A Toronto police officer convicted in the 2021 assault of Chadd Facey, a 19-year-old man who later died, has avoided jail time and has instead been given a suspended sentence of 12 months probation.
Const. Calvin Au, who was off-duty at the time of the incident, was convicted of assault back in November.
Au’s sentence, which includes a three-year weapons ban and a requirement to submit a DNA sample, was handed down in a Brampton courtroom Wednesday.
The case revolved around the events of April 26, 2021, when Au and Gurmakh Benning – another off-duty officer – met up with Facey at a school parking lot near the intersection of Highway 50 and Bellchase Trail. Benning wanted to purchase an Apple Watch Facey had advertised on Kijiji.
Benning paid Facey $400 for the watch, but soon realized it was a fake. The two men chased after Facey. After Benning took his money back, Au caught up and tackled Facey to the ground.
Facey’s friends arrived. Benning then called 911 and he and Au left.
Facey was eventually taken to Brampton Civic Hospital, where he died of an intercerebral hemorrhage. However Justice Jennifer Woollcombe found that she was not able to say for certain whether the assault contributed to Facey’s death.
While the sentence is harsher than the conditional discharge the defence sought, Au still avoided jail time.
The Crown had been seeking a four-month jail sentence, in addition to 12 months probation, a five-year weapons ban and a requirement that Au submit a DNA sample.
Family responds
Facey’s mother, Fay Fagan, spoke outside the courthouse following the sentencing and said that no sentence will ever bring her son back.
“It’s very hard. I don’t think it’s fair because I lost my child. And for him (Au) to get 12 months probation, that’s not enough,” Fagan said. “Not even one day in jail? That’s not enough.”
Asha James, the family’s lawyer, said that while they respect the judge’s decision, the family is disappointed with the sentence.
“Chad is dead and the family is dealing with that loss, and we were here in court about an assault, and so it really does become a bit of an artificial legal exercise in terms of how you address that,” James said.
“And so of course, you know, the family is disappointed with the result. They wanted some jail time for constable Au, but we respect the decision of the court.”
In a statement, she said her firm will continue to support Facey’s family “while they seek accountability from all parties who had a role in Chadd’s death.”
The family has filed a multimillion-dollar lawsuit against the officers, as well as the Toronto Police Service.
Sentence includes weapons ban
Au’s three-year weapon ban does not include an exemption for employment, leaving his job with the Toronto Police Service in question. Disciplinary charges against him are still pending.
Also speaking outside the courthouse Wednesday, Defence lawyer Peter Brauti said the weapons ban in this sentence was surprising.
“I would be lying if I said I wasn’t surprised at the order, because this was a case that didn’t involve a weapon, didn’t involve a threat of a weapon,” Brauti said.
“He (Au) was legally justified to use a certain amount of force. The judge found that he subjectively believed that he could have used the force that he did, but he was wrong and made a mistake, and the mistake was in the context of a very quick interaction. And so I haven’t seen a weapons prohibition in those kind of circumstances.”
The Toronto Police Association (TPA) – the union representing Toronto police officers – said in a statement that it is continuing to support Au through several other processes associated with the case, but did not comment on the sentence itself.
“The TPA is aware of the sentencing today of Constable Au, and continues to support the officer during this time. There are still several steps in this process, including a possible appeal, internal disciplinary matters, etc., and until those decisions have been made, we have no further comment,” the organization wrote.
Asked about the sentencing at an unrelated news conference, Chief Myron Demkiw said he has not yet been fully briefed on the court’s decision.
“When I am, we’ll take into consideration what we have as options under the new Community Safety Policing Act, and what options I have available to me as chief and we’ll go from there,” Demkiw said.
Au, 35, has 10 years of service with the force. He remains suspended with pay as per the Community Safety and Policing Act of Ontario, Toronto police confirmed.
