ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 174/10

BETWEEN:

HER MAJESTY THE QUEEN – and – MOHAMMAD SHAFIA, TOOBA MOHAMMAD YAHYA and HAMED MOHAMMAD SHAFIA

G. Laarhuis and L. Lacelle for the Crown

P. Kemp, for Mohammad Shafia
D. Crowe, for Tooba Mohammad Yahya
P. McCann, for Hamed Mohammad Shafia

HEARD: October 18, 2011

Ruling on the Admissibility of Expert Evidence

Maranger j.

Introduction

[ 1 ] On June 30, 2009, the bodies of four women were found in a car submerged in the first lock at Kingston Mills Locks near Kingston, Ontario. Three of the deceased were sisters, 19-year-old Zainab Shafia, 17-year-old Sahar Shafia, and 13-year-old Geeti Shafia. The fourth deceased was 54-year-old Rona Amir, the first wife of Mohammad Shafia.

[ 2 ] On July 22, 2009, Mohammed Shafia, his second wife Tooba Mohammad Yahya and, their eldest son, 18-year-old Hamed Mohammad Shafia were arrested and jointly charged with four counts of first-degree murder. The alleged motive for the murders is that they were committed to preserve the family’s notion of honour.

[ 3 ] The ultimate issue to be decided by the jury in this case is whether the four deaths were the result of a tragic motor vehicle accident, or murder.

[ 4 ] The Crown sought to call Dr. Shahrzad Mojab to provide testimony relating to the relationship between culture, religion, patriarchy and violence against women in the Middle East, Eastern Asia and around the world, specifically as the issue relates to the phenomenon known as "honour killing".

[ 5 ] The court conducted an extensive voir dire in October of 2010, on several issues respecting what evidence would be permitted at trial, including the expert evidence of Dr. Mojab. During the pre-trial hearings the Crown filed excerpts from intercepted communications involving the three accused, presented several witnesses including teachers, social workers, police officers from Montréal and other members of the family. The evidence was presented to demonstrate the Shafia family dynamic, and that there was acrimony between the accused and the deceased. The proposed expert Dr. Mojab also testified respecting her qualifications and proposed evidence. In an oral ruling provided in January 2011 the expert evidence was allowed.

[ 6 ] In the spring of 2011 Hamed Shafia retained new counsel, Mr. Patrick McCann. On October 18, 2011, following the selection of the jury, Mr. McCann sought and was granted leave to reargue the issue of the admissibility of the expert opinion evidence of Dr. Mojab.

[ 7 ] On October 18, 2011, the court gave brief oral reasons once again allowing the evidence and indicated that written reasons would be provided in due course. What follows are my reasons for allowing the expert evidence of Dr. Mojab on the subject of honour killing at the first degree murder trial of Mohammad Shafia, Tooba Mohammad Yahya and Hamed Mohammad Shafia

Test for admissibility

[ 8 ] In R. v. Mohan , 1994 , [1994] 2 S.C.R. 9, the Supreme Court of Canada set out the four criteria to be met before admitting expert opinion evidence: it must be relevant to an issue in the case; it must be necessary to assist the trier of fact; it must be offered by a qualified expert and it must not be the subject of any other exclusionary rule.

[ 9 ] In R v. Abbey, 2009 ONCA 624 , 97 O.R. (3d) 330, Doherty J. proposed a two-step process when determining the admissibility of expert opinion evidence. In step one, the gatekeeper applies the Mohan test described in the following manner:

1. The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;

2. The witness must be qualified to give the opinion;

3. The proposed opinion must be logically relevant to a material issue; and

4. The proposed opinion must not run afoul of any other exclusionary rule.

[ 10 ] For the second step the gatekeeper is to perform a cost-benefit analysis that requires the exercise of judicial discretion. The trial judge must decide whether the evidence is “sufficiently probative to justify its admission despite the prejudice that may flow from its admission” this involves a limited weighing of the costs and benefits associated with the admission of the evidence.

Application of the law to this case

Is the topic of honour killing properly the subject of expert opinion evidence?

[ 11 ] The presentation of expert evidence respecting culture has been routinely admitted in Canadian trial courts. The culture of prisons, gangs, Islamic faith and extremist views, and the meaning and interpretation of Chinese characters within Chinese culture, are some of the examples of expert evidence relating to culture found in the jurisprudence.

[ 12 ] In R v. Liu [2002] O.J. No. 5078 (SCJ) McKinnon J. allowed expert opinion evidence relating to the meaning and interpretation of Chinese characters found written in the blood of a victim in a homicide case. In dealing with the issue of it being properly the subject matter of expert evidence he indicated "the evidence cannot be described as "novel" science; quite the opposite. It is evidence explaining a long surviving foreign culture." This ruling was upheld on appeal: 2004 , [2004] O.J. No.4221, 190 C.C.C. (3d) 233 (O.C.A.) at para. 21 .

[ 13 ] In Abbey , Doherty J. indicated the following at para. 121:

The study of cultural mores within particular communities or groups in the community is a well recognized field of study within the broader academic, and professional disciplines of sociology, criminology and anthropology.

In this case cultural evidence relating to "honour" and "honour killing” is a topic that is properly the subject of expert evidence. It is evidence of a phenomenon that exists in a foreign culture.

Is Dr. Mojab a qualified expert?

[ 14 ] In R v. Marquard, 1993 , [1993] 4 S.C.R. 223 at para. 35 , Chief Justice McLachlin explained the threshold respecting the requirements for the admission of expert testimony in the following manner:

The only requirement for the admission of expert opinion is that the "expert witness possesses special knowledge and experience going beyond that of the trier of fact".

[ 15 ] In Abbey , at para. 108 the court indicated that expert opinion can properly be based on specialized knowledge gained through extensive research, clinical experience and familiarity with relevant academic literature.

[ 16 ] The purpose and nature of the opinion will guide the court as to what qualifications might be required to present the evidence. The prosecution asks that Dr. Mojab be qualified to give evidence on the relationship between culture, religion, patriarchy, and violence against women, in the Middle East and in diasporas around the world, specifically as it relates to the phenomenon known as "honour killings."

[ 17 ] I find that Dr. Mojab is eminently qualified to testify in this regard. She has studied, taught, conducted extensive research, published, and been consulted by governments as well as the United Nations on the topic.

[ 18 ] Some of her specific qualifications to testify about "honour killings" include the following:

• Dr. Mojab holds a Ph.D. from the University of Illinois. She has a numerous academic awards for her work. She is a professor at the University of Toronto. She is the former Director of the Women and Gender Studies Institute at the University of Toronto. She has dedicated her life to the rights and advancement of women around the world.

• She has edited, authored or co-authored several peer reviewed publications on the subject of honour killings. These include: editing a book entitled Violence in the Name of Honour: Theoretical and Political Challenges, writing a chapter in the Encyclopedia of Women and Islamic Cultures on honour killings entitled Honour , writing articles entitled " The politics and culture of honour killing : “ The Murder of Fadime Sahindal " and " Honour Killing: Culture, politics and theory" .

• While Dr. Mojab has not conducted specific fieldwork in Afghanistan, she has taught and supervised students who have traveled and performed fieldwork in Afghanistan specifically on the question of violence against Afghan women.

• She has conducted fieldwork on the issue of violence against women in other parts of the Middle East.

• She is currently writing a chapter for the Canadian Journal of Law on the issue of "honour killing in Canada".

• She was qualified to give expert evidence on the issue of honour killings in R v. Sadiqi, (2009), 2009 , 68 C.R. (6 th ) 346 (Ont. S.C.) .

[ 19 ] The proposed expert clearly possesses special knowledge in the area of honour killings that goes beyond what a jury would know about the subject.

The expert opinion evidence must be logically relevant to a material issue:

[ 20 ] The first step in assessing the relevance of expert opinion evidence requires a trial judge to assess the logical relevance of the evidence. Logical relevance requires that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that relevance. Logical relevance sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rules: See Mohan at pp. 411-415. Abbey , at para. 82 .

[ 21 ] The logical relevance of the evidence in this case is that relates to the issue of motive. The alleged motive here is that the four victims were killed because they violated the family’s notion of honour.

[ 22 ] The Crown has presented an evidentiary foundation in support of this proposition. During the voir dire the court heard testimony from social workers, teachers, police officers, and other family members, evidencing animus between the accused and the deceased.

[ 23 ] The court also heard wiretap conversations involving the three accused that support the proposition that the deceased somehow offended the family honour. For example, Mohammad Shafia is heard to say the following during conversations with the co-accused intercepted in July, 2009: "My conscience, my God, my religion, my Creed aren't shameful, even if they hoist me up onto the gallows, nothing is more dear to me than my honour." Or in describing the behaviour of two of the deceased "there was no other way… They were treacherous. They betrayed both themselves and us".

[ 24 ] The logical relevance of the expert opinion evidence on culture and the phenomenon of honour killing to the alleged motive is clear and compelling in this case.

The opinion does not run afoul of any other exclusionary rule:

[ 25 ] The proposed expert opinion evidence does not violate any other exclusionary rule.

The cost-benefit analysis:

[ 26 ] The trial judge is required to perform a cost-benefit analysis to decide whether the evidence is "sufficiently probative to justify its admission despite the prejudice that may flow from that admission."

[ 27 ] The cost side of the analysis relates to the various risks inherent in the admissibility of expert opinion evidence such as the "consumption of time, prejudice and confusion". Prejudice is the most important risk in the analysis. As para. 90 of Abbey indicates:

The "cost" side of the ledger addresses the various risks inherent in the admissibility of expert opinion evidence, described succinctly by Binnie J. in J-LJ at para. 47 as "consumption of time, prejudice and confusion". Clearly, the most important risk is the danger that a jury will be unable to make an effective and critical assessment of the evidence. The complexity of the material underlying the opinion, the experts impressive credentials, the inpenetrable jargon in which the opinion is wrapped and the cross-examiner's ability to expose the opinion’s shortcomings may prevent an effective evaluation of the evidence by the jury. There is a risk that jury faced with a well presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury: J-LJ at para. 25.

[ 28 ] The benefit side of the balancing "requires a consideration of the probative potential of the evidence and the significance of the issue to which the evidence is directed". The more reliable the expert opinion evidence, the more probative it becomes. Reliability relates the subject matter of the evidence, the methodology used by the expert in arriving at her opinion, the expert’s expertise and the extent to which the expert is shown to be impartial and objective: See Abbey , para. 87 . The trial judge must guard against admission or opinions that are in reality no more than "junk science".

[ 29 ] A determination of whether or not the expert opinion is "necessary" is part of the cost-benefit analysis. The question becomes whether "the subject matter of the inquiry such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". Mohan , para. 22 .

[ 30 ] When considering all of these factors, I conclude that the probative value of Dr. Mojab's evidence outweighs any possible prejudicial effect that could flow from its admission. The evidence will not be unduly lengthy, it is not likely to confuse or overwhelm the jury or take away from its fact-finding responsibility, nor is it likely to be utilized in a prejudicial manner.

[ 31 ] The concepts of honour, family and gender dynamics within Middle Eastern and East Asian communities is knowledge that is outside the scope of a typical Canadian jury. Without the evidence the jury may not fully understand the significance of some of the words and conduct attributed to the accused before the court.

[ 32 ] The purpose of the evidence is to educate the jury on the general phenomenon of honour killing which will not usurp the fact-finding role of the jury in terms of determining whether the Crown has proven the essential elements of the crimes alleged. Dr. Mojab is not going to be asked, whether or not based on the evidence in this trial, that this was an honour killing. She will instead educate the jury about the phenomenon of honour killing.

[ 33 ] In that sense, the evidence is necessary and admissible.

[ 34 ] When considering the cost-benefit analysis, I conclude that the probative value of this evidence in the context of this trial outweighs any prejudicial effect.

Other issues:

Bias:

[ 35 ] It was submitted by counsel representing Hamed Shafia that Dr. Mojab’s evidence should be rejected on the basis that she is a biased witness. Dr. Mojab candidly admitted that she has an agenda aimed at ridding the world of what she sees as patriarchal domination of women by men. She is a committed feminist. The proposition was that her opinion would be tainted by her beliefs. I reject this argument on the basis that the evidence being presented is not a question of for or against, or that the phenomenon exists or does not exist. The expert’s views on the rights of women, or her desire to eradicate violence against women, have no bearing whatsoever on the validity of her testimony on the issue of honour killings. The information she is providing is educational and her strongly held opinions about the rights of women will not shape in any manner the information she is going to provide the finder of fact.

Sufficient number of experts:

[ 36 ] It was proposed that the opinion evidence should not be admitted because there were not enough experts on the subject. The reason for this criterion is to allow counsel for the defence to dispute or verify the opinions expressed by a given expert. R v. Melaragni [1992] O.J. No. 4176

[ 37 ] While the subject of "honour killings" is not a common field of expertise, there are other experts who have published work respecting the phenomenon of honour killings. If counsel wanted to challenge or verify the evidence of Dr. Mojab it could have been reviewed by another expert/scholar. For example, Dr. Amin Muhammad from Memorial University in St. John's Newfoundland, is a recognized expert on the subject of honour killings.

Permissible questions by the crown:

[ 38 ] Finally, counsel argued that the evidence should be ruled inadmissible because the hypothetical questions requested by the prosecution would be tantamount to asking the expert to offer the opinion as to whether or not this was an honour killing. In this respect, the court has ruled that specific questions that mirror the facts of this case were not going to be permitted, only generic questions relating to circumstances where honour killings might take place would be allowed.

Conclusion:

[ 39 ] In a trial such as this, where members of a family are accused of killing their own, including three children, the existence or non-existence of a motive is a very important consideration. The Crown has offered an evidentiary basis for the proposition that the deceased somehow violated this family’s particular code of honour. When all things are considered, the testimony of Dr. Mojab on the issue of honour killing is far more probative than prejudicial in this case. The proposed evidence is ruled admissible

Mr. Justice Robert L. Maranger

Released: March 22, 2012