Before being charged with second-degree murder, Dale King was convicted five times of assault.

This included assault with a weapon and assault cause bodily harm. One conviction was less than a year before the fatal shooting of Yosif Al-Hasnawi on Dec. 2, 2017.

But members of the jury, who began their deliberations Tuesday, never heard about these convictions. They were ruled inadmissible by Superior Court Justice Andrew Goodman, in part because King is Indigenous.

King has argued self defence and the jury must decide if he's guilty of second-degree murder, not guilty, or guilty of manslaughter.

It is common when an accused takes the stand in their own defence — as King chose to do — to have what's called a Corbett application. That's when the criminal record of the accused is vetted to make sure it is not prejudicial.

In this case, King's record was trimmed to 14 convictions ranging from break and enter, to mischief, to breach of probation. No violent offences remained.

Crown attorney Gord Akilie had argued that some, not all, of the assault convictions should remain to create a representative sample.

But defence lawyer Owen Goddard argued the jury should see none. As part of his argument he presented an academic article by University of Windsor law professor David Tanovich that suggested to combat stereotyping, courts should consider systemic racism against Indigenous people in Corbett applications.

Justice Goodman said he was persuaded by the argument, calling it "timely."

"I believe we are evolving," he said of the courts efforts to combat what is a "well-documented" problem of Indigenous people overrepresented in the justice system and prisons.

"By taking a more proactive and liberal approach ... this will go somewhat down the road to combating stereotyping," he said.

Goodman noted he likely would have allowed at least one assault conviction in, had King not been Indigenous. He also explained that his ruling wasn't just because King is Indigenous, but because of the impact on him.

This was the second precedent-setting ruling Goodman made in the case surrounding King's Indigenous identity. Before the start of the trial, he ruled in favour of the defence, which had brought forward a constitutional challenge against recent changes to jury selection rules.

Goodman agreed that because King is Indigenous his Charter rights would be impacted by the jury selection change, which saw the elimination of peremptory challenges (ability to dismiss potential jurors without cause).

Court heard King has had a difficult life, including being removed from his home as a toddler, abused and moved around the province. He testified to needing to fight to prove himself in foster care and being introduced to drugs and alcohol as a teen.

But King's testimony also caused a problem. When he was asked about his reaction when he found out Al-Hasnawi had died he said:

"It floored me. I had to sit down. I couldn't believe I caused someone to die. I didn't think I was capable of such things; I'm still not."

This claim that he didn't think he was "capable," coupled with extensive testimony about his difficult life painted King as "sympathetic victim."

Before the trial Goodman had ruled the jury couldn't hear evidence of discreditable conduct, including that King was a drug dealer — ruling the jury could only be told he was a drug user. But after King's testimony Akilie argued the crown was "effectively shackled."

King's testimony left a "distorted picture," he argued, calling it a "concerted and systematic effort to paint King in a positive light as a perpetual victim."

Goodman ruled in favour of the Crown and the prosecution was allowed to ask King about his drug dealing when he was cross examined.

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The Crown sought to introduce one other detail — but was denied.

In earlier statements James Matheson, who was with King the night of the shooting, told police he and King had robbed someone named "Angel" on the street 53 minutes before the shooting.

But Matheson, who changed his story multiple times and claimed not to remember anything, was an unreliable witness. Goodman found his earlier evidence about a robbery "tenuous at best" and the jury was not allowed to hear details.

Other matters discussed in the absence of the jury included security.

Throughout the trial King sat, his feet shackled, in the prisoner's box, but the defence did not want them visible when he was in the witness stand.

Goodman agreed and a security plan was put in place, bringing in one extra Hamilton police special constable to the courtroom who sat next to the witness stand.

King was allowed to walk out, unshackled, from the prisoner box, to the witness stand, in front of the jury.

While the crown was presenting its case on Nov. 13, meanwhile, there was also an unexpected delay and the trial was adjourned for the day.

The jury wasn't told the reason for the delay — that King had a concussion after being assaulted in jail.

Court did not hear any details of what happened, only that King had been taken to hospital the night before and had been diagnosed with a concussion and that he needed a day to recover.

In court King had cuts above his lip and on his forehead.

noreilly@thespec.com

905-526-3199 | @NicoleatTheSpec