By Doğan D. Akman
Editor’s note: Doğan D. Akman applies his considerable legal acumen in this analysis of the trial of Constable Daniel Montsion of the Ottawa Police Services. Constable Montsion was tried on three charges related to the death of a Somalian migrant to Canada – Abdirahman Abdi in July 2016. This analysis examines the judge’s decision to acquit the police officer on all counts due to the inability of the prosecution to prove guilt beyond a “reasonable doubt”. The ensuing hubbub from organizations like Black Lives Matters sparked cries of foul play from a plethora of politicians and other noted personalities. But was their indignation warranted and did they offer any meaningful remedies? Mr. Akman answers both questions and does so in an insightful and authoritative fashion. Read on.
Point of departure
Section 7 of the Canadian Charter of Rights and Freedoms (“The Charter”) provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 1 of the Charter reads:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The case of Her Majesty the Queen v. Daniel Montsion and the judgment
On October 20, 2020, Mr. Justice Kelly of the Ontario Court of Justice rendered his carefully drafted 107-page Reasons for Judgment (with an additional six pages of footnotes setting out his sources and judicial authorities) in the case of The Queen v. Daniel Montsion.
Constable Montsion was charged with manslaughter, aggravated assault and assault with a weapon, i.e., hard knuckled gloves, for his involvement in the process of assisting another constable in securing the arrest of Mr. Abdirahman Abdi, a Canadian-Somali, for sexual assaults on four victims earlier the same morning.
He found the Constable not guilty of all charges laid in connection with the death of Mr. Abdi, which occurred during his arrest, on the grounds that the Crown failed to prove its case beyond a reasonable doubt.
In the absence of any indication that the Crown intends to appeal the judgment or until the Crown makes its final decision in this regard, I propose to proceed on the assumption and the personal belief that the learned Justice’s decision to acquit Constable Montsion is correct.
As to be expected nowadays, in the circumstances of this kind, the judgment did not put an end to the matter.
City Councillor Leiper
Ottawa City Councillor Jeff Leiper on Twitter gratuitously called the verdict “an indictment of our city and country.”
I submit that the world is full to its brim with citizens who would love to live in countries, regions, cities, and hamlets that governed by the kind of indictment Mr. Leiper is indignant about.
In fairness, Councillor Leiper was not the only one who objected to the judgment. A whole chorus of people got into a frenzy in condemning Constable Montsion, the Ottawa police force, the Police Department, the City Council, and the Mayor.
The manner in which many of the objections are worded suggests the need to improve the contents and possibly the quality of civic classes taught in our schools.
His Worship the Mayor Ottawa Jim Watson
The Mayor rushed in with his Preliminary Statement that read, inter alia: “Today, my primary thoughts go out to Mr. Abdi’s family and friends for their devastating loss. I would like to once again express my sincere condolences and regret for the death of their loved one.”
The Mayor’s timing and words are bizarre. If he has already expressed these feelings at the time of Mr. Abdi’s death and funeral, why is he expressing them again four years later?
On the other hand, if this is the first time he is expressing his sentiments, why did he wait four years?
Then again if this is the first time he is expressing them, why is he doing that on the day when the Court published its judgment acquitting Constable Montsion?
By his timing and his words, the Mayor, I am sure without intending it, sounded like, he was in effect telling them: “I am sorry you did not get your man convicted and sentenced to a prison term that would have caused him to lose his job and bring shame to himself and to his family and in the process inflict economic hardship to his wife and children while serving time.”
A most unfortunate sloppy bit of politicking followed by his assertion of having full confidence in our justice system which produced the kind of result that led him to rush to make his Preliminary Statement.
And going back to July 24, 2016, or in the following days, I do not recall his Worship rushing to make a preliminary statement to express his sympathies to Mr. Abdi’s four victims of sexual assaults and to their respective families; one of victims is still suffering from the trauma caused by Mr. Abdi’s vicious assault.
It seems to me that after expressing his condolences and regret, the Mayor ought to have shut up.
Needless to say, no one expressed any sympathy for what Constable Montsion and his family must have gone through during the over four -year saga and the gruelling, long, and difficult 72-day trial.
“Systemic” Discrimination?
Unfortunately, the Mayor chose to carry on and stepped into a swamp of his own making when he stated:
The complex functioning of systemic discrimination must be acknowledged by our institutions as well as by us as individuals if we are going to effectively address these issues head on.
It starts, with stating uncomfortable truths. Indigenous Peoples, Black and other racialized populations in Ottawa have been and continue to be disproportionately the victims of violence, racist graffiti, and racial slurs, excluded from activities and employment opportunities, and discriminated against in the workplace.
“The complex functioning of systemic discrimination”? It was his good fortune that, after delivering his statement, no one put him to task by asking him to explain, first, what exactly he meant by the phrase “systemic discrimination”; second, precisely what is it that makes it function in a complex fashion; and third, what precisely is the nature of the complexity?
Had he been asked these questions, I suggest that he would have been at loss trying to come up with a single coherent explanatory sentence.
This is so because, as author and economist Thomas Sowell, a Black man, put it: The concept of ‘systemic racism’ really has no meaning. When asked whether he thought there was any validity in the terms ‘systemic racism’ or ‘systemic oppression,’ Sowell responded that he did not.
Mr. Sowell went on to state:
It really has no meaning that can be specified and tested in the way that one tests [a] hypothesis. It does remind me of the propaganda tactics of Joseph Goebbels in the age of the Nazis, in which he was supposed to have said that people believe any lie if it’s repeated long enough and loud enough.
That is what we are getting. It is one of many words. I don’t think even the people who use it have any clear idea what they are saying. Their purpose is served by having other people cave in.” [‘It Really Has No Meaning’: Economist Thomas Sowell Dismisses ’Systemic Racism’ https://daily caller.com July 14, 2020.]
Readers interested in the personal background, the academic achievements and stature against which to weigh his opinion would find the information by googling his name.
I wholly agree with Mr. Sowell’s comments. Social scientists and human right activists, particularly in recent times, find it hard to resist resorting to complex sounding, meaningless jargon.
I suggest Mayor Watson is one of those who “caved “by engaging in cheap political posturing.
Yet again, the Mayor could have stopped at that point. He did not. Rather, he swiftly moved into what he considered to be the “uncomfortable truths” which he failed to substantiate by providing rigorously collected, organised and analysed statistical data.
Worse, the Mayor ignored or failed to acknowledge the fact that the uncomfortable truths which he enumerated are merely part of such truths. For example, for each year, say over the last 5 or 10 years in Ottawa, how does the number of cases of Somalis who engaged in violent behaviour against other Somalis and others compare with the number of cases where the police officers engaged in violent behaviour against Somalis, measured in terms of numbers and weighted in terms of their respective gravity?
It would have also been a proper thing for the Mayor to provide the crime rate of the Somali community compared to that of say, the Indigenous People and of other “racialized” (another silly term) groups, who in the Mayor’s opinion are subjected to systemic racial discrimination.
First suggestion
The Police Department may wish to give consideration to establish a special unit, or in the alternative, designate a number of members suitably trained to handle arrests in difficult circumstance to be the designated officers to deal with such situations such as the one faced by Constables Weir and Montsion on July 24, 2016.
Second suggestion
Back in 1971-1972, as a member of the faculty of the School of Social Work at Memorial University (MUN), I was invited by the then Chief of the Royal Newfoundland Constabulary (RNC), which policed the City of St. John’s, to design a part-time program to provide the members of the Constabulary with additional educational resources.
I accepted the invitation and designed a three-year Diploma program titled “Law Enforcement and Community Relations” and recruited the first inter-disciplinary teaching staff among my colleagues at that university and others.
With the passage of time, I lost touch with the enterprise. Currently, MUN is offering “The Diploma Program in Police Studies,” located in the Faculty of Humanities and Social Studies. It is offered exclusively to students who are recruit cadets of the RNC. The program provides them with the academic components of a degree program relevant to their future work as police officers.[www.mun.ca/plst]
Based on my experience and observation, I suggest that the City Police Department consider establishing an ongoing collaborative educational program that will fuse police knowledge, observations, experience and perspectives in dealing with ethnic, cultural, racial and religious minorities with those of academics who specialise in the sociology, anthropology and more specifically in the ethno-cultures (traditions, customs and practices) of newcomers – immigrants and refugees – from a host of regions and countries who settle in the city.
For example, some of the newcomer groups may originate from countries with strong violent subcultures; others from countries whose culture is passive-aggressive, yet others from countries whose culture is of a laisser-faire type. Some come from law-and-order democratic countries, while others were ruled by corrupt authoritarian regimes.
The overall objectives of this program would be: first, to identify the culture code of each of the minority groups in Ottawa and surrounding areas; second, to provide ongoing ethno-cultural training to police officers; third, to build progressively a data bank on each culture code; and, finally, to enable the Police Department and other city law enforcement units to devise effective ethno-cultural strategies to enable the rank and file to act in a culturally responsive yet alert manner in handling members of each of these communities and the communities themselves.
In the light of the federal government’s decision to take in close to 1.5 million newcomers within the next three years, an indeterminate segment of which will likely settle in Ottawa, the significance of the suggested program deserves proper consideration.
Third suggestion: About Police Health Workers
I think by now the need for Police Forces to acquire a staff of healthcare workers prepared to work with the police to assist constables, on patrol or at the detachments, to handle difficult situations like that faced by Weir and Montsion is self-evident, for the safety of both police officers and the person(s) they are seeking to restrain for one reason or another.
About Mr. Abdi
We do not know very much about Mr. Abdi’s life prior to that fateful day of July 24, 2016.
What did he do for a living? Did he have a criminal record? And if he did, what did that record consists of? On the day in question, did he just suddenly fancy the idea of sexually assaulting four women seriatim? Or did he have a history of committing sexual offences and being lucky enough not to have been caught at it or denounced by his victims out of fear or other reasons?
Turning around the “but for” test: Resisting arrest in Mr. Abdi’s personal circumstances
Mr. Abdi certainly must have known about his poor heart condition, since such conditions are not shy to make themselves known. And even if he did not know or care about it, surely his family would have told him about it, reminded him of it and warned him more than once not to overexert himself, let alone engage in a violent contest with the police seeking to arrest him.
Is this, then, the case of a man who knowing about his problematic heart condition deliberately engaged an unlawful act, i.e., resisted arrest, who overexerted himself by running away and then taking on two police officers who tried to subdue him so they could handcuff him, and as a result caused his heart arrest?
Putting aside for a moment the legal duties and obligations, the prescribed code of conduct and the professional standards governing the behaviour of police officers seeking to make an arrest in similar circumstances, it is fair to state that but for his totally unreasonable and unlawful behaviour, Mr. Abdi would still be with us today.
Mental Health Problems
The reasons for judgment mention Mr. Abdi’s mental health problem without going into detail, save for the fact that he failed to take his prescription as and when directed.
If this was the case, what did his family do about it? What do the Somali community, its various groupings and organisations and, for that matter, the Black Lives Matter (BLM) movement, do for persons like Mr. Abdi who are medically needy and, just as importantly, what do they do for their families, who have to struggle with the problem day in and day out?
None of the foregoing considerations would have absolved Constable Montsion from criminal liability had the Court been satisfied beyond a reasonable doubt that his conduct breached the law governing the offences with which he was charged.
Nevertheless, they raise questions about the credibility of those who organised or participated in the Justice for Abdirahman Rally and March.
The Justice for Abdirahman Rally and March
In response to the acquittal of Constable Montsion, hundreds of demonstrators comprising Indigenous persons who called for solidarity, Muslims, Blacks, Somalis and white persons organised a peaceful march led by Mr. Ifrah Yusuf, the incoming chair of the “Justice For Abdirahman Coalition,” to deliver its demands for local action for actual change rather than empty gestures.
Ironically enough, Mr. Yusuf proclaimed: “We need to feel safe in our city,” forgetting the fact that the whole sad story came about precisely because Mr. Abdi’s actions violated the personal safety of the four women he sexually assaulted.
He went on to say “Enough is enough. The time is now. Justice may have been denied the in the trial of the killer of Abdirahman Abdi, but we can still choose justice as a city and make our community safer for us.” Mr. Yusuf concluded his speech by making the following five demands on behalf of the coalition:
That the Ottawa Police Services Board freeze the police budget to the 2020 level at its next meeting on Nov. 9.
That City Council oppose any budget increase for the police department. The money should instead go to public health and social services for Ottawa’s Black and Indigenous communities.
That “demonstrably racist, misogynist and/or violent officers” be fired in the name of justice for the deceased, specifically naming Montsion and Ottawa Police Association president Matt Skof.
That the City of Ottawa seek an exemption under Ontario’s Police Services Act to have more control and oversight over the size of the force and its budget.
That there be an immediate alternative to a police response for an intervention with people who are in mental health crisis, as Abdi is claimed to have been at the time of his arrest outside the building where he lived.
I fully concur with the fifth recommendation, provided the nature of the mental health crisis does not threaten or breach the safety and security of others, as was the case for Mr. Abdi. In any event, the preferable solution would be for health officers to work in tandem with peace officers for the former’s own safety and security.
Likewise, the demand that increases to the police budget should instead be re-routed to finance public health and social services for Ottawa’s Black and Indigenous communities misses the point and is unfair to those communities themselves and to the wider community.
Surely, the need for increased and improved police services would be of benefit to all. This benefit ought not be sacrificed to make up for the alleged failure of the provincial and municipal government to adequately fund the essential health and social services needed to improve the quality of life in these two communities and others experiencing similar problems.
The remaining three demands leave a good deal to be desired.
The freezing of police budgets is a demand that became popular with the BLM movement in the U.S. This is rich coming from a movement whose members did not care to be stopped by the police in the American west coast cities while on a rampage sacking and destroying the livelihoods of a large number of white shopkeepers – particularly targeting those owned by Jewish merchants.
Engaging in summary justice by firing police officers described and named by the demonstrators would not do justice to anyone. Instead, it would be tantamount to engaging in the kind of behaviour about which the demonstrators complained. It would also violate the Charter rights and freedoms of the officers in question and deprive them of the opportunity to defend themselves in a court of law. It certainly would not make the Black and Indigenous communities safer.
I pass over the fourth demand other than to warn against exposing the Police Department to local political meddling at the municipal level. And if any evidence for my apprehension is needed, I would refer the reader to Mayor Watson’s comments.
Postscript: THE BLM movement
I am not surprised by the presence and participation of members and/or supporters of the BLM movement in the demonstration. Among all the shouting, there was at least one call of “Black lives, they matter here,” to which the response was, “They say get back, we say fight back.”
I am however concerned with the potential trajectory of the movement in Canada – particularly when I read pieces like the following:
The Marxist co-founder of BLM Toronto, Yusra Khogali, a Sudanese refugee, is open about her hatred of white people, whom she has described as subhuman. On Facebook she posted:
whiteness is not humxness. infact, white skin is sub-humxn.... white people are a genetic defect of blackness.... white ppl are recessive genetic defects. this is factual.... Melanin directly communicates with cosmic energy. this is why the indegeniety [sic] of all humxnity comes from blackness. we are the first and strongest of all humxns and our genetics are the foundation of all humxnity.... white ppl need white supremacy as a mechanism to protect their survival as a people because all they can do is produce themselves. black ppl simply through their dominant genes can literally wipe out the white race if we had the power to. it is why white supremacy as an imperial system thrives. it tries to control, suppress, and destroy our existence in blackness because we are a threat to the genetic annihilation of white ppl.
Khogali, also tweeted about her urge to kill white people:
Plz Allah give me strength to not cuss/kill these men and white folks out here today. Plz plz plz.
BLM references:
"DEFUND. DISARM. DISMANTLE. ABOLISH. #DefundThePolice #BlackLivesMatter". — BLM Toronto, June 19, 2020
cf. Soeren Kern “Black Lives Matter : “We will burn Down the System”, Part II
See also from the same author: “Black Lives Matter: We are trained Marxists–Part I”
For Blacks’ assessments of the BLM movement, see: Soeren Kern “Black Appraisals of Black Lives Matter-Parts I – IV”
https://www.gatestoneinstitute.org/16503/black-lives-matter-appraisals September 15,2020 https://www.gatestoneinstitute.org/16560/black-lives-matter-appraisals-2 September 30,2020 https://www.gatestoneinstitute.org/16610/black-lives-matter-appraisals-3 October 7,2020 https://www.gatestoneinstitute.org/16706/black-lives-matter-appraisals-4 October 31,2020
Where do we need to go from here: The case of Black newcomers
Intake of refugees and immigrants
I submit that the fundamental problem in handling Black refugees and migrants is the lack of an integrated system for dealing effectively with their social, cultural and religious backgrounds and characteristics right from the outset, starting with the process of identification and selection of newcomers through the immigration and refugee system (IRS).
Before engaging in this annual process,
The system must: a. secure up-to-date Canadian statistics of crime and pathological behavioural patterns of the migrants originating from the countries from which the IRS proposes to take in more refugees and/or immigrants, and b. become familiar with the nature of the dominant culture, values, customs, and practices of those countries from which the government propose to take in newcomers.
The system must not gamble with the safety and security of the inhabitants of Canada by taking newcomers from countries or regions which subscribe to a culture or subculture of violence.
During the process, it is imperative to:
Spell out for each newcomer, prior to making a decision as to whether or not to grant entry, the kinds of things they will not be permitted to do, such as: a. settling arguments and disputes by resorting to violence; b. showing disrespect for the rights, safety and security of all others; c. disobeying the orders and directions of persons in position of authority; d. engaging in criminal behaviour, etc.
Spell out: a. the fact that the final decision on their permanent admission will be made only at the conclusion of five years from their date of entry, and b. the consequences of breaching the foregoing rules during this period – such as the revocation of their refugee or immigrant status and return to their country of origin.
Require every newcomer who is 18 years or older to sign under oath a document that sets out the foregoing matters and the newcomer’s affirmation that s/he fully understands the contents of the document and pledges to abide by the conditions set out in the document.
Revive and energise the comatose system of enforcement of expulsion orders.
Services to be provided upon entry to Canada
Upon giving the right of entry into the country, the IRS must be required to provide information about the entrants to organisations involved with providing or co-ordinating services to newcomers, including social, cultural, educational, family, mental health, and employment information services.
Where numbers warrant, it would be advisable to use or establish an agency comprising personnel that have a good grasp of the specific socio- and ethno-cultural characteristics and adaptive needs of newcomers originating from specific countries or regions, to the point where they are or become adequately motivated to integrate into Canadian society and are ready and willing to put in the kind of effort to make the most of it.
And, during this integrative period and beyond, both provincial and federal government departments that oversee, regulate, or provide the kinds of services identified above must:
require their respective staff, as a term of employment, to ensure that the newcomers are not treated in a discriminatory fashion in any matter which comes within the purview of their work, and
provide the staff with the necessary legislative or regulatory tools to enable them to deal pro-actively and effectively with the parties who engage in negative discriminative practices against the newcomers, and for that matter against any member of the public, regardless of the persons’ identity.
Statistics and data management
Ideally, it would be most desirable to develop:
a statistical program to capture critical events in order to assess the effectiveness of the existing system as well as the nature of the personal difficulties experienced by newcomers and the manner in which each newcomer sought to solve these difficulties, and
a reporting program through which the coordinator of the foregoing support system would be required to provide information concerning each newcomer to the IRS authorities charged with the task of making the final decision as to the permanent admissibility of newcomers.
In the meantime, the authorities and staff involved in all stages of the process, particularly in the third stage of the process, are urged to cease and desist from talking incomprehensibly by using esoteric meaningless social science jargon and terminology, and start using a vocabulary that an ordinary citizen of average intelligence and level of sophistication would readily understand.
Doğan D. Akman is an independent researcher and commentator. He holds a B.Sc. in sociology, an M.A. in sociology/criminology and an LLB in law. He held academic appointments in sociology, criminology and social policy; served as a Judge of the Provincial Court of Newfoundland and Labrador, and occupied the positions of Crown Counsel in criminal prosecutions and in civil litigation at the Federal Department of Justice. His academic work is published in peer-reviewed professional journals while his opinion pieces and other writings are to be found in various publications and blogs