Hamed Shafia, convicted of first-degree murder in the so-called honour killings of his three sisters and his father’s first wife, is taking his request for a new trial to the Supreme Court of Canada.
His lawyers, Scott Hutchison and Samuel Walker of Toronto-based Henein Hutchison LLP, are arguing that the Ontario Court of Appeal erred when it refused to consider fresh evidence pertaining to Shafia’s year of birth.
Shafia was believed to be 18 when he was arrested along with his mother and father for the deaths of Zainab, 19, Sahar, 17, and Geeti Shafia, 13, and Rona Mohammad Amir, 50, in July 2009.
Their bodies were found in the Montreal family’s Nissan, which was submerged in a lock on the Rideau Canal in Kingston, Ontario.
Hamed Shafia, his father Mohammad Shafia and mother Tooba Yahya were convicted in 2012 and received automatic life sentences with no chance of parole for 25 years.
After conviction and sentence, however, the family discovered documents that listed Shafia’s birth date as Dec. 31, 1991, which would have made him 17 when the crimes occurred.
That means he could have been tried under the Youth Criminal Justice Act, which would have subjected him to a less severe sentence.
If sentenced as a youth, the maximum sentence would have been 10 years. If sentenced as an adult, the sentence would have been life imprisonment with no chance of parole for 10 years, instead of 25.
“The jurisdictional error was not a mere ‘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,” the filing reads.
All three made requests to the Ontario Court of Appeal for a new trial. Those requests were dismissed last March.
Documents should have been considered
The Palmer test is the standard for determining whether new evidence should be considered in an appeal hearing.
But in its decision, the Ontario Court of Appeal determined Palmer was not an appropriate test to use in Shafia’s case, and devised a new test that it called the modified Palmer approach.
The documents purporting to show the error in Shafia’s birth date did not meet the threshold of the new test, but Shafia’s lawyers argue the court erred in creating the modified test in the first place.
Ontario’s test also contradicts decisions made in other provincial appellate courts, and the lawyers argue the Supreme Court should weigh in to clear up the inconsistency.
The filing states a number of experts and government officials reviewed the documents about Shafia’s date of birth and found them to be genuine.
The errors are clerical, the filing says, and originally occurred when the family moved to Dubai after being forced to leave their home in Afghanistan when war broke out.
The submission also says Shafia’s birth year was not the only mistake that was made when they moved – there were mistakes made with his sisters’ birth years and their last name was misspelled.
Shafia’s submission to the Supreme Court is dated Jan. 6. It normally takes between two to four months for the top court to decide whether it will hear the case.