Months before last week’s Ottawa police raid that ended in the death of a young Black man, a judge found the city’s police department was defaulting to using no-knock warrants in all drugs and guns cases, reflecting “serious misconduct” and a “casual disregard for Charter rights.”
On October 7, Ottawa police executed a search warrant at the apartment of Anthony Aust and his family using a tactic called “dynamic entry,” where officers burst into a home unannounced. A family video of the encounter showed at least eight officers bursting into the apartment before yelling “police don’t move!” and setting off a flash grenade. Their rifles were drawn.
Videos by VICE
Aust, 23, who was awaiting trial on firearms and drug trafficking charges, jumped out of his 12th-story bedroom window and died.
His brother, Raymond Aust, previously told VICE News he thinks his brother would still be alive if police hadn’t used such an aggressive tactic.
“He was petrified of police and he was in a rush to think,” he said.
Aust’s family, including his 12-year-old brother who slept in the same room as him, sister, step-father and grandmother with health issues and girlfriend, were also home at the time of the raid.
His stepfather, Ben Poirier told CBC News officers handcuffed him after pushing him on the ground and didn’t believe he was a stroke survivor until his body started to slump.
Raymond told VICE News officers asked his younger brother if he sold drugs.
Ontario’s Special Investigations Unit is investigating the incident, as it does with any police interaction that ends in death. The Ottawa police have not responded to questions about their policy around dynamic entry search warrants.
So-called no-knock warrants were heavily criticized following the death of Breonna Taylor, a Black woman who was killed in March when Louisville police burst into her home in the middle of the night and shot her during the course of a drug-related raid. Taylor was not the suspect, nor did police did not find any drugs in her home.
But those types of raids aren’t limited to the U.S.
A 2010 Supreme Court of Canada decision found that police must generally comply with the knock and announce approach, which “not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public.”
But a Ontario Superior Court ruling from February found that dynamic entry arrests are the norm rather than the exception when Ottawa police execute search warrants with cases that may involve drugs, guns, or child porn.
The practice can violate a person’s constitutional rights against unreasonable search and seizure and amounts to “serious misconduct,” said Superior Court Justice Sally Gomery in her decision.
“The police cannot operate from an assumption that they should break in the door of any residence that they have a warrant to search. The court must be concerned about disassociating itself from this practice,” Gomery said.
“The officers who testified did not say when the Ottawa police decided that dynamic entry should be the rule rather than the exception. However long the practice has been in place, it reflects a casual disregard for Charter rights.”
The February decision centred on a no-knock warrant that was executed in November 2016, during the course of another drug-related arrest. In that case, eight Ottawa police officers armed with long guns stormed the suburban home of one of its suspects, Tamara Bahlawan, breaking down the door with a battering ram, and throwing a flash grenade, even though police had found Bahlawan and her boyfriend at a different location.
The officers forced Bahlawan’s brother and father to lie on their stomachs while they conducted sweeps of the home.
“They were terrified when they heard people forcing their way into their house,” wrote Gomery in her decision.
Gomery said she found that Ottawa police had never even considered using a knock and announce approach.
Duty Inspector John Medeiros, who made the final decision on how to execute the warrant, testified that officers only use a knock and announce approach “in situations where there is ‘zero risk’ to both the physical safety of officers and other persons at the scene and to the disposal of evidence,” the judgement said.
“In all other cases, forced entry was used, so that officers had the element of surprise.”
The ruling also quoted, Const. Medhy Khalid, a tactical officer who testified the need for “speed, surprise and domination” when conducting these types of raids.
Ottawa police did not respond to questions about how the ruling has impacted its use of no-knock warrants.
Speaking to CBC, former Ottawa SWAT team member Jeff Kilcollins described no-knock warrants as “bread and butter” to tactical units.
“We conduct hundreds of them a year in Ontario,” he said, noting courts prefer when a suspect is caught with evidence.
Mark Ertel, the Ottawa lawyer who launched Bahlawan’s challenge, said judges do not sign off on dynamic entry tactics when they approve a search warrant—that’s left up to the highest ranking officer on shift.
He said there should be more judicial oversight.
“If there’s judicial oversight about the method of entry then at least there’s someone reviewing whether there’s an objective basis for the decision to enter that way,” he said.
As it stands, police only have to justify their decision-making process in using a dynamic entry if the person subjected to it launches a challenge.
Ertel said police should be trying to incorporate the ruling into their operations, or they may risk having evidence seized in warrants thrown out in future challenges.
Ottawa-based criminal defence attorney Michael Spratt said the police force’s use of dynamic entry arrests for “run of the mill drug allegations” is a “recipe for harm.”
“It shows a completely cavalier attitude to restraint that we should all be seeing from police forces,” he said.
Aust’s family is now waiting for the Special Investigations Unit to make a finding on whether or not there are grounds to lay a criminal charge against any of the officers involved.
The SIU has designated three subject officers and nine witness officers.
But subject officers (whose conduct may have caused death or injury), don’t have to turn over their notes or submit to interviews. The ones in this case have not yet agreed to interviews, the SIU said in a news release.
In the meantime, a crowdfunding campaign has been set up to cover Aust’s funeral costs and to help his family.
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