Special consideration for Indigenous people accused of crime can be extended beyond sentencing into the trials themselves to reduce the effects of discrimination and disadvantage, Ontario’s top court has ruled.
The decision, the first of its kind in Canada, came in a case in which a man shot dead an unarmed university student near a mosque in Hamilton and a jury acquitted him of second-degree murder on grounds of self-defence. The trial judge prevented the jury from hearing about the man’s violent past out of concern it would play on stereotypes about Indigenous peoples. And this week, the Ontario Court of Appeal upheld the judge’s approach.
The case of Dale King and the student, Yosif Al-Hasnawi, had already made national news for another reason. Two paramedics who showed up after Mr. King shot Mr. Al-Hasnawi in the abdomen on Dec. 2, 2017, did not treat the shooting as a serious matter, and were convicted of failing to provide the necessaries of life. An Islamic centre submitted a victim impact statement saying the community’s sense of safety in Canadian society had been shaken.
Mr. King and a friend, both of whom had used crystal methamphetamine that day, were harassing an elderly man in downtown Hamilton when Mr. Al-Hasnawi emerged from the mosque and told him to leave the man alone. Mr. King showed Mr. Al-Hasnawi his gun, but Mr. Al-Hasnawi chased the two men, and when he closed in on the friend, Mr. King turned and shot him once. Mr. King testified he believed Mr. Al-Hasnawi had a knife, in part because he was not afraid when shown the gun.
Mr. King, who was 19 at the time, had a criminal record involving 29 offences, including eight since he had turned 18. Under federal law, when an accused chooses to testify, the prosecution may try to use their criminal record to show they are not credible or trustworthy.
Mr. King’s lawyers, Jonathan Shime and Owen Goddard, argued that because he was Indigenous and from a deeply disadvantaged background, special considerations should apply to what the jury could be told. Superior Court Justice Andrew Goodman agreed. He ordered that Mr. King’s five assault convictions, including two for assault with a weapon, plus convictions from when he was 15, and some others, be kept from jurors. In all, the jury learned of about 14 convictions.
The prosecution had argued that three of the assault convictions should have been revealed to the jury. In this area of law, the Supreme Court of Canada has directed lower courts to err on the side of including detail, rather than excluding it.
But the Ontario Court of Appeal, in a 3-0 ruling by a panel that included the court’s second Indigenous member, Justice Jonathon George, endorsed Justice Goodman’s approach. Associate Chief Justice Michal Fairburn, a long-time prosecutor, and Justice Bradley Miller, a former law professor known for his conservative-minded essays, were the other two judges.
“Trial judges must take notice of the fact that Indigenous people are often the objects of racism outside and inside the criminal justice system,” the court said, when determining how much prejudice may result from allowing evidence of past convictions.
Mr. Al-Hasnawi was a first-year science student who hoped to be a medical doctor. His mother, Amal Alzurufi, said in an interview that she feels the legal system discriminated against her son.
“Is it that easy? You kill someone and you just walk away because you’re special? There’s nobody special. We’re all the same. We’re living in one country. We should be treated the same.
“Right now I feel there was definitely racism in the case. And I’m so sorry to say that.” Ms. Alzurufi was born in Iraq, and the family is of Arabic origin. “If my son had shot somebody … my son would be in jail right now. There is no justice in this case.” She said the jury had enough evidence to convict even without the details that were excluded.
Mr. Shime said the ruling means Indigenous accused people who want to testify “will now have the benefit of having their experience, and the systemic racism they face in the criminal-justice system, taken into account on whether they can be cross-examined on their criminal record.” He and Mr. Goddard had not found any other cases in Canada where that issue had been adjudicated, he said.
A 1996 federal law requires special consideration for Indigenous offenders – known as Gladue principles since a 1999 Supreme Court of Canada ruling in the case of Jamie Gladue, who stabbed her husband to death and was sentenced to three years in prison for manslaughter.
Since then, Gladue principles have been expanded into extradition cases, bail hearings, corrections decisions and many other areas. But many participants in the legal system believed the trial process itself was exempt from Gladue principles, said Jonathan Rudin, program director at Aboriginal Legal Services, which intervened in the case.
“This decision makes it clear that the Gladue principles can and do play a role during the trial process,” he said.
The appeal-court decision does not mean every defence request to exclude information will succeed, he said, “but it does mean that judges will now have to grapple with the messy realities of the systemic discrimination faced by Indigenous people in the justice system rather than pretending that, in the trial context, those realities hold no weight.”
The Ontario Attorney-General’s Ministry declined to comment on whether it would ask the Supreme Court to hear an appeal.