Defence in Const. Daniel Montsion trial seeks adjournment over discovery of ‘slowed down’ CCTV video

Daniel Montsion (right) makes his way into the Ottawa court house on Feb. 4, 2019. Montsion pleaded not guilty to manslaughter charges stemming from the death of Abdirahman Abdi. Christopher Whan / Global News

A recently discovered copy of security camera footage, an alleged “secret meeting” and a pathologist’s change of opinion over Abdirahman Abdi’s cause of death were at the forefront of Tuesday’s proceedings in an Ottawa police officer’s manslaughter trial, as the defence began arguing in favour of adjourning just two days in, due to new evidence it received in a “Sunday bombshell” on the eve of the high-profile trial.

Const. Daniel Montsion’s defence lawyers told the court they had only been alerted on Sunday to the existence of what they described as a “converted” and “slowed down” version of CCTV footage that captured the fatal confrontation between Montsion, another police officer and Abdi on July 24, 2016.

That second video, viewed by the pathologist who carried out the post-mortem examination in Abdi’s case, may have influenced the conclusions of the final pathology report, the defence alleged.

READ MORE: Police officer pleads not guilty to manslaughter of Abdirahman Abdi; ‘unjustified’ assault caused death, Crown argues

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Montsion is facing charges of manslaughter, assault and assault with a weapon in the death of Abdi, who was pronounced dead shortly after his violent arrest that Sunday morning in 2016. Montsion pleaded not guilty to all three charges on Monday.

In his opening statement on Monday, Crown prosecutor Philip Perlmutter told the court that the Crown’s case leans heavily on CCTV video recorded from inside the lobby of Abdi’s apartment building at 55 Hilda St., west of downtown Ottawa. The struggle between Abdi, Montsion and Const. Dave Weir occurred outside the building’s front entrance.

While the defence has had access to that CCTV footage for some time, it only found out as trial began that a copy of that original recording had been exported, converted to an mp4 video file and “artificially slowed down” at certain parts and shown to forensic pathologist Dr. Christopher Milroy, defence counsel Solomon Friedman told Ontario Court Justice Robert Kelly on Tuesday.

WATCH (Feb. 4, 2019): Ottawa police Const. Daniel Montsion arrives at court ahead of criminal trial
Click to play video: 'Ottawa police Const. Daniel Montsion arrives at court ahead of criminal trial' Ottawa police Const. Daniel Montsion arrives at court ahead of criminal trial
Ottawa police Const. Daniel Montsion arrives at court ahead of criminal trial – Feb 4, 2019

The footage itself was altered and not slowed down through a function on a video player, Friedman argued. He claimed there are “material alterations and distortions” between the original CCTV footage and the “slowed down” version – created on Aug. 4, 2016 – including the lack of a time stamp on the exported copy. The defence laywer also alleged the copy “downplays” the force Weir used when taking Abdi to the ground.

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Friedman argued the defence is left with questions about whether the copy was “altered or doctored to change the perceptions of events.” The defence now wants the judge-only trial to adjourn and return two and a half weeks from now, so it can deal with the new evidence.

Pathologist’s conclusion on cause of death changed after seeing ‘slowed down’ video, defence claims

Crown counsel said on Tuesday it would not introduce the second video as evidence, but the court heard the “slowed down” CCTV footage is relevant because Milroy changed his conclusion on Abdi’s cause of death after seeing that second video, defence counsel Michael Edelson argued.

Milroy viewed the allegedly slowed down footage at a Nov. 15, 2016 meeting at the offices of Ontario’s Special Investigations Unit (SIU), Edelson said.

READ MORE: New video shows aftermath of Abdirahman Abdi arrest

Milroy had originally concluded in his draft report that Abdi’s death was an “accident,” Edelson argued, but his final report — produced on Nov. 21, 2016  — concluded that the manner of death (in the medical and legal sense) was “homicide.”

“There’s this dramatic transition from accident to homicide six days after that meeting from which there are no notes (and) no reports,” Edelson said, later describing the session as “secret meeting.”

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Milroy said in his final post-mortem report that his change in opinion is attributable to his viewing of the allegedly slowed footage, the defence argued. After seeing this, Edelson said the defence made “repeated requests” to obtain the video. Defence counsel was told, in a message relayed by the Crown, that such a video didn’t exist and that the CCTV recording was “slowed down for Dr. Milroy using the player control,” Edelson alleged.

The “slowed down” video only turned up when SIU investigator and first Crown witness David Robinson handed it over to the Crown during a witness preparation meeting on Sunday. The Crown immediately advised the defence of the video’s existence, Edelson said.

READ MORE: Black Lives Matter Toronto stage rally at SIU headquarters over death of Abdirahman Abdi

Then on Tuesday morning, Edelson said the defence only learned who was involved in the Nov. 15, 2016 meeting less than an hour before proceedings were scheduled to begin in court. Milroy is expected to testify during the trial.

In arguing for an adjournment until Feb. 25, Friedman told the judge the defence need time to receive and analyze new information and material it has requested from the Crown in light of the new video footage.

On top of that, Friedman said the defence is contemplating filing:

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  • a lost or destroyed evidence application,
  • an application seeking to “preclude the Crown from relying on Dr. Milroy’s final report or any opinion that premised on that second video”, and
  • a charter application alleging abuse of process by the SIU “in misleading the Crown, Dr. Milroy, the defence, defence experts and ultimately the court with respect to the second video.”

Proceedings to continue Wednesday

Defence counsel raised the issue of the “slowed down” video first thing on Tuesday and the judge recessed the court until 3 p.m., at which point the defence returned with a formal application for adjournment.

Court will resume at 10 a.m. on Wednesday, when the defence will continue its arguments for adjournment. It’s expected the defence will play the two CCTV videos for the judge and that the Crown will formally respond to the defence’s application to adjourn.

READ MORE: Death of Abdirahman Abdi fuels calls for police training reforms

The struggle outside 55 Hilda St. on July 24, 2016, occurred after Weir was called to a nearby coffee shop in response to a report about multiple assaults. He tried to arrest Abdi there but Abdi ran away, the court heard on Monday. Weir chased Abdi to the apartment building on Hilda Street and tried to arrest him again, Crown counsel said.

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The CCTV footage, the Crown argued on Monday, shows Montsion arrived shortly after and got out of his car and “without any hesitation, approached the scene and immediately struck Mr. Abdi in the face with closed fists.”

The weapon the Crown alleges Montsion used to assault Abdi is the pair of knuckle-plated gloves the police officer was wearing as he hit the 37-year-old Somali-Canadian man.

“This trial is about an arrest gone bad, an arrest that resulted in the death of Abdirahman Abdi,” Perlmutter said on Monday.

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