Defence lawyers for Ottawa police Const. Daniel Montsion, who is on trial for manslaughter in the 2016 death of Abdirahman Abdi, have filed a charter application asking the judge to effectively stop the trial or, alternatively, exclude key video evidence and certain witness testimonies from the proceedings.
Montsion is facing charges of aggravated assault and assault with a weapon in addition to the manslaughter charge in 37-year-old Abdi’s death. He pleaded not guilty to all three charges.
The defence’s charter application, filed in court on Wednesday afternoon, alleges the Crown “failed to preserve evidence” in the criminal case and therefore “deprived” Montsion of his constitutional right “to make full answer and defence.”
The judge has not yet ruled on the lost or destroyed evidence application.
The evidence at the heart of the application alleging “negligence” by the Crown is surveillance footage that captured the violent confrontation between Abdi and Montsion and another police officer outside 55 Hilda St. on July 24, 2016. Abdi died in hospital the day after the incident.
Issues surrounding this footage — and the several copies of it that were created — have plagued trial since it got underway at the beginning of February.
Court has heard that the original version exported from the surveillance system at 55 Hilda St. was never registered as evidence before the trial but that a screen-capture version was.
A forensic investigator with Ontario’s Special Investigations Unit (SIU) assigned to the Abdi case testified that he had technical difficulties opening and playing the original CCTV file on a few computers on July 25, 2016, as well as transferring the footage onto a DVD.
The original video file also “suffered from playback anomalies, sloppy timing properties and inconsistent frame rates,” the defence team’s application alleges.
The application argues the SIU had an obligation to try and seize the digital video recorder at 55 Hilda St. and its hard drive, and “to extract the files in a forensically sound fashion” once it knew of all these technical issues.
“Instead, the SIU allowed the footage on the 55 Hilda St. DVR to be overwritten — lost forever,” the defence’s application alleges.
The defence’s application states that a proposed Crown expert believes the original video file was “corrupted” during the transfer from the CCTV system at 55 Hilda St.
The SIU’s failure to “properly process and store the 55 Hilda St. data” meant other video materials and relevant information were never disclosed to the defence team until after the trial began, the application alleges.
The eleventh-hour discovery of a two-minute, allegedly “slowed down” version of the surveillance video stalled the trial in its first week.
The Crown has said it intends to file an application to quash the defence’s requests on charter grounds.
“There is a difference between evidence that is lost and destroyed and evidence that is disclosed late,” Crown counsel Philip Perlmutter said.
In addition to its request to have all video evidence derived from the 55 Hilda St. DVR thrown out, the defence team is also asking the judge to exclude testimonies from eyewitnesses who were at the scene where Abdi was arrested.
The defence argues they cannot properly cross-examine those witnesses without a “reliable video record” to test their evidence.
On the trial’s second day, the defence team gave court a heads-up that it was contemplating filing a lost or destroyed evidence application, as well as two other applications.
Trial will resume on Monday.