Hamilton paramedic had 'honest' belief that teen was shot with BB gun: lawyer

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A former Hamilton paramedic charged alongside his partner in the death of a 19-year-old believed the teen had only suffered a superficial wound from a BB gun and may have been in psychiatric distress, his lawyer argued Wednesday.

Christopher Marchant and Steven Snively are each charged with failing to provide the necessaries of life in their response to the shooting that killed Yosif Al-Hasnawi in December 2017. They have pleaded not guilty.

Prosecutors allege the pair failed to follow their training and the standards of their profession in assessing Al-Hasnawi, who had in fact been shot with a handgun. The teen died in hospital roughly an hour later.

The Crown has pointed to a number of ways in which the paramedics are alleged to have veered from the established standards of care, including the time it took for them to take Al-Hasnawi to hospital and the decision to bring him to St. Joseph's hospital rather than Hamilton General hospital, which is a designated trauma centre.

Lawyer Jeffrey Manishen, who represents Marchant, said in closing submissions Wednesday that simple negligence is not enough for a criminal conviction - the Crown must prove beyond a reasonable doubt that the paramedics' actions were a "marked departure" from their duty under the circumstances.

Marchant had an "honest belief" that he was dealing with a minor injury to the abdomen, one that had simply broken the skin but not penetrated further, the lawyer said.

That belief was reasonable, given the information he had received from first responders at the scene that it was a small wound, as well as from bystanders, including at least one witness who heard the shot and saw the injury, the lawyer said.

What's more, he said, Marchant found the injury didn't look as serious as other BB gun wounds he had previously seen, and he didn't see any blood.

"While there is room in certain places to potentially criticize what he did and didn't do at various stages along the way, if we keep in mind that he's acting on the belief that it's a superficial injury, he's trying to explore alternative causes and he has to deal with things that come up... there's a basis for you to conclude that at most, considering the totality, it's nothing more than a departure from the standard of care, but not a marked departure," Manishen said.

Manishen referred to the testimony made by an expert who testified for the defence on the issue of unconscious biases in a medical setting, noting that once the idea of a BB gun wound became anchored in Marchant's mind, it may have influenced his decision-making without him realizing that was happening.

The paramedics tried to find out if anything else was causing Al-Hasnawi's condition, particularly as it worsened, since it did not align with the injury they believed him to have, the lawyer said.

They tried to talk to Al-Hasnawi, but aside from telling Snively his name, the teen spoke in Arabic to his father, who was at the scene, the defence said.

The pair asked Al-Hasnawi's father if his son had consumed drugs or alcohol, which could have contributed to his distress, but were told he hadn't, he said. "It's reasonable to look for other explanations," Manishen said.

The lawyer said Marchant didn't hear Al-Hasnawi say he couldn't breathe until they were in the ambulance, but found no apparent sign of respiratory distress and took his words as indication he was still able to communicate.

A secondary examination performed in the ambulance included touching Al-Hasnawi's abdomen and did not find it to be tender or distended, which would have suggested a more serious wound, the lawyer said.

Al-Hasnawi grew more "combative" in the ambulance, prompting the paramedics to call on a police officer to help control him to conduct the assessment, the lawyer said.

Given the result of the physical assessment, Marchant believed Al-Hasnawi's agitation was due to psychiatric distress, and the decision was made to take him to St. Joseph's, the defence said.

When Marchant noticed Al-Hasnawi appeared to have "crashed," the pair nonetheless continued to St. Joseph's rather than rerouting to Hamilton General, Manishen said.

Changing course would have been the standard if they were dealing with a trauma case, he argued, but St. Joseph's remained the right choice if they believed they were dealing with psychiatric or substance abuse issues.

Ontario Superior Court Justice Harrison Arrell asked Manishen whether the "cumulative effect" of multiple acts of negligence could make for "a very real level of fault."

Manishen said that while the paramedics' conduct should not be assessed based on "a given individual act," that doesn't mean "four acts of negligence equals marked departure."

The judge-alone trial is taking place by videoconference. A defence lawyer representing Snively is expected to make his submissions Thursday, followed by the Crown.

This report by The Canadian Press was first published March 24, 2021.

Paola Loriggio, The Canadian Press