Lawyers for Const. Daniel Montsion were huddled in their Elgin Street offices on Super Bowl Sunday, the day before the officer’s high-profile manslaughter and assault trial was set to begin, when the incoming email pinged from the Crown attorney’s office.New evidence had just been turned over by the Special Investigations Unit, which charged Montsion in the July 24, 2016, death of Abdirahman Abdi. It was a two-minute video excerpt taken from CCTV footage of the arrest at 55 Hilda St., enhanced and rendered in slow motion.
Abdirahman Abdi is shown in a family handout photo.
Family of Abdirahman Abdi /
THE CANADIAN PRESS
With roughly 18 hours to go before the trial was set to begin, the defence team of Michael Edelson, Solomon Friedman and Connie D’Angelo drew up a new, though familiar, playbook.Edelson called the disclosure a “Sunday bombshell” and notified court of three applications he intended to bring forward related to the “doctored” video, which the defence alleged was shown by investigators to a leading forensic pathologist, who then changed his opinion from ruling Abdi’s death an accident to ruling it a homicide.It was a “crucial, pivotal point” in the SIU investigation, Edelson said, when Dr. Christopher Milroy changed his opinion in the final report he submitted in November 2016, six days after being summoned to a meeting at SIU headquarters.Edelson is seeking to have prosecutors excluded from relying on that report, or any other opinion that may have been influenced by viewing the contested video.
Lawyer Michael Edelson is representing Ottawa Police Const. Daniel Montsion in his trial for manslaughter in the death of Abdirahman Abdi on February 4, 2019.
Errol McGihon /
Edelson also notified court of his intention to pursue a lost or destroyed evidence application, alleging the meeting with Milroy was attended by investigators, SIU lawyers and agency director Tony Loparco, but that despite two years of disclosure requests from the defence, no notes from that meeting were provided.“There’s this dramatic transition from ‘accident’ to ‘homicide’ six days after a meeting for which there are no notes,” Edelson said.A third application alleges abuse of process by the SIU in “misleading” the court with respect to the contested video.If any of the three applications were to succeed, legal experts and trial observers believe, it could have a “dire impact” on the trial.•“There is a fundamental and important obligation on the police and on the Crown to disclose any relevant material to the defence,” said Michael Spratt, a certified specialist in criminal law and partner at Abergel Goldstein & Partners.“So whether it helps the defence or hurts the defence, whether it’s exculpatory, or whether it points to guilt, it all has to be disclosed.”The prosecution in Montsion’s case, Toronto-based Crown attorneys Philip Perlmutter and Roger Shallow, told court they were equally affected by the late-arriving disclosure.Before the trial abruptly adjourned on its third day, with the judge affording time to both Crown and defence counsel to deal with issues surrounding the disclosure, Shallow indicated the SIU had turned over further information “that we expect will unequivocally put to rest these serious allegations about the integrity of the video evidence and the SIU.”That new evidence has not yet been aired in open court.On Wednesday, the parties met for a “check-in” with the judge on the status of the applications.While all three defence applications remain on the table, the trial will resume Monday where it left off, with the Crown’s first witness, SIU investigator David Robinson, describing the physical evidence the SIU retrieved from the scene.But legal experts believe the disclosure issue will loom large over the proceedings.“This is not going away any time soon,” said Leo Russomanno, defence lawyer with Russomanno Criminal Law and a director with the Criminal Lawyers’ Association.“This is the crux of the case — did the officer’s actions contribute in a significant way to the death of Mr. Abdi? And so the pathology is very important,” Spratt said.“It’s not uncommon for there to be preliminary opinions (in a draft coroner’s report), and it’s not uncommon when new evidence comes in for those opinions to be revised.”Milroy, as was noted in court, is a highly respected forensic pathologist who holds a law degree as well as a medical licence.“He’s a very capable, straightforward witness, and, in my experience, he’s not a witness that would be happy about being manipulated, and wouldn’t be afraid to make that clear if it did have an impact on his opinion. We can be confident he will tell it like it is,” Spratt said.“It may be that watching the video had an impact on his opinion; it may be that the slowed-down video had no impact on his opinion. We’ll find out when he testifies.”Milroy is among the dozens of witnesses scheduled to be called by the Crown during the 12-week trial. The Crown also notified court last week it had retained a video expert to deal specifically with the contested video.Playing an excerpt in slow motion, Spratt said, can be akin to adjusting the contrast or zooming in on a picture, or looking at a slow-motion sports replay.“On the other hand, manipulating a video can lead to a change in perception,” Spratt said. “So certainly, if the video was manipulated to make things appear quicker, or slower, and that was hidden from an expert who is reviewing the video, that’s very different. But that is a very serious allegation to make.“And when you drop these bombshell allegations as defence counsel, you better be in a position to back them up.”•Aside from the content of the contested video, which has not been shown in court, there also remains the issue of why the new evidence was disclosed at such a late hour.While the Crown acknowledged the allegations made by the defence are serious, Shallow said they are “stitched together” from a “patchwork of lines and paragraphs” taken from two years of disclosure correspondence.But legal experts believe the SIU has an obligation to explain itself.“There was an expert opinion that was rendered on the basis of that video evidence,” Russomanno said.“So, in order to fully assess the impact, you need to really look at the timing of the disclosure, and how did that have an impact on the opinion rendered? And if that expert opinion is excluded then the Crown would not be able to rely on (Milroy’s) opinion on cause of death, which is the Crown’s burden to prove that Montsion caused the death of Mr. Abdi.“That’s obviously a crucial and material issue that the Crown needs to prove at trial. It’s potentially extremely significant. It could have a really dire impact in these proceedings.”And with such keen public interest in the manslaughter trial of an Ottawa police officer, with each decision inside the courtroom magnified in the court of public opinion, there is also the issue of the optics surrounding the late disclosure.“The disclosure requests appear to have been meticulously placed over that (pretrial) period of time, and officers are aware of their obligation to disclose evidence, so while it’s not completely unheard of, it is unusual,” Russomanno said. “It’s certainly not something that should be taking place on the eve of trial.”•Trial watchers extended credit to the Edelson & Friedman firm as well for “seizing the narrative” at an early moment in the trial — a phase often dominated by the Crown as prosecutors typically open a trial by calling a parade of witnesses and entering volumes of evidence.“The defence is usually on their back foot as the trial begins, because it really is the Crown’s show,” said Russomanno. “They lead the evidence, it’s their burden, so I think good defence counsel are always cognizant of that. And it’s always good to have your own narrative, or a narrative that seeks to put the Crown on the defensive.“Part of the strategy of any effective advocate is to seize a moment when it occurs, and to seize the opportunity to command the narrative.”Russomanno said the disclosure issue could present a “significant hurdle” in the Crown’s case for proving Abdi’s death was caused by Montsion, the basis of the manslaughter charge.The defence has already suggested there were other factors at play before Abdi suffered cardiac arrest, from the incident in the Bridgehead coffee shop that prompted the original police call that day, to the foot chase with another officer, Const. Dave Weir, who was investigated but was not charged by the SIU. The Crown stated in its opening address that Abdi had an underlying heart condition.But experts agreed the contested video, and the disclosure issues surrounding the evidence, may not be as significant to the two other charges Montsion faces, aggravated assault and assault with a weapon.“Even if the Crown can’t prove beyond a reasonable doubt that the blows delivered by this officer were a significant contributing cause of Abdi’s death, there still may be enough evidence that excessive or inappropriate force was used, or that unsanctioned combat gear was involved in delivering that force,” Spratt said. “There still can be convictions on other charges. It’s far from an all-or-nothing firstname.lastname@example.orgTwitter.com/helmera