ÎÚÑ»´«Ã½

“There’s never any strikes, punches, kicks, elbows,� he said, after briefly stepping off the stand to demonstrate a textbook takedown on his own defence lawyer, Peter Brauti, in a Brampton courtroom as Facey’s friends and family watched on. 

Au’s testimony is the first time he has given his side of the April 26, 2021 afternoon when he and his ÎÚÑ»´«Ã½ police colleague, Const. Gurmakh Benning, met up with Facey while off duty to purchase what turned out to be a counterfeit Apple watch. 

The trial is solely focusing on an alleged assault by Au on Facey, who died in a Brampton hospital hours after his clash with Au of an “intracerebral hemorrhage� — a brain bleed — according to a forensic report entered into evidence Wednesday. 

Though Au was originally charged with manslaughter and aggravated assault in Facey’s death, a change in forensic pathology opinion saw prosecutors earlier this month downgrade Au’s charges to a single count of assault causing bodily harm — specifically, a bruise, or hematoma, on Facey’s head. Prosecutors have stressed that they are not alleging the altercation with Au caused Facey’s death.

According to the forensic pathology report, co-authored this week by Ontario chief forensic pathologist Dr. Michael Pollanen, a bruise on Facey’s forehead was confirmed during the autopsy but could have occurred before, during or after the alleged altercation with Au. 

“Bruises like the one in this case can accidentally occur during the normal activities of daily living,” the report says, adding the bruise to the forehead “cannot be explained by a fall backwards striking the back of the head on the ground.”

Au, who is currently suspended with pay from the ÎÚÑ»´«Ã½ police, has pleaded not guilty in a judge-alone trial before Superior Court Justice Jennifer Woollcombe.

Wearing a black suit and spending much of the day on the stand, Au, 34, said he agreed to go along with his colleague and partner, Benning, to pick up an Apple watch in a private sale arranged on Kijiji. Benning, he said, “always wants the best deal” but wanted Au’s help ensuring the watch was authentic. Having purchased his own Apple watch through a private deal, Au was confident he could help. 

The off-duty cops arranged to meet the seller, later identified as Facey, near Beryl Ford Public School around 2:30 p.m. 

It wasn’t long after a brief transaction — Facey handed over a cellophane-wrapped box containing the watch, Benning gave him $400 — that Au said he realized the watch was a fake. The plastic wrap felt cheap, and he was suspicious of the fact that Facey took off immediately as soon as he got the money. 

“I’m thinking we’ve just been scammed,� Au said. 

A pursuit began — first by car, then by foot — by Benning and Au as Facey ran “at full speed” away, according to Au. The cops at one point split up in an attempt to catch him. Near the end of the chase, Au said he saw that Benning had caught up to Facey. 

Physically exhausted from running, Au said he realized that if Facey attempted to continue fleeing he had no more energy to run, and it did not appear that Facey was surrendering, Au said. 

“That’s when I decide to secure Facey to the ground,” he said, saying he used his right arm to grab Facey’s left shoulder area to pull him down. 

Au’s legal team illustrated their client’s chase through suburban Brampton through a video re-enacting Au’s route, then showed multiple brief videos Au said depicted the takedown he’d used on Facey, demonstrated on an actor.

“I pull down Facey, we are both on the ground and that’s when we are struggling with each other,” Au said. 

Asked by Brauti if he was acting as a police officer or a private citizen as he took Facey down to the ground, Au said he considered himself as both. 

“It’s unique because Benning is also my friend,” he said. 

“I’m thinking, we’re gonna have to arrest this guy in order for Benning to get his stuff back,” he said.

Au stressed that at no point did Facey’s front side make contact with the ground, and Facey made no sound when he hit the ground.

It was as he was struggling with Facey on the ground that an “unknown male” started running toward them, then made “a gesture to the front of his pants,” Au said. He then stood up in court and motioned up and down with the waistband of his own pants. 

Au said he concluded this man “possibly has a weapon … and I ultimately decide to disengage because I have no use of force options.” He and Benning got back in the car and left, Au said. 

Benning, meanwhile, had dialed 911, but in the brief call told the dispatcher that he had gotten his money back after getting scammed and that police weren’t required to attend. It was during that call that Au said he first learned Benning got his money back. 

The two off-duty cops then returned home. It wasn’t until four months later, in August 2021, that Au learned Benning had been contacted by Peel Regional Police and told Facey, the watch seller, had died the day of the sale. 

“Honestly, when I found out, I was shocked and blown away. Because the observations that we had in the moment didn’t reflect the eventual outcome,” he said.

When he last saw Facey, he was pushing himself off the ground and leaving with the other man, Au said.

In a combative cross-examination that began Wednesday afternoon, Crown prosecutor Sean Horgan probed into what Au might have been feeling as he — a stocky, five-foot-nine 185-pound man — set off to chase the “very skinny” 128-pound Facey. 

Horgan suggested to Au that he would have been upset that he and Benning, police officers with 12 years of experience between them, had been “fooled� and ripped off. This, despite the fact that a core part of an officer’s job is to figure out whether people are misleading you, Horgan said.

“You were scammed by a 19-year-old kid,� the prosecutor said, suggesting this would have made Au “really angry.�

Au denied this, saying he was only “disappointed� it hadn’t been an honest transaction. 

The cross-examination continues Thursday.