Why video could be key in probe of Abdirahman Abdi death during police arrest

Video was an essential piece of evidence in a Toronto police officer's recent conviction, and could prove important in other cases involving police in Ontario — including the recent death of an Ottawa man — because of constitutional restrictions placed on investigators, lawyers say.

Abdirahman Abdi, 37, died after what witnesses have said was a violent arrest in Ottawa's Hintonburg neighbourhood last Sunday and hundreds attended his funeral Friday. Abdi died the same week Toronto police Const. James Forcillo was sentenced to six years in prison in the streetcar shooting death of 18-year-old Sammy Yatim. 

Ontario's Special Investigations Unit is now investigating two Ottawa police constables in the Abdi case. According to CBC sources, they're officers David Weir and Daniel Montsion.

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The SIU investigates any case involving an Ontario police officer that results in death, sexual assault or serious injury. On average, the unit lays charges in one of every 20 cases.

Fewer than half of those lead to convictions. When someone with mental illness dies during an altercation with police, the likelihood of charges is even lower, according to SIU figures.

In fact, the shooting death of Yatim in 2013 marked the only time an on-duty Ontario officer was charged and convicted in the death of a person with a mental illness since the SIU was created in 1990.

Forcillo had made a key claim that was countered by video, which led to a guilty verdict. He's appealing his six-year sentence and has been granted bail until his case is heard.

Video is key to any criminal case, but even more so for SIU investigators, especially in Abdi's death, because there are no bullet wounds.

Similar cases in the past show the challenges facing the SIU and prosecutors.

• In 2005, Stephane Michaud, who had schizophrenia, died at the Ottawa airport after he was sedated while in police custody. He was placed on his stomach, and died soon after. No charges were laid by the SIU.
• In 2002, Nicholas Blentzas, who had bipolar disorder, died while in Toronto police custody. Officers were not charged by the SIU.
• In 2000, Otto Vass, who also had bipolar disorder, was in a physical altercation with Toronto police officers and died. Four officers were charged of manslaughter, but were later acquitted by a jury.

The complete list is much longer. But the Abdi investigation, which could take months, might be different.

With the assistance of an autopsy and witness accounts, surveillance video from a Hilda Street building might present concrete evidence to help investigators learn how the 37-year-old Somali-Canadian suffered fatal injuries on Sunday, July 24.

'It's a reasonable cut-off'

Why will investigators rely so heavily on that video and the autopsy? Unlike a member of the public, the two officers in the Abdi case can escape SIU interrogation. It is their legal right.

"In the ideal world, it would be nice to have the explanation by the subject officer, but we have to live by their constitutional right in these circumstances. It's a reasonable cut-off," said Ian Scott, a former director of the SIU, now a lawyer in Toronto.

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The Charter of Rights and Freedoms indicates officers suspected in an on-duty death are not required to co-operate with the SIU.

They don't have to submit their notes, nor do they have to speak with investigators. That leaves a case full of holes.

The five "witness officers" in the Abdi case do have to co-operate, but that continues to be a tedious process for the SIU, according to Avvy Go, a Toronto lawyer who sits on the unit's resource advisory committee.

Officers not treated like civilians

"We have heard over the years, the difficulties experienced by the SIU ... [witness officers] don't always hand over the notes right away. Some of them talk to their lawyers first before they come to SIU," Go told Alan Neal, host of CBC Radio's All in a Day.

Go agreed that subject officers rarely co-operate with the SIU, as is their right, which is fuel for constant debate within the legal community.

"Some people argue that subject officers should be treated the same way as any civilians who are being accused of a crime would," she said.

"I don't know if there are any subject officers who actually co-operate with the investigation, but I would think that's not the case."

Officers should be held to higher standard: judge

Should officers be treated just like civilians suspected of a crime? A comment from Justice Edward Then raised that issue in the Forcillo case.

He said the behaviour of police officers should not be held to the same standard as civilians, but actually to a higher standard.

If that's indeed true, why do officers have the right to refuse to co-operate in SIU investigations? The standard of behaviour does not equate to the standard of legal rights.

Go added that each police force interprets officers' responsibilities differently, and those inconsistencies are currently under review as part of the Police Services Act.

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"Ultimately, the police chief is the one who sets the tone and he's the one who kind of instructs the officers to co-operate or not co-operate," Go said.