: even had a youth justice court convicted the Applicant on the same offences, the sentence would have been significantly reduced. Instead of the most severe sentence known to Canadian law (life imprisonment without eligibility for parole for 25 years), the Applicant would have received either a youth sentence or, if sentenced as an adult, life imprisonment with parole eligibility set at 10 years,” the court filing states.
Instead of accepting the standard test for new evidence arguments, the appeal court decided a new “modified Palmer approach” was more appropriate and the birth documents didn’t meet this higher threshold, according to the factum.
“One need look no further than the fact that the issue in this case has divided appellate courts across the country. The British Columbia and Manitoba Courts of Appeal have held that Palmer applies to issues of disputed age. Ontario has now said otherwise. The various inconsistent tests that have developed for different kinds of fresh evidence also calls out for a principled approach.”
It remains to be seen if the court will agree to hear the case, let alone grant a new trial. The factum noted, however, that the Crown conceded in the previous appeal that a youth convicted in adult court would, at the very least, either be entitled to a new sentence or new sentencing hearing.
Hutchison hopes the Supreme Court will clarify the framework for fresh evidence and agree to hear his client’s case.
“The evidence that was presented on Hamed’s behalf wasn’t sort of pie in the sky,” said Hutchison in an interview.
“We had a former document examiner from the RCMP who examined the documents and concluded that there was nothing about them that would allow you to say that they weren’t genuine.”