The Supreme Court of Canada (SCC) recently denied Hamed Shafia’s leave to appeal. Shafia (along with his father and mother) was convicted of murdering his three sisters and his father’s first wife.
Shafia had asked the SCC to hear his appeal, arguing that new evidence that established that he had been a youth at the time of the murders should not have been dismissed by a lower court. The SCC denied Shafia’s request, but provided no reason for the denial.
First Degree Murder
In January 2012, Shafia and his parents were found guilty of four counts of first-degree murder and sentenced to life in prison. The bodies of Shafia’s three older sisters and his father’s first wife from what turned out to be a polygamous marriage were found at the bottom of a canal in Kingston, Ontario in 2009.
The convictions were the culmination of a trial that made headlines for months. After only 15 hours of deliberations, the jury accepted the prosecution’s theory that the sisters had been murdered in an honour killing because they had shamed their conservative Muslim family, and the first wife had been killed as she had not produced any children, and was therefore “no longer needed”.
The Court of Appeal
Shafia had previously appealed to the Ontario Court of Appeal, claiming that new evidence had surfaced that showed that he had been too young at the time of the murders to be tried as an adult, and should have been tried separately.
The Court of Appeal found no reason to permit the appeal to move forward on the basis of the new evidence, as the evidence was “not compelling”.
In the application for leave to appeal to the SCC, Shafia’s lawyers argued that the Court of Appeal had not correctly applied the well-known “Palmer test” for admitting fresh evidence. Under the test, fresh evidence can be accepted by an appeal court where is it in the “interests of justice to do so”, and where the evidence is relevant, credible, and could possible modify the outcome of a previous decision. The new evidence should have been accepted by the Ontario Court of Appeal because it raised the very real possibility that a young person had been tried and convicted by a court that had no jurisdiction as a result of his age.
The Significance of the Alleged Age Difference
Shafia’s claim is based on the argument that he was actually 17 years old when his family members were killed, and not 18 as originally thought. As such, he should have been protected by the Youth Criminal Justice Act (Act), which applies to children and “young persons” (i.e.- anyone under 18).
Under the Act, a young person convicted of first-degree murder cannot serve more than six years in prison. Where prosecutors convince a judge to sentence such as youth as an adult, their eligibility for parole begins after 10 years, rather than the 25 years that applies to adults.
If Shafia could successfully establish that he had actually been 17 at the time of the murders he would either have a shortened prison sentence, or would be eligible for parole in the next few years. However, his opportunity to do so has been denied by Canada’s highest court.
If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, or if believe you have a matter that belongs in the youth criminal justice system, the Oshawa criminal lawyers at Affleck & Barrison can help. Contact us online or at 905-404-1947 to schedule a free consultation with one of our Oshawa lawyers representing young offenders.