Constitution problem alleges Montsion’s proper to full and truthful defence ‘irreparably harmed’


Because the temperature rises inside courtroom 34 with a number of “disturbing” incidents the place members of the general public gallery verbally accosted Const. Daniel Montsion, tensions behind the bar are additionally forming following a constitution utility arguing Montsion’s proper to a full and truthful defence has been “irreparably harmed.”

The defence staff of Michael Edelson and Solomon Friedman raised the stakes final week by serving courtroom with a constitution utility asking the choose to remain all prices, which might deliver a swift finish to the trial, or to dismiss key Crown proof and witness testimony surrounding contentious video — points which have dominated the trial’s early narrative.

The defence claims the Crown’s failure to protect that proof has “disadvantaged” Montsion of his proper to a full reply and defence on prices of manslaughter, aggravated assault and assault with a weapon within the July 24, 2016 deadly arrest of Abdirahman Abdi.

That failure, in line with the defence movement, has in flip disadvantaged the courtroom of “probably the most dependable proof of the occasions at concern.”

Ontario Court docket Justice Robert Kelly adjourned proceedings till Monday after a brief week marked by dramatic episodes inside and out of doors the courtroom.

The choose reprimanded the general public gallery for a second time in these proceedings after two males yelled insults at Montsion and hurled anti-Semitic slurs at his defence legal professionals within the courthouse hallway throughout a recess.

Whereas the environment remained respectful contained in the courtroom, which has been divided for the reason that opening day between Abdi’s and Montsion’s supporters, the choose has additionally fielded a volley of objections from each Crown and defence as testimony took a number of sharp turns.

Following defence complaints over “unpredictability” within the order of Crown witnesses, even at one level labelled by defence legal professionals as a “bait-and-switch” tactic, proceedings gave the impression to be getting again on observe because the week started with the Crown calling paramedics who attended the Hilda Avenue scene that morning.

However the prosecution veered off that observe when courtroom was instructed Crown witness Alex Bain, the first-responding advanced-care paramedic who took over Abdi’s care — as he lay face-down, immobile and bleeding in cardiac arrest — is presently in a foreign country and unavailable to testify till the tip of the month.

The curiosity in listening to from Bain is clearly demonstrated in one other piece of video proof that has turn out to be central to the trial, shot on a cellphone from a fourth-floor balcony by Hilda Avenue resident and Abdi household good friend Nimao Ali, who accomplished her emotional testimony Monday morning.

Her 27-minute video captures the aftermath of the arrest, with Montsion seen kneeling beside Abdi’s susceptible, handcuffed physique earlier than paramedics arrive on the seven-minute mark.

Bain is seen chatting with a senior police officer who seems to be relating particulars of the affected person’s situation because the paramedic approaches Abdi and is heard telling the officer, “We’ll test him out.”

Ali testified there was “no urgency to avoid wasting his life” earlier than paramedics arrived, when Montsion is seen on video uncuffing Abdi’s limp arms, then serving to Bain minimize away his blood-soaked shirt and making use of vigorous chest compressions as paramedics rush to arrange superior life-saving tools.

Bain’s associate, primary-care paramedic Yannick Roussel, testified paramedics have been referred to as to a “pepper-spray” incident for an unconscious male affected person that morning. After Abdi’s dire situation grew to become clear, Roussel was heard on dispatch informing the hospital the affected person might have suffered a “traumatic cardiac arrest.”

Abdi regained a pulse after 40 minutes, courtroom heard, and his father begged officers to lastly be permitted to hope over his son, who was pronounced useless the following day.

After listening to from paramedics, the Crown then unexpectedly referred to as the primary of six girls who reported being sexually assaulted that morning in and across the Bridgehead café on Wellington Avenue.

The Crown didn’t give courtroom advance discover of a customary publication ban on the id of the witness, inflicting the choose to give you a fast treatment to make sure the lady’s id can be protected, after she had already instructed courtroom a few groping assault whereas in her automotive at Fairmont and Wellington streets that morning.

Crown prosecutor Philip Perlmutter has argued that whereas the reported sexual assaults have been the idea for police to be referred to as that day, the incidents have little relevance to the precise prices Montsion faces, and “no bearing” on the Crown’s case.

The defence constitution utility additionally names 4 civilian witnesses who noticed components of all the police interplay alongside the 245-metre path from the café to 55 Hilda St. — none of these 4 has testified at trial.

From what has been recommended in courtroom, Abdi was initially compliant with Const. Dave Weir’s arrest orders, however then led the officer on a foot chase. The defence has recommended Abdi “banged” his head on a steel newspaper field and on a pole, and at one level picked up a 30-pound rubber street weight.

Court docket heard Abdi was pepper-sprayed, but it surely stays unclear which officer deployed the use-of-force choice, which isn’t distinctly seen within the CCTV video footage capturing Montsion arriving within the stairwell and punching Abdi earlier than he’s taken to the bottom.

The Crown mentioned in its opening handle Abdi’s coronary heart assault resulted from “a confluence of things … together with the punches from (Montsion,) the bodily and emotional stress brought on by the occasions on the Bridgehead, the preliminary confrontation and the chase with officer Weir.”

Weir was a topic of the SIU investigation however was not charged.

Earlier than the defence constitution utility derailed proceedings Wednesday — the second adjournment the choose has referred to as for the reason that trial’s outset to deal particularly with points surrounding the contested video proof — the choose was already settling arguments from either side over points with witnesses.

Perlmutter raised a battle of curiosity objection between Montsion’s defence staff and one of many Crown’s witnesses, Ottawa police Insp. John McGetrick.

Edelson appeared to brush off the battle concern, informing the choose the veteran defence lawyer had represented McGetrick in a authorized matter 28 years in the past.

Friedman then rose to complain in regards to the newest twist in an unpredictable prosecution, when it was revealed the Crown had abruptly determined to not name Abdi’s mom, who had been set to testify as a witness.

Although prices have been laid two years in the past, Friedman complained, the Crown had not been capable of safe a Somali interpreter who spoke the correct dialect till the start of final week.

Prosecutors spoke with their witness for the primary time via the translator Monday night time. They disclosed the 90-minute audio recording of that interview to the defence the next morning, and knowledgeable them the Crown would not search the lady’s testimony.

That criticism was quickly overshadowed when Edelson and Friedman slapped courtroom with its “misplaced and destroyed proof” utility claiming “negligence” and “abuse of course of” on the a part of investigators, and alleging a failure by the Crown to protect vital proof, thereby depriving Montsion of his proper to a good defence.

The constitution utility alleges the SIU mishandled the vital CCTV surveillance footage from the earliest levels of the investigation, once they have been handed a thumb drive with “corrupt” recordsdata upon arrival on the Hilda Avenue scene.

The applying claims the SIU allowed the unique knowledge to be “misplaced perpetually” when investigators didn’t seize the Hilda Avenue digital video recorder, its arduous drive, or make use of a educated forensic analyst to correctly extract the info, then didn’t correctly convert or retailer the video recordsdata, and didn’t disclose vital materials till the eve of trial.

“There’s a distinction,” Crown prosecutor Philip Perlmutter argued in courtroom Wednesday, between proof that’s disclosed late, “and proof that’s misplaced or destroyed.”

The defence utility notes the Crown was “unaware” of key info surrounding the video proof till the SIU continued to reveal supplies after the trial had already commenced, and with testimony from the trial’s first witness, SIU officer David Robinson, already nicely underway.

Robinson is certainly one of seven witnesses named within the utility the defence suggests the choose ought to hear from earlier than contemplating whether or not to grant the keep or dismiss testimony.

The record consists of SIU investigators Ralph Mahar, who first received the thumb drive from Hilda Avenue administration, Frank Kavcic, who created the “slowed down” model of the video, and lead investigator John Line. The Crown’s proposed video skilled Ed Segeren can be on that record, together with two directors from 55 Hilda St.

Not included in that record is Dr. Christopher Milroy, the forensic pathologist who, in line with the defence, modified his thoughts from ruling Abdi’s loss of life an accident to ruling it a murder after viewing the contested video.

The constitution functions have been percolating for the reason that trial’s second day, when the defence notified courtroom of three functions it meant to deliver.

Two others — an utility excluding the Crown from counting on Milroy’s last report and one other alleging abuse of course of — are straight associated to the applying now at concern, and seem to stay very a lot on the desk.

ahelmer@postmedia.com

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