Officer’s trial adjourned in fallout from ‘bombshell’
Defence alleges video altered by SIU swayed expert’s ruling on violent arrest
The manslaughter trial of Const. Daniel Montsion has adjourned as new potential evidence continues to be disclosed in the wake of a “Sunday bombshell” that alleged a second, digitally altered version of CCTV video showing the fatal arrest of Abdirahman Abdi was used by SIU investigators and only disclosed to the Crown and defence on the eve of trial.
Justice Robert Kelly granted the adjournment until Feb. 25 after the defence team of Michael Edelson and Solomon Friedman alleged the second, “doctored” version of the video was shown by SIU investigators to forensic pathologist Dr. Christopher Milroy, who then changed his opinion from ruling Abdi’s death an accident to ruling it a homicide.
Montsion has pleaded not guilty to manslaughter, aggravated assault and assault with a weapon for his role in the July 24, 2016 arrest of Abdi, the 37-year-old Somali-Canadian man who lost vital signs and died later in hospital.
Edelson said he needs time to analyze the new video and said he is considering a motion to exclude the Crown from relying on Milroy’s final report on the cause of Abdi’s death, or any other expert opinion based upon seeing the contested version of the video.
Edelson has said he will also consider a “lost or destroyed evidence” application, and a charter application alleging abuse of process by the Special Investigations Unit in “misleading the Crown, Dr. Milroy, the defence, defence experts and ultimately the court.”
The SIU is the civilian oversight agency responsible for investigating circumstances involving police that have resulted in a death, serious injury, or allegations of sexual assault.
Crown prosecutors Philip Perlmutter and Roger Shallow, who had initially argued the trial should continue, agreed on Wednesday with the defence adjournment request in light of more new potential evidence that has surfaced since Sunday’s disclosure of the altered video.
The defence team laid no blame on the Crown, and Shallow told court Wednesday the prosecution was “equally impacted by Sunday’s disclosure.”
“The allegations made by (the defence) are very serious,” Shallow said. “But they are based on a patchwork of lines and paragraphs stitched together from disclosure correspondence amassed over nearly two years.
“In response to (Tuesday’s) disclosure request, within 24 hours the Crown received material that we expect will unequivocally put to rest these serious allegations about the integrity of the video evidence and the SIU.”
Shallow said the Crown learned more information from the SIU about the contested video on Tuesday morning, and the defence received that further disclosure just before Wednesday’s proceedings.
Friedman held a CD aloft and told court the defence team, at that point, still had no idea what was on the disc.
The Crown had only just begun testimony from its first witness when the defence application brought proceedings to a screeching halt Tuesday. That same witness, SIU investigator David Robinson, had sent the email described by Edelson as a “Sunday bombshell,” revealing the existence of the second video which, according to Edelson, the agency had denied through two years of defence disclosure requests.
The Crown said Robinson is prepared to testify when the trial resumes on the entire issue surrounding the CCTV video, which has been acknowledged by the defence, Crown and judge as a “centrepiece” of the evidence at trial.
Robinson’s brief testimony had so far centred solely on the physical evidence collected at the scene at 55 Hilda St.
He showed court crime-scene photos of Abdi’s shoes and bloodsoaked pants, and of Montsion’s police uniform and the reinforced-knuckle gloves Montsion was wearing, which the Crown said were neither issued nor sanctioned by Ottawa police for use as a weapon.
The contested CCTV video was not aired in court Wednesday, despite notice from the defence it intended to show both versions and point out “material differences” between the original 28-minute clip showing Abdi being taken forcefully to the ground by Montsion and Const. Dave Weir, and a two-minute excerpt that was “enhanced” by the SIU to appear in slow motion.
The Crown agreed it would be appropriate to adjourn while the new video evidence is analyzed but expressed concern that airing the video for those assembled in the crowded courtroom, or allowing a description of its contents to be published could lead to tainted testimony from eyewitnesses.
Perlmutter asked the judge to clarify an order Wednesday prohibiting the public release of the video until it is made an exhibit at trial. So far, the only description of the video’s contents entered into the public record have come from the Crown, as Perlmutter illustrated the arrest during his opening address.
Montsion arrived on scene at Abdi’s apartment building at 55 Hilda St. that morning as his fellow officer, Weir, was trying to get Abdi to comply with his orders.
Weir had initially responded to reports of a groping incident at a nearby coffee shop when a foot chase led the officer to Abdi’s doorstep, where the rest of the arrest was captured on CCTV from the building’s lobby.
Montsion, according to the Crown, exited his vehicle and “without any hesitation approached the scene and immediately struck Mr. Abdi in the face with closed fists, using reinforced assault gloves.”
Prosecutors said the CCTV video shows Montsion continuing to punch Abdi’s flailing legs, then delivering two blows to the back of Abdi’s head.
Abdi stopped moving after that, and when paramedics could not revive him at the scene, he was brought to hospital, where he later died.
The Crown in its opening arguments said Abdi died of cardiac arrest due to a “confluence of factors, including the punches from (Montsion), the physical and emotional stress caused by the events at the Bridgehead, the initial confrontation and the chase with officer Weir.”
Weir was named a subject officer of the SIU investigation but was not charged by the agency.
Montsion’s defence team said the second, altered video “downplays” the amount of force used by Weir in the takedown.
Edelson and Friedman each suggested the “slowed down” video influenced Milroy, a leading forensic pathologist, into changing his mind on the critical point of ruling Abdi’s death a homicide rather than an accident.