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 Ontarioincluding 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 arrestin Ottawa's Hintonburg neighbourhood last Sunday and hundreds attended his funeral Friday. Abdi diedthe 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 nowinvestigating two Ottawapolice constables in the Abdi case. According to CBC sources, they're officersDavid WeirandDaniel 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 layschargesinone ofevery 20 cases.

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

In fact, theshooting death ofYatimin 2013markedthe only time an on-duty Ontarioofficer wascharged and convicted in the death of a person with a mental illness since the SIUwas created in 1990.

Forcillohadmade a keyclaimthat wascountered by video, whichled to aguilty verdict. He's appealing his six-year sentence and has been granted bail until his case is heard.

Video is key toany criminal case, but evenmore sofor SIU investigators,especially inAbdi'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 aHildaStreet building might present concrete evidenceto help investigatorslearnhow 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 canescape 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 tospeak 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? Acomment fromJustice Edward Then raised that issue in the Forcillo case.

He said the behaviour ofpolice 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 thestandard of legal rights.

Go added thateach 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.