FROM PAR­ADISE TO PUR­GA­TORY

Hamil­ton man sen­tenced in St. Lu­cia drown­ing

The Hamilton Spectator - - FRONT PAGE - MOLLY HAYES

In the end, jus­tice in St. Lu­cia came at a price.

Two years af­ter be­ing charged in the drown­ing death of a four-year-old boy, Sa­hab Jamshidi paid a cash fine and was free to leave the is­land and re­turn to Canada.

Jamshidi, 36, a McMaster Univer­sity grad­u­ate, was an as­pir­ing doc­tor on hol­i­day when he ar­rived in St. Lu­cia in Fe­bru­ary 2015. A kite surfing en­thu­si­ast, the va­ca­tion dou­bled as a re­union with friends from his med­i­cal school days on the is­land years ear­lier.

But when a day out on the wa­ter turned deadly, and the Hamil­ton man was charged with gross neg­li­gence caus­ing death in the drown­ing of a fouryear-old boy, his pass­port was re­voked and he was or­dered to stay on the is­land.

He said he’d spot­ted the boy out in the wa­ter, drown­ing, and called for help. The boy’s fam­ily said he’d taken the child out for a ride on his kite board and dropped him.

Af­ter years of de­lays and ad­journ­ments and le­gal bills, par­adise slowly turned into pur­ga­tory.

ON THURS­DAY, one day af­ter his 36th birth­day, Jamshidi’s le­gal saga — which cul­mi­nated in an un­ex­pected guilty plea last month — came to a close with a sus­pended sen­tence and an or­der to pay $75,000 Eastern Caribbean dol­lars (roughly $36,000 Cana­dian) to the fam­ily of the boy, TJ Elibox.

“We are sat­is­fied with the out­come of the case. Jus­tice has been served,” de­fence lawyers Al­ber­ton Richilieu and Vandyke Jude told re­porters out­side the Cas­tries court­house Thurs­day morn­ing.

The le­gal team won’t talk about why the sud­den guilty plea, which came just two days into his trial in Jan­uary. But given that all in­volved claim they are sat­is­fied with the out­come, it seems clear that a deal was struck.

The case is now closed — but many ques­tions re­main.

IT WAS FEB. 22, 2015 that fouryear-old TJ Elibox drowned at Bois Shadon Beach — a pop­u­lar spot for kitesurf­ing along the south­ern side of the is­land, a 10-minute walk down the white sand from the pop­u­lar Co­conut Bay re­sort.

Jamshidi was there that day with friends to cel­e­brate his 34th birth­day, kitesurf­ing out on the wa­ter.

TJ was there with his grand­mother, Marcellina Al­bert, for a pic­nic with her church group a short dis­tance away. The small boy was be­ing watched by a teenager while Al­bert and other adults pre­pared fish, more than 30 me­tres away.

Jamshidi had — prior to his plea — long main­tained that the first he saw of the boy was out on the wa­ter, bob­bing among the waves. He said he screamed for help and tried to save him. He re­turned to shore and helped form a search party, even wait­ing around to speak to po­lice.

Mem­bers of the church group said they saw Jamshidi snatch the boy from the sand — even as his teenaged babysit­ter pleaded with him not to — and took him into the wa­ter for a ride on his board. That is how TJ ended up in the wa­ter, they said. That is how he drowned.

And while Jamshidi has pleaded guilty to the al­le­ga­tions against him, the specifics of the agreed facts in the case are un­clear.

EAR­LIER THIS MONTH, The Spec­ta­tor spent a week on the is­land speak­ing to the key play­ers in the case — one that was sup­posed to have wrapped up weeks ago.

Though the St. Lu­cian jus­tice sys­tem is in­her­ited from the Bri­tish and mir­rors Canada’s in many ways, it moves at its own slow pace.

It is a bot­tle­necked le­gal sys­tem that is short on staff from judges to stenog­ra­phers. The en­tire court­house shut down for months last sum­mer be­cause of mould, and now op­er­ates out of a tem­po­rary strip mall lo­ca­tion off a high­way.

Af­ter his guilty plea at the end of Jan­uary, Jamshidi was sched­uled to be sen­tenced on Feb. 3. But when he ap­peared in court that day, the sen­tenc­ing was put over a week be­cause both his lawyers and the pros­e­cu­tion had not com­pleted their pa­per­work.

When they re­turned on Feb. 10, it was de­layed again, un­til Thurs­day’s date.

Un­til the sen­tenc­ing was fi­nal­ized, Jamshidi’s lawyers wouldn’t talk about whether a deal had been reached — though given that com­pen­sa­tion pay­ment was ready to go on Thurs­day, it seems clear they all knew what was com­ing.

There are about 200,000 peo­ple in St. Lu­cia. Most of the Caribbean is­land’s towns hug the shore of the is­land’s roughly 600 square kilo­me­tres, wind­ing around its lush moun­tain­ous in­te­rior.

The High Court is lo­cated in the bustling cap­i­tal of Cas­tries on the west coast.

Jamshidi’s de­fence lawyer, Vandyke Jude, said there are chal­lenges go­ing to trial on a small is­land like St. Lu­cia.

Nine peo­ple make up a jury and — un­like in Canada where a ver­dict must be unan­i­mous — ma­jor­ity rules.

“A 5-4 ma­jor­ity ver­dict is suf­fi­cient to find crim­i­nal li­a­bil­ity,” Jude says. “In a case where you could be sen­tenced to life (as is the max­i­mum sen­tence for gross neg­li­gence caus­ing death), it’s, in my mind, fright­en­ing that a 5-4 vote can con­demn you.”

That is par­tic­u­larly dis­con­cert­ing given that lawyers in St. Lu­cia are given only ba­sic in­for­ma­tion about prospec­tive ju­rors dur­ing jury se­lec­tion, Jude ex­plained: name, re­li­gion, and oc­cu­pa­tion. Each side is al­lowed to “chal­lenge” three ju­rors, but they are do­ing so with­out any sub­stan­tial knowl­edge about these peo­ple’s lives or lean­ings.

“In many ways you are op­er­at­ing blind,” Jude says — you’re not told whether, for ex­am­ple, they have been vic­tims of crime, or whether they’ve been closely fol­low­ing the case in the news.

“When you take all of these fac­tors into ac­count,” he ex­plains, “and put your­self in the shoes of a de­fen­dant ... and you know that in all ju­ris­dic­tions a plea of guilt is favoured by the courts ... when you have an op­tion in front of you that is less daunt­ing than spend­ing the rest of your life in jail, it is easy to see how some­one could ca­pit­u­late.”

No mat­ter the doubt he felt he might have been able to raise for the ju­rors, he re­al­izes as a lawyer that “at the end of the day, you’re play­ing roulette — not with your ego but with some­one’s life. There’s no good be­ing a smarty pants af­ter the fact.”

Asked if that means Jamshidi still main­tains his in­no­cence, Jude wouldn’t com­ment. He is cau­tious and guarded — re­spect­ful of the weight of a plea and what it means legally. FOR MARCELLINA AL­BERT, the guilty plea has so­lid­i­fied her be­lief that Jamshidi is re­spon­si­ble for her grand­son’s death.

But while the sen­tenc­ing marks the end of the le­gal case, it brings no real clo­sure for the small boy’s fam­ily. In fact the pro­ceed­ings against Jamshidi have been, in many ways, a sideshow to an un­end­ing cir­cle of fin­ger point­ing and fam­ily feud­ing.

“It’s been hell,” Al­bert said, de­scrib­ing the last two years.

She and her daugh­ter Jowella Roserie, TJ’s mother, are no longer speak­ing. Roserie told St. Lu­cian me­dia last month that she be­lieves her mother should share the blame in the case.

“I think my mother should take prison too. It’s two of them that should be re­spon­si­ble … both of them should take the penalty, not just one,” St. Lu­cia News On­line quoted her as say­ing. “If some­one comes to the beach, and there is the kid, the guardian who is sup­posed to be watch­ing the child … You have to be aware of the child at all times.”

On Thurs­day, a tear­ful Roserie told re­porters out­side the court­house that she was sat­is­fied with the out­come of the case.

Al­bert crit­i­cized her daugh­ter ear­lier this month for be­ing will­ing to take com­pen­sa­tion for the death of her son. She says money will not bring the boy back — and she is adamant she bears no re­spon­si­bil­ity in his death.

“God knows I’m not guilty,” she said. “That lit­tle boy was my heart.”

TJ’s fa­ther Terry Elibox, on the other hand, blames Roserie for their loss.

The two fam­i­lies were in the midst of a bit­ter cus­tody dis­pute at the time of TJ’s death.

Elibox says he had been granted cus­tody of the boy, but that TJ had gone with Al­bert, his ma­ter­nal grand­mother, for Christ­mas.

Al­bert was sup­posed to bring the child back to him in Marc, a small com­mu­nity just out­side Cas­tries in cen­tral St. Lu­cia, af­ter the hol­i­days — but in­stead en­rolled him at a new school down in Vieux Fort where she lives, he says. Elibox in­sists that if the child had been re­turned to him as ar­ranged, TJ would still be alive to­day.

He doesn’t speak to Roserie or her mother.

De­spite the guilty plea, Elibox says he be­lieves Jamshidi is in­no­cent and says he has told him so. The two — who had mu­tual ac­quain­tances on the is­land — got to­gether once, in 2015, shortly af­ter the child’s death.

Jamshidi re­calls be­ing ner­vous about that meet­ing.

“I’d want to rip the per­son’s head off if he was ac­cused of killing my kid,” he re­called, dur­ing the meet­ing with The Spec­ta­tor in Jude’s of­fice. “But he was so calm. I was sur­prised. I was so choked up hear­ing his story.

“It was very sad hear­ing his story and [learn­ing] other pieces of the story. My heart goes out to him. I don’t know …” Jamshidi trails off. “How­ever this case plays out, it’s not go­ing to bring TJ back.”

Be­fore the sen­tenc­ing, Elibox said he hoped Jamshidi would not go to jail. But he ac­knowl­edged that he would take fi­nan­cial com­pen­sa­tion if it was avail­able — he is not too proud to ad­mit he could use it.

And then he hopes ev­ery­one can move on.

But it is un­clear how the money will be di­vided among TJ’s fam­ily — and whether the griev­ing fa­ther, who was not in court, will re­ceive any of the money. Jude says the de­fence team has no role in how the funds are to be di­vided.

“There are so many ifs and buts in this case,” Jamshidi says.

“Our des­tinies all kind of got tied in to­gether.”

JAMSHIDI COULD be back in Canada as early as Fri­day. But as he pre­pares to fi­nally leave, it is un­clear whether he will have a crim­i­nal record at home.

Be­cause it is a sus­pended sen­tence, Jude says it is un­likely to be some­thing that would ap­ply in Canada un­less a sim­i­lar in­ci­dent oc­curred here.

But Jamshidi is well aware that if you search his name on­line, the drown­ing case comes up.

He plans on be­ing forth­right about it, and can’t say what ef­fect it might have on his abil­ity to be­come a doc­tor or prac­tise medicine. That’s down the road, he says. Right now his fo­cus is re­turn­ing home to An­caster.

“A 5-4 ma­jor­ity ver­dict is suf­fi­cient to find crim­i­nal li­a­bil­ity. In a case where you could be sen­tenced to life, it’s, in my mind, fright­en­ing that a 5-4 vote can con­demn you.” VANDYKE JUDE DE­FENCE LAWYER “God knows I’m not guilty. That lit­tle boy was my heart.” MARCELLINA AL­BERT TJ ELIBOX’S GRAND­MOTHER

Sa­hab Jamshidi in the of­fice of his lawyer Vandyke Jude ear­lier this month.

HAND­OUT

Above: TJ with his fa­ther Terry Elibox at his home in Marc, St. Lu­cia. Right: TJ’s grand­mother Marcellina Al­bert. Bot­tom: TJ’s mother, Jowella Roserie.

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