Police face no charges over raid, fatal plunge
Ottawa police officers did not commit a criminal offence when they conducted a raid that ended with a man plunging to his death from a 12th-storey window, Ontario's civilian police watchdog has concluded.
Anthony Aust, 23, died on the morning of Oct. 7, 2020, after three tactical officers conducted a “dynamic entry” into the family's apartment on Jasmine Crescent to execute a search warrant for firearms and drugs.
Seconds after the officers stormed in, Aust jumped through his bedroom window. He was pronounced dead at the scene.
Advocates in Ottawa's Black community said Aust was terrified of police and jail and argued that police had an obligation to keep him safe even as they brought him into custody. Considering his mental state, police should have anticipated that he might jump, they argued.
Aust's mother, Nhorah Aust, said she was disappointed by the Special Investigations Unit report, but had expected police would be cleared.
“With everything that have happened through the years, I didn't expect anything better,” she said.
The SIU, an independent agency that probes police conduct in incidents involving death and serious injury, assigned three investigators and a forensic investigator to the case. One of the three tactical officers declined to be interviewed, as was his legal right. Six of seven civilian witnesses were interviewed.
In the report, SIU director Joseph Martino said he accepted that Aust decided to jump from his window to escape arrest, but there were no reasonable grounds to believe that officers contributed to his death through criminal negligence.
Video from an in-home surveillance camera recorded the tactical team forcing open the door, detonating a smoke bomb and shouting at the occupants not to move.
At the sound of the commotion, Aust climbed through his bedroom window. Seconds earlier, he had thrown a baggie from the same window, later found to contain fentanyl, the report said. Heroin and fentanyl were also seized in a search of the apartment, as well as a BB gun — but no handgun.
Martino said there was no evidence that the officers used any direct, physical force against Aust.
However, criminal negligence causing death can apply to cases that “demonstrate a wanton or reckless disregard for the lives or safety of other persons.”
In this case, the issue was whether there was any want of care in the manner in which the police executed the warrant, Martino wrote. “In my view, there was not. I am satisfied that the tactical officers had lawful grounds to enter and search the apartment.”
Martino was also satisfied that the raid did not go beyond the limits of care prescribed in criminal law.
Aust had been arrested in January 2020 on drug and weapons charges. Police had information alleging he continued to deal in drugs and had a handgun.
There were two options to conduct the arrest. One was a “breach and call-out,” in which the door is forced upon and officers call out the occupants one by one.
The alternative was a “dynamic entry,” in which officers use the element of surprise and an overwhelming show of force to disorient those inside.
The incident commander decided on a dynamic entry for a number of reasons, Martino said, including the presence of other tenants on the floor and the risk of casualties or a barricaded person if someone in the apartment decided to arm themselves in the “breach and callout” scenario.
In 2020, an Ottawa judge acquitted Tamara Bahlawan, 27, on drugs and gun charges.
The court noted that police were to knock and announce their presence before entering a home with a search warrant. In that case, officers went ahead with the dynamic entry based on accepted practice and violated the accused's right to be free from unreasonable search and seizure.
But unlike the circumstances in the Bahlawan case, the police had a reason to be concerned about a firearm in the case on Jasmine Crescent, Martino said.
However, he noted that officers did not appear to pay sufficient heed to the possibility that Aust might attempt to jump. Officers told SIU investigators they felt the possibility was remote given the height of the apartment. But there have been other recent cases. In August 2020, the SIU cleared five Toronto police officers in the death of Regis Korchinski-Paquet, who fell to her death from a 24th-floor balcony while police were in her apartment.
Robin Browne, a spokesman for 613-819 Black Hub, said the ant-racism group was calling for
It's a very one-sided process to get a warrant. They don't have to explain how they will execute the warrant.
a system where first responders and mental health workers made the approach, not police.
“The system isn't broken. It's operating exactly as it was designed. The techniques aren't illegal,” Browne said. “We want police to be removed completely.”
Lawrence Greenspon, a lawyer for the Aust family, said he saw no evidence of racism in the report. However, the SIU has recognized there were other alternatives to dynamic entry.
Aust was wearing a GPS tracking ankle bracelet and was confined to the apartment. It would be surprising if he was not depressed, Greenspon said. A visible police presence on the ground below the apartment might have been a deterrent.
Greenspon has two concerns about search warrants and dynamic entries.
When police approach a judge for a search warrant, there is no one to act as an advocate for the subject of the warrant, he said. Once a warrant is issued, it's up to the police situation commander to decide which method of entry to use. That decision should be made by a judge, Greenspon argued.
“It's a very one-sided process to get a warrant. They don't have to explain how they will execute the warrant,” Greenspon said. “We end up with all of these challenges after the fact.”
In a statement, Ottawa police Chief Peter Sloly acknowledged that the tragedy had deeply affected the Aust family and members of the community, and he extended condolences to the family.
“This incident has also affected OPS members. The conclusion of the SIU investigation brings some measure of closure for all those who have been directly or indirectly impacted,” Sloly's statement said.
The police service will review the report to assess how it can further contribute to efforts to learn and improve, including the legislated requirement to initiate an internal Section 11 Review.
The Section 11 Review report will be submitted to the Ottawa Police Services Board and the recommendations will be fully implemented with as much community input as possible, Sloly said.