Appeal dismissed in shooting death of Yosif Al-Hasnawi

The Crown has lost its bid for Dale King to stand trial a second time for the murder of Hamilton teen Yosif Al-Hasnawi.

In a decision released Monday, the Court of Appeal for Ontario dismissed the appeal of King's November 2019 acquittal.

Who shot Al-Hasnawi on the night of Dec. 2, 2017, was not at issue. Rather, the case rested on self-defence. King testified during his trial that he feared his then-best friend, James Matheson, was about to be seriously hurt or killed when he pulled the trigger on his illegal .22-calibre Derringer handgun. The jury believed him and he was found not guilty of second-degree murder.

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 at the Court of Appeal found. 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."

The Crown can seek leave to appeal to the Supreme Court of Canada, where only a select number of cases are heard. It's not yet clear if the Crown will seek further appeal.

For Al-Hasnawi's mom, Amal Alzurufi, the wait to hear about the appeal has been nerve-racking.

I'm hurt more than ever," she said after the decision.

I just want closure ... I can't swallow it, you can't shoot somebody and nothing happens."

On the night of the shooting, Al-Hasnawi, his 13-year-old brother and two teenage friends were standing outside their Main Street East mosque when King and Matheson walked by on the other side of the street. Matheson mocked an older guy shuffling in front of them and Al-Hasnawi called out for them to stop.

After Al-Hasnawi called out, King and Matheson crossed the road. During the conversation that followed, King flashed his gun in warning and Matheson sucker-punched Al-Hasnawi, before running away. Al-Hasnawi chased after them and, as they turned onto Sanford Avenue South, caught up with Matheson. Matheson called out for help and King turned and fired. He testified that he believed Al-Hasnawi must be armed. He was not.

In the days following the murder it became known as the Good Samaritan" case, because of Al-Hasnawi's actions. It also became infamous for what happened after King and Matheson ran away, when first responders did not believe the 19-year-old had been shot. Two former Hamilton paramedics, Steven Snively and Christopher Marchant, were later convicted of failing to provide the necessaries of life.

Al-Hasnawi and King came from vastly different backgrounds. Al-Hasnawi, an Iraqi-Canadian, was a leader in his family and aspired to be a doctor. King, who is Indigenous, was abused and removed from his home as a child; he was homeless and had been using and selling crystal meth. He told the court he bought and carried the loaded handgun after a robbery in which he had boiling water poured on him.

The Crown argued three legal errors before a panel of three judges at the Court of Appeal this past February. The most significant issue was the definition of a reasonable person" in Superior Court Justice Andrew Goodman's instructions to the jury at trial, which included the addition of the word background" to the otherwise standard explanation. This meant the jury was told that a reasonable person included someone who had King's background.

Crown Leslie Paine argued the jury needed more of an explanation about which of King's characteristics were reasonable or not. Carrying a loaded gun, selling drugs and assuming someone is armed are not reasonable, she said.

You can't assume that other people are bad guys just because you're involved in criminality," Paine argued.

However, defence attorney Jonathan Shime called Goodman's charge to the jury near perfect." King never said he shot Al-Hasnawi because he needed to keep up some street credibility, rather his testimony was about Al-Hasnawi's behaviour and why he perceived his friend as being in danger.

The only question asked by the jury, six hours into deliberations, was clarity on the definition of a reasonable person. The judge just reiterated what was in the instructions.

The Court of Appeal found it may have been better for Goodman to seek clarity on what was troubling the jury. However, that is not a basis to conclude they didn't properly apply a subjective test when weighing whether King's actions were reasonable. The court also points out the Crown repeatedly described his actions as unreasonable.

The two other points of appeal for the Crown had to do with evidence excluded during the trial. This included an allegation that King and Matheson had robbed someone named Angel" an hour before the shooting and the exclusion of King's previous assault convictions.

Both were excluded because they were found to be prejudicial to King. But the prosecution argued it left the jury was a distorted" picture. The court also rejected these arguments, finding Goodman's reasoning clear and responsive to issues that arose during the trial.

The years since Al-Hasnawi's murder have been hard for his mom. Alzurufi was just 15 years old when he was born and later had four other children, two more boys and two girls. Her sons were 15 and 13 when their older brother was killed. The then-13-year-old saw his brother get shot and both boys witnessed the chaotic scene as the family pleaded with first responders to get the dying 19-year-old to hospital.

Everybody is suffering," Alzurufi said. I feel like I lost my two boys too."

Three of her children are now living with her. One of them is sick and requires constant care by herself and her husband, who recently moved here from Iraq. Alzurufi and the father of her children have been divorced for several years.

Alzurufi has struggled financially to care for her family in the wake of the tragedy. Her income is limited to disability benefits and she's struggling to deal with a mountain of debt incurred after her son's murder. An online fundraiser, Supporting Yosif's Family, has been established to help support Alzurufi and her children at gofundme.com/f/supporting-yosifs-family.

For Alzurufi the desire to see a new trial is not about wanting to see punishment. It's about accountability. Her family came to Canada to be safe.

My son was shot, who is responsible?" she said, adding that she feels lost as to what to do.

Nicole O'Reilly is a crime and justice reporter at The Spectator. noreilly@thespec.com