Dale King trial: What the jury didn't hear about the death of Yosif Al-Hasnawi
Samantha Craggs | CBC News | Posted: November 26, 2019 10:21 PM | Last Updated: November 26, 2019
King had 5 assault convictions, including assault with a weapon
It was a three-week trial with shifting narratives around shooter and victim. Now the jury is deliberating whether Dale Burningsky King is guilty of second-degree murder in the shooting death of Yosif Al-Hasnawi.
King, 21, has pleaded not guilty by reason of self defence. The jury has three options: to find him not guilty, to find him guilty of second-degree murder or to find him guilty of manslaughter.
Throughout the trial, King's lawyers Jonathan Shime and Owen Goddard, and Crown lawyers Brian Adsett and Gordon Akilie, debated the admissabililty of issues such as King's five previous assault convictions and an apparent robbery less than an hour before King and Al-Hasnawi crossed paths.
Al-Hasnawi was 19 on the evening of Dec. 2, 2017, when he stood outside his mosque with his little brother and two friends.
Al-Hasnawi spotted King and his friend James Matheson accosting an older man. He shouted at them, and King and Matheson crossed the street. The conversation turned tense and Matheson punched Al-Hasnawi. Then Matheson and King ran.
Al-Hasnawi, despite seeing King's gun, "snapped" and chased them, witnesses say. King says he shot Al-Hasnawi as he was running.
Here are some issues discussed when the jury wasn't in the room.
Was King involved in a robbery 53 minutes before?
The Crown says 53 minutes before the interaction with Al-Hasnawi, King was involved in an alleged robbery.
No charges have been laid, and the allegation hasn't been proven in court. It was based on earlier testimony by James Matheson. Justice Andrew Goodman said there was tenuous evidence the robbery existed. Still, the Crown lawyers argued at length for the ability to mention it when they cross-examined King.
The Crown wasn't successful. Goodman did rule, however, that they could quiz King about his drug dealing, including King selling drugs that night.
What role should the paramedics play in the verdict?
Al-Hasnawi's death made national news in part because of the perceived actions of the paramedics who treated him.
Nearly 40 minutes passed between paramedics arriving on scene and Al-Hasnawi arriving at an emergency room. Witnesses say they told Al-Hasnawi he'd been shot with a BB gun. One reportedly told Al-Hasnawi he should win an Oscar for his acting ability. Witness Steve Ryan said they even made Al-Hasnawi walk to the ambulance himself.
Al-Hasnawi lost consciousness four minutes before he reached the hospital, the court heard. He died moments later at the hospital with two litres of blood in his abdomen.
Steven Snively, 53, of Hamilton, and Christopher Marchant, 29, of Whitby, face charges of failing to provide the necessaries of life. They'll be on trial next year.
The Crown and defence discussed at length how much weight the jury should give this. King's defence wasn't that paramedic negligence killed Al-Hasnawi. His lawyers did, however, use it to illustrate that King didn't shoot to kill Al-Hasnawi.
The Crown didn't object to references to the paramedics during the trial, saying it was more expedient to just allow the references. But Akilie argued that there's no way King could have known the paramedics would treat Al-Hasnawi the way they did, so it shouldn't be a factor.
King has 5 prior assault charges
King has a long criminal record, including dangerous operation of a motor vehicle causing bodily harm, several thefts, break and enter, and several breaches of probation. But there were more the jury didn't hear.
King also has five prior assault convictions, including assault causing bodily harm and assault with a weapon. The defence filed what's called a Corbett application, which is aimed to prevent the jury from casting judgment on the accused's credibility. Goodman ruled to exclude the assaults, citing King's background, and that Indigenous people are overrepresented in the justice system.
Later, Goodman did wonder aloud whether he should have done this. When King took the stand, he said he couldn't believe he'd killed someone. That introduced the question of his character — in other words, the notion that he wasn't the type to kill someone. The Crown lawyers argued that opened the door to counter that. They asked Goodman to revisit the Corbett application, but he didn't.
What to do with James Matheson
Matheson stymied everyone in the courtroom with what Goodman called a "staggering lack of recall."
He was, Goodman said, "one of the more challenging witnesses we've seen here."
Matheson was a Crown witness, but he answered even the most basic questions with "I don't know" and "I don't remember."
He didn't remember what happened, what he wore, where he went, or what he and King did after the shooting. When the Crown suggested he went to two homes after visiting two bars, Matheson said those are "just two addresses."
He was slightly wordier under cross-examination, but only after Jonathan Shime said he'd play a video of Matheson's interview with police. His strongest opinions seemed to come when he talked about being branded a rat in jail and on social media.
Both sides relied heavily on Matheson's statements when he reached his plea deal, and also during the preliminary inquiry. Matheson said during cross-examination that he probably lied to police when he reached a plea deal that saw him convicted of obstruction of justice.
After much debate, Goodman issued a partial "Vetrovec warning" to the jury. That means he warned the jury to be careful when considering Matheson's testimony.
King was injured in jail
Court was postponed one day because King, who was in jail, had injuries that included a concussion. With a concussion, the defence said, King couldn't follow the testimony.
Goodman told the jury the trial was postponed because of "a legal issue."