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To set the stage for this post on R v Shafia 2016 ONCA 812 (presently on leave to appeal to the Supreme Court of Canada (SCC)), I turn to the prose of Justice Watt at the Ontario Court of Appeal (“ONCA”):

Boaters who travel the Rideau Canal system between Colonel By Lake and Lake Ontario pass through a series of locks at Kingston Mills. Lock gates open. Boats enter. Lock gates close. Boats leave. But not always. One morning – June 30, 2009 – boaters could not enter Kingston Mills Locks. Oil on the water of the upper lock. A closer look revealed its source. Something in the water. In the water was a Nissan Sentra. Driver’s window open. Ignition off, but not locked. Headlights off. Seatbelts unfastened. Front seats reclined. Rear name plate damaged. And inside the vehicle, a terrible loss of life. Four dead family members. Three young women. One adult. About three weeks later, three arrests. Three members of the same family. The father, mother and brother [(Hamed Shafia)] of the young women. Each charged with four counts of first degree murder.

At trial, it was found that Hamed Shafia had used his Lexus to ram the Nissan into the locks. The trial raised immense media attention and debate over honour crimes. However, perhaps the most fascinating aspect of the case emerged after the conviction had been entered: it was discovered that Hamed was only 17 at the time of the murders.

At the Ontario Court of Appeal, Hamed argued for the first time that he should not have been tried with his parents because he was too young to be tried as an adult. Under section 683(1)(d) of the Criminal Code, Hamed asked the Court of Appeal to admit fresh evidence about his age that proves that he was tried in the wrong court. The evidence showed that he was 17 years old when the deceased were killed and thus, could only be tried in the youth justice court (where a young offender convicted of first-degree murder, when sentenced as an adult, faces a maximum of life without parole for 10 years, in comparison to the life without parole for 25 years Shafia is presently facing) under s. 14(1) of the YCJA.

At the time of the trial, Hamed’s father, Shafia Mohammed, did not turn his mind to the issue of Hamed’s birthdate. However, following the conviction, Shafia asked his other son, A.S., to contact his former employee in Afghanistan to prepare the paperwork necessary to transfer his property in Afghanistan to Hamed. The employee noticed that something was awry, and obtained a Certificate of Live Birth for Hamed, which revealed his correct birthday as December 31, 1991. Two other documents confirming this date, a Tazkira and a Census General Presidency Form, were also discovered.

As Justice Watt described, referring to renowned criminal lawyer Scott Hutchison:

“Very experienced counsel represented Hamed at trial. A member of the criminal Bar for several decades, trial counsel was well aware of the significance of an accused’s age as a jurisdictional determinant. Included in the disclosure…were Hamed’s Afghan passports, his Canadian identity documents, and date-stamped family photos….Hamed’s date of birth – December 31, 1990 – was also noted on the indictment opposite his name.”

Mohammed explained that when the family fled from Afghanistan to Pakistan in 1992, they had no official documents, and provided an affidavit explaining that his first son Zainab was born in 1989 in India, and Hamed “approximately two years later” in Kabul, Afghanistan on what he now knows to be December 31, 1991. Moreover, in support of the authenticity of the documents, Ms. Layla Ayan, First Secretary of the Consulate Section of Embassy of Afghanistan in Ottawa, provided a letter stating that all three documents were authentic.

The Palmer Test

Hamed now seeks leave to the SCC on the basis that the Court of Appeal misapplied the “Palmer Test,” the test used to determine the admissibility of fresh evidence on appeal. “Fresh evidence” is understood to mean evidence that existed at the time of the trial, but for various reasons could not be put before the court. In Palmer v The Queen [1980] 1 SCR 759, Justice Laskin wrote that in order for fresh evidence to be admitted, the following must be met:

  1. The Due Diligence Requirement: The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial (note: Laskin was clear that this principle is not to be applied as strictly in a criminal case as in civil cases, and courts have since held that it is not a condition precedent to the admission of fresh evidence on appeal);
  2. The Relevance Requirement: The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
  3. The Credibility Requirement: The evidence must be credible in the sense that it is reasonably capable of belief; and
  4. The Cogency Requirement: It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

ONCA’s Modifications to the Test for Fresh Evidence

Here, the due diligence, relevance, and credibility requirements were clearly met. As aforementioned, neither Shafia nor his counsel were aware of his true date of birth and there was no reason to inquire about it; the evidence was relevant and cogent because it would effectively determine the jurisdiction of the court; and it was credible because the documents were recognized as authentic by the Embassy.

However, the Crown responded, and the Court agreed, that fresh evidence can only be allowed on appeal in two scenarios:

  1. When the evidence impeaches a factual finding essential to the verdict rendered at trial (the Palmer test applies); and
  2. When the evidence shows that there was a lack of adjudicative fairness in the trial process that resulted in findings of guilt (the Palmer test doesn’t apply).

Justice Watt stated that Shafia’s argument that the trial court lacked jurisdiction to try him did not “fit neatly” into either paradigm. Despite this fact, Justice Watt went on to describe two cases, R v D (AO) 2015 BCCA 514 and R v Hailemolokot 2014 MBCA 90, in which appellate courts applied the Palmer criteria to allegations of lack of jurisdiction in the trial court. Justice Watt decided instead to apply a “modified Palmer approach” due to the “concerns about the credibility and cogency of the proposed evidence [that] arise and are more easily accommodated under the Palmer paradigm.” Within this approach, “the proposed evidence should provide a compelling basis to conclude that Hamed was a ‘young person’, in the same way we require when an appellant seeks to set aside a guilt plea on appeal.” Moreover, Justice Watt stated that because this evidence does not fit neatly into either paradigm, “greater emphasis should be placed on maintaining the integrity of the criminal justice system and protecting it from those would ‘game it’ by accepting the jurisdiction of the trial court, only challenging it later having received an adverse verdict” (this seems to be directly opposed to the lauding he gave to Mr. Hutchison earlier in his decision). Ultimately, Justice Watt found that the interests of justice did not warrant the reception of the fresh evidence documents and denied the appeal.

It should be noted here that Justice Watt pulls the idea of the need to “maintain the integrity of the criminal justice system” from R v Snyder 2011 ONCA 445, where the wording was used to describe why the Palmer regime (in its original, unmodified form) is necessary. This reasoning and Justice Watt’s decision to devise a new “modified Palmer approach”—one that required counsel to show that the evidence was “compelling” evidence of Hamed’s age—seems to be particularly odd and unprecedented.

Respectfully, Justice Watt’s decision also seems to lack some sensitivity to the plight of those who are forced to flee their home country. Amidst his several reasons for why the proposed evidence should not be admitted, Justice Watt could not understand why Shafia had a “lengthy history of consistent and repeated representations, some in sworn declarations to gain entry into various countries, among them Canada, that Hamed was born on December 31, 1990” which were changed “solely on the basis of the ‘new’ document.” As mentioned previously, the Shafia family were forced to flee to Peshawar, Pakistan, shortly after Hamed’s birth because of the civil war in Afghanistan. While forgetting/misstating the birthdates of our children may seem near impossible to those of us who have not had to flee war, it is at least plausible that due to the surrounding chaos of the circumstances they were facing during that time, the Shafias made such an error. Moreover, it is then understandable that when Shafia was confronted with three new documents from the Afghan government stating that his son was born on December 31, 1990 (which seems to be perfectly “compelling” evidence to me), he was eager to rely on those documents because they provided clarity to a disorderly and war-riddled moment in his life.

The SCC should hear Shafia to correct and remove the added requirement of “compelling” Justice Watt has added to the Palmer test. Moreover, Shafia is an excellent opportunity for the SCC to clarify how the “interests of justice” factor into the test. As James C. Morton has explained, “[fresh evidence] cases have been unpredictable….Recently some evidence that is clearly not fresh has been admitted on appeal ‘in the interests of justice’.” The factual matrix of Shafia fits squarely into the Palmer requirements, and therefore, Hamed’s Charter rights demand – without having to meet the threshold of “compelling” – that he be tried before a youth justice court.

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