Defence urges acquittal in Abdi case
Officer acted ‘reasonably,’ lawyers argue ahead of three-day April hearing
A judge must now consider whether Const. Daniel Montsion’s conduct during the fatal arrest of Abdirahman Abdi on July 24, 2016, showed a “wanton, reckless disregard” for Abdi’s life and safety as Crown prosecutors allege, or whether the Ottawa police officer acted “reasonably and proportionally” in the “restrained and deliberate manner” his defence lawyers describe.
Montsion’s defence team of Michael Edelson and Solomon Friedman made the case for acquittal in writing this week, arguing their client was “thrust into a dynamic, violent and unpredictable situation” as he helped in the takedown of an “actively psychotic” suspect who was resisting arrest.
In the Crown’s closing arguments, submitted in writing to the court in December, prosecutors Philip Perlmutter and Roger Shallow said Montsion was “criminally liable” for Abdi’s death. He arrived at the 55 Hilda St. scene and punched Abdi “multiple times while wearing hard knuckle-plated gloves,” the Crown said. Montsion fractured Abdi’s nasal bones, an “aggravated” injury, which the Crown said was “a significant contributing factor” in his death.
The Crown and defence will each have a final chance to make their case before Ontario Court Justice Robert Kelly in a three-day hearing scheduled for late April. Montsion’s trial for manslaughter, aggravated assault and assault with a weapon started in February 2019.
The defence submissions take issue with a number of contentious arguments, refuting a suggestion by the Crown that the punches inflicted severe brain damage, saying prosecutors “misinterpreted and/or misquoted” pathologist Dr. Christopher Milroy.
Abdi suffered a heart attack, and his official cause of death was hypoxic brain damage, Milroy testified, which occurs when the brain is starved of oxygen. Doctors later discovered Abdi had a severe, 80-percent blockage in two arteries in his heart, and as Milroy testified, he could have died “at any time.”
Citing Milroy’s testimony, the defence argues Abdi was “clearly experiencing many physical and psychological stressors which ... could have caused his death independent of his contact with Const. Montsion.”
The Crown contends the punches Montsion delivered upon arriving at the Hilda Street scene while Abdi was cornered in the doorway by Const. Dave Weir — five punches while standing and three after Abdi was taken to the ground — were a “substantial departure from the standard of care of a reasonably prudent, similarly situated police officer.”
Montsion’s lawyers countered that the officer “defended Const. Weir and himself” after observing a fellow officer wielding his baton against a suspect who, as he learned through radio dispatches, had resisted handcuffs, pepper spray and several other arrest attempts.
“He assisted in controlling Abdirahman Abdi, who was assaultive and actively resistant.”
Montsion made “a legal arrest,” his lawyers argue, and he “made reasonable decisions and acted proportionately, based on the information available to him at the time.
“Every piece of information that he received while en route to 55 Hilda would have led to the same conclusion: Mr. Abdi was difficult to control and dangerous; Const. Weir was in need of immediate assistance.”
Crown prosecutors concede Abdi was engaged in “assaultive” conduct that led police to respond to a disturbance in which six women were sexually assaulted in and around a Wellington Street West Bridgehead café, and prosecutors agreed Abdi’s arrest was “justified.”
The Crown acknowledged Abdi was off his medication, which had been prescribed to treat the onset of mental health issues in the months before the arrest, but argued he wasn’t “malicious, violent or dangerous.” The Crown instead characterized Abdi as “a slow, awkward and at times unwelcome nuisance.”
Prosecutors disputed parts of Weir’s testimony — Montsion’s fellow officer was called as a Crown witness late into the proceedings and testified that Montsion “saved my life” when he intervened after the foot chase from the café to Abdi’s Hilda Street home.
Weir testified he feared Abdi “might rip my arms off.”
The Crown called Weir’s testimony “embellished and exaggerated” and said the threat Abdi posed in Weir’s account of the chase — starting with his initial attempt to handcuff Abdi before he fled, and the numerous attempts to engage him along the way as he exhibited signs of “excited delirium” — was not borne out by other eyewitness testimony and in surveillance footage capturing the final moments of the arrest from inside the apartment lobby.
But according to Montsion’s defence team, the Crown’s argument for excessive force relies on eyewitness testimony that has been “demonstrably contradicted” by that same video evidence.
Those witnesses have variously “admitted to collaboration and inadvertent collusion,” wavered in their testimony on the witness stand and some even “expressed relief that their inaccurate versions of events were contradicted by objective evidence.”
“Indeed,” his lawyers write, “any objective assessment of the most reliable evidence in this case paints a picture of an officer who acted reasonably and proportionally, in direct response to the overall circumstances and the specific actions of Mr. Abdi.”
According to the defence, the Crown painted “a highly selective and sanitized picture of Mr. Abdi’s conduct in the time immediately preceding the altercation at 55 Hilda …” and said the prosecution mischaracterized how Abdi was portrayed at trial by Montsion’s defence.
The Crown wrote in its final arguments that “Mr. Abdi was not the violent and dangerous public enemy the defence might suggest.”
That “inflammatory characterization,” the defence said, “has never been made” in its case.
“Mr. Abdi was not a public enemy,” the defence writes, describing him instead as a man who had “attacked, upset and disturbed a number of members of the public ... (who) was at times angry, paranoid and belligerent. He refused to obey police directions. He resisted arrest and fled the scene of his crimes. He seemed to verge on incoherence. He was overwhelmingly strong .... He was almost impossible to control (and) displayed numerous symptoms consistent with excited delirium. He was actively psychotic.”
Montsion’s use of force “is justified in the circumstances,” his lawyers argue. “In that case, there is no unlawful act to support the charge of manslaughter and the court’s analysis ought to end there.”
(Const. Montsion was) thrust into a dynamic, violent and unpredictable situation.