Wednesday May 29, 2019
AEDAN HELMER
Const. Daniel Montsion. TONY CALDWELL / OTTWP
Const. Daniel Montsion’s defence lawyers are claiming “unacceptable state negligence” in a charter motion to stay all charges as the Ottawa officer’s manslaughter and assault trial resumes Wednesday.
Justice Robert Kelly was initially expected to return from the three-week adjournment with a decision on the charter motion, which has now expanded to include evidence tendered by proposed Crown video expert Ed Segeren.
The defence motion was prepared by Solomon Friedman and Michael Edelson and filed May 21. Prosecutors Philip Perlmutter and Roger Shallow submitted the Crown’s response Monday.
The judge is expected to hear oral arguments through three days of hearings scheduled through Friday.
The defence is seeking to stay all charges of manslaughter, aggravated assault and assault with a weapon in the July 24, 2016 death of Abdirahman Abdi, claiming “lost and destroyed” evidence has infringed Montsion’s right to a full and fair defence.
Alternatively, Edelson and Friedman are asking the judge to toss all evidence related to surveillance video taken from 55 Hilda St., Abdi’s home, which has been central to the Crown’s case, and contested by the defence since the trial’s outset in early February.
The defence motion alleges the Crown failed to preserve that critical video evidence, which was “lost as a direct result of unacceptable state negligence.”
The SIU did not seize the digital video recorder or its hard drive from the building, didn’t employ a forensic analyst to extract the data from the DVR, then failed to properly catalogue the seized video evidence, the charter motion alleges.
“That data was never properly preserved. Instead, the SIU allowed untrained and inexperienced amateurs to create exported copies,” the defence motion charges. “This state negligence was the first instance in an ongoing pattern of casual disregard for the proper forensic preservation of digital material. In fact, it has persisted throughout the investigation and well into the trial process itself.”
The defence team for Const. Daniel Montsion of Michael Edelson, left, and Solomon Friedman. ERROL MCGIHON / POSTMEDIA
Those issues were compounded, the defence said, by the “negligent mishandling” of the video files, including a failure to disclose renderings to the defence until the day before the trial began, while other versions were disclosed as the trial was ongoing.
The defence also takes issue with the evidence of SIU forensic investigator David Robinson, the Crown’s first witness, who admitted in testimony he regularly deleted draft copies of his reports, forgot about forensic tasks assigned to him, and according to the charter motion, he “either ignored or forgot about the issues he observed with the digital video.”
The defence also claims Segeren, who has not yet been qualified by the court to give expert opinion evidence, “demonstrated either a negligent or intentional indifference to his responsibilities to preserve his digital working materials.”
If the judge rules against a stay, the defence said, “The only other option which could possibly maintain the fairness of this present trial is to exclude the evidence most impacted by the charter breach — the video evidence.”
The Crown countered this week arguing “there was no unacceptable negligence resulting in the loss of evidence, and that the loss of the original footage on the DVR hard drive is not so prejudicial to (Montsion’s) right to make full answer and defence that it impairs his right to a fair trial.”
Robinson’s draft reports were not relevant as he made “only minor insignificant changes… nothing of substance was altered,” and the loss of those drafts “did not prejudice the applicant in any meaningful way,” the Crown said.
“While it is very unfortunate that Robinson “forgot” to complete the task of burning Exhibit A (the video) to a DVD, this does not undermine its fidelity to the original recording,” the Crown countered.
The Crown also claimed Segeren discarded “sample test files” whose relevance was “marginal,” and that he discarded them innocently, without any bad faith or malicious intent.
Prosecutors also raised what they called a “jurisdictional defect” in the application, arguing the defence was required to give notice of the motion to both provincial and federal attorneys general before it can proceed.
The Crown’s lone remaining witness, according to the court filing, is Dr. Christopher Milroy, the forensic pathologist who initially ruled Abdi’s death an accident but later “changed his mind” to rule his death a homicide.
The defence alleges Milroy changed his opinion after he was shown one of the contested versions of the video, renderings that were demonstrated to have inconsistent frame rates and numerous playback issues.
“And it is that crucial evidence (from Milroy),” the defence claims, “which has been most impacted by the unexplained anomalies in the video files.”