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Appeals - Grounds - Miscarriage of justice

Thursday, November 17, 2016 @ 7:00 PM  


Appeal by Shafia, his wife Tooba and his eldest son Hamed from their convictions for first degree murder. Three of the victims were the teenaged daughters of Shafia and Tooba. The fourth victim was Rona Amir, Shafia’s 58-year-old first wife. Shafia married Rona in Afghanistan in 1978. Shafia took a second wife when Rona consented, because she was unable to have children. The family lived together as a unit and, except for Rona, moved to Canada in 2007. Rona joined them in 2009. The three daughters who died had been dating men their father did not approve of and dressing in a manner he considered embarrassing. Hamed often reported their behaviour to Shafia. The girls had made complaints about being abused at home that they retracted in the presence of their father. Shafia had conversations with family members about killing the oldest daughter. A laptop computer belonging to Hamed showed searches relating to drives near water, bodies of water and “where to commit a murder”. The victims all died by drowning. They were found inside a Nissan Shafia had recently purchased, submerged in the water at the Kingston Mills Locks. The three accused reported the four missing the day they were found, claiming that they were on a family road trip and that the oldest daughter had left the hotel where they were all staying to retrieve belongings from the Nissan the night that they all disappeared. After being arrested, Hamed told an acquaintance that he followed the four victims and struck their car accidentally before it went into the water at the Locks. In another statement that she later disavowed, Tooba claimed she was at the Locks and saw the Nissan go into the water, then fainted. Intercepted conversations between the three accused established that the daughters’ honour was a source of anger for Shafia. Dr. Mojab, a professor with expertise in violence against women in Middle Eastern cultures, was permitted to testify about honour killings, but not to compare previous examples to the present case. Physical evidence established that the Nissan could not have entered the water without being pushed, and that the other family car, a Lexus, had front-end damage consistent with pushing the Nissan into the water. Pieces of plastic from the Lexus were found near the Locks. Hamed sought to adduce fresh evidence on appeal that he was actually 17 years old at the time of the killings and therefore should have been tried as a young person. Despite numerous immigration documents that stated his birthday as December 31, 1990, Hamed adduced a document from Afghanistan called a tazkira that stated his birthdate was a year later. Experts questioned the bona fides of the tazkira given the different ink used in various areas, the stamp of a country that was not in existence at the time the document was issued, and the reliability of the evidence of a neighbour that formed its basis. Prior to the appeal, the three accused acknowledged that Hamed was 18 years old when the killings took place.

HELD: Appeal dismissed. The Court refused to admit the fresh evidence. The jurisdictional challenge the fresh evidence was intended to support was based on information about Hamed’s age that was within the peculiar knowledge of Hamed and his parents, who all said he was 18. The fresh evidence was not compelling proof that Hamed was under 18. The principal evidence, the tazkira, was hearsay, its origin was suspect, and it was suspicious on its face given the stamps from a country that did not exist at the time it was created. The birth date the tazkira suggested was inconsistent with the majority of documents establishing Hamed’s birthday of December 31, 1990. Hamed was not a young person at the time of the killings. Dr. Mojab’s evidence was properly admitted as expert opinion evidence. Her opinion was logically relevant to a material issue at trial that arose through the statements of Shafia himself after the death of the victims. Dr. Mojab was well qualified to testify about the relationship between culture, religion, patriarchy and violence against women in the Middle East, especially as it related to honour killing. Her advocacy for women did not detract from her expertise. The jury was properly instructed about the use of Dr. Mojab’s evidence, which did not invite the jury to infer guilt based on probabilities established in previous cases. Evidence of the post-offence conduct of the three accused was properly admitted as suggestive of fabrication, given the conflicting accounts and the intercepted statements about the presence of the accused at the locks. Limiting the use of the evidence to the issue of planning and deliberation was favourable to the accused. Ante-mortem statements by the victims were properly admitted under the principled exception to the hearsay rule. The judge adequately instructed the jury about the use of the statements. There was no merit to the argument that Tooba was convicted based on her omission to protect her children from harm. The judge did not mention murder by omission in his charge. The evidence that Tooba was an active participant in the murders was overwhelming.