New jury selection rules are unfair to Indigenous man, Hamilton judge rules

A Hamilton judge has ruled that new changes to the jury selection process violate the charter rights of an Indigenous man charged in the shooting death of Good Samaritan Yosif Al-Hasnawi.

Justice Andrew Goodman delivered the decision Monday morning, just before a day of jury selection for Dale Burningsky King's second-degree murder trial. Under the old rules, lawyers would "challenge" a potential juror without giving a reason and drop that person from the jury pool. Now only a judge can challenge a juror.

King's lawyers said the new rules could lead to a jury that discriminates against King. Goodman agreed the changes endangered the 20-year-old's right to a fair trial under the Charter of Rights and Freedoms.

"The remedy is to apply the previous (Criminal Code of Canada) section as it existed prior to the enactment of the impugned legislative amendments," he said.

Ironically, Bill C-75 was introduced by Indigenous MP Jody Wilson-Raybould, and came after the acquittal by a jury of the man charged with killing Colten Boushie. 

Gerald Stanley was charged with second-degree murder after Boushie, an Indigenous man, was shot and killed on a Saskatchewan farm.

Boushie's family said the old way worked in favour of Stanley, who was ultimately acquitted. The Boushies said the defence dismissed potential jurors who looked Indigenous.

But King's lawyer, Jonathan Shime, used the challenge ability seven times Monday as the all-white jury was chosen. In doing so, they consulted quietly with King, who appeared clean shaven in a navy blue button-down shirt.

The Crown used the challenge option once, and Goodman dismissed dozens of potential jurors. That included a man who told Goodman that "I support Trump, and my kids think I'm a racist for some reason." When Shime's team asked the man if he could be impartial while deliberating about an Indigenous man, the Trump supporter paused and Goodman dismissed him.

Two women who appeared to be King's family members sat on one side of the courtroom, while Al-Hasnawi's mother sat on the other.

The case stems back to Dec. 2, 2017. That's when Al-Hasnawi, a 19-year-old Brock University student, stepped outside a Main Street East mosque with his brothers. They spotted two people "accosting" an older man, police say, and they intervened.

The confrontation led to Al-Hasnawi being shot. Paramedics responded, although two of them — Steven Snively of Hamilton and Christopher Marchant — are charged with failing to provide the necessaries of life. They'll face trial in January.

King's trial starts Wednesday and will take about four weeks. Potential witnesses include emergency room doctors, witnesses and paramedics.

James Matheson has already pleaded guilty to obstruction of justice in connection with the shooting.

As for Bill C-75, courts are divided. In New Brunswick, for example, a judge ruled against applying the new rules in a fitness hearing for a man charged with shooting four people. Two Ontario Superior Court decisions, meanwhile, have ruled in the other direction.