COURT FILE NO.: CRIMJ(P) 23/364

DATE: 2024 11 27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

S. Horgan and C. Weiler, for the Crown

– and –

CALVIN AU

P. Brauti and A. Banister-Thompson for Mr. Au

HEARD: September 23, 24, 25, 26, October 1, 2, 2024

REASONS FOR JUDGMENT

J.M. Woollcombe J.

Introduction

[1] Calvin Au (“Au”) is charged with one count of assault causing bodily harm on Chad Facey (“Facey”).

[2] By way of summary, Au is a member of the Toronto Police Service (“TPS”). His TPS colleague, Gurmakh Benning (“Benning”), arranged on Kijiji to buy an Apple watch from Facey. On April 26, 2021, the two off duty officers drove to Brampton. They met with Facey in a school parking lot. Benning paid $400 for the Apple watch, only to discover very shortly after Facey had left that it was fake.

[3] As Facey ran away from them, Au and Benning pursued him. Initially, Au and Benning followed Facey from Benning’s car, from which Benning called out to him that he wanted his money back because the watch was fake. Facey continued to run, entering a foot path into the nearby ravine area. Au left the car and ran after Facey.

[4] Au was unable to catch Facey, who headed out of the ravine back towards the street. Au telephoned Benning and asked him to drive along the street to where they were. Benning drove along Bellchase Trail and parked next to a grassy area, where the critical confrontation between Au and Facey took place. Benning approached Facey and said something about the money. He reached for the money in Facey’s hand and grabbed it. Without saying a word, Au ran at them and took Facey to the ground. This is the alleged assault.

[5] Facey’s friends, whom he had called while being pursued, arrived in the area and saw him lying on the ground with Benning and Au standing over him. One of them ran to Facey, apparently frightening Benning and Au. Benning called 911. The off-duty officers then returned to Benning’s car and left.

[6] Facey’s friends believed he was in some medical distress and took him to one of their homes. He deteriorated over the next couple of hours. Realizing he needed help, they took him home. At some point after 5:00 p.m., Facey’s family and friends noted a bump on his forehead. He was taken to hospital.

[7] The story of what happened on April 26, 2021 does not end there. The events that followed are tragic. Later that very day, Chad Facey died as a result of intercerebral hemorrhage. The Crown does not allege that Facey’s death was caused by his interaction with Au. I have no doubt that the loss of Chad Facey, a young man who had his life ahead of him, still weighs heavily on the hearts and minds of his family and friends. The fact of his death loomed over the trial. But the question of how and why he died is not before the court and is not an issue to be decided in this criminal trial.

[8] The Crown submits that Au’s conduct was an unlawful assault on Facey and that the bump was caused during the assault. The defence submits that Au arrested Facey, or acted in lawful defence of Benning’s property, and that the Crown has failed to disprove the defences under ss. 25 and 35 of the Code. The defence also disputes that the Crown has proven beyond a reasonable doubt that the bump resulted from Au’s unlawful assault.

[9] There is no doubt that Au used force on Facey. The Crown concedes that there is an air of reality to the defences under both ss. 25 and 35 of the Code. The issue to be decided is whether the Crown has proven beyond a reasonable doubt that neither of the defences in ss. 25 and 35 of the Criminal Code are available to Au. If it has, the question is whether the Crown has proven beyond a reasonable doubt that Au caused the bruise.

[10] In this judgment, I will review the legal principles that govern my decision. I will set out the factual and credibility findings that I have made on the basis of my assessment of the evidence. I will then explain the reasons for the legal conclusions I have reached respecting ss. 25 and 35 of the Criminal Code.

Legal Principles

i) Fundamental Principles

[11] I begin with the most basic legal principles. Mr. Au is presumed innocent of the charge he faces. The burden of proof is on the Crown. It is for the Crown to prove beyond a reasonable doubt that he is guilty of the offence charged. There is no onus on the accused to prove anything.

[12] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. I may find the accused guilty only if I am sure that he committed the offence alleged.

ii) Assessing credibility

[13] This case turns to a significant degree on the credibility and reliability of the critical evidence of Benning and Au.

[14] There is no magic formula for deciding whether a witness is being truthful. There are many factors to consider including whether the witness’s evidence is internally consistent and consistent with the other witnesses and exhibits, whether the witness is biased or motivated to give evidence that favours one side or the other (which does not apply to the accused), whether inconsistencies are about minor or important matters, and what explanations are offered for any inconsistencies. While the manner in which a witness testifies is a factor to consider, it is not the most important factor, as witnesses may have different life experiences, may or may not have experience testifying and may be nervous when before a court.

[15] It is important to distinguish between credibility and reliability as they are separate concepts. Credibility has to do with a witness’s truthfulness and whether the witness was being honest about what happened. Reliability has to do with the accuracy of the evidence and whether the witness was able to accurately observe, recall and recount what happened. If a witness is not credible, their evidence on an issue cannot be reliable. At the same time, a witness who is credible may give unreliable evidence.

[16] In any case where an accused testifies, the important principles of R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 must be considered. W.D. is not a rote formula to apply. Indeed, in cases such as this one, where the accused advances a defence that has an objective component, the analysis in W.D. must be modified. An accused’s evidence will only result in an acquittal if it establishes, or leaves the trier with a reasonable doubt, about the objective component of the defence: R. v. Theriault, 2020 ONSC 3317, at para. 29; R. v. Reid, 2003 CanLII 52155 (ON CA), [2003] OJ No 2282 (C.A.) 2003, at paras. 72-73; R. v. Fyke, 2024 ONSC 169, at paras. 148-149.

[17] Accordingly, given Au’s evidence that he used reasonable force in a lawful arrest and that he acted reasonably in an attempt to retrieve Benning’s property, I must acquit him if I believe his evidence and find that the force he used and what he did was reasonable, as a matter of law. Similarly, if his evidence leaves me with a reasonable doubt that, as a matter of law, the force was reasonable or what he did was reasonable, I must acquit. Lastly, even if I reject his evidence, I must assess all of the evidence that I do accept to decide whether the Crown has proven beyond a reasonable doubt that neither s. 25 nor 35 apply.

iii) The Offence Charged

[18] I turn now to the offence of assault causing bodily harm, s. 267(b) of the Criminal Code.

[19] In order to prove this offence, the Crown must prove beyond a reasonable doubt: that Au unlawfully applied force to Facey, that Facey did not consent, that Au knew that Facey did not consent and that the force caused bodily harm to Facey. The Crown need not prove that Au meant to cause the bodily harm. It need only prove that a reasonable person, in the circumstances, would realise that the force applied would put Facey at risk of suffering some kind of bodily harm.

[20] It is agreed that Au’s action in taking Facey down was a direct application of force that Au knew was without consent. The issues are whether the assault was unlawful and whether, if it was, it caused bodily harm.

iv) The legal authority to arrest

[21] Sections 494 and 495 of the Criminal Code authorize citizens and peace officers to arrest those they find committing criminal offences. An off-duty police officer remains a police officer, but is not restricted to the arrest power under s. 495 and can arrest as a “citizen” under s. 494 of the Code: Theriault, at para. 230.

[22] In order to effect an arrest, a police officer must have reasonable and probable grounds to arrest a person. As summarized in R. v. Beaver, 2022 SCC 54, at para. 72, consistent with well-established legal principles, the arresting officer must subjectively have reasonable and probable grounds and those grounds must be justifiable from an objective viewpoint.

v) The use of force by persons acting under authority

[23] Section 25 of the Criminal Code provides that everyone who is authorized by law to effect an arrest, either as a private citizen or as a police officer, is, “if he acts on reasonable grounds, justified in doing what he is authorized or required to do and in using as much force as is necessary for that purpose.” This section provides a defence for the use of force during a lawful arrest, whether the arrest is effected under the authority of s. 494 or s. 495.

[24] Effecting an arrest may be done in more than one manner. An arrest consists of either (i) the actual seizure or touching of a person’s body with a view to his detention, or (ii) pronouncing of “words of arrest” to a person who submits to the arresting officer. The word “arrest” need not be used, and an officer’s conduct can amount to an arrest if the officer makes clear that he will, if necessary, use force to prevent the individual from going where he may want to go. In these circumstances of a de facto arrest, what counts is what the person being arrested can reasonably be supposed to have understood in all of the circumstances: R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217 at paras. 23-25; R. v. Asante-Mensah, 2003 SCC 38, at paras. 42-43; R. v. Bielli, 2021 ONCA 222, at paras. 69-71; Fyke, at para. 162.

[25] When force is used to effect an arrest, the amount of force permitted is limited to that which is reasonably required in the circumstances. Wisely, the law does not judge the actions of police officers, or others who effect arrests, against a standard of perfection. This is because they are often engaged in dangerous and demanding work that requires them to react quickly to emergencies. They cannot be expected to measure the force used with exactitude. Their conduct must be measured in light of the exigent circumstances in which they may be effecting an arrest. The touchstone is that the force used must be reasonable, proportionate and necessary: R. v. Nasogaluak, 2010 SCC 6; Asante-Mensah, at paras. 74-76.

[26] It follows that degree of force that may be reasonable entails an element of discretion on the part of the police. There is a permissible range of response that may be accepted as reasonable. When officers act within that reasonable range, “they will not be denied the protection afforded under s. 25(1) of the Code if they fail to use the least amount of force that could achieve the desired result.” In other words, some allowance is to be granted to police who misjudge the degree of force in the “exigency of the moment”: R. v. DaCosta, 2015 ONSC 1586, at paras. 103-105; R. v. Montsion, 2020 ONCJ 464, at para. 422.

vi) Defence of property under s. 35 of the Code

[27] Section 35 of the Criminal Code, provides a defence to an assault if the accused believes on reasonable grounds that they or another person they are assisting was in peaceable possession of property; that the accused believes on reasonable grounds that someone else has taken the property, that the assault is committed for the purpose of taking the property and that the assault is “reasonable in all of the circumstances”: R. v. Cormier, 2017 NBCA 10, at paras. 47-50. Like with s. 25, once an air of reality exists, as if does here, the Crown must disprove the defence.

vii) After-the-fact conduct

[28] After the fact conduct encompasses what an accused person did and said after the offence charged. It is a form of circumstantial evidence. Like all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct. To draw inferences, the trier of fact invokes logic, common sense and human experience. When there are multiple plausible explanations for an accused’s after the fact conduct, it cannot be used by the trier of fact as evidence of guilt unless any alternative explanation is rejected. R. v. Calnen, 2019 SCC 6, at paras. 111-112, 134; R. v. Hudson, 2021 ONCA 772, at paras. 136-140; R. v. Rudder, 2023 ONCA 864, at para. 52.

Relevant Evidence

[29] Much of what happened on April 26, 2021 is not contentious.

[30] The night before, on April 25, 2021, Chad Facey spent the evening with his family, including his sister Renae Facey, who testified at trial. She observed no injury to her brother that night and he made no complaints about his health. She did not see him on April 26, 2021 until about 5 p.m.

[31] Prior to April 26, 2021, there is no dispute that Facey was an otherwise healthy 19-year-old. He was 5’ 10” tall and weighted 128 pounds.

i) Evidence of Nkrumah and Green about earlier in the day

[32] The evidence as to what Facey did before meeting with Au and Benning on April 26th came from his two friends, Isaac Nkrumah (“Nkrumah”) and J’Len Green (“Green”). They spent time with Facey in the morning and early afternoon. At some point, Facey told them that he needed to deal with something. Facey and Benning had agreed to meet at Beryl Field Public School to complete the Apple watch sale. Their text messages reveal that Benning and Au were at the school waiting Facey’s arrival by 2:41:24 p.m.. Green, accompanied by Nkrumah, drove Facey to Wynford Park, near the school, dropped him and left.

ii) The critical time period

[33] Phone records show that Facey was not yet at the school meeting point at 2:43:37 p.m. His phone was still at the school as of 2:49:12 p.m.. He likely arrived at about 2:45 p.m. The critical time in the case is between the time this meeting ended, shortly after 2:49 p.m., and the time of Benning’s 911 call at 2:54:52, less than 6 minutes later, by which point Au had taken Facey to the ground.

iii) Evidence of Benning

[34] As of April 2021, Benning had been a TPS officer for about 5 ½ years. He is 5’ 8” tall and at the time weighed about 165 pounds. Benning testified that he had asked Au, a fellow TPS officer, to accompany him for the watch purchase. He wanted Au to authenticate the watch as he was not confident he would be able to do so. He viewed Au as more “tech savvy” and as knowing about Apple watches. The officers went to Brampton in plain clothes and with no use of force options.

[35] When Facey arrived at the parking lot, he had a bag containing a box. Benning asked if he could open the sealed box to look at the watch and ensure it was real. Facey said something to the effect: “if you open it, you have bought it”. Without seeing the watch, Benning handed him four $100 bills and Facey gave him the box. Facey told them he had to hurry because he had work, and he left quickly. He jogged at first and then appeared to be running down Franktown Drive.

[36] Benning gave the watch to Au, who opened the box and within 15-20 seconds told him it was a fake. Benning said that he felt that he had been ripped off and wanted his money back. He agreed that he may have been upset.

[37] Benning drove down Franktown Drive toward where they had last seen Facey. He said that they had an encounter with Facey near the intersection of Franktown Drive and Bellchase Trail. He told Facey, from the car, that the watch was a fake and he wanted his money back. While under cross-examination it was suggested to Benning that he was mistaken about where that first encounter with Facey had been, and that it was actually at Wynford Park, he was sure he was correct that it had not been Wynford Park. In response to being called out, Facey bolted down the path into the ravine.

[38] Au got out of Benning’s car and pursued Facey. Benning described Facey as in “full sprint” when he entered the trail, at the location depicted in Exhibit 2, photo 18.

[39] Benning then parked on Bellchase Trail and ran into the ravine area. He thought he got as far as the intersection with another path, depicted in Exhibit 2, photo 20. He did not see Au or Facey and began walking back to his car. As he did so, he received a call from Au, who was panting and out of breath. Au told him that that the male was walking up a hill ahead of him and was on the phone. Au told Benning that if he drove down the street, he would see Facey. Benning got into his car and drove along Bellchase Trail towards Education Road.

[40] Benning did not see Au. He did see Facey coming up from the ravine at a point that he described as “after the houses”, as depicted in Exhibit 3K, on the left side of the photograph marked as Exhibit 3L. Benning marked on Exhibit 13 where he said Facey was coming up the hill and where he recalled him walking northbound in the grassy area on his phone. He described Facey as not running and going at a “regular pace”.

[41] Benning pulled his vehicle to the curb lane, facing oncoming traffic (as depicted in Exhibit 16) and got out, leaving the door open and engine running. As he did so, Facey continued to walk. Benning was facing at a 45-degree angle down Bellchase and towards the ravine. He said that Facey was facing to the road in the other direction on Bellchase. Benning got to within an arm’s length of Facey, who at that point was moving “very slow”.

[42] Benning said to Facey that the watch was fake and words to the effect of to give him back his money. Benning then reached for the money that was in Facey’s hand and took it back. In his examination in chief, he said that at that point, Facey was stopped. Benning could not recall exactly what else he had said, but something like “this isn’t good to do”. Benning testified that it was not his plan to arrest Facey because he had received his money back and there was “no incident at the time, other than him taking off with my money”. Facey did not resist him grabbing the money. Benning thought the pursuit was done.

[43] Under cross-examination, it was suggested to Benning that Facey was still moving and never stopped. Initially, he said he could not recall if Facey had been moving or still, though he agreed with the suggestion that Facey’s knees had been bent and that, “for all he knew” Facey was going to dart off again. Subsequently, he agreed with the suggestions that when he and Facey were standing face to face, Facey had continued to walk, that Benning did not have him under control and that he had not known if Facey would run.

[44] The issue of how Facey and Benning were positioned and moving was canvassed again in re-examination. Benning confirmed that when he got the money, he and Facey had been face to face, with Benning facing the ravine and Facey facing him and the car. He agreed he had said in chief that Facey had been still but testified that he had been walking. Asked how he had been walking, Benning said slowly in a forward motion, that he could not recall precisely how and that it had been towards Bellchase Trail. He then clarified that Facey had been walking along Bellchase, in very slow motion, still kind of facing him, and that he could not really explain further.

[45] Benning said that “almost instantaneously”, Au came from the right and took Facey down. He did not see Au before this. He did not hear Au say anything. Asked what he perceived Au was doing, he said that he “thought perhaps he was arresting him”, though he did not hear Au say so. He did not see how Au took him down. While he agreed under cross-examination that he could not provide a detailed account of where Au grabbed Facey, he then agreed that he had no recollection of Au grabbing Facey’s upper torso. He could not say if Facey was pulled down or taken down, but did agree that he had not seen an “NFL type tackle”. Benning said that Facey did not fall on his face and that he was on his back. “Instinctively”, Benning went down with them after they were down.

[46] At no point did Benning tell Au that he had his money back. Asked why, he said he did not know. He said that in the moment, when they were on the ground, he did not think to mention it to Au.

[47] Benning said that after he had gone down with Au, he told Facey that they were police in an effort to “calm him”. He described Facey’s arms as “flailing” and said he was trying to get up. Under cross-examination, he agreed with the suggestion that Facey had been trying to get up and to escape. Benning said he got up within seconds. At that point, he said he no longer had a concern about controlling Facey.

[48] Benning’s diagram as to who was positioned where, first provided to the SIU on September 7, 2011, is Exhibit 16.

[49] During his examination in chief, Benning said that police are trained in how to effect arrests. This includes identifying themselves as officers and then taking physical control of the person. They are taught to tell the person that they are under arrest prior to taking physical control. They are also to say what the person is under arrest for. Under cross-examination, Benning clarified that police are to tell a person they are under arrest promptly, but only when it is safe and practical to do so, meaning once the situation is under control.

[50] In terms of the use of the Provincial Use of Force Model, Benning testified that Facey was in a state of “active resistance” from the time that they told him the watch was fake and he wanted his money. He agreed with the suggestion under cross-examination that Facey had run into the trail and that when he “pops out”, he was continuing to flee. He agreed that Facey remained “active resistant” even after being told that they were police.

[51] Benning agreed with the suggestion made to him under cross-examination that because Facey was “active resistant”, the use of force options would have been between “soft” and “hard” physical control, as set out on the wheel. He said that because Facey was fleeing, he was taken to the ground by Au, which was consistent with police training and explained by the Use of Force Model on which police are trained. This evidence, under cross-examination, was inconsistent with his evidence in chief that he viewed the pursuit as over.

[52] Benning said that after Facey had been taken down, he was about to call 911 when a woman in an SUV stopped and asked if everything was OK. He told her that it was a Kijiji deal “gone bad” and he was calling the police. Benning called 911. As he did so, the woman asked if he was calling police and he told her that he was. She drove off.

[53] Benning said that he was calling 911 because he was off duty, did not have any use of force tools, did not have a radio and did not have handcuffs, meaning that his only option was to call 911 and have PRP address this.

[54] Benning testified that he saw a male in his early 20s running towards the three of them. Clearly, this was Nkrumah. Benning said that the male put his hand down to his waist as if he was in possession of a weapon. In his examination in chief, Benning was clear that after going down with Facey, he got up in seconds, which would be prior to his interaction with the woman. This would mean he was standing up by the time he made the 911 call.

[55] However, under cross-examination, he said that it had been as he was dialing 911, while he was still on the ground with Facey, that they saw the male approached making the gestures like he had a weapon. He testified that it was because the male was approaching that he got off Facey and said something to the effect of “let’s go” to Au.

[56] Benning’s 911 call was entered into evidence as Exhibit 15. The call was made at 2:54:52 p.m.. About 16 seconds into the call, the sound of a door slamming can be heard. Three seconds later is the sound of a second door closing. The first was Benning and the second was Au getting into their car. Au can then be heard saying “go go go”.

[57] In the call, the 911 dispatcher asks more than once if the caller needs police, fire or ambulance. Benning testified that the reason for the delay was that his phone was clicking into the Bluetooth in his car. He testified that once the 911 call connected, it was on speaker in the car, and that both he and Au could hear the dispatcher.

[58] In the call, Benning initially reported that he got set up and somebody robbed him. Asked if he was hurt, he said “no” and that “they got away”. Asked if there were weapons, he said, “I’m not sure 100%” and told the dispatcher that “it was just a, um um, a Kijiji deal kinda gone bad”. Asked whether it got “violent at all”, he said no, that they had chased him down and that “we got our money back” and were heading out. He declined the offer to speak to police.

[59] Benning said that he did not report what had happened to PRP because he knew from experience that they would take a report but that it would not be investigated. He did not tell his Sergeant at the TPS because he knew he would be told to report in Peel, where it occurred. He knew it was possible that the PRP could have investigated what occurred as a fraud, but initially said that they had nowhere to start, other than his statement. He seemed to agree ultimately that they could have investigated, but based on his experience as an officer and the fact that this was over a $400 item where the money had been returned, he did not think they would, so never made a report.

iv) Evidence of Au

[60] At the time of the incident, Au had been a TPS officer for 6 years. He was 5’ 9” tall and weighed about 185 pounds.

[61] Au gave evidence very similar to Benning’s about their meeting with Facey in the school parking lot. He confirmed that when Benning had asked to see the watch, Facey had said words to the effect that if you open it, you have bought it. He said that Benning had asked Facey some general questions about the watch, and that he had entered the serial number of the box on the Apple website and obtained general information suggesting to him that the watch was authentic. He conveyed this to Benning, who paid the $400 and got the box.

[62] Au said that almost immediately, Facey began jogging away, making him suspicious that they had been scammed. They got in the car and began driving south. He opened the watch box. His quick examination revealed that there was a third-party name stamped on the watch, confirming that it was fake.

[63] When it was suggested to Au during cross-examination that he and Benning had fallen for Facey’s trick, he agreed that had been scammed by the 19-year-old. He claimed that this did not make him angry. Asked if he cared, he said that he cared “to a point”, but that he was not angry and was “disappointed”. Questioned about this answer, his response was to ask the Crown whether he would be disappointed if he had gone expecting a valid transaction.

[64] Au’s evidence as to where they went next, which is marked with arrows on the map entered as Exhibit 19, differed from Benning’s. He testified that as they drove south on Franktown Drive and reached Wynview Park on their left, he saw Facey running diagonally across the park. As a result, they turned left on Wynview Street, at the south end of the park, to try to cut Facey off. Benning yelled out to Facey that the watch was fake and that they wanted their money back. Au said that Facey doubled back to Franktown Drive. They turned the car around and pursued him down Franktown Drive.

[65] While nothing turns on the difference between Benning and Au as to where the initial confrontation with Facey was, Au’s evidence made more sense. It is logical that Facey would have tried to escape their pursuit in the park, and that when he saw them cutting him off, he would have run back and into the trail system to evade further confrontation, particularly after Benning yelled at him.

[66] Au testified that they could see Facey in the middle of the road running at full strength and that he entered the ravine trail. To pursue Facey on foot on the trail, Au left the car and started running.

[67] Once on the trail system, Au said he was running at a full sprint. He caught a glimpse of Facey at the point where the trail intersects another trail (as depicted in photographs 19 and 20 of Exhibit 2) and went right. He described Facey as well ahead of him, sprinting and gaining distance on him. Au tried to go faster but became tired and yelled “stop” at Facey, immediately after which Au slowed down and started to walk.

[68] Au testified that he believed Facey heard him yell, “stop”. It was suggested to him that Facey had likely not heard him as if he had, he would likely have started running. Au disagreed.

[69] Au testified that it was at this point that he decided that he had to arrest Facey because he was “continually fleeing”, even after being told to stop. He agreed that he had not yelled, “police” and had not called 911 or PRP. He was adamant that he thought Facey was fleeing and had to arrest him to get back the $400.

[70] As they walked, Au said that he noticed that Facey was on the phone. Facey then left the paved path and went up a grassy footpath next to a house as depicted in Photos 25-28 of Exhibit 2. Facey emerged onto the grassy area south of Bellchase Trail.

[71] Au said that he followed Facey on the grassy path and arrived at street level. Au said in chief that when he saw Facey, he picked up his pace as Facey was “fleeing” the entire time. He said that at this point, he did not see Benning, so phoned him, telling him that they were at the street, and he would see them if he drove along Bellchase Trail. At this point Au said that Facey was still walking and was still on the phone. He estimated that he was 15-20 metres behind Facey.

[72] It was suggested to Au during cross-examination that he called Benning while he was on the footpath, not after they were at the top of the grassy path. He disagreed. When challenged about the timing and it being suggested that it would not have taken Benning so long to arrive, Au initially tried to suggest that Benning was “terrible with maps and directions”, implicitly seeming to suggest that any delay could be explained by some error on Benning’s part in quickly responding to his call. He quickly resiled from this. Ultimately, Au was sure that he did not call Benning until he was up by Bellchase Trail.

[73] Shortly after calling Benning, Au said that he saw Benning’s vehicle pass him and go towards Facey. Au stopped walking for a second. Benning parked facing west on Bellchase Trail. Au did not know if Facey was ahead or behind Benning’s car. He saw Benning get out of his car and walk towards Facey. He said that at that point his call to Benning was done, which puts the time after 2:53:59 p.m..

[74] Au then saw Facey and Benning face to face with Facey was facing west. Facey was to his left, closer to the ravine and Benning was to his right, with his back to the road. As a result, Au said that he could see Facey’s right side profile and Benning’s left side profile. Au agreed that they were arm’s length apart. Au agreed that he could see Facey’s hands were at his waist, but said he could only see his right hand. He was 15-20 metres away from Facey and Benning.

[75] Au disagreed with the suggestion that at that time, Facey had stopped moving. He was asked how Facey had been moving. He agreed that Facey was not walking backwards to the ravine and not walking forwards towards Benning. His body position and body language were pointed northwest toward Bellchase Trail indicating to Au that he was ready to move or “possibly to leave”. Au was firm that Facey was not still. He was angled and moving along Bellchase Trail. He did not agree that he was facing towards Franktown Drive and said that he was looking in the opposite direction.

[76] Shown Exhibit 16, Au was asked if Facey had been facing back towards Franktown as this would have been the only way he would have seen his right profile. Au answered that Facey may have had his body and feet facing in different directions. In extensive cross-examination, Au was asked to describe how Facey was still walking. At one point, after a protracted pause, he said “gimme a second to answer”. He said the best way to describe it was as slow movement and that it appeared that he was moving towards Daden Oaks. Challenged again that this would not have enabled Au to see Facey’s right profile, Au was unable to clearly explain the positioning and how he was moving. His final evidence on this point, in response to the suggestion that when Benning confronted Facey, Facey had stopped moving, was that he “wasn’t fully stopped, wasn’t static”.

[77] Au heard Benning say that he wanted his money back. He testified that at that moment, he was exhausted from running. Facey was still walking. He was thinking that if Facey took off again, he would not be able to catch him. When it was suggested that Benning was there and not exhausted, Au’s response was that he could not speak for Benning, even though Benning was right there, and was beside Facey. Au did not think Facey was “giving up” and described his hand on his waist, said he was not standing still and that his arms and legs were bent like he was ready to take off. Au decided to secure Facey to the ground. He started jogging towards them.

[78] It was suggested to Au during cross examination that he had a clear line of vision of Facey as he jogged towards him. He agreed. It was also suggested that he saw Benning grab the money back. He said he did not see this. He testified that he did not know Benning had his money back when he took Facey down.

[79] Au testified that he jogged up, grabbed Facey’ right arm with his left arm by the elbow area, and moved it to the side, creating leverage. He then grabbed Facey’s left shoulder with his right arm and pulled Facey down to secure him. He pulled him to the ground and said that they were then both on the ground struggling. Asked how much force he used, Au responded, that it was a “reasonable” amount of force, and that he did not “football tackle” Facey. Facey went down onto his back.

[80] The defence presented four videos of actors purporting to demonstrate in real time and at slow speed the manner in which Au took Facey down. They were filed as Exhibit 21 a-d. The actor playing Facey’s role in the video was 2 inches taller than Facey and weighed 156 pounds, 28 pounds more than Facey. While I appreciate this simulation was an attempt to demonstrate the manner in which Au took Facey down, I found it unhelpful in deciding the issues before me. The actors knew what was being done and were able to anticipate how things would unfold. The actor playing Au was able to carefully and precisely re-enact what Au said he did, staging it to create a deliberate, smooth take down. The actor playing Facey was not only considerably heavier that Facey, but he also knew how he was going to be taken down, and thus fell in a more controlled manner than he might have had he been surprised. I place no reliance on the videos.

[81] When he had Facey on the ground, Au agreed that he felt nothing on Facey to indicate that he was armed. He also agreed that he never identified himself as a police officer, explaining that it was not practicable or safe to do so. He never told Facey he was under arrest for the same reasons. In fact, he agreed that he never said anything, including to stop resisting, when Facey was on the ground.

[82] It was Au’s evidence that this takedown was as both an officer and a citizen. He said that after Benning approached Facey, he thought that they needed to make an arrest to get Benning’s money back. He described the purpose of the takedown as to stop Facey from fleeing and that in his mind, it was an arrest.

[83] Once Facey was on the ground, Au said that he was trying to get up and that they were struggling with each other. He did not notice that Benning also went down and said his focus was on Facey. He did not hear Benning tell Facey that they were police.

[84] Immediately after they went to the ground, Au testified that a woman in an SUV was driving by and asked if they were OK. Au agreed that the woman had seen something that concerned her. At that point, he was on the ground with Facey, but Au did not tell her that they were police officers. He explained that his focus was on Facey, and that Benning was dealing with the woman and told her that it was a Kijiji deal gone bad. She left.

[85] According to Au, immediately after she left, Benning pointed out to him that there was a male running toward them. Au said that the male stopped and made a gesture in front of his pants like he was jiggling his waistband up and down to indicate that he had something. Au concluded that he was possibly a weapon and so decided to disengage as they had no use of force options. According to Au, Benning said, “let’s go” and Au assumed that he had the same idea.

[86] Au said that they went to Benning’s vehicle, which was parked nearby. He said that Benning called 911 before they got into the vehicle, and once Au got in, he said “go go go”. His reason for saying this was that he didn’t want Benning driving before he got in. He said that they had disengaged for safety reasons.

[87] Au testified that he had no recollection of hearing Benning’s phone on speaker through Bluetooth. He recalled hearing Benning’s 911 call, and what he said, but not what the dispatcher said. Au testified that he had been so concerned that the individual who had arrived had a weapon that he was prepared to leave Benning’s $400 behind and disengage. He offered no explanation for not reporting this to the 911 dispatcher over the Bluetooth, saying only that Benning made the call and that he did not say anything because he wasn’t talking. He disagreed that it would have made sense to tell the dispatcher that they had been ripped off and that there was a possibility of a weapon. Au said that the first time he learned that Benning got his money back was when Benning told the 911 dispatcher.

[88] Au testified that once Benning made the 911 call and said that they had their money back and that they were good, he was thinking that what he had done was an unconditional release.

[89] Like Benning, Au’s view when asked about the Use of Force Model, was that Facey had been “active resistant”. Au said his response had been between “soft” and “hard” on the wheel.

[90] Asked why they had not reported this incident, unlike Benning, Au conceded that in retrospect they should have. He said it was Benning’s decision, as the ultimate victim, not to report it and he could not force him to do something he did not want to. He agreed with Benning that if they had reported to TPS, they would have been told to report to PRP. He did not know what would have happened.

v) Evidence of Nkrumah and Green after the confrontation

[91] Nkrumah testified that when they drove to pick Facey up, they saw him on the grass with two individuals standing above him. Nkrumah jumped out of Green’s car. He ran to where Facey was and helped him up off the ground, noting that he was out of breath and seemed injured. He denied having seen the physical confrontation with Au and Benning, who left. He guessed that they left because they had been scared. Asked whether he recalled running toward them with his hand in the shape of a gun to make them think he had a weapon to scare them, he said he did not recall that. Later in his evidence he disagreed that he had made a hand motion at his waistband to look like a gun to scare the two men away.

[92] Green also testified about going to the area on Bellchase Trail to pick Facey up after the calls between Nkrumah and Facey. He saw Facey lying on the grass with two people over him. He saw a silver Civic parked facing oncoming traffic on Bellchase Trail. He said that Nkrumah got out and he drove around the corner and back to Bellchase Trail. When he returned, he saw the Civic shoot off. By that point Nkrumah was with Facey, who couldn’t stand or catch his breath. He was clear that he did not see any struggle between Facey and these men.

Credibility and Factual Findings

Findings Respecting Nkrumah and Green

[93] While little turns on this, I found the evidence of both Nkrumah and Green as to their awareness of any details about what Facey was up that day incredible. It seems to me obvious that they knew, at least, that they were dropping Facey off to make the sale of the watch at the school. There is no other reason why, having been asked to drop Facey at the park, they would have driven past the school and Nkrumah would have made note of, and remembered the details about seeing a grey Honda Civic and two individuals there. I find they were likely aware of the planned sale of the fake Apple watch, which is why they were staying nearby to assist Facey.

[94] Similarly, given the evidence about the phone calls between Facey and Nkrumah between 2:51 p.m. and 2:54 p.m., it only makes sense that Facey told Nkrumah what had happened and why he needed to be picked up. Further, given their evidence as to how Facey seemed after they picked him up, it is inconceivable that they would not have asked him what had happened and been told the details in the two hours that followed. The fact that Nrkumah and Green are not believable about what they knew and discussed with Facey makes me view the rest of their evidence with caution.

[95] I conclude that Nkrumah and Green likely knew some of the details of Facey’s plan to sell the fake Apple Watch. They dropped Facey in the area of Beryl Ford Public School, likely near Wynford Park. They drove past the school and saw Benning’s Civic. They left the area. Each of them called Facey (Nkrumah at 2:50:53 p.m. and Green at 2:51:36 p.m.) to see what was going on and check that he was alright after the sale. Neither call was answered. At 2:51:36 p.m., Nkrumah received a call from Facey, who was running on the ravine trail and wanted to be picked up. They drove to where they thought he wanted to be picked up. When he was not where they expected, they called Facey back and then drove to Bellchase Trail to pick him up.

[96] While the defence submits that they saw the altercation, the evidence as a whole, including that of Benning and Au, does not support that finding. By the time they got there, the physical confrontation was over and Facey was on the ground. Nkrumah jumped out of the car. While Nkrumah did not recall making the gesture Benning and Au described, his evidence is unreliable. On the basis of Benning and Au’s testimony, I accept that he may well have made a gesture as he ran towards Facey. This gesture was not the reason for the 911 call as Benning initiated the call while the woman in the SUV was on the scene and told her that is what he was doing. However, I accept that whatever gesture Nkrumah made, or Au and Benning perceived him to have made, may have contributed to the reason why they left so quickly. Nkrumah and Green helped Facey, who was out of breath and appeared to be injured, to Green’s car.

Findings with respect to Benning’s evidence

[97] I agree with counsel that in some respects, Benning’s evidence was both credible and reliable. He appears to have had a generally good memory and testified in a manner that was largely, though not completely, internally consistent. As I have said, I find that Benning was likely mistaken about where the initial confrontation with Facey took place. This seemed like an honest error.

[98] However, I also find that when it came to the details of the interaction between Au and Facey, Benning was prepared to agree with virtually everything that was suggested to him by Mr. Au’s counsel, even if it meant substantively and inexplicably changing his evidence from what he had said in chief. This causes me to have concerns about his credibility and the reliability of his testimony in the multiple areas where his evidence changed under cross-examination to be more consistent with or favourable to Au.

[99] By way of example, in his examination in chief, Benning was very clear that when he and Facey were face to face before he grabbed the money, Facey was still and not moving. His position was that Facey had effectively given up at this point. However, under cross-examination, his evidence changed markedly. He described how Facey had been moving in a variety of ways and adopted the defence suggestions that he was moving, could have been fleeing and was “actively resistant”. While this is, of course, consistent with Au’s evidence and Au’s position, there is no good explanation for this significant change, other than to assist Au.

[100] I also found Benning’s evidence as to how Facey was moving to be internally inconsistent and illogical. At one point he testified that he was angled toward the ravine and Bellchase Trail. It makes sense that he was angled looking slightly north on Bellchase Trail, turned away from Franktown Drive. This would explain why he was unable to see Au, who was only 15 to 20 metres away, and who came from the ravine, when he grabbed the money. It would explain why he did not see Au as he ran from behind him and to the left towards them. Yet, Benning seemed to suggest that he was turned the other away and that Facey was the one turned towards Daden Oaks. This did not make sense in all the circumstances. On all of the evidence, I find that Benning was the one facing slightly north towards the ravine and Daden Oaks, and that Facey was facing back towards Franktown at the time of their interaction.

[101] There are other areas in which Benning seemed to go out of his way to assist Au, even if what he said was inconsistent with other evidence he gave. For instance, he testified that when Au took Facey down, he thought “that perhaps he was arresting him”. That seemed completely disconnected from everything else he had said and like a lifeline thrown to support Au’s position that he had arrested Facey. It is important that Benning testified that he never planned to arrest Facey. When Au took Facey down, Benning had just grabbed his money back, and might well have expected that Au had seen this. Moreover, he had just finished a phone conversation for a minute and 40 seconds with Au in which there was no discussion of any arrest. Finally, they had no use of force gear, no handcuffs and no radio. In all of these circumstance, I do not accept that Benning could or would have believed that Au was arresting Facey. His evidence is not credible and I find this to be another example of him seeking to bolster Au’s defence.

Findings with respect to Au’s evidence

[102] Generally, I found Au to be a very poor witness. While he was forthcoming with his counsel in his examination in chief, under cross-examination he was a difficult witness who appeared in constant fear of saying the wrong thing. His answers vacillated between being combative and argumentative with the Crown, to being non-responsive and evasive. He repeatedly asked for simple clear questions to being repeated, and refused to agree with the most obvious suggestions that were put to him.

[103] Mr. Brauti suggests his client was nervous and concedes Au should be given a failing grade in presentation, but not in content, as his lack of sophistication does not mean he was being untruthful. I accept that, like any accused person testifying at his trial, Au was likely nervous. But I cannot attribute all of the problems in his evidence to nerves or a lack of sophistication. The accused is a 34-year-old man who attended a police foundations program before completing a university degree. He then attended police training at the Ontario Police College and joined the TPS, where, by the time of the trial, he had worked for almost 10 years. He cannot fairly be characterized as “unsophisticated” generally, or in the criminal justice system. I also think it is highly unlikely that he is completely unfamiliar with the court process, as so many witnesses in the criminal justice system are. Indeed, it is unimaginable that with his background as a primary response officer on general patrol for a decade, he would not have significant experience testifying in court.

[104] While there are aspects of Au’s evidence that are reliable, many of his answers left me with significant concerns about the credibility and reliability of his evidence.

[105] In reaching my views about Au’s evidence, I have carefully reflected on the evidence I heard, re-listened to significant portions of the audio recording of that evidence, and reviewed the submissions of counsel. His evidence as a whole can accurately be characterized as unclear, evasive and argumentative. While there are many examples of this that support my conclusion, I will refer to only some:

a. Repeatedly, when questioned under cross-examination, Au avoided responding by asking the Crown to repeat the question. On multiple occasions, he responded to the Crown’s questions that he was “trying to rationalize” what the Crown was saying or asking. I have no idea what this means or what he meant by it. It appeared to me to be a way to delay or avoid answering.

b. In cross-examination, Au confirmed that he was able to see Facey’s hands as he was face to face with Benning. He was asked to confirm that he did not see weapons in Facey’s hands. Rather than answer directly, he said “not to my knowledge”, before confirming that he did not see weapons. This was not the only time he used this expression, rather than just answering answer the question directly. Again, this appeared to be part of his repeated effort to avoid answering questions he preferred not to answer.

c. When questioned about the police Use of Force Model, Au was asked if three principles that inform the model are restraint, reasonableness and balance. He completely avoided answering, asking instead: “sorry, where is that?”, and “is that on the wheel?” He then said, “what you are telling me is new information to me”. Asked squarely “is reasonableness something that is important to that model?”, rather than concede the obvious, he provided the following bizarre response: “I just don’t know what you are talking about”. This was one of many examples of his unwillingness to just answer clear questions with obvious responses.

d. When asked about his role in attending in Brampton with Benning for the sale, Au refused to acknowledge that that part of the reason he was with Benning was because of the possibility that Benning would be scammed. Indeed, when asked if he thought when he went that there was a possibility that it was scam, Au declined to admit the obvious, responding instead, “anything is possible”, and that this was not the first thing in his head. He then gratuitously added that the way the question had been phrased suggested that the Crown thought this was more than likely a scam. Ultimately, his evidence was that he didn’t think that it was a possible scam. Benning and Au’s arrangement was made because Benning was worried about being scammed. Au knew that and knew that he was there to try to avoid it. His refusal to admit this is another example of his combative, incredible answers, again revealing him to be an incredible and unreliable witness.

e. Au’s evidence as to whether he was concerned about Facey having a weapon was unclear and inconsistent. His evidence as a whole left the impression that he wanted to convey that he had been continually concerned about a weapon even though I find that was not the case at the time. Au said that his concern that Facey could have a weapon first arose when he was in the ravine chasing him on foot. He agreed, however, that he would not have chased him in the ravine had he thought Facey had a weapon. Having given that evidence, he was asked to confirm that he never thought Facey was armed. Au then responded that as things “escalated” and Facey was fleeing, it was a “consideration”. While he ultimately agreed that he never concluded or found Facey was armed, it took questioning by the Crown about each individual segment of time for Au to finally concede that he had not been concerned about weapons. However, even after agreeing to that, when asked later to confirm that he had no concerns about Facey being armed when Benning approached him, Au reverted to his position of not knowing if Facey was armed. He agreed that he had not thought Facey was armed in the ravine and had not seen him pick anything up after that, but was of the view that it had become a safety concern because Benning was approaching him and he did not know what he might have in his pocket. Doubling down on this view, he suggested that the fact that Facey had fled was “odd and suspicions” and that this raised for him the possibility of weapons. In its totality, I find Au’s evidence about his opinions as to whether Facey had a weapon, and the reasons he held those opinions, were inconsistent and illogical, bolstering my view that he is not credible or reliable.

f. When asked about weapons after Facey had been taken down, Au eventually agreed that he had felt nothing to make him believe that Facey had a weapon. Yet, when asked to agree that had he had any concern that Facey was armed, he would have removed the weapon, his initial answer was that it was “hard to say” because “searches take time”. Ultimately, he agreed that he would have searched Facey had he felt something, and that he did not feel anything. But, when asked to then confirm that he never thought Facey had a weapon, he again said that in his mind, he was considering the possibility of weapons.

g. While little turns on it, I find Au’s evidence as to when he called Benning from the trail not to be reliable. He may genuinely believe that he made the call once up by Bellchase Trail, but this does not make sense. Benning said that Au told him that Facey was walking up a hill, suggesting that Au was still back on the trail and not in the grassy area. Moreover, it does not make sense that Au was up by the grassy area for all the time of the call because if he had been, where he would have ended up after walking for the duration of the call, Benning would almost certainly have seen him when he arrived on the scene. It is also not reasonable to think that Au pursued Facey for all the time of the call and they only got as far as the location identified as to where the confrontation took place. In my view, Au’s call was earlier and he was up at the Bellchase Trail area for a short period only before Benning arrived.

h. When asked under cross-examination whether he called Benning in order to coordinate Facey’s capture, Au said he called to update Benning on where he was. When it was suggested that there was a tactical advantage to there being two of them, Au responded to the Crown that he might perceive it as a tactical advantage but that all Au wanted to do was let Benning know where he was. Pressed, after repeatedly avoiding answering directly, Au ultimately agreed to the obvious: that having 2 of them chasing Facey gave them a tactical advantage. Similarly, when it was suggested to Au that their 12 years of police experience gave them a tactical advantage, Au insisted on clarifying that each of them had 6 years experience, and then requested an explanation of how this was a tactical advantage. Au said he did not know what the Crown was getting at and would not agree that two police officers with 6 years experience had a tactical advantage over the 19-year-old Facey because he didn’t understand “the rationale” of the question. Asked whether Benning not being physically exhausted from the chase gave them a further tactical advantage, Au was unwilling to agree, responding that he could not say anything about Benning’s stamina and that he did not know how Benning was feeling.

i. When challenged on the fact that he outweighed Facey by 55 to 60 pounds, Au’s immediate response was that he didn’t know that at the time. Au agreed that he had weighed 185 pounds at the time and that he knew Facey was skinny, but would not agree that he knew at the time that he outweighed him and said that he was not thinking about his weight.

j. When Au was asked whether outweighing someone was a tactical advantage when trying to take them down, Au insisted that Facey had the advantage of speed, and that it could be a factor and a tactical advantage.

k. Finally, Au’s evidence that Facey was facing towards Daden Oaks when he was face to face to face with Benning, while consistent with some of Benning’s evidence, does not accord with where he said he was and what he said he could see. He had come up from the ravine and said he could see Facey’s right side as his back was to the ravine and he faced Bellchase Trail. That would mean that he was angled to the south, rather than the north, as from where Au was, this could be the only way Au would see his right side as he described.

[106] Overall, I think Au’s answers were intended to frustrate the fact-finding process and obfuscate the truth. His testimony as a whole leaves me very troubled about his credibility. That causes me to have great difficulty accepting as reliable his evidence as to what he said and did and the reasons why.

Analysis and Legal Conclusions

i) Has the Crown proven beyond a reasonable doubt that s. 25(1) is not available to Au?

[107] The Crown submits that it has proven beyond a reasonable doubt that s. 25(1) does not provide a defence because, while Au was authorized by law to arrest Facey, he:

• never intended to arrest Facey and did not do so;

• did not have objectively reasonable grounds to use force; and

• if he did have reasonable grounds to use force, the force he used was excessive.

[108] The defence position is that Facey was arrestable for having defrauded Benning of the $400 and that Au arrested him using force that was reasonable.

[109] Answering this question requires consideration of the following:

a. Were Au and Benning authorised to arrest Facey?

b. Did Au arrest Facey?

c. If so, has the Crown proven that he used more force than was reasonably necessary?

Were Au and Benning authorised to arrest Facey?

[110] The answer to this question is agreed upon. It is conceded that after Facey sold Benning the fake watch, Au and Benning were authorised by law to arrest Facey. That authority is in both ss. 494 and 495 of the Code.

Did Au arrest Facey?

[111] I am not persuaded that Au intended to or did in fact arrest Facey.

[112] There is no question that Au never pronounced words of arrest. The law does not require him to do so. An arrest may involve the use of force to restrain an individual or words or conduct that make clear that force will be used to prevent the individual from going where he may want to go. In these circumstances, there must be regard for what the person who is said to have been arrested would reasonably have understood.

[113] I turn first to what I find were Au’s conduct and words. In my view, viewed cumulatively, his words and conduct demonstrate that he neither intended to nor did arrest and then release Facey.

[114] Prior to Au chasing Facey in the ravine, Benning had told Facey that he wanted his money back because the watch was fake and Facey had taken off. Au and Benning did not tell Facey that they were police or that they had any intention to arrest Facey.

[115] Au said he first decided that he needed to arrest Facey during the chase through the ravine when Facey continued to run. I accept that Au intended to chase Facey down to try to retrieve Benning’s money, but I do not accept that he formed any intention to arrest Facey. Had he had this intention, as a trained police officer, I find he would have done something beyond yelling at Facey once to stop.

[116] Au had multiple available options had his intention been to arrest Facey. For instance, he could have told Facey he was a police officer. He could have said he was arresting him. This information could have been communicated during the foot pursuit or once they were near Bellchase Trail. Au knew that he had no use of force options with him, which would make any arrest difficult. Instead of calling 911, he called Benning as the pursuit continued. In that conversation, which lasted a minute and 40 seconds, there is no evidence to suggest that they ever discussed arresting Facey or calling 911 or PRP. Benning was clear that he never had any plan to arrest Facey. He did as he was asked by Au, and drove to where Facey was on the grassy area beside Bellchase Trail.

[117] In my view, the only reasonable inference to draw from the evidence is that Au’s plan, which was discussed with Benning, was to try to chase Facey down in order to get Benning’s money back from Facey. It was never to arrest Facey. I conclude that when Au followed Facey up to the grassy area, he had no plan to effect an arrest.

[118] Once Facey and Au were in the grassy area, Benning arrived and moved toward Facey. Au was able to see this from 15-20 metres away. He saw them face to face, arm’s length apart. I find that when this happened, Facey had, as Benning said in his evidence in chief, stopped moving. That is the only logical conclusion from the evidence as a whole. While Benning changed his evidence under cross-examination in response to Mr. Brauti’s suggestions, I am very troubled that both Benning and Au were at a complete loss when asked to explain how it was that Facey was moving.

[119] Their evidence about the direction he was going, and whether it was towards Daden Oaks or back toward Franktown, was inconsistent. As I have indicated, I find that Benning was angled towards Daden Oaks, with his back to Bellchase Trail and Facey was facing him and looking slightly to the south towards Franktown. This positioning strong suggests that Facey was no longer trying to evade them and had, as Benning testified, effectively given up.

[120] As I have said, the evidence from Benning and Au has to how Facey was moving was also unclear and inconsistent. Given my views about Au’s evidence generally, and about the changes in Benning’s evidence, I have concluded that Benning’s evidence in chief makes the most sense. I accept it. The chase was over. Facey was still and had given up, enabling Benning to grab his money. I find the evidence that Facey was moving and was “actively resistant” at this time not to be believable.

[121] Au ran towards Facey and took him down almost immediately after Benning had the money. This suggests that he may well have been running toward them, and been inside the 15-20 metre distance, when the money was retrieved by Benning. Au’s evidence was that he was able to see Facey’s right side and right hand. His attention was most certainly focused on Facey. While there is no evidence respecting which hand Benning grabbed the money from, I find it probable that Au saw Benning grab the money and so knew, before taking him down, that Facey had given up the money.

[122] As he ran toward Facey and Benning, Au said nothing. He did not say that they were police. He did not say he was arresting Facey. Once Facey was on the ground, he said nothing about an arrest or that they were police. He said that he struggled with Facey on the ground, but said nothing and did not hear Benning identify them as police. I do not accept that his failure to say anything was because it was not safe or practicable as he testified. I find that there was ample time and opportunity to utter words of arrest. The reason he said nothing is because at that time, he did not view what he was doing as an arrest.

[123] While Benning was speaking to the woman in the SUV (by which point he was standing up as he was only down on Facey for a matter of seconds), Au continued to say nothing about them being police and an arrest. On Benning’s evidence, by this point he had no concern that Facey was going to flee. Upon hearing Benning tell the woman that he was calling 911, Au did not say to Facey that they were arresting him. Au did not conduct any search of Facey for weapons, though he purported to have an ongoing concern about weapons.

[124] When Benning and Au saw Nkrumah running toward them, they quickly went to Benning’s car as the 911 call was connecting on the Bluetooth.

[125] The law is clear that officers are not required to identify themselves as police and to utter words of arrest instantaneously. They must do so as soon as practicable. While Au’s take down of Facey occurred quicky and the situation was dynamic, this was at the end of a 5-minute pursuit that began shortly after 2:50. There was ample time for Au, if he planned to effect an arrest, to communicate this to Facey before, during or after what he says was the arrest. He had time to advise that he was an officer, to tell Facey that he was going to arrest him, to discuss the arrest with Benning, to make plans for an arrest by calling 911 or PRP or asking Benning to do so, all before running at Facey and taking him to the ground. Once Facey was down, he had a further opportunity to communicate that they were police, to utter words of arrest and to conduct a safety search of Facey. He took none of these steps.

[126] The evidence persuades me that Au never intended to arrest Facey and never did so. He and Benning wanted only to retrieve Benning’s money.

[127] I have considered the evidence of after-the-fact conduct relied upon by the Crown in support of its position that Au did not arrest Facey. The Crown suggests that there are three aspects of Au’s conduct that suggest that he never intended to or in fact did arrest Facey: (i) the fact that he can be heard saying “go, go, go” in the 911 call after they are back in Benning’s car; (ii) the fact that Au never reported the incident with Facey to 911, PRP or TPS; and (iii) the fact that Au was able to hear the 911 dispatcher on the Bluetooth speaker and never said that that they had fled for fear of Nkrumah’s weapon.

[128] In my view, the fact that Au said “go, go, go” is not probative as to whether he intended to or did arrest Facey. The Crown concedes that Nkrumah made a motion that caused Benning and Au to be fearful and to return to Benning’s car. Au’s utterance is consistent with this and has no bearing on whether he had arrested or not.

[129] The fact that Au never reported this incident to PRP and TPS was explained by both Au and Benning. Au agreed that they should have reported the incident, but thought it was for Benning, as the victim, to make that decision. It seemed that the most significant explanation offered for not reporting was that they viewed it as over because Benning got his money back. They were of the view that TPS would not investigate because the matter was in the jurisdiction of Peel, and the PRP would not investigate when the matter was over $400 that had been recovered. I see Au’s explanation as a reasonable alternative for not reporting what happened to police later.

[130] However, I do find it very surprising if, as Au concedes, the 911 call was on the Bluetooth speaker in Benning’s car, he would have chosen to say nothing to the 911 dispatcher. Au testified that Benning had made the call and so he chose to say nothing. The defence says that it would have been unreasonable for Au to have interrupted Benning and injected himself into the call. I disagree.

[131] On Au’s evidence, when the 911 call was initiated, he believed that Nkrumah might have a weapon. He believed that Facey had Benning’s money. As a police officer who claims to have arrested Facey and then fled for safety reasons, aborting the arrest, his silence when he was safely in the car on a call to a 911 dispatcher is inexplicable. If he knew that he had grounds for the arrest, believed the offence was ongoing, believed he had arrested Facey and had the opportunity to tell the 911 dispatcher those facts, I find he would have said something to the dispatcher before Benning reported, well into the 911 call, that they had their money back. Au’s silence in the face of the perfect opportunity to report what had happened and seek assistance further suggests both that he knew that Benning had his money back before Benning said so to the dispatcher and that he did not believe he had effected an arrest and unconditional release.

[132] Turning now to the question of Facey’s perspective, I conclude that he would not reasonably have understood from this situation that he was being arrested. He had no reason to believe that Au and Benning were police officers, though they were entitled to effect an arrest as civilians. During the pursuit, neither officer ever identified himself as an officer. Neither officer ever showed Facey his badge, although both had badges on them. Neither officer ever told Facey he was under arrest.

[133] What Benning and Au did communicate to Facey focused exclusively on getting Benning’s $400 back. Benning focused on getting the money back in their initial interaction by Wynford Park. During the trail pursuit, Au merely said “stop”. The fact that after Au said this, Facey slowed down, and began walking, strongly suggests to me that he did not hear. Had he heard, it seems much more likely that he would have increased, rather than decreased, his speed. Once they were face to face, Benning spoke to Facey only about getting his money back, which he was able to do. Benning said nothing about an arrest, which is of course consistent with his view that he had no intention to effect an arrest.

[134] So, when Au ran at Facey and took him to the ground, Facey would not reasonably have understood he was being arrested. By that point he had given up the $400, which was all he had been asked to do by Benning. Once down, Au did nothing to communicate that this was an arrest. Seconds later Benning stood up. No one told the woman who stopped that they had arrested Facey. Moments later, Au and Facey left.

[135] The test for whether Facey was arrested is what he can reasonably be supposed to have understood, in light of what he was told, viewed reasonably in all of the circumstance of the case: Bielli, at para 70. I conclude from all of the circumstances, including what Au and Benning did and said, that Facey would not reasonably have understood that he was being arrested.

[136] Section 25 is only available to those who use reasonable force in a lawful arrest. While Au was authorized by law to make an arrest, I have found that he neither intended to make an arrest nor undertook a lawful arrest. In the absence of a lawful arrest being made, one of the constituent elements of s. 25 is absent. Accordingly, s. 25 cannot not afford Au a defence. As a result, there is no reason to consider the s. 25 analyses further. I need to decide whether the Crown has also proven that the force used by Au was more than was reasonably necessary. I will indicate, however, that had I considered whether the force used was more than necessary, I would have made those findings that I have set out below respecting whether the take down was reasonable in all of the circumstances, as set out below.

ii) Has the Crown proven beyond a reasonable doubt that the defence of property under s. 35 is not available to Au?

[137] The defence submits that Au believed, reasonably, that Facey had $400 that belonged to Benning, that he took Facey down to retrieve the money and that his actions were reasonable in the circumstances.

[138] The Crown submits that s. 35 is only available if Au was unaware that Benning had retrieved his money before the takedown. If that finding is made, the Crown submits that it was not objectively reasonable for Au to decide to take Facey down to retrieve the $400 in the manner that he did.

[139] Determining whether s. 35 is available to Au requires consideration of the following:

a. Did Au reasonably believe that Facey had taken $400 from Benning, who was in “peaceable possession” of the money?

b. Was the assault committed for the purpose of taking back the $400?

c. Was the assault “reasonable in all of the circumstances”

[140] There is no question that after the sale, Facey had taken Benning’s “peaceable possession” of $400, and that Au reasonably believed that to be the case. By the time Au took Facey down however, Benning had retrieved his money. Accordingly, the first issue to decide is whether Au reasonably believed that Facey still had Benning’s money.

[141] Au testified that he did not see Benning grab the money from Facey’s hand. Benning did not tell him that he had done so. Facey did not say anything. As I have indicated, it seems to me highly probable that as he ran towards Facey and Benning, Au saw Benning grab his money from Facey. However, I cannot be sure and allow for the possibility that Au did not see Benning take the money. As a result, I do not conclude that s. 35 is unavailable to Au on this basis.

[142] Proceeding on the basis that Au was unaware that Benning had retrieved his $400, the Crown concedes: (i) that Au was assisting Benning who had been in “peaceable possession” of the $400; (ii) that Facey had defrauded Benning of the $400 by selling him a fake watch; and (iii) that Au assaulted Facey in order to get Benning’s $400 back. The disputed issue, to which I now turn, is whether what Au did was reasonable in the circumstances.

[143] Au’s explanation for taking Facey down as he did is that Facey was continuing to show “active resistance” by fleeing and then continuing to walk away on the grassy area. I have already set out that I have found Facey was still and not moving when he and Benning were face to face and Benning took the money. I have considered whether what Au did in taking Facey to the ground was reasonable in that factual context.

[144] The law mandates that reviewing courts do not engage in a frame-by-frame analysis after the fact to assess whether what an officer did was reasonable. In any given situation, there are a number of possible responses that fall within the range of being reasonable. The assessment to be conducted is a modified objective test. The first question is whether Au subjectively believed that taking Facey down was necessary to take Benning’s money back. If so, consideration must be given to whether what was done was objectively reasonable in the circumstances.

[145] I am prepared to accept Au’s evidence that he believed, subjectively, that he needed to take Facey to the ground to retrieve Benning’s money.

[146] Having considered all of the circumstances, I cannot conclude that taking Facey to the ground in the manner that Au did was within the range of what was objectively reasonable in the circumstances. I reach that conclusion for the following reasons:

a. By this time, Au and Benning had managed to outsmart Facey and had a significant tactical advantage over him. The situation had evolved from one in which Au was chasing Facey alone in a foot pursuit, to one where there were two of them, in close proximity to Facey, who was not moving. Benning was face to face with Facey and Au was 15-20 metres away. A reasonable person would recognize that there had been a significant shift in the advantage that Au and Benning had, such that much less force was required than might have been expected at the time that Au was alone chasing Facey in the ravine.

b. A reasonable officer in this situation would have immediately recognized that Facey had no realistic ability to flee. First, there were two officers, giving them an advantage in numbers. Second, with two trained officers in such close proximity to Facey, they were highly likely to be able to restrain him from leaving simply grabbing him or his clothing and holding onto him. Third, while Au and Facey were tired, Benning had fresh legs for any pursuit that might become necessary. Fourth, the officers had a vehicle available for pursuit if necessary. Realistically, there was no likelihood that in this new situation, Facey would be able to flee.

c. There were many viable options well short of taking Facey to the ground that could reasonably have been utilised. Au does not appear to have considered any of the various reasonable alternatives to taking Facey down. Au could have called out to Benning to grab Facey to stop him from fleeing. Au could have run to Facey and held onto his arm or arms, himself, to prevent him from leaving. Either of these options for physical control are well short of taking Facey to the ground. They would have been reasonable, proportionate and likely successful in achieving Au’s purpose.

d. Police are taught to communicate to try to de-escalate. Once in the grassy area, Au never even tried to communicate verbally with Facey or to give him any directions before surprisingly taking him to the ground. This was a situation in which in would have been reasonable for him to have used his verbal communication skills to try to de-escalate the situation. For instance, before or as he or Benning took physical control of Facey by holding onto him, Au he could have told him to stop, told him that they were police, told him that he was under arrest and told him that he had to give the money back. In accordance with police training, it was objectively reasonable to expect Au to have used words in conjunction with actions to achieve his purpose and de-escalate the situation.

e. Facey posed no physical risk to Benning and Au or to anyone else were he to fight back. Au knew that both he and Benning weighed considerably more than Facey. They were well trained officers. They would have known that if Facey tried resist them by fighting, the advantages of their number, weights and training would have enabled them to easily restrain him.

f. This was not a situation in which Au had any objectively reasonable concern that Facey had a weapon or posed any danger to him or Benning. While throughout his cross-examination Au resisted conceding that he had no concerns that Facey had a weapon, and said that the presence of weapons was always a “consideration”, there was no objectively reasonable basis to believe that Facey had a weapon when Au took him down;

g. A reasonable analysis requires consideration of proportionality. More force is reasonable when there is imminent danger and the risk of injury to anyone. It is reasonable to expect less force when there is, objectively little to no danger. Here, some use of force was reasonable to retrieve the money. But it cannot be lost in the analysis that the total loss here was only $400. The force used by Au was, in my view, out of proportion with the objective of retrieving $400.

h. Any officer would have known, as Au did, that the take down mechanism he employed, where he ran at the surprised Facey and took him to the ground, did not enable him to control what happened to Facey and how Facey landed. This increased the risk of potential injury. It was not reasonable to take this risk in these circumstances, for $400, where there were less forceful options available.

[147] Mr. Au was, in my view, more than disappointed by the sale of the fake watch. By not insisting that they see the watch before paying $400 for it, these experienced officers had been tricked by a 19-year old. They had to be feeling at least foolish and determined to get back what was Benning’s.

[148] Without a doubt, Facey had fled the initial demand by Benning for the return of his money. Assuming, as I have, that Au was unaware that Benning grabbed his money from Facey, Au was legally permitted to use force and to commit what would otherwise be an assault in order to retrieve the money. The caveat is that his actions were only justified if they were reasonable in all of the circumstances.

[149] For the reasons set out, I find that Au’s action of running at Facey and then taking Facey to the ground as he did were excessive and not within the range of what was reasonable. I am persuaded beyond a reasonable doubt that s. 35 is not available to Au.

iii) Has the Crown proven that Au’s assault on Facey caused bodily harm?

[150] Having concluded that the Crown has proven beyond a reasonable doubt that Au’s action in taking Facey down was an assault and that the defences under ss. 25 and 35 do not apply, I turn now to whether the Crown has proven beyond a reasonable doubt that Au’s assault caused bodily harm to Facey.

[151] The issue is not whether the bump on Facey’s forehead amounts to bodily harm, as that is conceded by the defence. The question is whether the Crown has proven that Au’s unlawful assault caused the bump. The test is whether the assault was a “substantial contributing cause to the injury”.

[152] The forensic evidence is that the bruise could have occurred before, during or after the altercation between Facey and Au. It occurred from an impact on Facey’s forehead, which could be from his forehead hitting something, or something hitting his forehead. It could have been accidental or non-accidental. The bruise cannot be explained by a fall backwards striking the back of the head.

[153] The Crown says that the bruise was caused by the takedown. It submits that Au ran at Facey, whom he outweighed, and that Au could not control the way he took Facey down. The bump was not there the night before. Green and Nrkumah testified that they had not seen it when they dropped Facey off at the park shortly before 3:00 p.m. It was first discovered about 2 hours later, around 5:00 p.m.

[154] The bruise is a minor injury that the experts say could have been caused accidentally by the normal activities of daily life. As an isolated injury, which it is in this case, it is medically trivial.

[155] Given the speed of the takedown, Au’s weight and the fact that the take down was not controlled, it seems to me highly likely that Facey sustained force to his head during the take down and that this force caused the bruise. It was clearly not because the back of his head hit the grass, but is likely from some contact between Au and his forehead as they went down.

[156] The difficulty is that I cannot be sure from the evidence adduced at trial that this is what happened. There are other reasonable possibilities as to what could have happened. Something could have hit Facey’s forehead earlier in the day. While the Crown says that Facey’s immediate physical symptoms after the altercation with Au rebut the suggestion that the bump was during or before the altercation, there is no evidence that physical symptoms were related to the bump. As a result, I cannot rely on the symptoms to assist with the timing of the injury. Moreover, Facey could have hit his head as Nkrumah was getting him into Green’s vehicle at the scene, or while he was in the vehicle. In these circumstances, I cannot be satisfied beyond a reasonable doubt that Au’s assault caused the bruise.

Conclusion

[157] Mr. Au will be found not guilty of assault causing bodily harm, but I find him guilty of the included offence of assault.

J.M. Woollcombe J.

Released: November 27, 2024

COURT FILE NO.: CRIMJ(P) 23/364

DATE: 2024 11 27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

• and -

AU, Calvin

Accused

REASONS FOR JUDGMENT

J.M. Woollcombe J.

Released: November 27, 2024