Honour-killing convict claims he was too young to be tried as adult

The remaining Shafia family arrive at the Frontenac County Courthouse in Kingston, Ontario January 26, 2012.
The remaining Shafia family arrive at the Frontenac County Courthouse in Kingston, Ontario January 26, 2012. REUTERS/Lars Hagberg

Honour-killings are something that many of us cannot wrap our heads around. You hear about it happening in South Asia and the Middle East, so it doesn’t hit home for many people in Canada.

Until a much publicized case happened here.

On June 30, 2009, Canada was shocked when three sisters and their aunt were found drowned in a car in the Rideau Canal in Kingston, Ontario. Turns out the “aunt” was the first wife of Mohammad Shafia, who next to his second wife Tooba Mohammad Yahya and their son, Hamed Shafia, perpetrated the honour killings on his first wife and three of his daughters.

All three were convicted of murder. The presiding judge in the case called the murders “heinous” and “despicable” mass honour killings. All three received life-sentences without being eligible for parole for a minimum of 25 years.

Now, Hamed Shafia, one of the convicted killers is claiming that at the time he was tried for murder, he was a youth and should not have been tried in adult court. Hamid Shafia was said to have been 18 years old at the time of the killings. However, now he is claiming that he was only 17 years old at the time.

The new claim in his appeal – and all three convicted murderers are appealing their sentence – is going to be presented to the Ontario Court of Appeal.

Hamid is set to present evidence that supposedly shows that he has new papers from his place of birth in Afghanistan that show he was under 18, as per the Montreal Gazette.

In his trial – which took place in Kingston from October 2011 to January 2012 – documents were produced from Kabul that showed he was born on December 30, 1990, which would have made him over 18 years old at the time of the killings. As 18 is the age of majority in Ontario, he was seen as being old enough to stand trial in adult court.

The Montreal Gazette has also learned that there was a secret hearing on October 23 about this issue. Hamed Shafia’s father Mohammed, one of the other murderers in the case, testified that the new documents, which show that Hamed was born on December 30, 1991, are the correct ones.

See: FAQ on Young Offenders

If the new evidence were to be accepted, Hamed would now fall under the Youth Criminal Justice Act. The act covers youths from the age of 12 to 18. The important thing here is that, even if the youth is over the age of majority when the trial is held, what will count is how old they were at the time they allegedly committed the crime.

The principles under the act state that sentencing for crimes in a youth sentence case, must:

  • not be more severe than what an adult would receive for the same offence;
  • be similar to youth sentences in similar cases;
  • be proportionate to the seriousness of the offence and the degree of responsibility of the young person;
  • within the limits of a proportionate response, (a) be the least restrictive alternative, (b) be the sentencing option that is most likely to rehabilitate and reintegrate the young person, and (c) promote in the young person a sense of responsibility and an acknowledgement of the harm done by the offence.

In other words, youths need to be given special considerations for sentencing due to their young age. They are also subject to the youth justice court than a regular provincial court.

However, if the youth commits what is considered to be a serious crime, is over the age of 14, and the youth has been found guilty of an offence which carries a minimum sentence of two years, then under s. 64 of the act, he or she can still receive an adult sentence.

If the court accepts the new evidence, which shows that Hamed was only 17 years old at the time of the murders, that would mean while the sentence may stay the same, parole eligibility would now differ.

Nicholas Bala, a Queen’s University law professor told the National Post: “He would have significantly earlier parole eligibility.” While most likely the Crown will want to maintain the adult sentence for Hamed, he would be eligible for parole in 10 years instead of 25. As the sentence counts from the day of arrest, he may be eligible for parole is as little as five years.

In the meantime, we’ll have to wait for the court’s decision on whether they accept the new evidence.

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