An off-duty Toronto police officer has been found guilty of assault, but not guilty of assault causing bodily harm, in a “Kijiji deal gone bad” where a teen sold a fake Apple Watch and later died from a head injury.
On April 26, 2021, off-duty officer Const. Gurmakh Benning agreed to meet 19-year-old Chadd Facey who had posted an ad on Kijiji to sell an Apple Watch.
Facey negotiated a price of $400 with Benning. The court heard that Benning had asked Const. Calvin Au, his partner, to accompany him given he viewed Au as more tech savvy and wanted him to authenticate the watch.
Dressed in plainclothes, the two met Facey at in the parking lot at Beryl Ford public school on Ironshield Drive, near Cottrelle Boulevard and Highway 50, in Brampton for the transaction.
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. Superior Court Justice Jennifer Woollcombe said she found that problematic.
Woollcombe called Au “a very poor witness” whom she found forthcoming during the examination-in-chief but combative and argumentative with the Crown during cross-examination. The judge said defence lawyer Peter Brauti said in his closing submissions that Au was nervous and lacked sophistication, but the judge said that she had concerns about his credibility and reliability.
“He is 34, he went to police college, university and has worked for the TPS (Toronto Police Service) for almost ten years. It is unimaginable that he would not have significant experience testifying in court,” she said.
Justice Woollcombe said in her ruling on Wednesday 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 which 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 as a result of intracerebral hemorrhage.
Justice 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.
“It’s likely he sustained force to his head during the takedown but I cannot be sure from the evidence at trial as to what happened. I cannot be satisfied that the assault caused the bruise,” she said.
A sentencing hearing is scheduled for Jan. 6.
Au remains suspended with pay. Toronto Police Association president Clayton Campbell said the following in a statement to Global News.
“This was a tragic case for everyone involved,” Clayton said. “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. In the meantime, the officer’s counsel will review the decision and determine next steps.”