Final submissions in the case of two Hamilton paramedics charged with failing to provide the necessaries of life were presented in front of a Superior Court judge on Thursday.
Following several hours of arguments from Crown and counsel, The Hon. Superior Court of Justice Harrison Arrell suggested he would have a ruling in the second week of June.
Including submissions over the last two days, the trial of Steve Snively and Christopher Marchant has lasted 32 days, with Snively’s counsel Michael DelGobbo and the Crown’s Linda Shin closing out matters prior to the ruling.
At question is the conduct of the two paramedics on the night of Dec. 2, 2017, when an altercation with Dale King led to the shooting death of Yosif Al-Hasnawi, 19, on Sanford Avenue near Main Street East.
Some witnesses in the trial characterized the actions of the accused as unprofessional and allege the paramedics took too long to treat Al-Hasnawi and take him to hospital.
In Thursday’s session, DelGobbo characterized his client as “honest, sincere and credible” who’s a married father of two with a steady employment history in physiotherapy and as a paramedic.
“He is not the kind of person walks into a criminal courtroom as the defendant.”
He would later say after his submissions that there’s reasonable doubt on whether the paramedics made a “marked departure” from their responsibilities and characterized any mistakes made as “honest” and “reasonable.”
The Crown would later suggest in their submission on Thursday that the paramedics conduct in 2017 demonstrated a “marked departure” and “robbed” Al-Hasnawi of his only chance to survive.
Marked departure
The Crown’s argument in the trial is based on the concept of mens rea, a legal term for criminal intent and the theory that there can be a ‘marked departure’ from a standard expected of a reasonably prudent individual.
During her submission on Thursday, Crown attorney Linda Shin compared the notion to a 2008 dangerous driving case in which the defendant’s driving manner was in question.
“Running a red light alone may not constitute a marked departure in the specific circumstances, but if the entire course of conduct included weaving in and out of traffic, speeding, talking on the phone and then running a red light, the cumulative effect of that course of conduct would constitute a marked departure from the conduct of a reasonably prudent driver,” Shin said.
In the case of the paramedics, the Crown is suggesting that a number of failures in their treatment of Al-Hasnawi created a cumulative effect which endangered his life.
“The defendants chose to be guided by their assumptions and biases, rather than following the training and standards and their numerous breaches of the standards together demonstrating a marked departure,” said Shin.
On Wednesday, Marchant’s Counsel Jeff Manishen questioned that submission, suggesting he would not concede that a small number of negligent acts constitute a “marked departure.”
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Honest Belief
On Wednesday, Manishen submitted to Justice Arrell that the paramedics had an “honest belief” that Al-Hasnawi was suffering from only a pellet gun wound, based on what they were told by bystanders and first responders in addition to observing a small wound on the victim in examinations.
In the Crown’s submission, they agree that the defendants subjectively believed the wound was not serious but suggested that their belief was not reasonable since every medical field considers every penetrating wound to the abdomen as serious.
“Every medical professional who testified at trial agreed that any penetrating wound to the abdomen carries with it the potential for serious internal injury that may not be apparent on the exterior or surface,” said Shin.
She also submitted that the paramedics knew it was a penetrating wound referring back to testimony from Snively in January when he was cross-examined on the province’s Field Trauma Triage Guidelines.
Meanwhile, Marchant acknowledged the penetrating wound when he said it in his first patch with St. Joe’s hospital on the night of the incident.
“After indicating that the patient was 19 years old, he said that it was a small penetrating wound to the lower abdomen,” said Shin.
“Mr. Snively, in cross-examination, agreed that from his perspective all the information Mr. Marchant conveyed in this patch was accurate.”
The Crown also addressed the paramedic’s decision to transport Al-Hasnawi to St. Joe’s after the paramedics “ruled out” penetrating trauma, believing the patient was suffering from a psychiatric issue.
Shin said the field trauma guidelines and patient priority system for Hamilton “are clear” that a penetrating wound requires admittance to a trauma hospital.
“There is no room for judgment regarding what is more serious. It’s a simple choice,” Shin said.
Cognitive Bias
DelGobbo concurred with an assessment from his co-counsel on the idea that paramedics don’t receive training to prevent the influence of ‘cognitive bias’ when encountering a patient as laid out in testimony during the trial from Dr. Pat Croskerry, a professor in the critical thinking.
In January, Croskerry suggested the two paramedics were likely fixated on the words “pellet gun” when dispatched to the central Hamilton shooting in 2017.
Snively’s counsel went on to suggest that some witnesses may have also concluded that bad decisions were made in hindsight bias, with individuals interpreting things “after the fact,” making them “look worse or better” and affecting the realistic appraisal of what happened.
In the Crown’s submission, Shin reminded the court that Dr. Croskerry admitted he was not an expert in pre-hospital medicine and that he had no knowledge or expertise regarding the training standards applicable in Hamilton or Ontario.
She also said that even the doctor acknowledged that for all medical professionals, training protocols mitigate against the effects of assumption or bias.
“The fact that biases were at play in my submission does not give the defendants a free pass to ignore all the training and standards applicable to them,” said Shin.
Palpation
Counsel defended accusations from the Crown that Snively lied about giving Al-Hasnawi an initial exam on scene in 2017 through the use of palpation, the process of using one’s hands to check a body.
The Crown’s position has always been that the examinations by either Snively or Marchant never took place.
DelGobbo acknowledged that the paramedics left the exercise off some of their written reports, but argued it wasn’t an attempt to “skew” the evidence.
“That’s acknowledged and both acknowledge that in their evidence they didn’t try to run away from it,” DelGobbo told Arrell.
Counsel later read passages from witnesses — including Al-Hasnawi’s father and brother Mahdi — who described the paramedics “pressing” on the patient’s stomach.
Nominated for an Oscar
During the trial, Crown witness Ahmed Al-Hasnawi alleged the paramedics “didn’t believe” his brother was in serious condition and that a paramedic uttered the words “this guy can get nominated for an Oscars.”
However, in cross-examination earlier in the trail, Ahmed admitted he told investigators in a police service report that he said police officers said it.
“There’s a real issue if the Oscar comment was made,” said DelGobbo. “If your honour finds it was made, who was it made by?”
Snively’s counsel would also describe evidence given by Al-Hasnawi’s friend Mustafa Ameer in this area as “problematic,” suggesting he couldn’t remember his conversations with paramedic.
After being shown portions of Snively’s the incident report while on the witness stand, Ameer still couldn’t recall some events, according to DelGobbo.
Tossed on to stretcher
DelGobbo also addressed inconsistencies in testimony over Al-Hasnawi’s placement on a stretcher on the night of Dec. 2, 2017.
During the trial it was suggested by Yosif’s younger brother Mahdi that he was “tossed” on it while brother Ahmed suggested they “grabbed him by the hoodie” and “threw” him on.
The Crown has suggested that the proper way to move the patient would be to do a “log roll” onto a spinal board, according to Ontario’s patient care standards.
Both paramedics told the court they struggled to put Al-Hasnawi on a stretcher suggesting that the victim had “combative behavior” through swinging his arms and legs during three attempts to move him from the sidewalk to the stretcher.
In his submission, DelGobbo said the paramedics testified that they eventually used a “fore and aft” lift method to get Al-Hasnawi on the stretcher, acknowledged by two experts in the trial as “an appropriate way to lift a patient.”
Snivley admitted to requesting help from bystanders, particularly Al-Hasnawi’s brother Mahdi in the hopes of providing “a sense of comfort.”
DelGobbo said the “varying interpretations” of the incident from civilians appears to range from criticism of the paramedics to seeing Yosif struggling as he was being placed on the stretcher.”
He suggested to the judge that the paramedics descriptions are not that far off as to what they saw.
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