Shafia trial tainted by honour killing expert testimony: lawyers argue

TORONTO -- A father, mother and son, who were convicted of murdering the couple's three daughters and another family member, have asked Ontario's highest court for new trials, arguing the original one had been tainted by "highly prejudicial" testimony on so-called honour killings.

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Mohammad Shafia, his wife Tooba Yahya and their son Hamed were convicted in January 2012 of four counts of first-degree murder -- killings their trial judge described as being motivated by their "twisted concept of honour."

But the trio's lawyers argued Thursday that testimony from a Crown expert on so-called honour killings should not have been allowed and was among several errors made by the trial judge.

"That type of evidence is flat out prohibited," lawyer Frank Addario told a panel of three appeal court judges. "She should not have been permitted to tell (the jury) how honour killings are typically carried out or read out denunciations on honour killings."

The Shafia family was originally from Afghanistan but fled at the outbreak of war in the country and eventually immigrated to Canada.

In June 2009, the bodies of Shafia and Yahya's daughters -- Zainab, 19, Sahar, 17, and Geeti, 13 -- and Shafia's first wife in a polygamous marriage, 52-year-old Rona Amir Mohammad, were found in a car at the bottom of the Rideau Canal in Kingston, Ont.

The Crown at the trial asserted the murders were committed after the girls "shamed" the family by dating and acting out, and Amir Mohammad was simply disposed of.

In making their case, the Crown called Shahzrad Mojab, a professor whose research focuses primarily on violence against women particularly in the Middle East.

Mojab's evidence involved "stereotypically reasoning about Afghani Muslims," Addario argued, while her testimony on how honour killings are typically carried out had "zero legal relevance."

"Its probative value was outweighed by its prejudicial value," he said. "A Canadian jury is perfectly capable of understanding that men of all ethnicities will sometimes hurt female family members for misguided reasons of honour, without the assistance of expert evidence."

Lawyers for Shafia, Yahya and Hamed also argued the trial judge did not properly assess the admissibility of certain hearsay statements made by the four victims before their death, and didn't instruct the jury properly on them.

They further argued the trial judge erred by not providing sufficient direction to the jury on the Crown's theory that Yahya could be found guilty of murder on the basis that her alleged failure to protect her children from her husband made her causally responsible for their deaths.

An additional twist to the joint appeal came in an argument made by Hamed's lawyer, who asked the court to admit fresh evidence which he said proves his client was only 17 -- a minor -- and not 18 and a half at the time of his siblings' deaths.

"We have evidence that is reasonably capable of belief," Scott Hutchison said as he asked for Hamed to be treated as a youth by the justice system. "In my submission you must give effect to the fresh evidence, set aside the conviction and order a new trial."

Hutchison said that at the time of the trial, Hamed didn't know that he could be a year younger than he thought he was and neither did his father or his trial counsel.

In explaining the issue, Hutchison urged the court to be mindful of a "casualness" associated with birth dates in Afghan and Middle Eastern communities.

The issue only came to light when -- after being sentenced to life in prison -- Hamed's father wanted to transfer property in Afghanistan and asked someone in the country to prepare necessary paperwork, court heard.

That person discovered Shafia's original Afghan identity document -- known as a "tazkira" -- which recorded his birth date as Dec. 31, 1991 -- making him a year younger than initially thought, Hutchison told the court.

To resolve the discrepancy, a certificate of live birth was obtained from an Afghan ministry, which turned out to have the same date, and the Afghan government also issued a document confirming the tazkira, Hutchison said.

The three documents together are key evidence, Hutchison said.

"There would be a temptation for some to think of this as a technicality," he said. "Age in so far as it relates to young people is not a technicality, it is a principle of fundamental justice....We do not treat young people the same way we treat adults."

An adult convicted of first-degree murder faces life without parole for 25 years, while a young offender, when sentenced as an adult, faces a maximum of life without parole for 10 years.

If a new trial for Shafia before a youth court could not be obtained, Hutchison asked the panel of judges to order that Shafia be granted a new sentencing hearing under the YCJA, or order that he should have his sentence reduced.

Crown lawyers argued, however, that the documents at the heart of Hamed's new claim were entirely unreliable.

Even if the appeal court accepted the questionable documents, they argued, that ought not to change the outcome of Hamed's trial.

"You can admit this evidence and it doesn't undermine the factual underpinning of the verdict one iota," said Crown lawyer Gillian Roberts. "Greater emphasis should be placed on protecting the integrity of the criminal justice system."



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