A law student's take on the Shafia trial

As the three-month-long murder trial moves into its final phase, we must allow the facts to stand for themselves amidst a mountain of public bias

Kingston's Frontenac County courthouse, adjacent to Queen's campus, has housed the Shafia trial since proceedings began on Oct. 20.
Kingston's Frontenac County courthouse, adjacent to Queen's campus, has housed the Shafia trial since proceedings began on Oct. 20.
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In June 2009, four deceased members of the Shafia family were found in their submerged car at the Kingston Mills Locks. At first, it appeared be a horrible accident.

Soon, a different picture began to emerge. Prosecutors allege Mohammad Shafia, his second wife and son planned the murders of Mohammad’s three daughters and first wife, Rona.

“God’s curse on them … may the devil shit on their graves,” said Shafia in a police-recorded conversation with his second wife, Tooba, and son, Hamed in the days following the deaths.

It’s a recording that’s part of an investigation now widely regarded as one of the highest-profile honour-killing trials in Canadian history.

If you share my sentiment, the words spoken by Mohammad Shafia fill you with a profound sense of revulsion.

But on Monday, defence lawyer Peter Kemp portrayed his client as a father who sought nothing but the best for his daughters and first wife, moving them from country to country to provide them with the perfect lives he felt they deserved.

The National Post quoted Kemp telling jurors, “You would have to accept that the father of seven children … became so black, so dark, so evil, that he would cold bloodedly plan the execution of three of them and carry out that plan.”

The knee-jerk reaction to Kemp’s comments might be one of dismay, followed by condemnation. How could he make such a claim in the face of mounting circumstantial evidence presented by the prosecution?

I’ve had countless conversations with people who echo these sentiments. How can lawyers reconcile their morality when tasked with defending clients widely believed to be guilty?

Unfortunately, this line of thinking is based on several inaccurate presumptions.

First, it’s unfair to tie a lawyer’s duty to the core of their personhood and not allow for any distancing between themselves and their jobs. Lawyers can live with themselves outside of court, just as police officers who deal with criminals can.

Second, the duty of a defence lawyer is at the core of our legal system. To suppose that lawyers shouldn’t be able to live with themselves upon successfully doing their job is to argue that no one should be doing that job — an unacceptable solution in any justice system that aims to be fair.

Third, it’s integral to the healthy functioning of our society that we continue to emphasize the presumption of innocence. Defence lawyers fight to ensure their clients receive a fair trial.

When I visited Kingston’s Frontenac County courthouse earlier this month, the first thing I noticed was that the courtroom was at maximum capacity. People are there for a show.

On the left are the brand new, specially installed glass booths that house the interpreters responsible for translating every question asked by the lawyers.

The trials are conducted in four languages: English, French, Dari and Spanish.

On the right are the twelve jurors who aren’t particularly representative of Canadian society. They’re predominantly white, old and recruited from a relatively small town.

Needless to say, the Shafia family isn’t being judged by a jury of their peers, given what you would expect from a multicultural society such as ours.

Despite the fact that the jurors were selected after the judge scrutinized 253 people, the potential for bias shouldn’t be lost on anyone.

It’s only later that you notice the accused, seated in the forefront, almost as if on display for the multitude of spectators.

On the day I was present, Tooba was being cross-examined.

The striking part about it all might be just how fragile or delicate she appeared to be. If you’re anything like me, you’d have to pinch yourself to remember this is an accused murderer before you.

When court adjourns, the public streams out of the room and begins to gossip — the general consensus being that the accused are guilty as sin.

Mohammad and his family require representation by a legal team dedicated to ensuring they receive a fair trial in the face of extensive resources assembled by the government to prosecute them.

The media, telling us the family acted upon archaic social traditions, has convinced an already-biased public of their guilt.

But if we question the importance of a rigorous legal defence team, we are failing to understand how our justice system works. In 1992, Canadian Guy Paul Morin was convicted of the murder of nine-year-old Christine Jessop. It wasn’t until 1995 — almost 10 years after he was first arrested — that improvements in DNA testing ruled him out as the killer.

Steven Truscott was sentenced to death in 1959 for the murder of his classmate, Lynne Harper. Truscott was convicted on entirely circumstantial evidence.

In 2007, after review of nearly 250 fresh pieces of evidence, Truscott’s conviction was declared a miscarriage of justice and he was acquitted.

In both of these cases — and others — the justice system failed the accused.

The public has already put Mohammad Shafia and his family on trial and believes they’re guilty. And, after careful deliberation, the jury may agree — but regardless of the verdict, we can’t afford to condemn the lawyers who defend them.

It’s important for the accused to have their case judged based on facts and merits, rather than by people’s aversion to the crime itself and scapegoating the person on trial.

Ultimately, the facts will speak for themselves. If you’re anything like me, you’re hoping that the people who committed these murders will spend a very long time in jail.

If the accused are found guilty in this case, defence lawyers won’t have played a role in inhibiting justice. In fact, they’ll have helped facilitate it.

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