Worrying signs in Kingston canal murder case

It's very early in the process to be whispering Askov in the Kingston canal quadruple murder case, but there are some worrying signs.

Askov was the name of one of four accused men in a landmark 1990 Supreme Court case in Canada. Extortion charges against the accused were tossed out because the system took too long to get them to trial. It took four years from the time they were arrested until the trial was ready to start. The country's top court said the delay was unreasonable. After the ruling, 50,000 backlogged criminal charges in Ontario were dismissed.

There are indications the Kingston canal case will be a marathon. I've heard from sources that there is a good possibility that police won't be able to hand over all of their disclosure in time for the start of the preliminary hearing, scheduled for Feb. 2 – Although that's not unheard of, this already is an incredibly complex case with a storyline that may cross three or more continents. The accused, Mohammed Shafia, his wife Tooba and their 18-year-old son Hamed, lived in Afghanistan, the United Arab Emirates and perhaps Australia, before they settled in Canada two years ago.

Sources say it's possible that transcripts of surveillance wiretaps will be produced for the prelim, as needed, that is, some material might not be delivered until the day before that day's proceedings (the problem is the incredibly time-comsuming task of transcription and translation, followed by peer review for accuracy). Last week, the lawyers involved announced that the prelim may last up to 10 weeks. That's a long time for a preliminary hearing, though certainly not any kind of Canadian record (the Trudel/Sauve murder case in Ontario had a prelim that ran two and a half years). But a long hearing, complicated by what we might call on-time delivery of transcripts, could be problematic, leaving lawyers suddenly scrambling to adjust their plans for the days ahead in the prelim. That could lead to further delay, if for instance, a suddenly delivered transcript raises an issue that requires the defence to go in search of a technical/forensic or other expert.

And what about that estimate of a 10-week prelim? It comes from lawyers on both sides who have never been involved in a quadruple murder in which two of the accused speak a dialect of Persian that will require in-courtroom real-time translation to allow them to properly instruct counsel during the proceedings. Can those lawyers foresee the kinds of complications and problems that might arise?

Also, the defence lawyers say they don't yet have autopsy reports. Without that crucual forensic information, how can they predict how much time they're going to want to spend picking away at the prosecution's science? If, as I suspect, the prosecution will try to prove that the victims were drowned elsewhere, then placed in the car before it was dumped in the canal, there could be a titanic forensic battle in the works. Believe it or not, proving someone was drowned is difficult (there are no autopsy findings decisively indicative of drowning – see this British forensic science paper), so imagine the complexity of proving that a person found in a submerged car drowned, but did not drown at that site, and did not drown accidentally. Now magnify that complexity times four.

You can easily see this case is fraught with uncertainty and complications that could easily lead to delay.

So far, things appear to be moving smoothly – given that it has been less than three months since the arrests and a preliminary hearing is scheduled and a focus hearing (to discuss issues that will arise at the preliminary hearing) is underway. But very little has been said in court about the substance of the case, and that's where the battles will be fought.

Here's the latest story from the Whig-Standard on the first day of the focus hearing in the case, held Friday, October 9, and covered by my colleague Paul Schliesmann:

Kingston's canal murder case is turning out to be one of the most complex in the city's history.

Legal counsel agreed yesterday in the Ontario Court of Justice they would need a second focus hearing on Dec. 4. As well, the time needed for the preliminary hearing, to begin on Feb. 2, was increased from four to 10 weeks.

The complexity of the case is already evident.

"We have a better idea about what's going to be involved so we've set a considerable amount of time to be on the safe side," said Clyde Smith, lawyer for Hamed Shafia.

After the bodies of four Montreal women were found in a submerged car above the Kingston Mills locks in June, Kingston Police charged Mohammed Shafia, his wife Tooba Yahya Mohammed and their 18-year-old son, Hamed, with murder.

Three of the victims were the Shafias' daughters. The other was Mohammed Shafia's first wife.

The three co-accused appeared briefly before Justice Paul Megginson yesterday after the judge had met privately in his chamber with their Kingston defence lawyers and two attorneys from the local Crown's office for a focus hearing.

Focus hearings are about case management -- to prepare for the preliminary hearing and determine whether all relevant evidence will be available at that time.

The meeting in Megginson's chamber yesterday lasted for 50 minutes.

When the lawyers and judge emerged, Mohammed Shafia was brought first to the prisoners' docket. Handcuffed and wearing a blue, plaid short-sleeved shirt, he looked casually and calmly around the courtroom, then focused on the proceedings.

Shafia's lawyer, Peter Kemp, went around the glass partition to speak to him.

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Language has been a major issue in this case. While the son speaks English, both of the parents require the services of a Farsi translator in court. Farsi is a dialect of Persian.

As Kemp and Shafia conversed, Kemp eventually held up several fingers to demonstrate a number to which he was referring.

Megginson then questioned the separate appearances of the co-accused. "Why can't we have them up together?" he asked.

Assistant Crown attorney Gerard Laarhuis reminded the judge of the court-imposed non-communication order that prevents the three from having contact with each other.

The ban also applies to three surviving children living under child services supervision in Montreal.

As Laarhuis began to summarize the focus hearing results, Kemp interrupted and asked that a translator be sworn in. Once that was done, the translator stood beside Shafia at the prisoners' bench.

Kemp interrupted once more to ask that the Crown to be mindful of the need for the translator to keep up with the information he was presenting.

Kemp also requested that when they reconvene for the Dec. 4 focus hearing that the three accused not be brought to the courtroom. Megginson agreed to let them appear by video feed from jail.

It was Laarhuis who referred to the case as "complex," complicated by language issues, the fact that there are multiple co-accused and that the case crosses jurisdictions.

While the bodies of the four victims were found in Kingston, much of the investigation took place in Montreal where the family resided. They are originally from Aghanistan and came to Canada just over two years ago from Dubai.

Kingston Police were also alerted to information by siblings of the older victim, Rona Amir Mohammed, who live throughout Europe.

Laarhuis said it was possible that the preliminary hearing could take less than 10 weeks but added that "certain delay is inherent in this case."

He noted, as defence lawyers have in the past, that translations of interviews and police wiretaps and surveillance tapes have proven difficult and time-consuming. All translations must be peer-reviewed by two additional translators to ensure accuracy.

After about 10 minutes in the courtroom, Mohammed Shafia was taken out and his son Hamed brought in.

The young man, now cleanly shaven with his hair cropped short, also appeared relaxed. After being remanded he gave a quick nod and smile to his lawyer, Smith, before being led away.

His mother, Tooba Yahya Mohammed, was the last to appear.

Wearing the same style of black tunic she has worn for past court appearances, she had her hair pulled back in a ponytail. She mostly looked down at the floor and did not appear as relaxed as her son and husband.

She is represented by lawyer David Crowe.

Despite the non-communication order, the three defendants were brought to the courthouse in one police van.

"As I understand it, (it) has separate compartments in the back," said Smith in a media scrum following the appearances.

Smith said it was too early to tell whether any of the lawyers would apply for separate trials.

"It's always possible for people to bring applications for severance. I don't see that realistically happening," he told reporters.

He was also non-committal when asked if the defence might apply to have the court proceeding moved to another venue.

"There's been a lot of coverage of the case, yes. That issue has not come up yet. It's still early days," he said.

Smith said the defence lawyers are also still waiting for autopsy reports and "lots of things.

"(The Crown has) given us a lot of material and they're saying there's a lot more to come."

Timeline of the case
• June 23: The 10-member Shafia family leaves Montreal for a vacation in Ontario, telling neighbours they will be gone for 12 days. They leave in a silver Lexus SUV and a black Nissan Sentra.
• June 30: The Shafia Sentra is found submerged in eight feet of water just beyond the northernmost lock gates at Kingston Mills, part of the historic Rideau Canal system. Four bodies are in the car, three Shafia sisters: Zainab, 19, Sahar, 17, Geeti, 13 and Rona Amir Mohammed, 50, who was the first wife of the father of the three girls.
• July 7: Kingston Police receive an email from Diba Masoomi in France, who says she is a sister of Rona Amir Mohammed. She says she and other family members are certain that the four women were the victims of an "honour killing," orchestrated by Mohammed Shafia, his wife Tooba and their oldest son, Hamed, 18.
• July 22: Mohammed Shafi, his wife Tooba and their son Hamed are arrested in Montreal while they are driving to a lawyer's office. They are each charged with four counts of first-degree murder and four counts of conspiracy to commit murder.
• Oct. 9: Focus hearing held in judge's chamber in Kingston. It is a meeting to discuss issues that will arise at the preliminary hearing, set to start Feb. 2. Focus hearing will continue Dec. 4.

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