Const. Daniel Montsion manslaughter trial postponed over last-minute video discovery

Const. Daniel Montsion (centre) arrives at the Ottawa courthouse with his defence lawyers Michael Edelson (second from right) and Solomon Friedman (right) on Wednesday, Feb. 6. Montsion's manslaughter trial has been adjourned until Feb. 25 over new video evidence disclosed on the eve of trial. Beatrice Britneff / Global News

Just three days in, the high-profile manslaughter trial of Const. Daniel Montsion has been postponed until Feb. 25 after the defence raised concerns about a recently disclosed copy of CCTV video footage that had allegedly been “altered” and shown to the pathologist who determined the cause of death of Abdirahman Abdi in 2016.

Montsion is facing charges of manslaughter, assault and assault with a weapon in the death of Abdi, who died after a confrontation with Montsion and another Ottawa police officer outside his apartment building west of downtown Ottawa on July 24, 2016.

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

Montsion pleaded not guilty to all three charges on Monday.

Ontario Court Justice Robert Kelly granted the defence’s request for adjournment on Wednesday. The judge-only trial will resume Feb. 25. The court had not been scheduled to sit the week of Feb. 18.

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‘Sunday bombshell’ derails start of trial

News of the second CCTV video interrupted proceedings just one day after trial got underway at the Ottawa courthouse.

Defence lawyers for Montsion told the court on Tuesday morning that they received on Sunday afternoon — the eve of trial — an allegedly converted and “slowed down” version of the CCTV footage recorded by a security camera in the lobby of Abdi’s apartment building that captured Abdi’s violent arrest.

Defence counsel Michael Edelson described the last-minute disclosure as “a Sunday bombshell” for the defence team.

The original CCTV footage is expected to be a “centrepiece” of the trial; Crown counsel said earlier this week they consider it to be “perhaps the most important piece of evidence” in the case.

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

Neither of the two CCTV videos has been played in court and the Crown has said it won’t seek to tender the second version of the recording in court.

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But the defence argued for time to review the “slowed down” video and have it analyzed by one of their experts because the forensic pathologist in Abdi’s case changed his opinion on cause of death from “accident” to “homicide” after viewing it during a meeting at the offices of Ontario’s Special Investigations Unit (SIU) in November 2016.

No notes were taken at that meeting, in contravention to the SIU’s note-taking policy, Edelson claimed, making it “essentially a secret meeting.” The SIU is the provincial police watchdog that laid the charges against Montsion in 2017 after investigating the circumstances surrounding Abdi’s death.

In response to “repeated requests,” Edelson said the defence was told via the Crown that no “slowed down” video existed and alleged on Tuesday that whoever told the Crown no such footage existed “materially misled the Crown as to the nature of that video.”

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

Crown counsel Roger Shallow on Wednesday called the allegations made by the defence “very serious” but argued they are “based on a patchwork of lines and paragraphs stitched together from disclosure correspondence amassed over nearly two years.”

“In response to yesterday’s disclosure request, within 24 hours, the Crown received material that we expect will unequivocally put to rest these serious allegations about the integrity of the video evidence and the SIU,” Shallow said, adding that new material was shared with the defence on Wednesday morning.

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Shallow said the prosecution was “equally impacted” by the sudden disclosure of the video, which it only received on Sunday afternoon from an SIU investigator, who brought it to a witness preparation meeting.

Ahead of Wednesday’s proceedings, it had been expected the defence would play the two CCTV videos, side-by-side, for the judge as they continued their arguments for adjourning. But after hearing that the Crown didn’t oppose the adjournment — claiming it wouldn’t be “appropriate or fair” to continue with the adjournment application “in the absence of the full evidentiary record” — the judge allowed the adjournment late Wednesday morning.

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

Asked how he felt about the adjournment as he left the courthouse on Wednesday, Edelson called it “necessary.”

“Obviously, when you receive disclosure after 30 months, [before] the first day of trial, on a Sunday afternoon… it’s necessary,” Edelson said, adding he had no further comment on the matter.

The Crown is alleging the CCTV footage from July 24, 2016 shows that Montsion committed an “unjustified assault” on Abdi by punching him several times in the legs and face with knuckle-plated assault gloves.

Abdi, a 37-year-old Somali-Canadian man, did have a pre-existing heart condition, the court heard earlier this week. But Abdi suffered a fatal heart attack during his arrest in part because of the “unjustified punches” Montsion dealt to his face and body, the Crown alleged on Monday.

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Judge gives witnesses additional orders

The judge on Monday ordered a group of witnesses to leave the courtroom so their testimonies would not be tainted by the proceedings, asking them not to discuss their respective testimonies with other witnesses or potential witnesses.

READ MORE: New video shows aftermath of Abdirahman Abdi arrest

In response to concerns raised by both Crown and defence counsel about witness-tainting through information published in media reports of the trial, the judge on Wednesday made two additional orders to witnesses:

  • that no witness or potential witness shall discuss the case on social media
  • that no witness or potential witness shall read or otherwise consume any media report about the case.

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