Shafia brother asks court to hear case

The Hamilton Spectator - - CANADA & WORLD - DIANA ME­HTA

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 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 … a young per­son was im­prop­erly tried, con­victed and sen­tenced be­fore an adult court,” Shafia’s mem­o­ran­dum of ar­gu­ment to the Supreme Court said.

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

CANA­DIAN PRESS FILE PHOTO

Hamed Shafia is ar­gu­ing he was a youth at the time of the deaths.

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