‘No reversible error’; appeal dismissed of Hamilton man’s acquittal in shooting of late Brock student

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Published September 27, 2022 at 12:29 pm

It appears that only two former Hamilton paramedics will ever face criminal consequences in the death of Yosif Al-Hasnawi nearly five years ago.

The Ontario Court of Appeal has dismissed a Crown appeal of the not-guilty verdict that a jury returned in the second-degree murder trial of a 24-year-old Indigenous man from Hamilton who fired the gunshot that struck Al-Hasnawi in the stomach on Dec. 2, 2017. Al-Hasnawi, who was a 19-year-old Brock University student with a career ambition to become a doctor, died about an hour later, after being treated improperly by the parademics. 

That fateful late fall night, Al-Hasnawi had just left the al-Moustafa Islamic Centre on Main St. E. near Sanford Ave. after evening prayers. He stood up for an older man who had been confronted by the shooter, Dale Burningsky King, and his friend, James Matheson. Both were involved in the drug trade, and had used crystal methamphetamine that night. King showed his loaded gun, and the situation escalated to the point that he fired a shot. He was found not guilty by reason of self-defence in 2019, just shy of the two-year anniversary of the fatality.

The Crown, as the appellant, contended that Justice Andrew Goodman made three errors back in 2019. It alleged misdirection with respect to self-defence. It also said Goodman excluded evidence King was allegedly involved in a robbery less than one hour before the shooting and had previous assault convictions.

The three-judge appeal court panel did not buy that argument.

“The trial judge was in a difficult position, presiding in a proceeding requiring several highly variable and case-specific exercises of discretion that he reasoned through and released on the go in the middle of a four-week murder trial,” the panel wrote.

“His hard work and sound efforts to ensure that the jury was properly charged and that admissible evidence was placed before them reveals no reversible error.”

‘A most troubled life’

They also pointed out that King, an Indigenous man who was in foster care from the time he was three years old and began using drugs in his early teens, was reasonable in fearing that Al-Hasnawi might have also been armed when he pursued them on foot. The appeal court noted that, in this context, King “never pointed” to his challenging life experiences.

“The fact is that the respondent has experienced a most troubled life,” the judges write in their ruling, which is available at canlii.org. “Much of it has been spent living in ways that are antithetical to societal norms and community values. At the time that he killed Mr. Al-Hasnawi, he was of no fixed address, was unemployed, had a long history of criminality, was an admitted drug trafficker and drug user, and carried a gun for personal protection.

“Yet, the respondent never pointed to these life experiences as a way to justify killing Mr. Al-Hasnawi. For instance, when it was suggested to him in cross-examination that he shot Mr. Al-Hasnawi because he was high on drugs or that he felt disrespected by Mr. Al-Hasnawi, the respondent denied having done so.

“Instead, the respondent articulated why he became fearful and why he did what he did by relying upon what was said to be Mr. Al-Hasnawi’s behaviour, much of which was supported by other witnesses. As the respondent explained, in his mind: ‘the only reason you would chase after someone with a gun would be because you have, you have one too, or you have something that you’re trying to use.’ According to the respondent, other observations reaffirmed his belief, such as Mr. Al-Hasnawi keeping a hand in his pocket throughout the initial encounter, his continued aggression after seeing the gun, and his decision to chase after the respondent and Mr. Matheson when they attempted to run away. Whether these thought processes were reasonable in the circumstances was for the jury to decide.”

The other two bases for the ill-fated appeal centred on what Goodman kept the jury from hearing. King’s defence counsel, Owen Goddard and Jonathan Shime, made what is known as a Corbett application, which is aimed to prevent the jury from pre-judging an accused’s credibility.

The appeal court said the Crown failed to show why the evidence of alleged robbery that Matheson and King committed was sufficiently relevant to be presented to a jury.

“It was the Crown who bore the burden of showing that the probative value of the evidence outweighed its prejudicial effect,” they wrote.

Goodman also ruled to exclude some of King’s assault convictions, citing King’s background, and that Indigenous people are overrepresented in the justice system. His phrasing at that time was, “(C)ross-examination on crimes of violence, especially those while he was a youth, would add very little, if anything, to the jury’s ability to assess the respondent’s credibility.”

Counting his youth record, King had about 29 convictions. The jury members back in 2019 were informed of 14. The appeal court said that was a sound decision.

“We see no error in that approach nor in the final conclusion that he (Justice Goodman) reached,” they write. Indeed, the trial judge navigated a carefully balanced path that demonstrated his keen appreciation for how the respondent’s Indigeneity, placed in its proper context and considered alongside the other traditional Corbett factors, weighed in favour of numerous convictions being excluded … the trial judge ensured that this did not leave the jury without the tools to assess the respondent’s credibility.”

The dismissed appeal can be taken to Supreme Court of Canada, if the Crown so chooses.

Matheson, whose trial testimony was not considered reliable, was convicted of obstruction of justice.

In June 2021, Hamilton paramedics, Christopher Marchant and Steven Snively were found guilty of failing to provide the necessaries of life to Yosif Al-Hasnawi after he was shot. They were each sentenced to 18-month sentences in January. That included six months of home confinement (except for medical care and other approved appointments) and a curfew for the balance of their sentences.

In that so-called Good Samaritan trial, numerous witnesses told the court and Justice Harrison Arrell that Marchant and Snively took too long to treat Al-Haswani and transport him. They also did not take the young shooting victim to a trauma centre.

“To say this is a tragic case would be a gross understatement,” Arrell said when the verdict was announced.

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