Defence poised to start its case in Montsion trial
After 58 days of Crown evidence over five months of Const. Daniel Montsion’s manslaughter and assault trial, the Ottawa police officer’s defence team will now call its first witnesses and evidence to defend the charges.
With the prosecution testimony and evidence now complete in its case for assault with a weapon, aggravated assault and manslaughter in the July 24, 2016, death of Abdirahman Abdi, the defence team of Michael Edelson and Solomon Friedman will now argue that the Crown has not met its burden of proof beyond a reasonable doubt on each of the criminal charges.
Crown prosecutors Philip Perlmutter and Roger Shallow called the evidence “uncomplicated” as the trial began on Feb. 4, alleging Montsion used “excessive” and “unjustified” force in Abdi’s takedown.
That excessive force, as Perlmutter said in the Crown’s opening address — and which the Crown sought to prove through weeks of testimony of civilian witnesses, police, forensic and pathology experts — is the “foundation” of the assault charges against Montsion.
Prosecutors told Ontario Court Justice Robert Kelly in its opening arguments this was “an arrest gone bad.”
The Crown called Montsion’s role in the arrest an “unjustified assault” that endangered Abdi’s life and alleged the reinforced knuckle-plated gloves the officer wore were neither issued nor sanctioned by Ottawa police for use as a weapon.
The defence case is expected to call evidence to challenge each of those allegations.
Montsion is not obliged to testify in his own defence, and, if his lawyers do not believe the Crown has met its burden of proof on the charges, it is unlikely he will take the stand.
Several key Crown witnesses were problematic for the prosecution from its first witness, Special Investigations Unit identification officer David Robinson, whose handling of critical CCTV video evidence led to a lengthy charter challenge over the admissibility of the video evidence — a challenge that has since been abandoned by the defence.
The defence is still expected to challenge the video’s reliability. Other eyewitnesses at the 55 Hilda St. scene gave testimony contradicting what was shown on the CCTV video, with some relating wildly inaccurate versions to local media at the time of the fatal arrest and others consuming media reports during the trial, which unknowingly violated a court order.
Const. Dave Weir, the first officer to respond that day to six alleged sexual assaults in and around a Wellington Street West Bridgehead café, described numerous attempts to subdue and arrest the suspect with kicks and pepper spray, with Abdi swinging a 30-pound road construction weight above his head as he fled to his Hilda Street doorway.
Weir testified he believed Montsion “saved my life” when he arrived as backup and punched Abdi as he grappled with the officers.
Weir described at least five attempts to arrest Abdi before they reached the enclosed space of the doorway, a proximity he described as the “danger zone.”
Weir testified he brandished his baton and would have tried to punch Abdi before Montsion did.
“If I could have gone toe-to-toe, I would’ve punched him as many times as I had to,” Weir told court.
Abdi lost consciousness after he was taken to the ground and died in hospital a day later.
Pathologist Dr. Christopher Milroy ruled Abdi’s official cause of death as hypoxic brain damage caused by cardiac arrest, and it was revealed through the trial he had an 80-per-cent blockage in two major arteries in his heart.
Prosecutors would have a “causation issue” if they wanted to prove Montsion was “a significant contributing cause” of Abdi’s death, Milroy testified, which he also told the SIU and prosecutors during the investigation.
With the Crown case largely complete, it will turn to the defence of Edelson and Friedman to call evidence to answer each of the three individual charges and any questions in the judge’s mind. Count No. 1: Assault with a weapon — Were the Oakley reinforced gloves unsanctioned weapons, as the Crown alleges, or personal protective gear issued to police?
No Crown expert was called to definitively answer the question of whether the gloves Montsion wore were illegal. Retired Toronto deputy chief Michael Federico expressly avoided testifying about any detail specific to the Montsion case, but instead spoke about general police training and standards and acknowledged police units were issued gloves as personal protective equipment.
Though the blood-spattered gloves were highlighted as evidence on the trial’s first day, not much more was said about them during the Crown’s case.
The gloves are expected to feature prominently in the defence case, however, as it has already been suggested through cross-examination they were procured, signed off by superior officers and issued to Montsion’s unit.
“These are not weapons,” Edelson has already told the judge. Count No. 2: Aggravated Assault — Were the punches excessive force, which the Crown says is the “foundation” of the assault charges against Montsion?
No Crown expert testified about whether Montsion, or Weir, employed appropriate use of force that day. Federico again spoke in generalities, but agreed the arrest of a suspect exhibiting signs of excited delirium syndrome could require physical force, including punches, not only to subdue a suspect, but also to “potentially save their life.” In one of the trial’s more memorable exchanges, Federico described the tactics police employed during those often-violent arrests as “lawful, but awful.”
The defence has on several occasions during the trial named another witness inside the Bridgehead café, an off-duty paramedic who was not called to testify by the prosecution, but who could feature prominently in the defence case.
A portion of its case will likely focus on establishing the chronology of events that led to police being called and the information that responding police officers had about Abdi’s mental state and physical condition as the arrest unfolded.
The Crown called one of the six women who were allegedly sexually assaulted that morning, though Perlmutter has argued the assaults have “no bearing” on the Crown’s case. “From the Crown’s perspective,” Perlmutter said, “the Bridgehead evidence is unnecessary to prove the force used by the accused was excessive.”
Count No. 3: Manslaughter — Is Montsion criminally responsible for Abdi’s death?
The most serious of the three charges with the highest threshold for a conviction, the Crown case for manslaughter has already been vigorously challenged by the defence during cross-examination of Milroy.
The veteran pathologist testified Abdi, with his heart condition, “could have died just from the physical exertion of jogging, not the additional blows.
“He could have dropped dead at any time,” Milroy said. “He was certainly at risk.”
In the Crown’s opening address, prosecutors said they expected the evidence would establish that Abdi’s heart attack was caused by a “confluence of factors, including the punches from accused, the physical and emotional stress caused by the events at the Bridgehead, the initial confrontation and the chase with officer Weir.”