An off-duty Toronto police officer has received a suspended sentence and a year of probation after being found guilty of assault for forcing a Brampton man to the ground in 2021 over a fake Apple watch in a Kijiji deal gone bad.
Chadd Facey, 19, later died in hospital after the incident on April 26 of that year. But Superior Court Justice Jennifer Woollcombe noted in her sentencing decision for Const. Calvin Au Wednesday that any suggestion that the officer caused Facey’s death “must be disregarded,” as that wasn’t proven during the trial.
Woollcombe noted that her sentence — which also includes a weapons prohibition for three years — may affect Au’s employment as a police officer. But she said some level of deterrence was necessary in the case as Au used excessive force that wasn’t reasonable in the circumstances.
“He had police training and experience in de-escalation … and could and should have tried to calm the situation through his words,” she said while delivering her decision in a Brampton courtroom.
Au, 35, declined to speak in court when asked by Woollcombe if he had anything to say before she imposed his sentence. He stood straight ahead as members of Facey’s family filed out of the courtroom.
Facey’s mother, Fay Fagan, told reporters after the hearing that her son’s loss still weighs heavily on her.
“It’s very hard. I don’t think think it’s fair, because I lost my child,” she said. “Not even one day in jail? That’s not enough.”
One of Facey’s sisters, Nicole Hutton, said the sentence amounts to a slap on the wrist.
“He has zero remorse,” she said. “He has never once looked to us to apologize.”
The family’s legal team says it has since filed a lawsuit against Au and Toronto police.
Officer now has criminal record
Though Au will not face jail time, the suspended sentence in this case means he has had a criminal conviction registered against him, and that he will have a criminal record. The Crown had been seeking a sentence of four months followed by a year of probation, while the defence had been seeking a conditional discharge, which would not result in a conviction on Au’s record.
Toronto police say the 10-year veteran remains suspended with pay “as per the requirements of the Community Safety and Policing Act of Ontario.”
Speaking at an unrelated news conference Wednesday, police Chief Myron Demkiw said he had yet to be briefed on the specifics of the judge’s decision.
“But when I am, we’ll take into consideration what we have as options” and then “go from there,” Demkiw said. Au still faces internal discipline charges under the Police Services Act.
Earlier in the trial, Au was charged with assault causing bodily harm after initial charges of manslaughter and aggravated assault were downgraded. However, Woollcombe previously said she could not make a definite finding over whether the officer had 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 in her decision, leading to the finding of guilt on a lesser charge.
Defence lawyer Peter Brauti told reporters that Au has “mixed thoughts” about the situation. He is disappointed that he was found guilty, and in the weapons prohibition, but “at the same time, he does feel terrible for the Facey family, we all do.”
Brauti also said that even if Au had been found not guilty, nobody would have been “celebrating a victory,” as there was a “close temporal connection” to the incident with the watch and Facey’s death.
“He’s pretty torn up, and that was going to be the case no matter what happened,” Brauti said about his client.
Au refused to respond to questions from a reporter outside the courthouse after his sentence was handed down.
Au and his colleague — Toronto police Const. Gurmakh Benning — met Facey in a school parking lot in Brampton back in 2021, 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 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.
‘It will be forever unfair to us,’ sister says
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 in her initial decision in the case. 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 intracerebral hemorrhage.
“You tell that story to anyone and what can you conclude?” said Tanisha Hutton, one of Facey’s sisters, after court Wednesday.
“This assault happened and my brother is dead…. It’s just unfair and it will be forever unfair to us.”
