Shafia appeal: Expert's 'honour killing' testimony wasn't cultural profiling, Crown says

Expert testimony on the practice of so-called honour killing did not prejudice the jury against three members of the Shafia family convicted in 2012 of murdering four female relatives, the Crown argued in an Ontario appeal court Friday. 

The Court of Appeal for Ontario heard arguments for two days this week in an appeal challenging the first-degree murder convictions of Mohammad Shafia and Tooba Yahya and their son Hamed Shafia.

The three were convicted of first degree murder in the 2009 deaths of Shafia and Yaha's three daughters and Shafia's other wife in a polygamous marriage. They are serving life sentences without chance of parole for 25 years.

The appeal hearings wrapped up Friday afternoon, with the three judges reserving their decision until a later, unspecified date.

The family's lawyers argued Thursday that the trial judge should not have allowed the testimony of University of Toronto professor Shahrzad Mojab. Mojab's suggestion that honour killings are planned by fathers and oldest sons often with the help of mothers was prejudicial and "flat-out prohibited," lawyer Frank Addario told the Toronto court.

But Crown counsel Jocelyn Speyer said Friday that Mojab was not the one who brought up honour killing.

"The phenomenon of honour killing and the possible role as motive in this case came from Mohammad Shafia himself," she said on the second day of a two-day appeal hearing.

She pointed to police wiretap evidence of Mohammad Shafia condemning his dead daughters for having dishonoured their family.

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"God's curse on them for generations," Speyer quoted Shafia as saying in a transcript of one of the wiretapped calls. "May the devil shit on their graves. Is that what a daughter should be? Would a daughter be such a whore? Honourless girl."

The bodies of the three Shafia sisters — Zainab, 19, Sahar, 17, and Geeti, 13 — and Rona Amir Mohammad, 58, were found in a car submerged in the Rideau Canal in Kingston, Ont., on June 30, 2009. The family emigrated from Afghanistan in 2007 and was living in Montreal at the time of the murders.

Speyer said Mojab herself did not testify about what Mohammad Shafia thought about honour and took pains to explain to the jury that honour killings are extremely rare and broadly condemned in Middle Eastern societies.

Majob's testimony did not amount to "cultural profiling," as the lawyers for the Shafias argued, but merely equipped the jury to understand an issue in the trial, Speyer told the court.

"She is not stigmatizing or seeking to generalize or profile an entire nation," Speyer said. "She didn't offer any opinion that this case was a case of honour killing."

Photo, passport counter age claim

The Crown also argued earlier Friday that evidence presented in court Thursday suggesting Hamed Shafia was 17 at the time of the murders was unreliable and contradicted by several other documents from the family's native Afghanistan.

'There is a substantial body of reliable evidence that Hamed was 18 at the end of June 2009.'- Jocelyn Speyer, Crown counsel

"There is a substantial body of reliable evidence that Hamed was 18 at the end of June 2009," Speyer said.

Hamed Shafia's lawyer, Scott Hutchison, argued yesterday that the new evidence about his age means he should get a new trial or barring that, a new sentencing hearing or a reduction of his sentence. Young offenders sentenced as adults to life for first-degree murder are eligible for parole after 10 years.

But Speyer said there is overwhelming evidence that Shafia was 18 in June 2009. Two passports issued by Afghanistan to Hamed in 1996 and 2006, respectively, indicate he was born in December 1990.

She pointed out that if Hamed was, indeed, born in December 1991 as his lawyers allege, then that would make his younger sister Sahar's year of birth 1992 and not the officially registered 1991.

Yet a Shafia family photo from 1992 shows both Hamed and younger sister Sahar with an even younger sibling born that year.

That photo proves that Hamed had to have been born on 1990, Sahar in 1991 and the younger sibling in 1992, Speyer told the three judges hearing the appeal.

"It doesn't work. The only thing that works are the officially recorded dates of birth," she said.

The Shafias' team of lawyers also argued Friday that the trial judge should not have suggested to the jury that if they found statements the Shafias originally gave to police to be false, they could consider those statements as proof of guilt.

As well, they alleged the judge made several errors in law regarding the admissibility of various other evidence.

But the Crown on Friday said all of the points raised in the appeal are inconsequential in the face of the overwhelming evidence presented at trial that showed beyond a doubt that the vehicle in which the sisters and Mohammad were travelling was intentionally pushed into the canal and the three members of the Shafia family were responsible.