Compassion for Orphans

"He's been tried under an adult process and .. does that mean his trial's vitiated as well? I don't know."
"[The Appeal Court could also] choose to become effectively a trial court and impose the sentence it thinks would be appropriate [or refer the case to a youth court for a new sentencing decision]."
James Lockyer, veteran Toronto criminal defence lawyer

"I don't think it's ever been litigated in this way [where a killer seeks to prove his underage status after conviction as an adult]."
"I think there may be a significant credibility issue here."
Nicholas Bala, Queen's University law professor, expert on youth criminal law

Credibility is the issue. Also at issue is the way that Muslims charged with criminal offences, or undergoing removal processes, or being informed of the revocation of their citizenship as a result of criminal activity or violent jihadism, become skilled in using Canadian law in their defence, and/or to prolong proceedings to enable them to remain in Canada, and to invoke all the lawful protections accorded them as residents and citizens of the country. But of course, they do this with the connivance of Canadian lawyers, skilled in finding legal loopholes to benefit their clients.

This is the case of a young Muslim man of Afghan derivation who moved to Montreal with his father, his mother, his father's second wife, and his three sisters, to find a better life for themselves in a free and democratic society. Mr. Shafia was a successful businessman, and the family had no issues with funding a lavish lifestyle for themselves. The family was, however, beset with the issues that are common to patriarchal societies, where women are considered to be assets owned by men in their lives, and as such totally subservient to the men's whims, through custom.

Rona Shafia, left and Sahar Shafia, in a photo recovered from Sahar's cellphone, taken June 26, 2009

The three Shafia girls, Zainab, 19, Sahar, 17 and Geeti 13, were causing their parents much perturbation. They had adapted seamlessly to life in Canada and so had their father's first wife, not their mother, who supported their inclination to be free and sovereign as independent individuals. Against their parents' wishes, who expected the girls to be sweetly obedient and never give them cause for cultural embarrassment.

When it was discovered that the two older girls had acquired boyfriends that might have spelled the formation of a plot to expunge the family's humiliation.

The three girls, along with Rona Amir, 50, Mr. Shafia's plural wife who had been his actual first, were murdered by the other three family members; father Mohamma Shafia, 62, mother Tooba Yahya, 45, and brother Hamed Shafia who claims now to have been 17 at the time of the murders, not 18-1/2 as documents asserted. All three were convicted of the murder in 2009 of the four family members whose behaviour the parents and the brother found unacceptable.

The murders of the four women, found dead inside a car at the bottom of a shallow canal in Kingston, Ontario and the following trial two years later, might have restored to the remaining family members a feeling that their tarnished reputation had been remediated, but the penalty for that cultural practise was a life-sentence for murder for all three. And then they filed a 110-page document complaining of having been victimized by "cultural stereotyping" along with "overwhelmingly prejudicial evidence" that the trial judge had erred by permitting them to be used.

Now, however, the young man claims he had not yet reached his 18th birthday at the time the killings took place. Documents newly received from Afghanistan purport to demonstrate this is the case. Tried and sentenced as an adult since documents indicated he was 18-1/2 at the time of the murders made him subject to adult criminal law. Now, he and his lawyer feel the four counts of first-degree murder for which he was sentenced to 25 years before parole eligibility, should be suspended.

Had he been convicted of murder in youth court and his sentence reflecting his youth status, he would be eligible for parole in as  few as five years, according to Nicholas Bala. This could be the first case in Canada, according to the legal scholar, where a killer set out to prove after his adult conviction that he was underage at the time of the commission of the crime for which he was sentenced. This is a classic case of a man found guilty of patricide, appealing for mercy on the grounds that he was now an orphan.

Lars Hagberg / Postmedia News    Mohammad Shafia, left, and Hamed Shafia leave the holding cell at the Frontenac county courthouse in Kingston, Ont. Dec. 13, 2011.