Police radio dispatches played big role in acquittal
Before rendering his not-guilty verdict in the manslaughter and assault trial of Const. Daniel Montsion this week, Ontario Court Justice Robert Kelly considered evidence that received little attention at trial, the judge said, including police radio dispatches that illustrate what Montsion may have known in the moments before Abdirahman Abdi's fatal arrest.
“When I discuss the information that was available to Const. Montsion before he arrived at 55 Hilda St., I examined some evidence that did not receive much in-court attention during the trial,” Kelly said during Tuesday's hearing.
The judge referenced emergency radio dispatches on the morning of July 24, 2016, including those from Const. Dave Weir, that “show the information that was being transmitted over the police radio system about the events at the Bridgehead coffee shop and on Wellington Street leading up to the arrival at 55 Hilda.”
The judge released the full reasons for his decision shortly after acquitting Montsion on Tuesday, ruling he was left with “reasonable doubt” the Crown had met the criminal standard on each of the charges of manslaughter, aggravated assault and assault with a weapon in Abdi's death.
In his ruling, and in his 112-page written decision, Kelly referenced radio dispatches from Weir, the first officer who responded to reports of sexual assaults in and around the Bridgehead café and then chased Abdi on foot to the steps of his Hilda Street home.
Weir testified at trial in June 2019, and the recordings were tendered as part of a volume of Crown evidence.
The call begins at 9:37 a.m. with an emergency dispatcher requesting units to attend 1024 Wellington West for a “minor disturbance between customers. Males are pushing each other,” the dispatcher is heard saying.
Weir, identified by his call sign, is the first to respond seconds later.
Within three minutes, according to the time stamp, the dispatcher has informed the responding officers the suspect has been thrown out of the café, “but he's still attacking people on the street.”
The dispatcher also says the suspect is exhibiting “Possible MHA (mental health) issues. And he's just assaulted a female.”
Montsion can be heard on the radio at 9:40 a.m. saying he's on his way, and the judge in his ruling said there was a “reasonable inference” that Montsion could hear Weir on his radio and knew his fellow officer had arrived on scene.
By 9:41 a.m., according to the judge's summary, Montsion would have known the disturbance at the Bridgehead had escalated, he had Abdi's physical description, and knew a man with possible mental health issues had been thrown outside, where the altercation continued.
Weir described his initial arrest attempt in his testimony, saying Abdi broke free of his grip as the officer attempted to handcuff him, then ran about 250 metres to his Hilda Street home.
Montsion would have heard parts of the foot chase over the radio, the judge said in his ruling.
“Wellington and Hilda,” Weir is heard saying between breaths. “He's tossing stuff and I sprayed him. So far no result.”
Along with the radio dispatches, Kelly examined mobile data terminal (MDT) records from Montsion's cruiser. He was off-line for about three minutes when he switched cars, but records show Montsion's cruiser travelling 123 km/h on Highway 417 at 9:45 a.m., the same time as Weir's dispatch from 55 Hilda St.
Data showed Montsion driving down Wellington Street at speeds of 89 to 102 km/h before arriving at the scene one minute later.
Montsion's arrival at 55 Hilda St., and not at the Bridgehead café, held some “significance” for Kelly, as the judge said it implied Montsion would have been following Weir's dispatches, and would have known Abdi had been pepper-sprayed with no effect.
Kelly said he relied on CCTV video evidence from the building lobby in his analysis of the violent arrest, along with Weir's testimony and the testimony of three eyewitnesses
who saw parts of the arrest unfold.
But “mistakes were made” in eyewitness testimony, the judge said.
“The scene was dynamic. The events unfolded rapidly. Three men were moving around the recessed area below street level. Arms were swinging, legs were flying, baton blows were struck. Each witness had, at most, a period of seconds to observe the events they would describe in court three years later,” Kelly said.
“It is unrealistic to expect anything approaching perfection in an eyewitness's description of events like these. It is only natural a person will miss something or make a mistake.”
Kelly had fewer reservations with Weir's recollection, even though the Crown had questioned his credibility on some aspects of his testimony, particularly on “the fear he felt when dealing with Mr. Abdi and Mr. Abdi's physical strength.”
The Crown claimed parts of Weir's testimony were “exaggerated or embellished,” but Kelly said he was “unable to accept” that argument.
“Const. Weir had many opportunities to shade his evidence in favour of the defence but did not,” Kelly wrote in his decision. “On the important issues his testimony was straightforward and balanced. This was not a witness who simply gave the defence what it wanted.”