February 7, 2017
9:45 AM EST
Kingston Police Const Jim Lindsay, right, watches as Mohammed Shafia, left, and his son Hamed arrive for court in Kingston on November 15 2011. On Thursday July 23 2015 Lindsay was charged by the Ontario Special Investigations unit with nine sex charges from complaints in the 1980's
TORONTO — A man convicted of murdering his three sisters and another woman is taking his case to the country’s top court, arguing new evidence showing he was a youth at the time of the deaths should not have been dismissed.
Hamed Shafia and his parents were found guilty in January 2012 of four counts of first-degree murder — killings their trial judge described as being motivated by their “twisted concept of honour.”
The bodies of Shafia’s teenage sisters and his father’s first wife in a polygamous marriage were found in a car at the bottom of the Rideau Canal in Kingston, Ont., in June 2009.
During an appeal at the Court of Appeal for Ontario — which he lost in November — Shafia had argued, among other things, that new evidence showed he was too young to be tried as an adult and should have been tried separately.
The appeal court found no reason to allow Shafia’s new evidence, which it said was not compelling.
But in an application for leave to appeal at the Supreme Court of Canada, Shafia’s lawyers argue the appeal court was wrong and had not applied a standard test — known as the Palmer test — for admitting fresh evidence.
“The Palmer test for the admission of fresh evidence has been the controlling authority for a generation … If it had been applied by the Court of Appeal for Ontario in this case, the evidence would have been admitted,” Shafia’s lawyers argue in documents submitted to the Supreme Court.
“The approach taken by the Court of Appeal now introduces a troubling uncertainty into the scope and operation of the traditional rule.”
The Shafia family was originally from Afghanistan but fled at the outbreak of war in the country and eventually immigrated to Canada.
Shafia’s lawyers had told the Ontario appeal court that at the time of his trial, Shafia didn’t know that he could be a year younger than he thought he was and neither did his father or his trial counsel.
After Shafia’s conviction, documents were discovered that suggested the man was actually 17 at the time of his family members’ deaths, not 18 as previously thought, his lawyers said.
“These documents tended to show that — contrary to the principles of fundamental justice and the Charter — a young person was improperly tried, convicted and sentenced before an adult court,” Shafia’s memorandum of argument to the Supreme Court said.
The new documents were discovered when Shafia’s father wanted to transfer property in Afghanistan and asked someone in the country to prepare necessary paperwork, the memorandum of argument said.
That person discovered Shafia’s original Afghan identity document — known as a “tazkira” — that recorded his birth date as Dec. 31, 1991, making him a year younger than initially thought, it said.
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, the memorandum of argument said.
All that evidence was introduced to the Ontario appeal court and experts testified that they were genuine, Shafia’s lawyers argue.
But instead of applying the usual Palmer test, the appeal court devised a new test in which Shafia was required to show that the documents were “compelling” evidence of age, his lawyers said.
“That ‘compelling’ threshold is one unknown to our criminal law, is inconsistent with Palmer and is one that no accused would ever face at trial,” they argue in court documents. “Respectfully, the Court of Appeal for Ontario was wrong.”
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.