Ontario's Special Investigations Unit (SIU) has cleared all Ottawa police officers of criminal wrongdoing in the falling death of 23-year-old Anthony Aust last October.
The SIU, which investigates incidents involving police where there is death, serious injury or allegations of sexual harassment, released its final report into the death Thursday. It found Aust tried to flee police apprehension when he first threw a baggie of drugs out the window, and then jumped 12 storeys from a bunk bed in his bedroom.
"There are no reasonable grounds to believe that the involved officers, including the three subject officers, contributed to the complainant's death by way of criminal negligence," SIU director Joseph Martino wrote.
Aust's death, and the tactics used by police, have come under much public scrutiny. For the past 11 months, his family and community groups have questioned whether the raid and specifically a practice called "dynamic entry" was necessary in a high-rise apartment building.
Dynamic entry is a no-knock raid in which police officers, often in full combat gear, use a battering ram to enter a home without announcement.
The entry remains a legal technique for officers to use in Ontario. Once a warrant is approved by a judge, it remains up to police discretion to decide what kind of entry they will use.
Drug warrant was executed
Aust was the subject of a drug unit warrant execution at his family's Jasmine Crescent apartment on the morning of Oct. 7. He had been on bail awaiting trial for firearms and drug charges at the time and wore a GPS ankle bracelet that monitored his movements.
The SIU report stated tactical officers breached the door of the apartment shortly before 9 a.m. looking for "firearms, illicit drugs and drug paraphernalia."
"With the door open, a distraction device was deployed into the apartment, detonating with a loud bang and flash of light, and producing a smoky haze. Officers streamed into the apartment shouting their presence — 'Police' — and directing that occupants of the unit not move."
The three Ottawa police officers, later named as "subject officers" in the investigation, included the two officers who together swung the battering ram to enter the apartment, plus the officer who deployed the distraction device. All are tactical officers.
At the time of the raid Aust was in his bedroom, and "at the sound of the commotion generated by police entry … [he] climbed through his bedroom window and jumped," the report states.
Just seconds before that fatal fall, a police officer on the ground saw Aust throw a "baggie" from the same window. That baggie would end up in a tree later retrieved by police, and testing revealed it contained fentanyl.
A closed-circuit television video camera on the outside of the building captured Aust's ankle bracelet bursting from his leg on impact, as officers were captured rushing to his body. A tactical paramedic who was part of the warrant execution "quickly arrived and began to administer first aid."
Aust was pronounced dead soon after.
'No evidence of any direct, physical force'
Martino said he was satisfied police, acting on the information of confidential sources, had reason to believe Aust "had resumed his drug trafficking activities" and "had reason to believe that (he) was again in possession of firearms."
While there is no evidence any of the tactical officers had physical contact with Aust, "the issue is whether there was any want of care in the manner in which the police operation was devised and executed that played a role in [his] death and was sufficiently egregious as to attract criminal sanction."
In Martino's view, "there was not."
Martino said he was "satisfied that the tactical officers had lawful grounds to enter and search the apartment" since a warrant authorizing the search was issued the day before.
"I am further satisfied that the plan developed to enter the apartment and the manner of its execution did not transgress the limits of care prescribed by the criminal law."
The report says police met on the morning of the raid to discuss the search and "consideration was given to the manner of entry."
Martino said one other option was a "breach and call-out" — "whereby the front door is forced upon and occupants are called out one by one by officers from a position of safety."
The incident commander, the senior officer overseeing the raid, chose a dynamic entry due to "the presence of third-party tenants on the floor and the risk of casualties or a barricaded person situation developing should a person in the apartment decide to arm themselves in a 'breach and call-out' scenario."
Martino found there were inherent risks in both approaches because police had reason to believe Aust was still armed.
"I am unable to reasonably conclude that the choice to go with a dynamic entry was without merit."
Officers could have planned for escape
While Martino found no criminal wrongdoing, he did note the tactical officers "did not appear to pay sufficient heed to the possibility that the subject of the search warrant … might attempt to flee apprehension via a descent from the building."
Witness officers told the SIU they thought it was a remote possibility because the apartment was on the 12th floor.
"In my view, the officers ought to have turned their attention to this contingency and made some provision for it," Martino said. One such provision, he wrote, could have been a visible police presence below the apartment to deter any desire to escape from the window.
Martino acknowledged possible shortcomings in the operation, but "any such deficiencies fell short of rendering the officers' conduct a marked and substantial departure from a reasonable level of care."
Force banned dynamic entries in some cases
In March 2021, Ottawa police Chief Peter Sloly temporarily banned the use of dynamic entries in cases where police are solely looking for "disposable evidence." That move was made during what police said was an ongoing review of the practice in light of the Aust case, and a court ruling criticizing overuse of the method.
At the time, Sloly said the "pause" would remain in effect while the service finalized the review and its recommendations.
The service was to present a final report to the board sometime before June 2021, but has not yet done so.
Aust's family has declined to comment on the report or its findings.
ABOUT THE AUTHOR
Shaamini Yogaretnam is CBC Ottawa's justice, crime and police reporter. She has spent nearly a decade covering crime in the nation's capital. You can reach her at firstname.lastname@example.org or 613-220-2486.
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