WARNING: This story contains content some readers may find disturbing. Discretion is advised.
Ontario’s police watchdog is recommending no charges against the Ottawa officers involved in the death of 23-year-old Anthony Aust, who fell from his 12th-storey apartment building on Jasmine Crescent as officers executed a no-knock warrant last October.
Joseph Martino, director of the Special Investigations Unit, said in a report released Thursday that there were no grounds to lay criminal charges against police in the incident, even as he acknowledged possible “shortcomings” in the officer’s use of dynamic entry tactics — an approach that has since been temporarily banned by Ottawa’s chief of police.
Police entered the Aust family home on Oct. 7, 2020 shortly before 9 a.m. on grounds to search the apartment for firearms and illicit substances, the SIU report says, citing information from confidential OPS sources that Aust was armed and had been trafficking drugs.
The OPS incident commander decided the option least likely to result in casualties was a dynamic entry, a controversial police tactic the SIU report describes like this: “officers would storm the unit using the element of surprise and an overwhelming show of force to disorient the occupants and neutralize any potential threats before they materialized.”
In this instance, police forced the door of the 12th-floor apartment open with a battering ram and lobbed a distraction device inside, producing a bang and flash of light and emitting a haze. Aust, his stepfather, girlfriend, grandmother and two siblings were inside the apartment at the time.
The SIU report says Aust jumped from his bedroom window after police announced their presence and entered the apartment but before the officers made direct contact. A paramedic who had accompanied tactical officers tried to administer first aid to Aust on the ground outside, but he had lost vital signs and could not be resuscitated.
He was pronounced dead at the scene. A pathologist later confirmed the fall killed him.
A search of the apartment uncovered quantities of heroin and fentanyl, according to the SIU. Police also found a bag with fentanyl inside in the branches of a tree nearby the apartment, with the SIU report indicating Aust had thrown it from his bedroom window when officers burst into the apartment.
Though police “had reason to believe” that Aust was in possession of a firearm, according to the SIU, no such weaponry was found in the apartment.
Read more:
SIU probing 2 incidents involving Ottawa police within hours of each other
Three officers involved in the attempted arrest — two who had used the battering ram to open the apartment door and a third who threw the distraction device inside — were identified as subject officers for the SIU probe.
Because there was no evidence of direct physical confrontation between Aust and the officers, Martino wrote in his report that he examined criminal negligence causing death as the only possible charge in the incident.
At the heart of Martino’s examination was whether the use of the dynamic entry tactic was warranted.
While he acknowledged a less jarring “breach and call-out” approach could have been employed, wherein police would have called out occupants one at a time from the hallway, Martino determined that the OPS tactical team’s use of dynamic entry was warranted.
He said the belief that Aust, who wore a GPS ankle monitor following his January 2020 arrest for drug and weapons charges, had a handgun in his possession could justify the dynamic entry, even though no firearm was ultimately found on the premises.
Arguing that Aust’s jump was an attempt to avoid arrest, Martino said in his report that police could have done more to anticipate the instinct to flee. A more visible police presence below the apartment could have deterred such an action, he wrote, though he also added that could have removed the element of surprise from the no-knock entry.
“In my view, the officers ought to have turned their attention to this contingency and made some provision for it,” he wrote.
Martino concluded by saying that even if the police entry was the impetus for Aust’s jump, he did not believe any of the officers involved should be charged with negligence.
“Though there may have been shortcomings in the operation that saw officers enter the complainant’s apartment by way of dynamic entry, any such deficiencies fell short of rendering the officers’ conduct a marked and substantial departure from a reasonable level of care,” he wrote.
“Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.”
The dynamic entry practice itself has been under heavy scrutiny as of late, with several U.S. states banning the tactic following the killing of Breonna Taylor in Kentucky in 2020.
After Aust’s death in 2020, community safety advocates questioned the local force’s use of the practice in delegations to the Ottawa Police Services Board.
Ottawa police Chief Peter Sloly put a temporary halt on OPS use of dynamic entries in March 2021, following a review launched in February 2020. A final report on recommendations stemming from that review is still pending.
The practice is still permitted if Sloly or another appropriate senior officer authorizes it in a case where preserving evidence is deemed essential, or in the event of a pressing emergency such as an active shooter.