The Toronto Police Services Board says the renowned gunsmith who died in a police raid just over a year ago “was the author of his own misfortune” in a recently filed statement of defence.
The statement, filed on Sept. 2, is in response to a $23 million lawsuit filed by Rodger Kotanko’s family, which alleges an “unlawful” raid led to his “wrongful death.”
An officer shot the 70-year-old while executing a search warrant on Nov. 3, 2021 at his gunsmithing workshop in Ontario’s Norfolk County.
The defence denies any wrongdoing on the part of the Toronto Police Services Board, Chief James Ramer, Insp. Norman Proctor and the five officers involved — Det. Const. Richard Haines, Det. Sgt. Robert DiDanieli, Det. Const. Alex Pandolfi, Det. Const. Jeffrey Winter and Det. Const. Graham Knill.
It’s the first time all of the officers involved have been named publicly.
Toronto Police Service (TPS) told CBC Hamilton all of the officers named in the statement of defence have been with the service for at least 17 years.
Its statement comes months after an investigation by Ontario’s police watchdog sided with TPS, saying the officers acted in self-defence.
None of the claims have been tested in court.
Getting the search warrant approved
Kotanko owned D.A.R.K. International Trading Co. Inc., which imports guns and gun parts, and R.K. Custom Guns, which offers gunsmithing and gun deactivation.
He operated out of his gunsmithing workshop on Port Ryerse Road, right next to his home, and was licensed. People who knew him say he was renowned for his work.
Search warrant documents previously obtained by CBC News show police raided Kotanko’s property to investigate why two guns with obliterated serial numbers registered to Kotanko were found at a crime scene in Toronto and another in North Bay, Ont.
The statement of defence says Kotanko and his employees didn’t contact the Canadian Firearms Program or Chief Firearms Officer to transfer the two guns.
They accuse him of not keeping track of his guns, improperly storing them, and illegally selling the guns.
In the search warrant documents, they also alleged Kotanko illegally removed the serial numbers off the two guns himself.
Kotanko’s family and lawyer have denied this.
The statement of claim alleged police used “irrelevant and prejudicial information” about Kotanko to get the search warrant approved.
Mike Smitiuch, the Kotanko family’s lawyer, said the gunsmith faced two convictions when he was 19, more than 50 years ago: One was for possession of cannabis with the intent of trafficking and the other was for illegally building a gun.
The day Kotanko died
The statement of defence says police arrived at Kotanko’s home and gunsmithing workshop on Nov. 3 to execute the search warrant.
It says TPS notified Ontario Provincial Police (OPP) before raiding Kotanko’s workshop.
The Kotanko family and lawyer have previously said Kotanko knew local OPP officers well and think Kotanko’s death could’ve been avoided if TPS had OPP approach the gunsmith.
They also previously said the raid didn’t need to happen in the gunsmithing workshop, which was full of guns.
The statement of defence says officers encountered Kotanko’s wife in the front yard before heading to the gunsmithing workshop.
The officers were in plainclothes, wearing dark safety vests that had the word “police” written in large, white block letters across their chest, according to the statement of defence.
It says officers also saw an unknown man later identified as one of Kotanko’s clients.
The defendants say officers identified themselves and asked the customer to raise his hands before doing the same for Kotanko.
It says the customer raised his hands but Kotanko reached for a gun and pointed it at the officers.
Kotanko’s family denies this.
Police made “further verbal commands for Mr. Kotanko to drop the firearm,” according to the statement of defence.
Defence says Kotanko created ‘situation of danger’
That’s when Det. Const. Richard Haines shot Kotanko, “fearing for the lives and safety of himself, the client, and his fellow officers,” according to the defence.
“[Kotanko] created a situation of danger … police officers involved in this matter acted in good faith, in a professional, competent and reasonable fashion without negligence,” reads the statement of defence, adding that the client wasn’t harmed.
“Attempts were made to revive Mr. Kotanko, but he was subsequently pronounced dead.”
Smitiuch, the Kotanko family’s lawyer, told CBC Hamilton he “couldn’t disagree more” with the idea, as presented in the defence, that Kotanko was the “author of his own misfortune.”
“If Toronto police had properly planned this raid, this never would’ve happened,” he said.
The investigation by Ontario’s police watchdog — which Haines didn’t participate in — also stated Kotanko’s client provided evidence that was “materially consistent with the police eyewitness accounts.”
The statement of claim says TPS seized many items, including firearms and Kotanko’s cellphone, but never presented anyone with a search warrant. It also states TPS hasn’t accounted for more than $20,000 in cash taken from Kotanko’s safe in his workshop.
The statement of defence denies anything was stolen.
They also say Kotanko’s Charter rights weren’t violated.
Defence says family made their own trauma worse
Part of the statement of claim said Kotanko’s family has been traumatized by his death, saying they’ve experienced nightmares, flashbacks, depression and other issues.
The statement of defence says that’s partly their own doing.
“The plaintiffs exacerbated [psychological harm] by unreasonably participating in and authorizing press conferences and interviews advancing claims about what had occurred, which they knew or ought to have known had no factual basis,” reads the statement of defence.
Smitiuch says Kotanko being shot and killed in his own workshop caused the emotional distress.
“Anything that happened thereafter pales in comparison to the shock and horror of learning that their loved one had been killed,” he said.
The statement of defence says the lawsuit should be dismissed.
Smitiuch said the disclosure process — the process where both parties share information — is still underway.
Kevin McGivney, one of the lawyers representing the defendants, told CBC Hamilton there’s no word on when both parties will be in court.