An off-duty Toronto police officer guilty of assaulting a teenager during a “Kijiji deal gone bad” has been handed a suspended sentence and 12 months probation.
Const. Calvin Au was also given a three-year weapons ban by Superior Court Justice Jennifer Woollcombe inside a Brampton, Ont., courtroom Wednesday.
“I am very concerned that despite his police training, Au demonstrated the unwillingness to assess the situation and then used excessive force,” Woollcombe said in part.
“In a situation where there were many other better options, his judgement was extremely poor.”
Au was found guilty of assault, but not guilty of assault causing bodily harm, in November for the April 26, 2021, incident involving 19-year-old Chadd Facey.
That day, off-duty Toronto police Const. Gurmakh Benning agreed to meet Facey to purchase an Apple Watch after he had posted on Kijiji to sell it.
During the trial, court heard Benning had asked Au, his partner, to accompany him, given he viewed Au as more tech savvy and wanted him to authenticate the watch. Facey negotiated a price of $400 with Benning.
Dressed in plain clothes, the two met Facey in the parking lot at Beryl Ford Public School on Ironshield Drive, near Cottrelle Boulevard and Highway 50, in Brampton for the transaction.
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Benning had purchased the watch before realizing it was counterfeit. Facey took off and following a five-minute foot pursuit with Au, Benning caught up to him and got his money back.
At the trial, Benning testified that Au took Facey down, without saying anything, because he thought Au didn’t know that he had already got his money back.
Au testified, in his own defence, that he didn’t know Benning had got his money back and took down Facey because he was going to arrest him. However, he did not identify himself as an officer or say he was arresting Facey. Woollcombe said she found that problematic when she delivered her ruling.
Woollcombe said in her ruling she found Au used force that was “excessive and unreasonable.”
“The force Au used was out of proportion with the objective of getting the money back,” Woollcombe said.
Au was originally charged with manslaughter, but the charge was later downgraded to assault causing bodily harm. At the beginning of the trial, an agreed statement of facts was entered that said “the Crown is not in a position to allege that Facey’s death was caused by the interaction with Au.”
Benning had called 911 and told the dispatcher about the “Kijiji deal gone bad” before the off-duty officers took off. Facey had called his friends who had earlier dropped him off at the location where the transaction took place after the rip-off. The friends testified they arrived on scene after the assault and picked him up.
A few hours later, Facey’s friends noticed a bump on his forehead. He later died in hospital because of an intracerebral hemorrhage.
Woollcombe found that the forensic evidence was not clear on how Facey got a bruise on his forehead and said the Crown failed to prove beyond a reasonable doubt that Au was guilty of assault causing bodily harm.
Crown prosecutors were asking Au to serve four months in custody, followed by 12 months’ probation, as well as a five-year weapons ban and DNA order. Au’s defence was asking for a conditional discharge and said a DNA order was not necessary
Woollcombe said Wednesday Au needed to be sentenced for the assault he was convicted of, and not for causing Facey’s death.
“The sentence must not seek to punish him for Facey’s death or the effect it’s had on his family,” Woollcombe said.
“I’m mindful that any conviction will put Au’s career in jeopardy. I do not think it is necessary to impose … a sentence that will inevitably result in his dismissal.”
Woollcombe ruled Au should have no communication with Facey’s family, take anger management counselling as directed by his probation officer and be subject to a DNA order.
Should he remain employed by the Toronto Police Service, he should take remedial training and 50 hours of community service focused on improving relations between police and the Black community, Woollcombe ruled.
“While the incident has caused a loss of public confidence with police within the Black community, no evidence it was motivated because Facey was black; race was irrelevant to them,” Woollcombe wrote.
Au has been suspended with pay since the charges were laid, and is still facing charges under provincial legislation governing policing.
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