Reasons for Sentence

Court File No.: CRIMJ(P) 23/364
Date: 2025-06-18
Ontario Superior Court of Justice

Between:
His Majesty the King
Applicants' counsel: S. Horgan and C. Weiler
– and –
Calvin Au
Respondent's counsel: P. Brauti and A. Banister-Thompson

Heard: 2025-05-12

Judge: J.M. Woollcombe

Introduction

[1] On November 27, 2024, I found Calvin Au (“Au”) not guilty of assault causing bodily harm but guilty of the lesser, included offence of assault on Chadd Facey (“Facey”). Au is now before me for sentencing.

[2] The context of the assault is important. On April 26, 2021, Au and his partner Gurmakh Benning (“Benning”), off-duty officers with the Toronto Police Service (“TPS”), drove to Brampton for Benning to buy an Apple watch from Facey, which Benning had arranged on Kijiji. Shortly after paying $400, they realised that the watch was fake. Over the next several minutes, they chased Facey down to retrieve the money. Ultimately, Facey stopped and Benning was able to grab the cash from his hand. Au, who possibly did not realise Benning had the cash back, ran at Facey. He took him to the ground using, what I have concluded, was excessive force that was not objectively reasonable in the circumstances.

[3] Facey’s friends arrived while Benning and Au were standing over Facey. Benning and Au quickly returned to their car and left. Facey’s friends assisted him in leaving. Tragically, Chadd Facey died that night as a result of intracerebral hemorrhage. At trial, it was not alleged that the interaction between Facey and Au caused Facey’s death.

[4] The Crown submits that a fit sentence is 4 months custody followed by 12 months probation with statutory terms and a non-communication order respecting Facey’s family. In addition, it seeks a s. 110 order for 5 years and a DNA order.

[5] The defence submits that Au should be granted a conditional discharge. The defence submits that any firearms prohibition is not necessary and that if it is granted, there should be an exception for employment purposes. The defence says that a DNA order is not necessary.

[6] In these Reasons, I will summarize the relevant facts, including those relevant to the offence and offender, as well as the impact of this offence on the victims and the community. I will then set out the applicable legal principles, followed by an analysis of the appropriate sentence and ancillary orders.

Relevant Facts

Circumstances of the Offence

[7] The Reasons for Judgment (2024 ONSC 6587) set out the details of my factual findings, most of which I will not repeat.

[8] The following facts are, however, critical to consider in crafting a fit sentence:

• After selling the fake watch to Benning, Facey fled. Facey was a healthy 19-year-old Black male who was 5'10" tall and weighed 128 pounds. Benning and Au pursued him, not in their capacity as police officers, but as private citizens;
• Au’s intention was to chase Facey down to retrieve Benning’s money;
• As he chased Facey over about 5 minutes and 40 seconds, Au made a call to Benning that lasted one minute and 30 seconds. What they discussed is not clear, but they did not discuss a plan to arrest Facey. While it would have been open to the two of them to arrest Facey, neither intended to do so;
• Benning was able to use his car to catch up with Facey. They ended up face to face in an open grassy space. Au was 15-20 metres away and saw them. Facey had stopped moving and was not actively resisting;
• At this point, the two experienced, trained officers were close to Facey and outnumbered him. They had a size advantage: Au was 5'9" tall and weighed 185 pounds, at least 50 pounds more than Facey. Benning was 5'8" and weighed about 165 pounds. Benning had not been in the foot pursuit and had fresh legs. They had access to their vehicle. Au had no objectively reasonable concern that Facey was armed. In sum, Benning and Au had an obvious and significant tactical advantage over Facey, who had no realistic ability to flee;
• Benning was able to snatch his money from Facey’s hand. While Au likely saw this, I cannot be sure. As a result, Au must be sentenced on the basis that he continued to have the legal right to apply force in defence of Benning’s property, as long as he used reasonable force in the circumstances;
• At this point, Au had available to him many viable options to retrieve the money, short of taking Facey to the ground. He could have asked Benning to restrain Facey. He could have run to Facey and held him to prevent him from leaving. He could have told Facey that they were officers and were taking Benning’s money back. He had police training and experience in de-escalation through verbal communication, and could and should have tried to calm the situation through his words. Au neither considered nor engaged any of these reasonable alternatives;
• Instead, Au chose to run at Facey, saying nothing, and taking him to the ground by surprise. The force used was not reasonable or necessary and was out of proportion with the objective of retrieving $400. Au knowingly took Facey down in a manner that did not enable him to control what happened to Facey. The take down unnecessarily increased the risk of injury to Facey when there were other less forceful options available to Au.

[9] While Au subjectively believed that he needed to take Facey to the ground to retrieve Benning’s money, the force he used was excessive and not reasonable, as a result of which he was found guilty of assault.

Circumstances of the Offender

Background

[10] Calvin Au is a 34-year-old TPS officer with no criminal record.

[11] After high school, Au attended Humber College, from which he graduated with a diploma in Police Foundations. He then obtained a Bachelor of Applied Science in Justice Studies from the University of Guelph.

[12] In 2010, Au became a Provincial Offences Officer, a role he had for 4 years. In 2014, he was hired by the TPS. He attended 13 weeks of training at the Ontario Police College in Aylmer. He began his career with TPS in January 2015 in the Primary Response Unit, moving to the Community Response Unit in 2020.

[13] Au has a close relationship with his parents and sister. He and a former partner have a 3-year-old daughter whom he supports emotionally and financially.

[14] Au was charged with manslaughter in relation to Facey’s death on February 9, 2023. Media coverage painted him as responsible for Facey’s death. Au’s mental health has been adversely affected by the proceedings, and the consequent stress of being charged with a high-profile homicide. A new indictment charging him with assault causing bodily harm was filed in September 2024 and the manslaughter indictment was withdrawn. But over the period from February 2023 until September 2024, the homicide charge weighed heavily on Au.

[15] The evidence establishes that Au has received some counselling. One letter, from Broadleaf Health, dated April 25, 2024 [sic], indicates that he had 9 sessions since December 2024. There is no description of what the counselling was for. The second letter, dated April 22, 2025, indicates that he had 13 sessions, about once a month, from May 2023 into 2024. This was to focus on the emotional impact of the charges he faced and to support him as he experienced stress and emotional turmoil related to the legal process.

Letters of Support

[16] A significant number of letters supporting Au were filed at sentencing. They fall into three categories.

[17] First, there are letters from a large number of Au’s colleagues at the TPS, including officers with whom he was partnered, a mentor and a supervisor. They all describe him as a deeply committed officer who has consistently shown respect, integrity and fairness to co-workers and members of the public. A number of them provide examples of instances in which he exercised strong judgement in challenging professional situations. The writers all view the facts that led to this conviction as anomalous and as an isolated error.

[18] Related to these are Awards Recommendation documents for various roles that Au has played in policing incidents between 2016 and 2021, as well as a letter of appreciation from a former Police Chief for TPS and a letter of thanks from a community member. These documents highlight Au’s exemplary conduct in a number of demanding instances.

[19] Second, there are a number of supportive letters from family members: Au’s mother, former partner (and mother of a child they share), younger sister, brother-in-law, aunt and cousin. They all describe him as deeply committed to his career as a police officer and as an individual who is a reliable, committed, thoughtful, helpful and caring member of their family.

[20] Finally, there are letters of support from Au’s large circle of friends and others who know him through the community. Universally, these letters portray Au as a person of integrity who is passionate about his work serving the community as a police officer, a position in which they see him as hard-working and to which he is dedicated. They also describe him as a kind, compassionate and supportive friend and community member.

[21] Fairly, this package of material presents Au as a hard-working individual who is deeply committed to his career as a police officer. He is described consistently as a person of integrity who cares about those around him and about those in the community he serves.

Impact of Sentence on Au as a Police Officer

[22] Counsel have provided an Agreed Statement of Facts respecting the possible impact of sentence on Au’s employment with the TPS.

[23] As a result of being charged, Au was suspended with pay on February 9, 2023 and was charged with Police Services Act (“PSA”) offences. The disciplinary hearing was adjourned until the criminal matter completes.

[24] As a result of the findings made in my Reasons for Judgment, I am advised that Au was served with a further Notice of Investigation to determine whether his conduct would undermine the public trust, contrary to the Community and Safety Policing Act.

[25] The fact that he has been found guilty of assault is admissible at any PSA hearing and will, I am advised, amount to professional misconduct.

[26] If Au is sentenced to any term of imprisonment or to a conditional sentence, the TPS Chief of Police would be able to suspend him without pay and would have the discretion to apply for a penalty up to termination of employment. On an application for termination, there are a range of penalties possible, but counsel are unaware of any case in which an officer has retained their position after serving a custodial sentence.

[27] Counsel agree that if Au were sentenced to jail, his status as an officer would affect the conditions under which he would serve his sentence in that he would likely have access to less facilities than other inmates and the placement of where he serves time might be affected: R. v. Doering, 2023 ONSC 5603 at paras. 52-53.

[28] If Au receives a non-custodial sentence, the TPS Chief would also have the discretion to suspend him without pay and could apply for termination or seek a lesser penalty, including reprimand or demotion.

[29] If, as a result of a term of probation, an officer is prevented from having possession of a firearm or other weapon, the officer may be suspended without pay or there may be an application for termination of the officer’s employment as a result. Or, the officer’s police service could exercise its discretion to assign the officer to duties that do not engage the restrictive term imposed.

The Decision in R. v. Zaragoza, 2025 ONSC 2077

[30] In their written materials filed for the sentencing, the Crown sought to rely on a decision of McArthur J. in Zaragoza as relevant to Au’s background, conduct and character. The Crown’s position was that while it was not seeking to rely on that judgment as an aggravating factor on sentence, or to punish Au for uncharged offenses, the judgment was relevant to specific deterrence, rehabilitation and protection of the public.

[31] The defence objected to the use of this judgement for any purpose on sentencing, submitting that it was not evidence and that if the Crown wanted to rely on it, the evidence supporting it needed to be called and proven.

[32] It is important to put Zaragoza in context. The 18-year-old accused, Mr. Zaragoza, was charged with five counts of aggravated assault endangering life, two counts of mischief, one count of flight from police and one count of dangerous driving. The charges arose after seven TPS officers on bicycles followed him into an underground parking lot and attempted to speak with him as he was driving without a front license plate. Mr. Zaragoza reversed his vehicle, revved his engine and drove up the ramp, leaving the parking garage and destroying two of the police bicycles as he did so. PC Au, who was located on the grass by the ramp to the parking lot, fired his gun four times towards Mr. Zaragoza, hitting him and his passenger.

[33] Mr. Zaragoza brought an application under s. 24(1) of the Charter to stay his charges on the basis that the officers had racially profiled him, arbitrarily detained him, failed to provide him with the reasons for his detention and used excessive force in shooting him. The Crown position in relation to PC Au was that he used reasonable force in shooting at Mr. Zaragoza as he drove up the ramp.

[34] McArthur J. was provided with the Reasons for Judgement in this case, and permitted counsel for Mr. Zaragoza to question PC Au about the Facey incident. However, she declined to use the evidence or findings in this case to conclude that PC Au had a disposition to use excessive violence against young, racialized men and declined to rely on the Facey incident when assessing the question of whether PC Au had used excessive force.

[35] McArthur J. did not accept that PC Au fired his gun to protect the lives and safety of other officers. She also concluded that it was not objectively reasonable for PC Au to believe that deadly force was necessary to protect officers from death or grievous bodily harm. Rather she held that PC Au mistakenly believed that he was legally justified in using lethal force to stop someone from fleeing if he believed that they had caused harm.

[36] At the outset of the sentencing hearing, I voiced a concern to the Crown that McArthur J.’s decision was not “evidence” before me. I also raised that it appeared as though this decision was being relied on by the Crown as an aggravating feature on sentence and that if the Crown wished to rely on the facts of that case, my preliminary view was that they would likely need to prove those facts beyond a reasonable doubt. While I left it to the Crown whether they wanted to persuade me that this decision was admissible for any purpose, I candidly expressed preliminary reservations. The Crown declined to make any oral further submissions on this issue or to rely on this judgment for sentencing purposes.

[37] I am advised by Mr. Brauti that shortly after the incident with Mr. Zaragoza, and well before McArthur J.’s judgement, the Special Investigations Unit (“SIU”) investigated and “cleared” Au in relation to that shooting. I am further advised that as a result of the Reasons for Judgment in this case, the SIU is reviewing his conduct in the Zaragoza matter. Whether and for what reason the SIU chooses to re-investigate Au in relation to the Zaragoza matter is not relevant to the issue of sentencing him for the Facey matter. It seems hardly surprising that following McArthur J.’s decision respecting Au’s conduct in that matter that the SIU might re-consider their initial decision to “clear” him in relation to it.

[38] Accordingly, while I have read Zaragoza, I place no reliance on the findings made in it in determining a fit sentence.

Victim and Community Impact

[39] I was provided with 5 Victim Impact Statements from Chadd Facey’s family, including from his mother and father as well as from his 3 sisters. I listened in court as they were read aloud and have re-read them.

[40] Chadd Facey was 19 years old when he died. It is clear to me that he was a much beloved son and brother in a close-knit family. His family saw him as a “bright light”. He was creative and musical. His mother describes him as full of creativity, drive and purpose. He was kind, loving and respectful. His older sisters all adored him and had their own individual, special relationships with him. Chadd Facey died at a time when his adult life was just beginning.

[41] Each of Chadd’s family members has expressed in a different way the enormous pain they feel from his loss and the impact that his loss has had on them personally. I accept that his death has devastated each of them. They feel his absence at family gatherings and miss him on a daily basis. They have felt depression, stress and anxiety which were heightened by the trial and re-living what was the tragedy of their lives. Their emotions are deep, and very real. They are left with trauma, grief and anger about what happened.

[42] The family members also speak about the loss of trust that they feel for the police as a result of the interaction between Au and young Chadd Facey. Some are fearful of police. For others, seeing the police triggers flashbacks and sadness.

[43] The Crown has provided Community Impact Statements from the Canadian Association of Black Lawyers (CABL) and from Keep6ix Non-Profit Organization. These letters express the view that Au’s conduct heightens the mistrust of police that exists in the Black community. His conduct is said to erode trust between the Black community and the police, and to amplify the Black community’s lack of confidence in policing and the administration of justice. While acknowledging that there are doubts as to the role of race in this interaction, the view expressed is that race is front and centre for Black community members.

[44] As was conceded by the Crown at the sentencing, any suggestions in any of the victim or community impact statements, direct or indirect, that Au caused Chadd Facey’s death, must be disregarded. While Chadd Facey’s family members understandably speak about their enormous sense of loss, it is critical that Au be sentenced for the assault he has been convicted of, and not for having caused Facey’s death. His moral culpability is not elevated by Facey’s tragic death.

Applicable Legal Principles

[45] Section 718 of the Criminal Code describes the purposes of sentencing:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a. To denounce unlawful conduct and the harm done to victims or the community that is caused by unlawful conduct;

b. To deter the offender and others from committing offences; to separate offenders from society, where necessary;

c. To assist in the rehabilitation of offenders;

d. To provide reparations for harm done to victims or the community; and

e. To promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.

[46] Sentencing begins from the principle that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This principle is the “fundamental principle” of sentencing, codified in s. 718.1 of the Criminal Code.

[47] Sentences are, in accordance with s. 718.2(1), to be increased or decreased in view of aggravating and mitigating circumstances. Sentencing judges must also consider the principle of parity, codified in s. 718.2(b) of the Code. Parity is about treating similar offenders who commit similar offences in similar circumstances in a similar manner. Sentencing ranges, while of assistance, are guidelines and not hard and fast rules: R. v. Friesen, 2020 SCC 9, paras. 30-32, 37; R. v. Lacasse, 2015 SCC 64, para. 60; R. v. Parranto, 2021 SCC 46, paras. 17, 25.

[48] The principle of restraint is codified in s. 718.2(d) and (e).

[49] There are several important principles to consider when sentencing a police officer for an assault.

[50] First, the paramount sentencing principles are denunciation and deterrence. The Court of Appeal has recognized that because they have significant responsibilities, police officers are “granted a great deal of trust and power”. They must protect and serve the community and uphold the law. When their conduct is contrary to these duties, the legitimacy of the rule of law is undermined. As a result, they are “held to a higher standard than would be expected of ordinary citizens” and the principles of denunciation and general deterrence are magnified. Even if police officers are off duty when they commit offences, if their conduct uses their training to undermine public safety, public trust is compromised: R. v. Theriault, 2021 ONCA 517, paras. 206-207; R. v. Forcillo, 2018 ONCA 402, para. 133.

[51] Second, the law recognizes that crimes committed by police officers are a breach of the public trust. That is why officers are held to a higher standard, and why general deterrence and denunciation are so critical when officers are sentenced. As Pomerance J. (as she then was) held in R. v. Doering, 2020 ONSC 5618, para. 27:

… First, a breach of trust can arise even where there is no deliberate exploitation of authority. Police criminality is, on its face, a violation of the general trust reposed in police to uphold and enforce the law. It is an implicit condition of that trust that police will obey the laws that they are enforcing. Viewed in this light, it is difficult to imagine an offence by a police officer that does not, in some way, breach the public’s trust.

[52] That said, the extent of an offending officer’s breach of trust “is a question of degree” and depends on the specific facts. The fact that the officer was off duty does not mean that there was no breach of trust because an officer is an officer, whether or not on duty. However, an offence committed by an off duty officer “in a manner wholly related to the performance of an officer’s official duties may lessen the weight given to the inherent breach of the community’s trust”, though this may change if the officer purports to act in a policing capacity or function: R. v. Theriault, 2020 ONSC 6768, para. 47.

[53] Third, even in cases, like this, where there is no suggestion that the offence was racially motivated, the racial context in which it took place is important. Where, as in Theriault, the conduct of a police officer creates or magnifies distrust between the Black community and the police, this context is relevant to sentencing. As Chief Justice Tulloch observed at paras. 213-215 in Theriault (ONCA):

[213] As the trial judge put it, Michael’s conduct “further sowed the seeds of distrust between the Black community and the police.” Michael’s actions, as a white off-duty police officer who assaulted a retreating, injured Black youth, cannot, and should not, be divorced from this wider context. As noted above, Michael was a representative of the rule of law in this country, and his actions shattered a community’s trust in the very system that is supposed to protect them.

[214] Mr. Miller may have broken the law that night, but he did not deserve what subsequently happened to him. The right to be free from excessive and unreasonable force does not discriminate.

[215] The trial judge’s treatment of this larger context in sentencing was laudable and sets a model for future cases of this nature. As I will explain, he did not falter in his role of imposing an individualized and proportionate sentence, while also recognizing that this type of crime warrants heightened denunciation due to its devastating implications.

[216] At all times, the trial judge remained tethered to the fundamental principle of sentencing: that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. He recognized that he was not imposing a punishment “in an attempt to right past societal or systemic failings.” He took into consideration Michael’s mitigating circumstances and maintained a focus on the individualized offence before the court. At the same time, the trial judge acknowledged that denunciation, as a collective statement of society’s values, must evolve in tandem with developing social values. This includes increasing awareness about anti-Black racism.

[54] Finally, the range of sentence for non-police first offenders who commit assault is not particularly helpful when determining a fit sentence for a police officer. Without doubt, had it been a private citizen trying to take back the cash given to Facey for a fake watch, and that citizen had taken him down as Au did, the appropriate sentence would be more lenient than is appropriate here. Police officers who commit assault are differently situated than non-officers. Generally, this means that they receive higher sentences: Theriault (ONSC) at para. 46; Forcillo, at para. 133.

[55] Both the Crown and defence provided cases said to be similar for the purpose of illustrating the appropriate range.

[56] While I have reviewed them, the law is clear that sentencing is an individualized process and that the sentence imposed must reflect the circumstances of this offence and this offender. I also recognize that sentencing ranges can evolve over time. While no case is identical to this one, I found the following to be of assistance:

• Doering (2023): The officer was found guilty of failing to provide the necessaries. The offences related to an Indigenous woman who died in police custody. The accused failed to obtain medical assistance for her and then lied to other officers about her condition. While the trial judge initially imposed a sentence of 12 months real jail, this was predicated on the fact that there was a conviction for criminal negligence, an offence for which there is a higher level of moral blameworthiness. When it returned before Pomerance J. for sentencing on failing to provide the necessaries of life, she imposed an 18 month conditional sentence;
• Theriault: The accused, an off duty white police officer, caught the complainant, a young Black man and others stealing from his parents’ truck. A chase and violent struggle followed. After the victim had suffered a significant eye injury and was in “an acute state of vulnerability”, the accused used a metal pipe to strike him in the face. This was found to be gratuitous violence on a vulnerable victim who posed no threat. A 9 month sentence was imposed, followed by a 12 month period of probation. The Court of Appeal upheld this sentence;
• R. v. Mahmodian, [2021] O.J. No 6391: The accused officer pleaded guilty to assaulting an individual he arrested. He admitted to kicking the complainant in the torso while he lay face down on the ground with his hands handcuffed behind his back. He also gave a false account of the arrest in his memo book and in his use of force report. The trial judge imposed a sentence of 30 days intermittent, which was upheld on summary conviction appeal;
• R. v. Preston, 2005 O.J. No 6450; aff’d [2008] O.J. No 5136: The accused police officer was found guilty of assault on a citizen after he was investigating a fight between two individuals at a Tim Horton’s. He grabbed the complainant and pushed him against a car and then punched him with a closed fist. Moments later, after the complainant had broken free, he was apprehended, beaten and kicked on his head and face while being held on the ground. He was sentenced to 30 days of custody, which the Court of Appeal affirmed;
• R. v. Dunn, 2023 ABKB 192: The accused officer assisted in a traffic stop and arrested the complainant on outstanding warrants and for other offences. He handcuffed her and took her to the station. There, he tried to remove her headscarf as it obstructed her forehead when she was to be photographed. She resisted twice. The officer then grabbed her, while she was handcuffed, and threw her to the ground, causing her to become temporarily unconscious and bleed from her mouth, requiring stitches. The trial judge imposed a 30 day conditional sentence. The summary conviction appeal court judge allowed the Crown appeal and imposed 30 days jail, to be served intermittently, which the Court of Appeal upheld;
• R. v. Osbourne, 2021 ONCJ 707: The accused officer pleaded guilty to one count of assault. He pursued an individual suspected of stealing a vehicle and tackled him. The young person resisted and was eventually secured. The officer then stepped on his head/neck area. The officer subsequently kicked the suspect twice in the chest. The officer, who suffered from depression and PTSD, likely from his policing career, pleaded guilty and expressed remorse. The sentencing judge rejected a discharge as contrary to the public interest and imposed a suspended sentence with 12 months probation;
• R. v. Dougherty, 2025 ONCJ 133: The officer was called to apprehend an individual under the Mental Health Act. The officer located the individual who refused to get into the cruiser. This frustrated the officer and led to a struggle during which, while the victim was on his back pinned down, the officer struck him in the face four times, fracturing his nose and causing a concussion. Convicted of assault causing bodily harm, the officer received a suspended sentence and one year probation;
• R. v. Thomas, 2012 ONSC 6653: After a trial, the trial judge found the off duty police officer guilty of assault causing bodily harm in relation to a motorist whose driving had created an ongoing situation of danger. The accused showed the other driver his police badge, had him pull over and had police called. He arrested the driver and a physical altercation occurred. There was no issue that the officer was entitled to effect an arrest and to use force. The question was whether the force was excessive. The trial judge found that the person being arrested was passive and that the officer administered an unrelenting and brutal beating that included punches and kicks, with ten or more blows, albeit in circumstances of provocation. He was sentenced to 90 days intermittent. Characterizing the case as exceptional, the summary conviction appeal court judge found that while 90 days was within the range, the exceptional circumstances warranted it being varied to one year probation;
• R. v. Rice, 2015 ONCA 478: While police investigated a disturbance at an apartment building, a surveillance camera captured an officer leaning over a suspect in the stairwell, hitting him with an open palm twice and kicking him twice in the ribcage. The issue at trial was whether this had been excessive. The trial judge found it was and convicted the officer. The summary conviction appeal court judge allowed the officer’s appeal and entered an acquittal, indicating that had he upheld the conviction, he would have granted a conditional discharge. The Court of Appeal restored the conviction but granted a conditional discharge.
• R. v. Hearnden, 2019 ONSC 4306: The accused officer forcibly removed the occupant of a vehicle stopped at the side of the highway after the occupant had closed the door that the officer had opened. The officer was convicted of assault on the basis that he had no justification to remove the occupant. The trial judge granted a conditional discharge which was upheld by the summary conviction appeal court.

Analysis

Aggravating and Mitigating Circumstances

[57] In applying the legal principles to this situation to determine a fit sentence, I have considered the aggravating and mitigating features of this case.

[58] I find the following aggravating factors:

a. Au is a trained, experienced police officer who decided to pursue Facey not to arrest him, but to try to take back Benning’s money;

b. By the time of the assault, Facey had effectively given up. He was tired, standing still, without a weapon and was powerless to try to leave. Au and Benning were heavier officers, trained and experienced in the use of force, who had access to a vehicle, the benefit of outnumbering Facey and the ability to prevent him from leaving. In other words, Au and Benning had and knew that they had a significant advantage over Facey. These factors should have informed Au’s decisions respecting his use of force, but he effectively ignored them;

c. Au was trained in de-escalating situations and on the importance of verbal communication. He chose to ignore that training;

d. Despite having obvious, less risky alternatives, Au made the unreasonable decision to run at Facey and to take him to the ground. This decision put Facey at risk of injury, which Au would have appreciated at the time;

e. While the officers were off-duty, I find that Au breached the public trust. While I concluded that Facey was not trying to flee and that Au had no intention to arrest him, Au justified what he had done on the basis that he was acting to effect an arrest as both a citizen and an officer. A trained officer, who purports to be acting as a police officer in effecting an arrest, breaches the public trust when he uses excessive force, even if he was off duty. This heightens the need for the sentence to give effect to denunciation and general deterrence;

f. This offence has deeply and profoundly affected Chadd Facey’s family. Facey’s family mourns his death. I accept their pain and feelings of loss are very real. I am sure that for them, it is almost impossible to accept Au’s level of responsibility for this. They need not do so. That is the role of the court. While I have enormous empathy for Facey’s family and their loss, the sentence imposed on Au for this assault must not seek to punish him for Facey’s death or the devastation that his death has brought to his family;

g. The offence has, as set out in the admissible portions of the community impact statements, heightened the Black community’s distrust for police and for the administration of justice. The evidence in those statements demonstrates why this kind of offence damages the community. Unjustified force on young Black men by the police reminds the community of the continuing presence of anti-Black racism in the community generally, and erodes the trust that racialized communities have in the police. Proportionality requires an acknowledgment of the devastating impact that this kind of offence can and did have on the community, and augments the need for a denunciatory sentence.

[59] There are also some important mitigating factors here:

a. Au has no criminal record;

b. The evidence before me suggests that Au’s police career has been recognized as having had many successes;

c. Au has highly supportive family members and supportive community members, factors that will no doubt assist in his rehabilitation; and

d. Au was charged with manslaughter initially and suffered as a result of the negative publicity suggesting that he had caused Facey’s death. This has taken a significant toll on Au’s mental health;

[60] As a result of the commission of an offence, any offender may suffer physical, emotional, social or financial consequences. These collateral consequences are not punishment, but they are often considered in mitigation. As was explained in R. v. Suter, 2018 SCC 34 at paras. 47-50, collateral consequences do not touch on the gravity of an offense or the level of responsibility of the offender. They do not diminish moral blameworthiness or render an offence less serious. The question is whether the effect of these consequences means that the particular sentence would have more impact on the offender.

[61] In this case, there are a number of collateral consequences:

a. As a result of being charged in this matter, Au was charged by the SIU and faces PSA charges;

b. As a result of the conviction, Au was served with a further Notice of Investigation flowing from the judicial findings made respecting his credibility and reliability;

c. A sentence of imprisonment would almost inevitably result in Au’s termination as an officer;

d. As a police officer, any period of time in jail would likely impact the offender because he would have more limited access to facilities than other inmates.

[62] Au’s career may well be in jeopardy because of this conviction and the PSA charges he will face. A jail sentence would almost certainly end his police career. This sort of collateral consequence is directly linked to the nature of the offence – a police officer using unreasonable force. As a result, the mitigation for these factors is lessened: Suter, at para 49, Theriault (SCJ), at para. 78; Doering (2020), at para. 64.

A Fit Sentence in This Case

[63] Section 266 of the Code provides that an assault prosecuted by indictment carries a maximum sentence of 5 years. Section 730 provides that for this offence, both conditional and absolute discharge are available dispositions. The defence seeks a conditional discharge.

[64] A conditional discharge may be granted if it is in the best interests of the accused and not contrary to the public interest: s. 730(1).

[65] As is the case for virtually every individual who seeks a discharge, granting one would be in Au’s best interests. The more difficult question is whether I am satisfied that a discharge would not be contrary to the public interest.

[66] This offence must be considered in the context of Au and Benning, experienced off duty officers, being ripped off and deciding that they were going to go after Facey for the return of Benning’s $400. They pursued him as they were entitled to. But that pursuit ended and Facey’s flight ceased. Benning retrieved his money. Unprovoked by the unarmed Facey, but still angry that this young man had got the better of them, Au failed to engage his police training to control and de-escalate the situation. Instead, he opted to use violence, running at Facey and taking him to the ground in a situation, when doing so was unwarranted, unjustified, excessive and put Facey at risk of injury. His moral culpability is high. He had been trained to respond appropriately to this sort of situation and did not do so. I find these circumstances heighten the need for a sentence that denounces Au’s conduct and deters others from acting in this way. As a whole, they make a conditional discharge contrary to the public interest: Thomas, at para. 48.

[67] After careful consideration, I have concluded that a proportionate and fit disposition is a suspended sentence and probation. While I recognize that a fit sentence could include a term of jail, I am not persuaded that jail is necessary or appropriate in this case for this offence and this offender. In reaching this view, I have considered the factors already discussed, particularly mindful of the following:

a. Au’s excessive force was confined to running at Facey and taking him to the ground. While it was criminal, it was quick and over. Absent in this case is any of the additional, gratuitous violence that can be seen in many of the other cases in which custody has been imposed;

b. This was a case in which I found Au was entitled to use some force to retrieve Benning’s $400;

c. The evidence before me suggests that Au’s record as a police officer prior to this incident was positive;

d. While the evidence before me suggests that this incident has caused a loss of public confidence in the police within the Black community, there is no evidence that either Au or Benning was influenced in any way by the fact that Facey was Black. They were motivated by the desire to retrieve the $400 paid for the fake watch. Race was irrelevant to them. Thus, while the community impact is important context, it is also critical that Au not be required to shoulder the burden of the long history of violence by police officers on members of Black communities: Theriault (SCJ) at para. 6;

e. I am mindful that any conviction will put Au’s career in jeopardy. Whether the TPS Chief seeks his dismissal is not for me to comment upon. But I do not think it is necessary to impose, in this case on these facts, a sentence that will inevitably result in his dismissal. That collateral consequence, for this incident in these circumstances, is disproportionate.

[68] Having considered the circumstances of the offense and offender, the victim impact and the aggravating and mitigating circumstances, I conclude that a conviction should be entered and that Au should receive a suspended sentence and a 12 month term of probation. This sentence gives effect to the principles of denunciation and general deterrence, while at the same time recognizing Au’s history as a police officer, family and community support and prospects for rehabilitation.

[69] The 12 month probation will have the statutory terms. It will also require:

a. That he have no communication, direct or indirect, except through counsel, with any members of Chadd Facey’s family;

b. That he take anger management counselling as directed by his probation officer and provide proof of having done so to his probation officer;

c. That, should he remain employed by the TPS, he take remedial use of force training as directed by his TPS supervisor; and

d. That he engage in 50 hours of Community Service focused on improving relations between the TPS and the Black community, and provide proof of having done so to his probation officer.

Ancillary Orders

[70] I turn now to the ancillary orders sought by the Crown.

[71] First, the Crown seeks a 5 year weapons prohibition under s. 110 of the Code. The order sought is discretionary.

[72] In determining whether to impose such an order, the court is to consider whether it is desirable, in the interest of the safety of the person or of any other person, to make such an order. The evidence supporting such an order may come from the offence or from the offender’s background and character.

[73] The Crown submits that when Au committed a gratuitous assault on a defenceless teenager who posed no threat, he displayed judgment about the exercise of force that is flawed and dangerous. The Crown submits that the fact that he needs access to weapons for his employment augments the public safety concerns.

[74] The defence submits that a weapons prohibition order is not necessary. This case did not concern the use or threat of a weapon. Au was not even armed at the time and has no history of weapons violations. Should I impose a prohibition, the defence seeks an order lifting the prohibition for employment under s. 113(1)(b). Should there be no such exemption, the TPS could suspend him without pay or apply to terminate him or would have the discretion to assign him to duties that do not engage a weapon.

[75] I am very concerned that, despite all of his police training and experience, Au demonstrated the inability or unwillingness to assess a situation and then to use reasonable force. Rather than engage the de-escalation tactics he has been taught, he went directly to using excessive force in a situation where there were many other better options. His judgment was extremely poor.

[76] There is no evidence that since this offence, Au has taken any rehabilitative steps. There is no evidence of him having engaged in any counselling or training that would assist him in controlling his anger. Nor is there any suggestion that he has sought to learn more about appropriate uses of force. This means that I have no basis to think he would do anything differently should a similar situation present itself, either on or off duty.

[77] I am concerned about Au having possession of any of the weapons listed in s. 110(1)(b), including a firearm. My concerns are elevated were he to have any deadly weapon in the various volatile and challenging scenarios in which police officers regularly find themselves. My concerns are rooted in the safety of the public, having regard to what I find to be Au’s poor judgment and inability to control himself.

[78] As a result, I make an order under s. 110 that Au is prohibited from having any of those items listed in s.110(1)(b) for a period of three years. I decline to grant the requested exception for employment purposes. In my view, this order is necessary for the safety of the public. I understand that this may affect his employment, but that is a matter that must be considered by the TPS.

[79] The Crown also seeks a DNA order under s. 487.051(3) of the Code. Assault is a secondary designated offence, so the DNA order is discretionary. The defence says it is unnecessary as the offender is at low risk of re-offending.

[80] In R. v. Briggs 2002 157 C.C.C. (3d) at para. 22, Weiler J.A. set out the purposes of DNA orders in these terms:

In this case, the state's interest is not simply one of law enforcement vis-à-vis an individual -- it has a much broader purpose. The DNA data bank will: (1) deter potential repeat offenders; (2) promote the safety of the community; (3) detect when a serial offender is at work; (4) assist in solving cold crimes; (5) streamline investigations; and most importantly, (6) assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted)

[81] Au has been found guilty of committing assault on a stranger. While I am satisfied that he poses a low risk of re-offending, there are other purposes of a DNA order. Such orders are minimally invasive. They promote safety in the community. I find it is appropriate and will so order.

J.M. Woollcombe

Released: June 18, 2025