Judge dismisses charter motion in trial of Ottawa constable, rules fair trial rights not violated
The judge in Const. Daniel Montsion’s manslaughter trial has dismissed a charter application filed by the defence team that alleged the police officer’s rights to a fair trial were infringed by the handling of key surveillance footage in the case.
At the trial’s outset in early February, Montsion pleaded not guilty to charges of manslaughter, aggravated assault and assault with a weapon in connection with the 2016 death of Abdirahman Abdi.
The surveillance footage in question, recorded by a CCTV video camera in the lobby of Abdi’s apartment building at 55 Hilda St., captured the violent confrontation between Abdi, Montsion and another police officer on July 24, 2016. Abdi, 37, lost vital signs during that struggle and died in hospital the next day.
The footage is at the centre of the Crown’s case against Montsion, which intends to prove that the punches the constable dealt to Abdi’s legs and face contributed to his death. The confrontation occurred after the other officer tried to arrest Abdi at a nearby coffee shop and Abdi ran away.
The defence, in the midst of the trial, filed a charter application alleging the Special Investigations Units (SIU) “failed” to preserve critical evidence by not seizing the digital video recorder at 55 Hilda St. or the surveillance system’s hard drive during its investigation, and that investigators were “negligent” in handling and disclosing the video evidence they did secure.
The motion also alleged an SIU investigator and the Crown’s proposed video expert “failed” to preserve certain “draft reports,” “test files” and “working materials.”
In a “statement of conclusions” delivered on Friday, Ontario Court Justice Robert Kelly said Montsion has not established that his rights were infringed as result of the issues put forward by the defence.
In responding to the defence’s charter motion, Crown prosecutors asked the judge to qualify its proposed video expert, Ed Segeren. The Crown retained Segeren to analyze and provide his opinion on six video files derived from the CCTV system at 55 Hilda St. and their “fidelity” to the original recording.
The defence took issue with Segeren’s methods and argued he isn’t qualified to be an expert in this case.
The judge said he would deliver a separate decision on Tuesday morning about whether the Crown has established that Segeren is “properly qualified.”
The video files
The CCTV video and questions about its admissibility in the trial have been a source of controversy since the first week of proceedings.
Court documents state SIU investigators assigned to the case obtained a thumb drive that contained video footage from the Hilda St. CCTV system on July 24, 2016 and then copied the original file onto a computer, but they had technical difficulties playing it and transferring it to a DVD. They created and exported different copies to get around the problem, but those versions varied in quality.
A relatively low-quality, 28-minute screen-capture of the footage was the only version registered and disclosed as evidence ahead of trial.
Montsion’s defence lawyers — Solomon Friedman and Michael Edelson — only received a copy of the original file from the Crown after the proceedings started in February 2019, but they claim it suffers from “anomalies” when played, namely “inconsistent speed.”
And these issues can’t be resolved, the defence argued in its charter application, because the original data on the drive at 55 Hilda St. has since been overwritten and can’t be reviewed.
The Crown claims the copy of the original recording it received the day of the incident and other backup copies it later obtained are all “faithful duplications” of the original recording.
For its part, the defence claimed the backup copies also contain anomalies and aren’t identical to each other in size and time frame.
The judge-only trial began Feb. 4, 2019. It was originally expected to conclude in early May but may now continue until early July.
It’s expected the next key expert witness called to the stand will be Dr. Christopher Milroy, the forensic pathologist who carried out the post-mortem examination in Abdi’s case.