HER MAJESTY THE QUEEN — v. —, 2020 ONCJ 464

CITATION : R. v. Montsion , 2020 ONCJ 464 DATE : October 20, 2020 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DANIEL MONTSION Before Justice R. Kelly Reasons for Judgment released on October 20, 2020 Philip Perlmutter and Roger Shallow…………………….counsel for the Crown Michael Edelson and Solomon Friedman……………….counsel for Daniel Montsion CONTENTS OVERVIEW .. 1 BURDEN OF PROOF . 3 EVENTS OF JULY 24, 2016 . 4 THE NARRATIVE . 4 THE VIDEO FROM 55 HILDA .. 24 What the Video Shows . 25 Expert Evidence About the Video . 25 Mr.

Fredericks’ Evidence . 26 A Note About the MP4 Files . 30 POLICE TRAINING ON THE USE OF FORCE . 31 Michael Federico . 31 Training on Punching . 35 ANALYSIS OF THE ISSUES . 37

ISSUE ONE – WAS CONSTABLE MONTSION’S CONDUCT UNLAWFUL OR CRIMIINALLY NEGLIGENT? . 37 CONSTABLE MONTSION .. 38 EYEWITNESS ACCOUNTS OF THE FORCE USED BY CONSTABLE MONTSION .. 39 THE INFORMATION AVAILABLE TO CONSTABLE MONTSION BEFORE HE ARRIVED AT 55 HILDA .. 42 THE VIDEO AT 55 HILDA .. 47 Approach to the Video . 48 Review and Assessment of the Video . 49

Summary . 59 LEGAL JUSTIFICATION OF POLICE USE OF FORCE . 62 REASONABLE GROUNDS . 66 AIR OF REALITY . 67 ANALYSIS OF ISSUE ONE . 67 The Available Legal Justification . 67 Section 25(1) and Constable Montsion’s Use of Force . 69 CONCLUSION ON ISSUE ONE . 75 ISSUE TWO – DID CONSTABLE MONTSION CAUSE MR. ABDI’S NASAL INJURIES? . 76 EVIDENCE OF DR. MILROY . 76 EVIDENCE OF PATRICK LATURNUS . 81 EVIDENCE OF CONSTABLE WEIR . 82 THE VIDEO .. 84 ANALYSIS OF ISSUE TWO .. 84 CONCLUSION ON ISSUE TWO .. 89 ISSUE THREE – DID CONSTABLE MONTSION CAUSE MR. ABDI’S DEATH? . 89 COMPLETING THE CHRONOLOGY . 90 DR.

MILROY’S EVIDENCE . 90 Framing the Cause of Death . 91 Coronary Artery Atheroma and Physical Stress . 91 Psychotic Illness and Excited Delirium .. 98 CAUSATION IN HOMICIDE CASES . 100 ANALYSIS OF ISSUE THREE . 103 CONCLUSION ON ISSUE THREE . 108 CONCLUSION .. 108 Kelly J.: OVERVIEW [ 1 ] On July 24, 2016, Constables Daniel Montsion and David Weir arrested Abdirahman Abdi in front of an apartment building in Ottawa’s Hintonburg community. Soon after they had him on the ground and in handcuffs, Mr. Abdi went into cardiac arrest. He was

pronounced dead the next day. [ 2 ] Constable Montsion was tried over 72 days on charges of manslaughter, aggravated assault, and assault with a weapon based on his role in the interaction. [ 3 ] Stripped to its essence, the Crown’s position is this: • Constable Montsion committed an unlawful act: he assaulted Mr. Abdi by punching him multiple times in the face and head while wearing hard-knuckled gloves. The force he used was excessive and unjustified and carried a foreseeable risk of bodily harm.

The gloves were a weapon; • Constable Montsion’s conduct was criminally negligent: he breached his legal duty to keep Mr. Abdi safe by assaulting him without justification. His conduct showed a wanton or reckless disregard for Mr. Abdi’s life or safety and was a marked and substantial departure from the standard of a reasonable police officer in his circumstances; • One or more of Constable Montsion’s punches caused injuries to Mr. Abdi; most significantly, fractures and a laceration to his nose; • Constable Montsion’s unjustified assault was a significant contributing cause of the cardiac arrest that led to Mr.

Abdi’s death. [ 4 ] It is the defence’s position that Constable Montsion is not guilty of any offence. Defence counsel do not dispute that he struck Mr. Abdi a couple of times in the head or face when Mr. Abdi was on the ground. Their main contentions are: • Constable Montsion’s conduct was neither unlawful nor criminally negligent. The force he used was legally justified under s. 25(1) of the Criminal Code ; • Constable Montsion did not fracture Mr. Abdi’s nose.

Those fractures were caused by his face hitting the bricks when Constable Weir took him to the ground and/or during the struggle after the takedown when the officers were trying to handcuff him; • Constable Montsion did not cause Mr. Abdi’s death. The medical evidence showed that Mr. Abdi may have reached the point where cardiac arrest was inevitable even before Constable Montsion arrived at the scene. In any event, Mr.

Abdi may have died because he was in a state of Excited Delirium. [ 5 ] The parties’ positions frame three main issues. [ 6 ] Issue One is whether the Crown has proved that Constable Montsion’s conduct was unlawful or criminally negligent. In addressing this issue, I must make findings about the force he used and the information that was available to him when he used the force. I must then decide whether he was legally justified in using the force and whether his overall conduct showed a wanton or reckless disregard for Mr.

Abdi’s life or safety and was a marked and substantial departure from the standard of the reasonable police officer in the circumstances. [ 7 ] Issue Two is whether the Crown has proved that Constable Montsion’s acts caused the fractures and laceration to Mr. Abdi’s nose. To decide this issue, I must examine a large body of evidence relevant to the potential causes of the nasal injuries. [ 8 ] Issue Three is whether the Crown has proved that Constable Montsion’s acts caused Mr. Abdi’s death.

This issue requires that I analyze all the evidence, both medical and non-medical, and decide whether his conduct was a significant contributing cause of the fatal cardiac arrest.

[ 9 ] For the reasons that follow, I am left with a reasonable doubt on Issue One and find Constable Montsion not guilty of the charges. I will also address Issues Two and Three even though it is not strictly necessary to decide them. [ 10 ] I will divide my reasons into four parts.

To begin, I will state some foundational principles about the presumption of innocence and the burden of proof in a criminal trial, and I will link the burden of proof to the offences charged and the positions of the parties. [ 11 ] Next, I will outline the evidence about what happened on July 24, 2016, drawing for the most part on the testimony of the civilian witnesses and Constable Weir.

I will also introduce the video evidence that became a focal point of the trial and set out some of the evidence about police training on the use of force. [ 12 ] After that, I will turn to my analysis of the three issues, referring to additional evidence as is necessary. [ 13 ] I will end with a

summary of my conclusions. BURDEN OF PROOF [ 14 ] The Crown has the burden to prove Constable Montsion’s guilt beyond a reasonable doubt. Constable Montsion is presumed innocent and has no burden to prove anything. [ 15 ] Proof that he is probably guilty is not enough. The standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. [1] It applies not to individual items of evidence but to the final determination of guilt or innocence based on the essential elements of the offences charged. [2] [ 16 ] The Crown’s burden of proof never shifts.

If, after considering the evidence as a whole, I am left with a reasonable doubt on any essential element of any alleged offence, or about any justification or defence for which there is an air of reality, I must find Constable Montsion not guilty of that offence. I must consider the charges separately. [ 17 ] On the manslaughter charge, the Crown pursues two routes to liability: unlawful act manslaughter and manslaughter by criminal negligence. [ 18 ] The Crown must prove three elements beyond a reasonable doubt. The first is a conduct element.

For unlawful act manslaughter, the Crown must prove that Constable Montsion did an unlawful act. For manslaughter by criminal negligence, the Crown must prove that Constable Montsion did something or omitted to do something he had a duty to do. [3] [ 19 ] The second is a causation element. The Crown must prove that Constable Montsion’s unlawful act or criminally negligent conduct caused Mr. Abdi’s death. [4] [ 20 ] The third is a fault element.

For unlawful act manslaughter, the Crown must prove that Constable Montsion’s unlawful act carried an objectively foreseeable risk of bodily harm that was neither trivial nor transitory. [5] For manslaughter by criminal negligence, the Crown must prove that his conduct showed a wanton or reckless disregard for Mr. Abdi’s life or safety
in other words, that it was a marked and substantial departure from the standard of the reasonable police officer in his circumstances. [6] [ 21 ] For aggravated assault, the Crown must prove that Constable Montsion assaulted Mr. Abdi and wounded, maimed, or disfigured him.

The fault element is, in addition to the basic intention to apply force, objective foreseeability of non-trivial bodily harm. [7] [ 22 ] On the assault with a weapon count, the Crown must prove that Constable Montsion assaulted Mr. Abdi and that he used a weapon [8] in committing the assault. [9]

[ 23 ] The allegation of unjustified assault is a thread running through each count. It is at the root of the assault-based charges and at the heart of the alleged conduct grounding the manslaughter charge. It is the Crown’s position that Constable Montsion assaulted Mr. Abdi without legal justification when he punched him in the face and head while wearing hard-knuckled gloves. It is the Crown’s burden to prove this beyond a reasonable doubt. EVENTS OF JULY 24, 2016 [ 24 ] I will outline the events in two sections.

I will begin by setting out the narrative through the testimony of the civilian witnesses and Constable Weir. After that, I will introduce the video evidence. THE NARRATIVE [ 25 ] The narrative begins around 9:30 on the morning of July 24, 2016. It ends several minutes later. [ 26 ] It was a sunny, warm Sunday in Hintonburg.

People were starting their day. [ 27 ] Caolan Cullum was arriving for work at the Hintonburg Community Centre, a stone’s throw from the Bridgehead coffee shop at Fairmont Avenue and Wellington Street West. [ 28 ] Michael Rowe, a retired record store owner, was at the Bridgehead with his wife and sister-in-law for morning coffee. [ 29 ] Darren Courtney, a psychiatrist from Toronto, was in town visiting his sister and brother-in-law.

They were in the area of the Bridgehead looking for a place to have breakfast. [ 30 ] S.L. [10] and her friend were in a car on their way for a spa day in Gatineau. [ 31 ] Matthew Rousselle, an advanced care paramedic, had the day off. He and his family were heading out for a road trip.

He stopped to pick up a coffee at the Bridgehead. [ 32 ] Wendy Dunford and Ross McGhie were out for a run. [ 33 ] Sarah Clements was home, relaxing on the couch and texting with a friend. [ 34 ] Testimony from these eight people would help paint the picture of what happened that morning. [ 35 ] A couple of blocks east of the Bridgehead, just past the point where Wellington is interrupted by a pedestrian-only area, stands 55 Hilda Street, where Mr. Abdi lived with his family. [11] [ 36 ] Mr. Abdi was 38 years old. Originally from Somalia, he had been in Canada for a few years.

English was not his first language. [ 37 ] Mr. Abdi had mental health difficulties. His medical history was significant for psychotic illness. He was not taking his prescribed medication at the time of his death. No drugs or alcohol were found in his system.

[ 38 ] Two witnesses who lived at 55 Hilda knew Mr. Abdi from the building. Nimao Ali described him as quiet and socially disengaged. He was peaceful around her and her children. She assumed he had a mental illness but was unaware of a diagnosis and reluctant to speculate. [ 39 ] A.S., who was 16 at the time, found Mr. Abdi to be quiet and introverted.

It was obvious to him that he was slow compared to someone who was not mentally ill. [ 40 ] The apartment building at 55 Hilda had an alcove-type entrance a couple of steps below sidewalk level. [12] A Closed-Circuit Television (CCTV) camera in the lobby captured part of the entrance area outside. As I will explain later, digital video evidence from this camera (which came to be known as “Camera 7”) was admitted in two formats.

For convenience, I will refer to these as the “PSF video” and the “MP4 video.” [ 41 ] The narrative divides into three parts: (1) the Bridgehead; (2) the route to 55 Hilda; and (3) the entrance at 55 Hilda. [ 42 ] Constable Montsion did not witness anything that happened before he arrived at 55 Hilda. His knowledge or belief about these events is a matter of inference from evidence of police communications that I will review later. [ 43 ] The evidence of Mr. Abdi’s physical exertion and stress before Constable Montsion’s actions at 55 Hilda will be relevant to the issue of cause of death. Testimony about Mr.

Abdi’s physical strength will be part of the overall evidentiary picture on the use of force issue. The Bridgehead [ 44 ] The first part of the narrative emerges chronologically from the evidence of five witnesses: Caolan Cullum, S.L., Michael Rowe, Matthew Rousselle, and Darren Courtney. Caolan Cullum [ 45 ] Caolan Cullum worked at the Hintonburg Community Centre, just down the street from the Bridgehead at Fairmont and Wellington. [ 46 ] He arrived around 9:30 to open the facility. A man (Mr. Abdi) approached him near the front door. He was very close to Mr. Cullum, about two feet away, in Mr.

Cullum’s personal space. His mouth was agape and he had kind of a blank stare with eyes that were quite intense. He was silent. He appeared shiny and may have been perspiring. [ 47 ] Mr. Cullum entered the building and walked down the hall. Mr. Abdi followed him, still staring. When Mr. Cullum asked him what he could do for him, Mr. Abdi gestured to the Community Police Depot, which was closed for the weekend. He began speaking incomprehensibly. Mr. Cullum was only able to pick out a few words here and there, like “government”, “corruption”, and “sexuality.” Mr.

Abdi also mentioned Paris and Germany. [ 48 ] At one point, Mr. Abdi told Mr. Cullum to “Stand with your brothers,” which Mr. Cullum took to mean brothers of Arabic background. When he responded that he was not Middle Eastern, Mr. Abdi said, “I have eyes. Don’t lie to me.” [ 49 ] Mr. Cullum went to the office to get keys from the back room. When he unlocked the office door, Mr. Abdi was behind him, still staring. [ 50 ] When Mr. Cullum came out of the back room, he saw that Mr. Abdi had entered the office and was standing about four feet inside the door. He was looking a bit lost. Mr.

Cullum told him it was not appropriate for him to be in the office and that he had to leave.

[ 51 ] Mr. Abdi again started speaking incomprehensibly. The only thing Mr. Cullum could understand was his repeated requests to shake hands. Mr. Abdi held out his hand about four times, saying, “Shake. Shake.” He seemed to become frustrated that Mr. Cullum was not understanding him, but his handshake gestures seemed like a peace offering. [ 52 ] After a few minutes, Mr. Abdi left the building on his own. [ 53 ] During the interaction, Mr. Cullum was not afraid for his safety. Mr. Abdi did not appear violent, aggressive, or threatening.

It did seem like he was having trouble thinking clearly and was not fully in touch with reality, but Mr. Cullum did not sense a tinge of paranoia. [ 54 ] Video evidence shows Mr. Abdi in the community centre between 9:29 and 9:34 a.m. The parties agreed the times on the video reasonably approximate the times of the events. S.L. [ 55 ] Around 9:30 a.m., S.L. and her friend were heading out for a spa day in Gatineau. [ 56 ] S.L. was driving. It was sunny and warm, but not hot enough for air conditioning.

Their windows were down. [ 57 ] While they were waiting for a red light at Wellington and Fairmont, S.L. saw a man (Mr. Abdi) crossing the street towards the Bridgehead. When she made eye contact with him, he made a beeline for the driver’s side of her car, fixing her eyes with an intense stare, an uncomfortable gaze. [ 58 ] Arriving at the car, Mr. Abdi reached in through the window to shake S.L.’s hand, which was on the steering wheel. He kept asking her name, which she refused to give him, saying, “You don’t need to know my name.” [ 59 ] Mr.

Abdi’s eyes were a bit bloodshot and intense but not “super focusing”, almost like he wasn’t “there.” [ 60 ] To be polite, S.L. shook Mr. Abdi’s hand. When she tried to pull her hand back, he tightened his grip and continued to ask her name. She told him to let go and not touch her. [ 61 ] Mr. Abdi told S.L. two or three times that he wanted or needed to touch her. He said, “I just need to touch you,” and then he reached in, grabbed her breast, and forcefully squeezed it two to four times. [ 62 ] Mr. Abdi felt incredibly strong.

He was able to grab S.L.’s breast with one hand while still holding her hand on the steering wheel with the other. He only released his grip when S.L. drove away in a panic, removing him from the side of the car. [ 63 ] The incident affected S.L. in significant ways right up to the time of trial. Michael Rowe [ 64 ] Around 9:30 a.m., Michael Rowe was at the Bridgehead with his wife and sister-in-law for their morning coffee. He was in line near the counter when a woman approached him and said she had just been sexually assaulted. She was shaking and seemed traumatized. [ 65 ] While Mr.

Rowe was struggling to digest this information, he heard a commotion. Voices grew louder. The atmosphere became electrified. Then his wife stood up and said, “Oh my God. That man has just jumped that lady.”

[ 66 ] Mr. Rowe went over to a group of tables where he saw one man on either side of a third man (Mr. Abi), who appeared to be on top of someone he had pinned to a bench seat. The two men were imploring him to get off, saying, “The police are coming. Get off. Get off.” [ 67 ] Mr. Abdi was bent over at a 45-degree angle with his head near one of the bench seats. His arms and torso were around the person who was pinned underneath him. The person was not moving or making a sound. [ 68 ] Concerned for the person’s well-being, Mr. Rowe intervened. He grabbed Mr.

Abdi by the right bicep, which was around the person underneath him on the bench. Mr. Abdi was bulky with a big neck and shoulders. [13] Mr. Rowe realized he was only holding about a third of his bicep. He tried to pull Mr. Abdi’s arm away two or three times, but Mr. Abdi didn’t move an inch. He was very strong – “a rock.” [ 69 ] With his left hand still on Mr. Abdi’s bicep, Mr. Rowe hooked his right arm around Mr. Abdi’s neck, with his elbow joint near his throat. He pulled as hard as he could, trying to use his body weight as leverage. He couldn’t budge Mr. Abdi’s arm at first, but after a couple of seconds Mr.

Abdi popped off the person on the bench and both he and Mr. Rowe fell backwards to the floor. Mr. Abdi went in one direction. His head hit a leather-covered chair and bounced three to five inches. He landed in a sitting position. Mr. Rowe fell in the other direction. [ 70 ] The two men got up and looked at each other. Mr. Abdi was not agitated, nor did he seem dazed after hitting his head. His eyes were large and wide open. His demeanour was blank and largely emotionless. He was unnaturally relaxed. [ 71 ] Mr. Rowe moved towards Mr. Abdi with a view to channeling him to the door several feet away. Mr.

Abdi backed up slowly. The look on his face was mostly blank and expressionless. He glared at Mr. Rowe. He was neither angry nor violent, but Mr. Rowe found him slightly unpredictable. There was more of a smirk than a smile on his face, which Mr. Rowe found slightly ominous or threatening. He didn’t look normal. Mr. Rowe suspected mental health issues. [ 72 ] Mr. Rowe told Mr. Abdi he had to leave and that the police were coming. Mr. Abdi moved to the entrance doors, hesitated, and then backed out the door. Mr. Rowe stayed inside. [ 73 ] Mr. Abdi stared into the coffee shop. He and Mr.

Rowe looked at each other for about 30 seconds until Mr. Rowe told him to “go in peace.” Mr. Abdi put his hand out in a gesture that looked like a handshake: it was almost conciliatory, as if he was trying to make peace. At the same time, his head made a quick forward motion and then he smiled and said, “Fuck you.” [ 74 ] Mr. Abdi walked east on Wellington. He bumped into an older person with a dog, almost knocking the person over. A few seconds later, Mr. Rowe heard someone say, “Oh my God. He’s grabbed that lady.” He looked out and saw that Mr. Abdi had grabbed a woman near the bike racks out front. [ 75 ] Mr.

Rowe went outside. A woman was at the bike racks with a child in the seat at the back of her bike. She had one hand one her bike; Mr. Abdi was holding her other hand. It seemed like he was trying hard to pull her away from her bike and make her release her grip. [ 76 ] Mr. Rowe once again intervened. He took two firm steps and with both hands pushed Mr. Abdi in the chest, sending him back a couple of feet into the horizontal bar of the bike racks. He then felt someone’s hands on his shoulders. The man, who turned out to be off-duty paramedic Matthew Rousselle, calmly told him, “We’ve got this.

We’ll take it from here,” and suggested he go back in the coffee shop. Mr. Rowe complied. [ 77 ] Mr. Rowe had seen Mr. Abdi around the neighbourhood a few times. He had an unusual way of walking. He was heavy on his feet. He would lunge or lurch. He would sometimes stop and stare and then jerk forward in a feinting move – reminiscent of a boxer – and then continue walking. This was the type of move he made at the door to the Bridgehead after being ushered out. Mr. Rowe didn’t see the move as aggressive; it was as if Mr. Abdi used it get a reaction.

[ 78 ] During the incident, Mr. Rowe found Mr. Abdi to be confused and slightly blank. He was menacing when he smirked or smiled but not the whole time. He described Mr. Abdi as a little bit unpredictable. He recalled the “unpredictable blankness of his stare.” He seemed less predictable when he was outside the coffee shop. This made Mr. Rowe more concerned about his behaviour. Matthew Rousselle [ 79 ] Matthew Rousselle is an advanced care paramedic. He was not working that Sunday. He was going on a road trip with his family and stopped for coffee at the Bridgehead.

He parked across the street. [ 80 ] As he walked up to the entrance on Wellington, Mr. Rousselle saw two Bridgehead employees speaking with a man (Mr. Abdi) sternly but without raised voices. One of them told Mr. Abdi a couple of times that they had locked the building and that he couldn’t go back inside and needed to leave. Mr. Abdi was calm. [ 81 ] Mr. Rousselle entered the Bridgehead from the Fairmont side. As he approached the counter, he noticed a couple of people were crying, one woman in particular. A few people were consoling her. [ 82 ] About 30 seconds later, people started screaming.

Someone said, “He’s grabbed another woman,” and a group of eight to ten men went outside through the Wellington door. [ 83 ] Mr. Rousselle went outside. Three or four of the men had corralled Mr. Abdi into the bike racks and were starting to push him. He wasn’t pushing back. [ 84 ] Mr. Abdi was sweating profusely, more than anyone else and “more than he probably should have been.” His face and forehead were very sweaty. It was a nice morning but Mr. Rousselle himself wasn’t feeling the humidity. [ 85 ] Mr. Abdi was breathing heavily, deeply, and rapidly – hyperventilating. Mr.

Rousselle was concerned at the rate of his breathing. He appeared to be in some kind of distress. He had been calm earlier but was now more agitated. [ 86 ] It looked like the situation was getting heated. A couple of the men were “kind of landing some punches” on Mr. Abdi. The punches landed “more kind of [in the upper] chest, maybe one or two head area, none really in the face.” One or two of the blows may have been to his arms. [ 87 ] There was a flurry of activity. The crowd was confronting and confining Mr. Abdi. Arms were flying. Mr. Rousselle agreed someone may have pushed Mr.

Abdi into the bike rack. [ 88 ] Mr. Rousselle was concerned for Mr. Abdi’s safety. People were getting very aggressive with him and he wasn’t fighting back. One of the men in particular was getting pretty physical, so Mr. Rousselle pulled him off Mr. Abdi, took him inside the Bridgehead, and sat him down with his wife. [14] The other men backed off and dispersed. [ 89 ] Mr. Rousselle recalled seeing Mr. Abdi try to shake hands with people. He believed this was after the altercation near the bike racks had broken up. He last saw Mr. Abdi walking east on Wellington.

There were people with him, but they were not pursuing him. [ 90 ] Mr. Rousselle got his coffee and went back to his car. About a minute later, he saw a police car pull up in front of the Bridgehead. He soon saw more police cars.

[ 91 ] Mr. Rousselle recognized Mr. Abdi that morning. He had seen him at the Bridgehead a couple of weeks earlier. Mr. Rousselle was waiting in line and saw Mr. Abdi staring at the employee behind the counter. He wasn’t speaking but he did make audible sounds like grunting or snorting. The employee tried different ways to communicate with him, but he just stared. Mr. Abdi was not aggressive but did not seem normal. He was not sweating. His breathing was normal and without distress. He eventually backed away from the counter and stared at other people in the coffee shop.

Darren Courtney [ 92 ] Darren Courtney is a psychiatrist. He was on Wellington with his sister and brother-in-law looking for a place to have breakfast. [ 93 ] Dr. Courtney’s attention was drawn to a commotion at the entrance to the Bridgehead. He saw three men. Mr. Abdi was facing the door and was half-in-half-out the door. He had his fist raised, as if ready to punch someone. One of the other men also had his fist up – a symbol of aggression. The third man was trying to defuse the situation. Voices were loud. The message to Mr.

Abdi was, “Get out of the coffee shop.” [ 94 ] After several seconds, things calmed down. It seemed to be over. Mr. Abdi was milling around the coffee shop. [ 95 ] A couple of minutes later, Dr. Courtney saw Mr. Abdi in close contact with a woman at the bike racks. He had his arms wrapped around her and made at least three thrusting motions. The woman yelled, “Don’t touch me,” and then “Don’t touch her ,” referring to a child. Eventually, Mr. Abdi walked away. [ 96 ] At 9:39 a.m., Dr. Courtney called 911.

He felt the police should be involved because of the ongoing situation of instability and unpredictability he was witnessing. During the call, he described Mr. Abdi as agitated and aggressive. He told the dispatcher he was assaulting and groping people. He cautioned a passerby not to have their child go by Mr. Abdi because he was unstable. [ 97 ] Dr. Courtney spoke with Mr. Abdi while he was on the phone with the 911 dispatcher. Their conversation was recorded but much of it is indecipherable. It is possible Mr. Abdi said something about voices and people not liking him or killing him.

He may also have said he was upset with someone. But none of this can be discerned with certainty. Much of the recording is inaudible. Mr. Abdi was some distance from the phone and speaks with an accent. Crucial context is lost. [ 98 ] From Dr. Courtney’s perspective, Mr. Abdi seemed pretty relaxed. He was smiling as he described some struggles at the coffee shop. He walked in a relaxed way and his breathing seemed normal. He was a bit disheveled and his eyes had a yellowish tinge. Dr. Courtney did not notice him sweating. [ 99 ] Dr. Courtney described Mr. Abdi as responsive during their conversation.

He caught snippets of what he was saying but there was a lot he didn’t understand. He was unsure if this was because Mr. Abdi wasn’t making sense or because he was struggling with English. The audio record of the 911 call supports his account. [ 100 ] During their interaction, Mr. Abdi kept shaking Dr. Courtney’s hand. This did not make Dr. Courtney feel nervous and he participated in the handshakes. [ 101 ] While Dr. Courtney was speaking with Mr. Abdi, a police officer (Constable Weir) arrived and approached Mr. Abdi from behind. When he noticed the officer, who was about three feet away, Mr.

Abdi said, “I have to go,” and started walking down the street. Dr. Courtney encouraged him to stay and held him lightly by the wrist to delay him so the officer could intervene. [ 102 ] The police officer told Mr. Abdi to put his hands on a store window. With a glance at the officer, he complied. [ 103 ] The officer took out his handcuffs and directed Mr. Abdi to put one hand behind his back. At this point, Mr. Abdi stopped complying and started walking east on Wellington. He was in a relaxed and dismissive state: nonchalant and grinning.

[ 104 ] In response to Mr. Abdi’s noncompliance, the officer reached his hand out and said, “Alright,” as if to say, “This is what we’re doing now,” meaning physical restraint was now required. He kicked Mr. Abdi in the back of the knee, causing him to fall backwards in the tight space between the curb and a parked car. Mr. Abdi landed on his buttocks and then his back. Dr. Courtney saw no contact between his head and the ground. He did not seem injured from the fall. [ 105 ] Mr. Abdi got up quickly and ran north across Wellington with the officer chasing him.

At one point, when the officer was about 10 feet away, he picked up a circular garbage can lid and appeared to be contemplating either throwing it or using it to defend himself. But he put it down and ran down the street towards Hilda. [ 106 ] Dr. Courtney went into a diner for breakfast. Within a minute, he heard the first siren. [ 107 ] According to Dr. Courtney, Mr. Abdi showed signs of disinhibition and poor judgment during their interaction. He appeared mentally ill.

The Route to 55 Hilda [ 108 ] This part of the narrative draws on the testimony of Constable Weir and three civilian scene witnesses: Wendy Dunford, Ross McGhie, and Sarah Clements. Constable Weir [ 109 ] Constable Weir had been with the Ottawa Police Service for 14 years. He is six feet tall and weighed 195 to 200 pounds. [ 110 ] He started his shift at 6:00 a.m. He recalled the day as sunny, hot, and muggy. [ 111 ] At 9:37 a.m., Constable Weir responded to a call for a physical altercation at the Bridgehead.

Arriving about six minutes later, he spoke with an employee in the crowd of people out front and learned of allegations of assault and sexual assault. [ 112 ] Armed with grounds to arrest, the officer approached Mr. Abdi who was speaking with a man who was on his phone. The man was Dr. Courtney, who was nearing the end of his 911 call. [ 113 ] Mr. Abdi and the man were shaking hands. Mr. Abdi was in the man’s personal space and the man looked uncomfortable. It looked to Constable Weir like two people who were experiencing a conversation differently. [ 114 ] Constable Weir made eye contact with Mr.

Abdi as he approached. Mr. Abdi turned and started to walk away, but the other man said, “[W]ait a second. They need to talk to you. Stay here,” and Mr. Abdi moved towards a store window. [ 115 ] Constable Weir described Mr. Abdi’s eyes as “super bloodshot” and bleary. There was a buildup of saliva in the corners of his mouth. He was glistening with sweat; his whole body was wet. The officer’s initial observations led him to question Mr. Abdi’s mental health. [ 116 ] Constable Weir told Mr. Abdi to put his hands against the glass. He complied.

The officer pulled his handcuffs from his belt and told him to put his hands behind his back. Mr. Abdi started to obey, but then his left hand stopped. Fearing he was going to run, Constable Weir said, “Don’t,” and tried to take hold of his hands, but Mr. Abdi spun out of his grip and started to run. The officer kicked the back of his knee to knock him off balance, but it didn’t work.

[ 117 ] Mr. Abdi ran east down the south sidewalk on Wellington. He hadn’t covered much distance before Constable Weir caught up with him and pushed him with one hand between the shoulder blades, causing him to fall between a parked car and a garbage bin. As far as the officer could tell, he didn’t hit his head. He didn’t hear any clunks or thumps, nor did he see any blood. [ 118 ] Mr. Abdi jumped up, took a few steps westbound, and then u-turned and continued running east, still on the south sidewalk. As Constable Weir followed him, Mr. Abdi cut across Wellington to the north sidewalk.

He didn’t wait or check over his shoulder for cars, although traffic was light. [ 119 ] Constable Weir recalled saying over his police radio that he was running after the suspect. He was trying to keep everyone informed. He needed help. [ 120 ] Mr. Abdi seemed to be running as hard as he could, but Constable Weir was able to keep up with him, in part because Mr. Abdi would slow down at times and try and knock things over or pick things up. At one point, he grabbed a metal garbage can and tried to tip it over, but he couldn’t because it was bolted to a post. [ 121 ] When Mr.

Abdi reached the north side of the street, Constable Weir caught up with him. Mr. Abdi took hold of a metal sign post that was fixed in cement. He started rocking it back and forth with all his might, as if he was trying to pull it out of the ground. Constable Weir took out his pepper spray and went to spray him, but nothing came out. The spray jammed. Mr. Abdi’s eyes bugged out as he looked at the officer, and then he started running again. [ 122 ] Constable Weir continued the chase.

He tested his pepper spray and discovered it had become unjammed and was working. [ 123 ] After entering the pedestrian walkway at Wellington and Somerset, Mr. Abdi stopped running, bent over, and tried to pick up a four-foot construction sign by its wooden base. As he struggled with the sign, Constable Weir pepper sprayed him twice in the eyes. There was no response. Mr. Abdi didn’t even blink. [ 124 ] Constable Weir had used pepper spray about six times before, but he had never seen it have zero effect. This was an alarm bell.

It meant to him that he was dealing with someone who was really strong and feeling no pain. He took out his baton and opened it. [ 125 ] Mr. Abdi let go of the sign and picked up a 30-pound rubber pad commonly used to weigh down construction equipment. He held it up near his head on an angle. Constable Weir was seven to ten feet away. He was afraid Mr. Abdi was going to hit him with the pad, so he backed up another five feet. [ 126 ] Mr. Abdi started clumsily running with the pad over his head. When he reached a curb, he was forced to step up and lost his balance.

Constable Weir gave him two strikes with his ASP as hard as he could, targeting the nerve bundle at the back of the thigh. He kept telling him to “Get down.” [ 127 ] The ASP blows had no effect on Mr. Abdi. He did not get down and he did not drop the construction pad. Constable Weir couldn’t believe he was still standing. [ 128 ] Mr. Abdi moved at a fast but unsteady pace towards the entrance to 55 Hilda. He exchanged words with a woman but then became top-heavy and lost his balance. He dropped the rubber pad and stumbled into the alcove-style entrance. [ 129 ] Constable Weir agreed his foot pursuit of Mr.

Abdi covered a bit more than 300 meters. At the end of it, he was out of gas.

Wendy Dunford [ 130 ] Wendy Dunford and her husband, Ross McGhie, lived in the area. They had just finished a morning run. They had walked south along Hilda and were crossing Wellington when Ms. Dunford saw Constable Weir and Mr. Abdi walking east on the south side of Wellington. [ 131 ] Mr. Abdi was ahead of the officer. He was carrying a flat construction pad over his head. Constable Weir was trying to detain him, saying things like “Stop” and “Don’t move,” but Mr. Abdi kept plodding away with the pad almost resting on his head. He was evasive but not aggressive toward the officer.

His movement seemed a little uncoordinated. [ 132 ] Constable Weir had his baton out. He tried a number of times to make contact with Mr. Abdi with the baton, and in response Mr. Abdi would bring the construction pad down like a shield. Ms. Dunford was unsure if the officer connected with the baton. [ 133 ] When the two men were nearing the intersection of Wellington and Hilda, Constable Weir made another lunge at Mr. Abdi and Mr. Abdi ran across the street towards 55 Hilda.

There was a change in his speed but he was not sprinting; he still had a shambling gait. [ 134 ] Near the northeast corner of Wellington and Hilda, Constable Weir shoved Mr. Abdi quite hard from behind. Mr. Abdi dropped the construction pad and stumbled into the entrance area at 55 Hilda with a lot of forward momentum. Ms. Dunford thought there was a woman was coming out of the building at the time. Ross McGhie [ 135 ] Ross McGhie recalled that he and Ms. Dunford were approaching the northwest corner of Wellington and Hilda when he first saw Constable Weir and Mr.

Abdi walking eastbound on the south side of Wellington. The officer was keeping up with Mr. Abdi although they were a couple of metres apart. [ 136 ] Mr. Abdi was holding a piece of construction equipment over his head. He did not seem to be struggling under its weight. Constable Weir’s demeanour was defensive. He was trying to get Mr. Abdi to stop and speak to him, but Mr. Abdi was not responding. He did not seem to be in distress. He was smiling, almost as if he was playing a game with the officer. [ 137 ] At one point, Constable Weir adopted a defensive posture, putting one of his arms forward with a fist.

It was as if he was preparing to be charged or for some kind of physical altercation. [ 138 ] According to Mr. McGhie, he and his wife moved south across Wellington around the same time as Constable Weir and Mr. Abdi crossed in the opposite direction. Mr. Abdi was still holding the construction pad at about a 45-degree angle near his head and shoulders. [ 139 ] Close to the northwest corner of Wellington and Hilda, Constable Weir made a grab for Mr. Abdi’s shoulder, at which point Mr. Abdi projected the construction pad towards the officer. It was not Mr.

McGhie’s impression that he deliberately threw it at him; rather, Mr. Abdi released the pad and sort of pushed it in the officer’s direction, as if he was trying to create an obstruction as he ran. [ 140 ] Mr. Abdi sprinted to the entrance to 55 Hilda. When he reached the door, Constable Weir was right on top of him. Sarah Clements [ 141 ] Sarah Clements lived in a second-floor apartment at the northwest corner of Wellington and Hilda. Her living room window looked onto Wellington, while from her kitchen window she had a downward view of the entrance to 55 Hilda. [ 142 ] Ms.

Clements was on her living room couch texting with a friend when she heard yelling outside. She looked out the window and saw Constable Weir chasing Mr. Abdi on Wellington just before Hilda. They were moving at relatively fast pace, like a fast jog. Mr. Abdi was holding a flat construction weight over his head with both hands. The officer told him twice to put it down, but he wasn’t

complying. [ 143 ] Ms. Clements texted her friend about what she was seeing. According to a printout of her texts, she sent her first message at 9:46:45 a.m. [ 144 ] When the two men were out of Ms. Clements’ line of sight, she heard Constable Weir say over his radio that he was at Hilda Street. The Entrance at 55 Hilda [ 145 ] The narrative continues through the testimony of Sarah Clements, Wendy Dunford, Ross McGhie, and Constable Weir. The CCTV video from Camera 7, which I will review later, is also critical. Sarah Clements [ 146 ] When she lost sight of the two men on Wellington, Ms.

Clements got off the couch and went to her kitchen window. She heard a car pull up on Armstrong, the first street north of Wellington. It sounded like a fast engine and quick braking. She did not hear sirens. [ 147 ] From her kitchen window, Ms. Clements saw that two police officers had Mr. Abdi against a wall in the entry area at 55 Hilda. One officer had “DART” on his uniform. She did not recall seeing any police cars. [ 148 ] One of the officers was hitting Mr. Abdi in the legs with a baton while the other was punching him in the face. Mr.

Abdi was pretty much standing in place; he wasn’t attacking back. [ 149 ] Ms. Clements saw more than one closed fist punch to Mr. Abdi’s face, but she didn’t know how many there were. One of the punches struck him in the left side of the face, but her memory wasn’t clear on where any other punch or punches to the face landed. [ 150 ] Ms. Clements saw Mr. Abdi lean forward and then she looked away to text her friend. When she looked back, Mr. Abdi was face-down on the ground in handcuffs. Wendy Dunford [ 151 ] Ms. Dunford recalled that she was with her husband about 40 meters away when she saw Mr.

Abdi stumble into the entrance at 55 Hilda with Constable Weir right behind. [ 152 ] Ms. Dunford described her location with reference to photographs. She was more certain of the view she had of the scene than she was of the precise spot where she was standing. She said her view was similar to the perspective in one of the photographs, although she was further back. [15] She could not see the entry doors at 55 Hilda. [ 153 ] Once the two men were in the entrance area, Ms. Dunford heard Constable Weir say things like “Stop” and “Get down on the ground.” Mr. Abdi was not complying.

The officer hit him in the arms and legs a few times with his baton. [ 154 ] A police car pulled up. An officer (Constable Montsion) got out quickly and went straight over to where Constable Weir and Mr. Abdi were “somewhat grappling.” He immediately started punching Mr. Abdi. Ms. Dunford described seeing between five and ten punches. It looked to her like there were a lot of punches to his face and upper body. The blows were at the height of the head.

[ 155 ] According to Ms. Dunford, Mr. Abdi was non-compliant and trying to get away, but she did not see him offer any physical resistance or make any aggressive move towards either police officer. [ 156 ] At the time of the blows, Ms. Dunford heard somebody yelling “Help” and “Why are you doing this?” but she was not sure whether it was Mr. Abdi or not. [ 157 ] Ms. Dunford next saw Mr. Abdi lying on the ground on his front. She could not see clearly because the alcove area was a few steps below street level and the officers were sometimes blocking her view. Mr. Abdi was in handcuffs.

She was unsure if he had been in handcuffs earlier, at the time of the punches, or whether the officers had been trying to handcuff him at that time. [ 158 ] Ms. Dunford agreed she may have caught only glimpses of action as the three men moved around during the dynamic encounter, although her recollection was of not seeing glimpses. She did not dispute the suggestion that she may not have seen every event and that she had subconsciously filled in gaps to create a coherent whole. When presented with video evidence, she accepted that her estimate of five to ten punches could be mistaken.

She maintained a recollection, however, of seeing several punches to the head. Ross McGhie [ 159 ] Mr. McGhie estimated that he saw the events at 55 Hilda from 40 to 50 yards away. His memory of his precise locations at various times differed from his wife’s. [ 160 ] For example, Mr. McGhie recalled that when he saw the blows he described, he was on the sidewalk on the south side of Wellington.

Although he couldn’t give an exact distance, he said he was perhaps about 15 to 20 feet west of the southwest corner of Wellington and Hilda. [16] He had a clear and unobstructed view of the entry doors at 55 Hilda. [ 161 ] According to Mr. McGhie, once the two men were in the entrance area, Constable Weir yelled at Mr. Abdi two or three times to get down. At the same time, he was using his baton on Mr. Abdi’s legs, arms, and back. Mr. McGhie believed there were four or five solid blows to the legs with a command to get down after each one. He saw no kicks or knee strikes. Mr.

Abdi reacted to the baton blows by flinching in pain, but he did not try and block the blows or make any physical gestures towards the officer. He did not go to the ground. [ 162 ] After the baton strikes, Constable Weir tried to grapple with Mr. Abdi in front of the entry doors. He grabbed Mr. Abdi around the neck and shoulders. In response, Mr. Abdi reached up to the officer’s arms and shoulders in an attempt to resist or unlock the grapple. [ 163 ] It was at this point that Constable Montsion arrived. He left his vehicle, ran across the street, and immediately administered five or six closed-fist blows to Mr.

Abdi’s face, neck, and head. Mr. McGhie saw the blows from the back. They came from the shoulder and Mr. McGhie had the impression they were very heavy and delivered with a fair degree of force. Mr. Abdi was unable to avoid the blows because his arms were still locked in a grapple with Constable Weir. [ 164 ] While making these observations, Mr. McGhie was moving in a southeasterly direction. During this time, he heard someone screaming, “Help. Police.” The voice sounded panicked. Although it was difficult to hear, Mr. McGhie formed the belief that it was Mr. Abdi’s voice. [ 165 ] Several seconds later, Mr.

McGhie saw Mr. Abdi on the ground. It looked like his hands were restrained behind his back. Both officers appeared to be holding him down. Mr. Abdi wasn’t moving. Mr. McGhie’s view of the entry area was less clear at this point. He couldn’t see the doors. [ 166 ] In cross-examination, Mr. McGhie acknowledged that he had been mistaken on some points. After watching the video, he agreed, for example, that

• Constable Weir delivered the baton strikes as Constable Montsion was arriving and not before he arrived; • Mr. Abdi’s arms were not secured in a “grapple” with Constable Weir when Constable Montsion delivered his blows; rather, his arms were free; • the outer door to 55 Hilda was not locked when Mr. Abdi ran into it. [ 167 ] These are not the only examples. By the end of his testimony, Mr. McGhie acknowledged it was possible his view of the scene was not as clear and unobstructed as he had initially thought. He felt some of the impressions he had formed about the conduct of the officers had been corrected.

Constable Weir [ 168 ] Constable Weir was right behind Mr. Abdi when he stumbled into the entranceway at 55 Hilda. He was aware that if Mr. Abdi went into the building and the door closed behind him, he would escape arrest. [ 169 ] Mr. Abdi banged into the window. When he turned around, Constable Weir kneed him in the midsection as hard as he could, using the forward momentum he had from running. He felt this blow “should floor pretty near anybody,” but Mr. Abdi had no reaction to it. [ 170 ] Constable Weir and Mr. Abdi were a few feet apart, eye-to-eye and circling each other.

It was as if they took a “mini break” – a moment where bodies weren’t moving. The officer was looking for an opportunity when, in his peripheral vision, he saw a police car arrive. [ 171 ] Constable Montsion approached. He delivered three quick punches with both hands to the area of Mr. Abdi’s head and shoulders. They were hooking blows, not jabs or haymakers from behind the shoulder. [ 172 ] Mr. Abdi had no reaction to the blows; they didn’t seem to faze him. But Constable Weir saw his nose bleeding. It was bleeding a lot. [ 173 ] The officers were on either side of Mr. Abdi. Constable Weir anchored Mr.

Abdi’s upper body with his own body and used his weight and all his strength to take him to the ground. They went down in tandem. Mr. Abdi went forward onto his stomach. Constable Weir was beside him. [ 174 ] In his evidence in-chief, Constable Weir first described the takedown this way: His nose started to bleed, and we each got on one side of him. And, like, I’m, I’m like I’m gesturing with my arms as in where. I’m on one side, Dan is on the other, and we’re trying to grab hold of Abdi with our arms. I still have my asp in my right hand. The story of my life, something in my right hand, and I can’t grip.

I have, I don’t have great [purchase], but we manage to eventually, using our weight, bring him to the ground. And we, as in Abdi and I, both went down forwards. I went down, he went down. Q. All right. A. I don’t know what happened to Dan.

Q. You don’t know what? A. I’m not sure where Dan was at that point. Q. All right. A. But we got him to the ground. [ 175 ] According to Constable Weir, the takedown was “pretty textbook.” It was not a fast fall or a hard hit. They went down fairly smoothly; they kind of “slunk” to the ground. It was not “a tree falling in the woods situation.” Neither man hit his face. There were no audible smacks or unusual sounds. [ 176 ] When shown the MP4 video, Constable Weir said the takedown was “how I see it in my head when I replay it over in my head.” He did not recall Mr.

Abdi falling as quickly as shown in the PSF video. [ 177 ] In cross-examination, after watching the video, Constable Weir accepted the following suggestions: • he was holding Mr. Abdi’s shirt near the right shoulder but was not using all of his own weight to bring him to the ground; and • Constable Montsion was not touching Mr. Abdi at the time of the takedown. [ 178 ] After the takedown, Constable Weir got up fast and put his knee on Mr. Abdi’s back. He took hold of his right arm and tried to bring it behind his back, but Mr. Abdi was too strong.

At one point, the officer was hauling for all he was worth with both hands; he feared he would break Mr. Abdi’s arm. But it wouldn’t budge; it was as stiff as an oar. His one arm was, Constable Weir felt, “stronger than my entire body at this point.” [ 179 ] Constable Weir commented on the importance of controlling Mr. Abdi’s hands: I still have to be cognizant of weapons. We haven’t searched him yet. Maybe he’s got something in his belt. I don’t know. These are the things they train you for. But as long as I can control his hands, he’s not going to access that.

That’s why it was so imperative to get him into handcuffs. Once he, once we did that, we had complete control over him. [ 180 ] During the struggle on the ground, Constable Montsion delivered a couple of strikes to the area of Mr. Abdi’s head. Constable Weir did not know if these were open-handed or closed-fist strikes. At time of the blows, Mr. Abdi’s head moved from left to right and blood splashed on Constable Weir’s left arm. [ 181 ] According to Constable Weir, the blows by Constable Montsion were the key to getting Mr. Abdi’s arms behind his back and handcuffed.

He explained: I don’t know how it was delivered. I just know that it effectively allowed us to get him in handcuffs because the distraction was enough that his strength faltered for just enough time, and I could get his arm behind his back. [ 182 ] When asked why he himself did not punch Mr. Abdi, Constable Weir explained that he had previously injured three knuckles in his right hand when delivering punches while on duty. He avoids punching because it hurts his hand and he can’t make a proper fist. He later testified:

… [I]f I could have stood, stood toe to toe, I would have. I would have punched as many times as I had to, but that’s how I, I can’t fight that way. My right hand is noneffective. But if I could have used it, I would have used it. [ 183 ] After the handcuffs were secured, Mr. Abdi was making noises with his mouth: breathing and groaning. His body was still rigid when Constable Weir brought him gauze. It was when the paramedics arrived that he felt all the power leave his body. Mr. Abdi went limp in his hands. THE VIDEO FROM 55 HILDA [ 184 ] This trial was scheduled for 12 weeks beginning February 4, 2019.

The CCTV video from 55 Hilda was the centerpiece of the Crown’s case. [ 185 ] On the afternoon of February 3, 2019, the Crown came into possession of a video in a different format than the one it had disclosed two years earlier. There were noticeable differences between the two versions of the video. [ 186 ] The Crown immediately disclosed the new video.

This spawned months’ worth of unforeseen work that included terabytes of additional disclosure, extensive consultation with experts over many weeks, and applications for a stay of proceedings and exclusion of evidence. [ 187 ] The applications involved days of evidence about digital video from expert witnesses called by both parties: Ed Segeren for the Crown and Grant Fredericks for the defence [17] .

The parties agreed the evidence of these witnesses would apply at trial. [ 188 ] By July 5, 2019, all issues had been addressed and the following video evidence was admitted on consent: [18] • PSF Files – These files contain the events captured by Camera 7 and recorded by the Digital Video Recorder (DVR) at 55 Hilda. They were received by the Special Investigations Unit (SIU) on a USB key on July 24, 2016. They can only be played through the DVR’s proprietary video player; • MP4 Exports – These are files generated through the export feature of the DVR’s proprietary player.

Once exported, an MP4 file can be played using commonly available computer video players like VLC and QuickTime. What the Video Shows [ 189 ] I will examine the video in detail when I analyze the issues. For now, I will set out the main events in overview form. [ 190 ] The critical action covers just over a minute. There are five main parts. [ 191 ] First, Mr. Abdi and Constable Weir arrive in the entrance area. Both are running. As Mr. Abdi reaches the door, the officer knees him in the midsection. At this time, Constable Montsion’s cruiser pulls up in front of the building. Constable Weir hits Mr.

Abdi with his ASP and appears to direct him to go to the ground. He delivers a second ASP strike as Constable Montsion approaches the entrance area. [ 192 ] Second, Constable Weir kicks Mr. Abdi as Constable Montsion steps down into the alcove. He then delivers a third blow with his ASP. Constable Montsion engages with Mr. Abdi. Constable Weir kicks Mr. Abdi a second time. It is in this time period that Constable Montsion allegedly delivers blows that, in the Crown’s submission, ground his criminal liability. I will refer to these as the “ standing blows .”

[ 193 ] Third, Mr. Abdi goes to the ground, ending up on his stomach. [ 194 ] Fourth, the officers work to get Mr. Abdi’s hands behind his back so they can handcuff him. Constable Montsion strikes Mr. Abdi three times in the back of the thigh. Several seconds later, he allegedly delivers three blows to Mr. Abdi’s face or head that, in the Crown’s submission, make him criminally liable. I will refer to these as the “ blows on the ground .” [ 195 ] Fifth, about 20 seconds after the blows on the ground, the officers secure Mr. Abdi in handcuffs.

Expert Evidence About the Video [ 196 ] The Crown’s submissions make no mention of its expert witness, Mr. Segeren. This is not surprising since this witness’ evidence receded into the background after disposition of the stay application and the agreement leading to the admission of the PSF and MP4 videos. [ 197 ] Defence counsel rely on the evidence of their expert, Mr. Fredericks, in support of their contention that the video should be approached with caution [19] . In their written submissions, counsel seized on some of the more important considerations underlying Mr.

Fredericks’ concerns about the reliability of the video evidence. [20] [ 198 ] Crown counsel cross-examined Mr. Fredericks but made no submissions directly challenging his opinions. [21] Again, this may not be surprising. By the end of the trial, once both parties had a sophisticated understanding of the video files, a number of technical issues about the video were no longer the subject of serious dispute. [ 199 ] With this context in mind, I will limit myself to a brief review some of the key points in Mr. Fredericks’ report and testimony. Mr. Fredericks’ Evidence [ 200 ] Mr.

Fredericks was qualified to give expert opinion evidence on forensic video analysis. [ 201 ] A forensic video analyst seeks to determine whether a video is “fit for the purpose”; in other words, whether it can answer the question being asked. A video may be fit for one purpose but not another. For example, a video may be fit to show that an object moved from one point to another or that a person made a striking motion, but it may not be fit to allow a reliable determination of the speed of the movement or the force of the motion. [ 202 ] In Mr.

Fredericks’ opinion, the video from 55 Hilda is not fit for the purpose of determining • whether Mr. Abdi went to the ground slowly or quickly; • whether Mr. Abdi’s face did or did not hit the ground during the takedown; • the force of any blows delivered by Constable Montsion; • the presence or absence of staining on the ground at various times; • fine details at some points in time, such as the shape of a person’s fingers or whether there is something in a person’s hand; or

• the precise passage of time between events. [ 203 ] Mr. Fredericks identified limitations in the DVR system that created the video files. These exist in both the PSF and MP4 files because an MP4 export is a perfect “bit-for-bit” copy of the PSF. Their digital properties are identical. [ 204 ] I will set out the main limitations identified by Mr. Fredericks and relied on by the defence. Refresh Rate [ 205 ] Mr. Fredericks explained that a relatively low “refresh rate” or frame rate of a video file can prevent a viewer from perceiving certain fast-moving events, such as the muzzle flash of a firearm.

In simple terms, the event happens too quickly for the system to capture it. [ 206 ] Mr. Fredericks illustrated this point with a demonstrative aid that shows a basketball falling to the ground. The event was captured with two cameras: one recording at 30 frames-per-second (FPS), the other at 480 FPS. The exercise shows that the video with the lower refresh rate is not fit for the purpose of determining precisely when the ball hits the ground.

Based on the 30 FPS video, a viewer will mistakenly believe the ball is still falling at a time when – as the 480 FPS video reveals – it has already bounced on the ground and begun rising. [ 207 ] By extension, Mr. Fredericks explained, video with a relatively low refresh rate would not be fit for the purpose of determining if or when a person’s head hit the ground during a fall. While we know a free-falling ball will hit the ground, the head of a falling person is different: it may or may not touch the ground.

It is possible for a head to strike the ground and come back up so quickly that – like a muzzle flash or the dropping ball in the demonstration – a 30 FPS video system will fail to sample or capture the event. [ 208 ] It is mainly for this reason that Mr. Fredericks concluded the video from 55 Hilda is not fit for the purpose of determining whether or not Mr. Abdi’s head hit the ground during the takedown.

Oversaturation and Motion Blur [ 209 ] Oversaturation occurs when an excess in light energy causes white pixels to bloom and then bleed into darker pixels that make up an object; for example, a hand or an officer’s baton. This, in turn, causes the darker object to lose its shape and size or even disappear from view. [ 210 ] Motion blur is the result of poor resolution. It can happen when one object (e.g., a swinging baton or hand) is moving quickly relative to others. The fast-moving object can become blurry and lose its shape. [ 211 ] According to Mr.

Fredericks, oversaturation and motion blur help explain why this video is not a reliable representation of whether or not there is staining on the bricks at certain moments in time. Compression Technology [ 212 ] Like most CCTV systems, the DVR at 55 Hilda used compression technology. This allows a system to conserve storage space and function economically. But there are tradeoffs.

For example, image resolution is reduced. [ 213 ] In addition, with compression technology, a certain amount of data making up a particular video image will often be repeated or borrowed from another image, as opposed to all of the data being updated afresh each time an image is created. In Mr. Fredericks’ view, this “redundancy” among images is one of the reasons for caution when assessing the reliability of the video, especially its ability to

depict accurately subtle changes in movement. Variable Image Refresh Rate [ 214 ] The DVR at 55 Hilda had 16 cameras. It was set to record at 30 FPS. The cameras operated by motion activation. For example, when Camera 7 detected motion that reached a preset sensitivity threshold, it would “wake up” and capture the events, and the DVR would record them. [ 215 ] According to Mr.

Fredericks, motion activation can result in “under-sampling.” In other words, motion that falls under the preset sensitivity threshold will not be sampled and will be lost. [ 216 ] In addition, a multi-camera system [22] that relies on motion activation cannot sample images from different cameras at precisely the same millisecond.

As a result, the system will capture action from a particular camera not at a constant rate of 30 FPS but at a variable frame rate, also known as a “variable image refresh rate.” [23] [ 217 ] A variable image refresh rate means that the elapsed time between images is not constant; it varies. [24] For example, in a video with 75,000 images, the time between Image 1 and Image 2 may be 40 milliseconds; the time between Image 2 and Image 3 may be 20 milliseconds; the time between Image 3 and Image 4 may be 10 milliseconds; and so on. [ 218 ] According to Mr.

Fredericks, a DVR that operates by motion activation will always capture action at a variable image refresh rate. Moreover, his examination of the metadata of the digital files confirmed that the video footage from Camera 7 was captured at such a rate. [25] [ 219 ] Mr. Fredericks explained that no video player can accurately play back variable image refresh rate video. The proprietary player for the DVR in this case will try and play the images at the variable rate at which they were captured, but the results can be misleading.

In what is often called an “accordion-type” playback, action will speed up or slow down unnaturally. It is common to see what look like sudden bursts of accelerated motion. These can create the illusion of increased speed which the viewer can misinterpret as increased force. [ 220 ] Players like VLC and QuickTime are incapable of replicating the variable rate at which the images were recorded. Instead, they play the video back at a different rate, usually an average framerate. As Mr. Mr.

Fredericks explained, they “more or less average out the playback speed.” Tools like these can also drop images or, in some cases, display an image twice. As Mr. Fredericks put it, a player like QuickTime is not perfect, but it is “the best tool we have, apart from the forensic tools that I use.” [26] [ 221 ] In short, variable image refresh rate video can never be played back at a rate that replicates the actual motion of the events or the refresh rate at which the events were captured by the DVR.

It cannot be corrected and displayed through a computer player as an accurate real time video sequence. [ 222 ] The variable nature of the refresh rate is the principal reason why, in Mr. Fredericks’ opinion, the video from 55 Hilda is not fit for the purpose of assessing speed, force, and motion. To reduce the risk of the viewer being misled on these issues, he recommended using QuickTime as a still image playback device; in other words, going frame-by-frame instead of “playing it back as a video.” [ 223 ] In Mr.

Fredericks’ view, the video from 55 Hilda would be fit for the purpose of determining generally what happened over 20 minutes, but it cannot replicate motion over 20 milliseconds or the time covered by one, two, or three video images. On-Screen Time Stamps and Running Time [ 224 ] On-screen time stamps are an “approximation” and should never be relied on to measure speed, force, or motion with variable image refresh rate video. The time is displayed to the second, not the millisecond, and is only meant to show roughly what the time is.

[ 225 ] Mr. Fredericks accepted that if one were to watch 10 seconds of video, it would probably represent close to 10 seconds, but he resisted going further than that. This video is not accurate, he maintained, down to fractions of seconds or “for the purpose of observing motion from image to image.” [ 226 ] The running time counter in QuickTime is also just an estimate. Mr. Fredericks recommended using the frame number feature instead because it is more accurate. A Note About the MP4 Files [ 227 ] By the end of the trial, the PSF video had faded into the background and the parties worked with MP4 exports.

Two of these were made trial exhibits. The Crown introduced an MP4 export created by a member of the SIU during the investigation, [27] while the MP4 export filed by the defence was produced by Mr. Fredericks. [28] [ 228 ] The action depicted in the two MP4 exports begins at slightly different times, but the files have the same digital properties where the images overlap. [ 229 ] In these reasons, I will use the MP4 export generated by Mr. Fredericks. All time and frame references are from the QuickTime player.

POLICE TRAINING ON THE USE OF FORCE [ 230 ] I will begin by reviewing some of the main ideas in the testimony of the Crown’s use of force expert, saving other points for later sections of my reasons. After that, I will set out the evidence about police training on punching. Michael Federico [ 231 ] Retired Deputy Chief Federico served for 45 years with the Toronto Police Service. His evidence focused on the training police officers receive on the use of force. [29] [ 232 ] Every new recruit undergoes basic training at the Ontario Police College.

Each officer completes a course on the use of force that includes training on five matters mandated by regulation: (1) legal requirements; (2) exercise of judgment; (3) safety; (4) theories relating to the use of force; and (5) practical proficiency. After basic training, the officer must undergo use of force training at least once every 12 months. [30] The method of delivery of this training may vary among police services depending on their needs and resources. [ 233 ] Police officers have a duty to protect life and prevent death or serious bodily injury.

This responsibility extends to all people, including offenders and suspects. Police duties also include apprehending criminals, preventing crime, and obeying the law. Protecting life is the highest priority. These duties are introduced during basic training and reinforced throughout an officer’s career. [31] [ 234 ] Police officers receive instruction on ss. 25 and 26 of the Criminal Code and the fundamental concepts of necessity, reasonableness, and proportionality.

They are taught that the force they use must be necessary and reasonably justified: there has to be a reason for it and the reason has to be objectively observed. Mr. Federico explained: That means police officers are taught that means a reasonable police officer, a reasonable person standing in their stead would see the grounds that the officer is seeing. [ 235 ] Police officers are taught that every situation is unique and dynamic. They are cautioned not to jump to conclusions or rely solely on assumptions. Their obligation is to assess the situation based on their observations and to think about their options.

The assessment must be continuous, allowing officers to adjust their response as the situation changes. Officer training seeks to develop critical thinkers and analytical responders, avoiding an automatic, unthinking approach where officers rush in headlong, oblivious to risks to the police or the subject.

[ 236 ] Mr. Federico elaborated on these ideas when explaining Ontario’s Use of Force Model. [32] He described the model as a “visualization of a thought process” or a decision-making tool. It is not a policy or procedure, nor is it a legal justification for police use of force. It is a mental tool to help officers make decisions that are reasonable and justifiable.

The model gives officers the opportunity to make an assessment and choose a course of action based on that assessment, as opposed to responding in an unthinking and strictly emotional way to a situation. [ 237 ] By its spherical design, the model illustrates the dynamic nature of each situation and helps officers understand the need for continuous assessment and the importance of adapting and responding as the situation develops.

The model aims to show that the use of force does not proceed in a linear or incremental fashion and that officers must be prepared to move in any direction on the sphere as the situation requires. At the centre of the model, circling around the “Situation”, with arrows representing perpetual motion, is the framework “Assess-Plan-Act.” [ 238 ] Mr. Federico explained that officers are trained to be “situationally aware” and to rely on a suite of observations or compilation of cues in order to make informed decisions about using force.

He touched on some of the factors that can bear on an officer’s assessment, including the following: • Number of officers at the scene – The presence of multiple officers may allow for a coordinated approach and the assignment of tasks. It may open opportunities for communication with the suspect with a view to calming things down. Each officer, however, is responsible to make his or her own assessment and decisions, adapting as situation requires; • Containment – This means the person is secure against harming anybody, secure from being harmed, and secure against flight .

Containment gives the officer more time and may provide an opportunity to defuse or de-escalate the situation; • Behaviour of the subject – This can include noncompliance, passive resistance, active resistance, and assaultive conduct (both active assaults and threats to assault); [33] • Nature of any threat – Officers are instructed that a potential threat, by itself, does not necessarily justify a use of force.

In contrast, officers may use force to respond to an imminent threat, i.e. , where the person is engaged or about to engage in the threatening activity; • Whether the subject is armed – The mere presence of a weapon, just like the mere utterance of a threat or a single gesture by the subject, is a factor to consider but is not, in and of itself, a justification for the use of force; • Distance between the officer and the subject – Distance equals time, and time gives the officer more options including, for example, speaking to the subject or calling for backup; • Conduct of the subject before the officer’s arrival on scene – Assuming the officer is aware of it, this information can help the officer prepare for the encounter.

An officer may approach a person who has been violent or threatening differently than he or she would someone who has caused property damage. While a subject’s previous behaviour may be an indication of what the officer might encounter, it is not determinative; the officer must still assess the situation when he or she arrives at the scene. [ 239 ] Mr. Federico spoke about de-escalation. This, he explained, is series of vocal communications aimed at calming things down with a view to reaching a mutually satisfactory resolution of the event and minimizing the need for force.

Suggested phrases include, “I’m here to help you”; “Don’t be afraid”; “No one’s going to hurt you.” [ 240 ] There is no legal requirement to de-escalate, nor is there any script or fail-safe technique that will achieve de-escalation. Sometimes, Mr. Federico acknowledged, there is no opportunity to de-escalate. [ 241 ] While de-escalation does not appear as a label on the Use of Force Model, it is an

interpretation placed on the model and forms

part of police training. [34] There is an expectation that officers will engage in de-escalation techniques at any stage of an encounter; however, as Mr. Federico put it, “Good faith application is what we’re expecting for police officers rather than some ideal state.” [ 242 ] Mr. Federico recognized that police training cannot always simulate real life situations. Officers are often required to make very quick judgment calls in the heat of the action – split second decisions on the fly and under stress.

Training cannot cover the specifics of every incident, but it can give officers techniques and tools to help prepare them for virtually every incident. [ 243 ] Officer training is reality-based and conveys the importance of good faith decisions about the use of force. Mr. Federico explained: So, it’s always understood to be good faith efforts to do so. And of course, the officer is the one who will be expected to explain and justify their action.

But we also don’t want police officers during the training to be so apprehensive about the restrictions around use of force that they’re, you know, hesitant or unable to actually carry out their duty because they’re fearful of retributions or, you know, completely confused or bewildered, so it’s reality-based training. [ 244 ] Mr. Federico agreed there is no single reasonable response to every case. Officers are taught that different officers in a similar situation may make different decisions about use of force options.

In a training exercise, for example, one officer might take the subject down while another might choose to step back. This can be based in part on individual perception. [35] [ 245 ] During cross-examination, Mr. Federico spoke about handcuffing a noncompliant or resistant suspect. His testimony included the following: Q. In your estimation, what is the level of force that’s permissible in order to achieve appropriate handcuffing of an individual who is refusing or resisting? A. Well, again, training would say it’s going to depend.

In order to get the handcuffs on it’s going to require the officer to take certain physical actions. If the officer’s met with resistance, the officer would be, again, justified if the grounds exist, in using greater force to accomplish it. There’s no limit in terms of the considerations the officer goes through, and the ultimate goal, of course, that the officer is attempting to achieve, is – is the purpose the officer intends, which is get the person in handcuffs and make the arrest. So the officer must prevail. There’s no question that the officer’s going to take action.

Does nobody any good if the officer is overpowered or physically prevented in accomplishing the task when it’s reasonable to do so. Training on Punching [ 246 ] The Toronto Police Service policy on the Use of Force Model discusses five use of force options. Under the sub-heading “Physical Control”, the policy describes control techniques that do not involve the use of a weapon: Soft techniques are control oriented and have a lower probability of causing injury. They may include restraining techniques, joint locks and non-resistant handcuffing.

Hard techniques are intended to stop a subject’s behaviour or to allow application of a control technique and have a higher probability of causing injury. They may include empty hand strikes such as punches and kicks. [36] [ 247 ] Mr. Federico elaborated on the concept of hard physical engagement: … So as opposed to soft, a hard would be the application of strikes or blows and that would be, if the hands are being used, that could include open or closed fists, for example, or it could be kicks or jabs. So it’s a strike or a blow. And it’s designed to distract by impacting the individual.

There is some pain, typically, involved. It’s designed to distract the person so that the officer can accomplish the goal, get the person’s hand behind them and in the handcuffs, but it’s without weapons . So it’s still using the officer’s body. And there are techniques taught to police officers that go along with the instruction that hard application of force is permitted under the appropriate circumstances. [37] [ 248 ] The Ontario Police College teaches punching techniques during basic training. The Defensive Tactics Study Guide includes the

following: [38] Punching Punching can be an effective technique to establish control; however, there are several safety issues that must be considered before punches are used. The bones of the hand are small and relatively fragile. Hard impact with solid structures such as the skull, jaw, and teeth can quickly lead to severe hand injuries that may impede an officer’s ability to effectively defend themselves . Punching may break the skin over the knuckles and exposes the officer to blood-borne pathogens such as hepatitis and HIV. As an alternative, the palm heel strike may be used.

Support Hand Palm Heel Strike As the name implies, it is delivered with the bottom portion of the palm. The effectiveness of the strike is dependent upon speed. Do not telegraph the strike by winding up or pulling the hand back. All motion should be forward. The effectiveness of the strike relies on forward weight transfer. The target area is typically the face and upper torso. This tactic may be used to stop a subject’s forward momentum create a distraction or displace balance . Weapon Hand Punch Weapon hand punches are delivered with significant hip rotation for power.

The hips rotate as the strike is delivered. [39] Punching is an extremely prevalent method of delivering empty hand strikes. Most people have seen a fistfight at some time in their lives. Care must be taken when delivering punches to prevent injuries to the hand. As a police officer, you may need to use your hands for follow up techniques, use of force options, and many police functions . The overall body mechanics for punching in the context of use are the same as a palm heel strike; the difference lies with the striking surface of the hand.

With punches, the fingers and thumb should be rolled into a fist and the contact area should be the front face of the first two knuckles of each hand. The index and middle finger metacarpals should be in line with the radius and ulna bones in the forearm and the thumb should be wrapped around the index and middle fingers. Making a correct fist will reduce, but not eliminate, the possibility of injury. [ 249 ] According to Mr. Federico, police officers in Ontario are taught these punching techniques. [ 250 ] In 2016, the Otta

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