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Lawyers point to 'prejudicial' evidence for appeal in Shafia case

Mohammad Shafia (right), Tooba Yahya (centre) and their son Hamed Shafia (left) are escorted into the Frontenac County courthouse in Kingston, Ont.


A prevailing sense of inevitability surrounded the conviction of three members of the Shafia family, but leading criminal defence lawyers and a key lawyer at the trial maintain that there are legitimate grounds for the verdicts to be overturned on appeal.

They say that the appeal will focus on hearsay testimony from peripheral witnesses, police interrogations that appeared oppressive and testimony from a controversial expert witness about honour killings.

"The prejudicial nature of this kind of evidence is pretty overwhelming," said Patrick McCann, a lawyer for one of the defendants, 21-year-old Hamed Shafia. "From day one, the media were calling it 'the honour killing trial.' "

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Mr. McCann said that legal errors in the case have buoyed his client's spirits in the hours since he was sentenced to life behind bars Sunday. "My client is certainly not ready to accept the verdict without a further fight," he said. "My understanding is that all three defendants will appeal."

Hamed's parents – Mohammad Shafia and Tooba Yahya – were also convicted of first-degree murder in the killing of four female family members – sisters Zainab, 19, Sahar, 17, and 13-year-old Geeti – as well as Mr. Shafia's first wife, Rona Amir Mohammad.

The victims were found dead in a car found submerged in a canal outside Kingston.

By portraying Crown evidence as virtually unassailable, much of the media skewed attention away from inadmissible or prejudicial evidence that could set the stage for a successful appeal, said Frank Addario, a Toronto defence lawyer.

Mr. Addario said that appellate judges are trained to screen out emotion and concentrate on intricate errors that might have prevented jurors from finding a reasonable doubt about the defendants' guilt.

"The Crown presented a pretty compelling case, but it is very hard from outside the courtroom to evaluate the evidence in the case," he said. "Most of the media decided early that the defendants were guilty and their coverage reflected that conclusion on a daily basis."

Expert evidence will come under especially close scrutiny, Mr. Addario predicted. "The veneer of objectivity that expert evidence can lend sometimes erases residual doubts that jurors can have about the quality of a case," he said.

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John Rosen, a defence veteran of 300 homicide cases, said the defendants may face an initial obstacle of qualifying for legal aid to finance their appeal – assuming they cannot pay for their defence. "They will have to show that there is a meritorious argument – and that isn't automatic in these tough times," he said.

Mr. Rosen predicted that the appeal will home in on the admissibility of cultural and religious evidence. "Also, there may be grounds involving the judge's charge to the jury," he said.

Mr. McCann was sharply critical of a purported expert on honour killings, University of Toronto professor Shahrzad Mojab. Prof. Mojab, who did not respond to an interview request Monday, told the jury that honour may justify the killing of a relative in some cultures.

However, Mr. McCann said that Prof. Mojab relied on scanty research and had an agenda of "eradicating patriarchy throughout the world. Field research has consisted of interviewing people and taking it all at face value without any cross-referencing or credibility checks," he said.

Mr. McCann also criticized two arduous police interrogations where officers exploited Ms. Yahya's cultural inclination to respond to authority figures.

"One officer was yelling at her, accusing her of lying," he said. "Talk about an oppressive atmosphere. I think most judges would have felt very uncomfortable about letting that interrogation go to the jury."

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Mr. McCann also said the subtlety of Ms. Yahya's statements to police was lost in the translation process and that the trial was marred by "a mass of hearsay evidence, some it generalized and some of it so remote."

Teachers and social workers were allowed to testify about complaints the victims allegedly made about violence and intimidation in the Shafia home, he said, notwithstanding the fact that they had no notes or records to rely on.

Brendan Crawley, a spokesman for the Ontario Attorney-General's ministry, said that the Crown could not discuss an appeal or potential appeal grounds.

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Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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