An off-duty Toronto police officer has been found guilty of assault after forcing a Brampton man to the ground in 2021 over a fake Apple watch in a Kijiji deal gone bad.
Chadd Facey, 19, died in hospital later that day. But an agreed statement of facts from the judge-alone trial says the Crown was “not in a position to allege that Facey’s death was caused by the interaction” with Const. Calvin Au on April 26 of that year.
In a ruling issued this week, Superior Court Justice Jennifer Woollcombe called Au, who has worked with Toronto police for nine years, a “very poor witness” whose testimony left her with “significant concerns about the credibility and reliability of his evidence.
“His evidence as a whole can accurately be characterized as unclear, evasive and argumentative,” she said in her judgment.
Alexa Banister-Thompson, one of Au’s lawyers, told CBC News in an email that they are disappointed with the result but respect the court process. She declined to comment further as the case is still before the courts.
In a statement, Toronto Police Association president Clayton Campbell said the union similarly respects Woollcombe’s decision, calling it a “tragic case for everyone involved.
“Our goal from the beginning was to ensure our member was treated fairly throughout the process and we will continue to do that as we head into sentencing and, eventually, the internal disciplinary process that will follow,” he said.
Family still hurting
Au was charged with assault causing bodily harm after initial charges of manslaughter and aggravated assault were downgraded. However, Woollcombe said she could not make a definite finding over whether the officer caused a hematoma later found on Facey’s forehead before he died.
“In these circumstances, I cannot be satisfied beyond a reasonable doubt that Au’s assault caused the bruise,” she wrote, leading to the finding of guilt on a lesser charge.
In a statement, Facey’s mother Fay Fagan said her family still deals with the loss of her son every single day.
“No decision will ever bring Chadd back to us,” she said.
“While Constable Au was convicted of assaulting Chadd — this is not the verdict that we had hoped for. However, the findings that the Judge made about Constable Au, his actions and his testimony bring me hope that Constable Au will continue to be held accountable for his actions that day.”
A Toronto police spokesperson said with the case still before the courts until sentencing is complete, Au remains with the force and is suspended with pay. He still faces internal discipline charges over the incident.
Au and his colleague — Toronto police Const. Gurmakh Benning — met Facey in a school parking lot in Brampton after Benning had arranged to buy an Apple watch from the younger man on Kijiji.
Benning paid $400 for the watch, only to discover very shortly after Facey had walked away that it was fake.
The pair of officers, who were both off-duty at the time, ended up splitting up in an effort to catch Facey. Benning got to him first and was able to grab his money back — and shortly thereafter, Au ran at them and took Facey to the ground.
Cops scared off by Facey’s friends
A few of Facey’s friends, whom he had called while being chased, then arrived and saw him lying on the ground with the two other men standing over him, according to the decision.
One of them ran over to Facey, “apparently frightening Benning and Au,” Woollcombe wrote. Benning briefly called 911 as the officers returned to his car and left.
Facey’s friends believed he was in some sort of medical distress and took him to one of their homes, where he deteriorated over the next couple of hours. Realizing he needed help, they later took him home, according to the decision.
At some point after 5 p.m. that day, Facey’s family and friends noted a bump on his forehead. He was taken to hospital, and later died as a result of an intercerebral hemorrhage.
Lawyer Asha James, who is representing the family, said it has been a long and stressful process for those who cared most about Facey.
“They know that no decision will ever bring Chadd back or make things okay,” she said in a statement. “The family respects the decision of the Court, but of course they were hoping for more.
“However, for the Court to recognize that the actions of Constable Au were not only wrong, but criminal, demonstrates that even off-duty police officers cannot abuse their power and authority.”
