ÎÚÑ»´«Ã½

“What you did was you chose to take Chadd down to teach him a lesson,” Horgan said during a tense cross examination Wednesday. “And the lesson was, you don’t rip off cops.”

Au disagreed. 

“You were angry that he had made a fool of you and (ÎÚÑ»´«Ã½ police Const. Gurmahk) Benning... and it was payback,” Horgan continued. 

“Disagree,” Au replied. 

Horgan’s pointed questioning brought Au’s trial on one count of assault causing bodily harm to a close, ending the criminal examination of a clash that happened just hours before Facey, 19, died in a Brampton hospital of an “intracerebral hemorrhageâ€� — a brain bleed.

The case centres on the April 2021 sale by Facey of a counterfeit Apple watch, purchased on Kijiji by Benning, Au’s colleague at ÎÚÑ»´«Ã½ police. Benning had arranged to pick up and pay for the watch in Facey’s neighbourhood, near a school, and brought along Au to help authenticate the watch.

It’s undisputed that the sale quickly escalated into a pursuit, after Au and Benning realized the watch was counterfeit and chased after Facey, first by car then by foot. Court has heard Au and Benning testify that when they caught up to Facey, near a suburban Brampton park, Au physically took Facey to the ground. 

Au, who has pleaded not guilty, was originally charged with manslaughter and aggravated assault by Ontario’s police watchdog, the Special Investigations Unit (SIU); until earlier this month, a three-week trial was expected to go ahead on those charges in a rare case of an off-duty cop being charged in a homicide. 

But a change in forensic pathology witnesses changed the course of the case. In a brief appearance earlier this month, Horgan said the forensic pathologist who’d originally concluded Facey died of a brain bleed — but did not comment on the manner of death — left her role. In her place, chief forensic pathologist Michael Pollanen took over and had a different view: the death may have been “naturalâ€� or the result of a spontaneous brain bleed, though he acknowledged this would be a “rare event.”

The new opinion meant there was no longer a reasonable prospect of conviction on the original charges, Horgan said in announcing the new assault charge against Au — a conclusion Facey’s mother called “heartbreaking.”

Prosecutors this week alleged Au pursued and tackled Facey to the ground, causing him bodily harm — a hematoma, or bruise, on his forehead. The Crown is not alleging the altercation caused Facey’s death, and a forensic report co-authored by Pollanen said the bruise could have occurred before, during or after the clash.

Under questioning by his lawyer, Peter Brauti, Au said he made the decision to take Facey to the ground because he planned to arrest him for stealing $400 from his friend, and believed the young man was still attempting to flee. He brought him to the ground using a reasonable amount of force — “I didn’t football tackle him,� he told the court. 

On the stand this week, Benning said he had stopped Facey and successfully retrieved his $400 from the teen when Au “almost instantaneously� tackled Facey, who was non-violent, to the ground.

Benning later agreed it wasn’t an “NFL-type tackle,” as Brauti described it — meaning Facey went straight down, and wasn’t propelled in any direction. Both Au and Benning said Facey had gone down on his back, on a grassy area, and did not let out a sound when he landed. 

In cross-examination, Horgan pressed Au on his version of events, suggesting he never had any intention of arresting Facey. He’d seen Benning retrieve his money before he brought the teen, nearly 60 pounds lighter than Au, to the ground, Horgan said.

“You had no reasonable grounds to use any force because the pursuit was over,” Horgan said.

Au denied that, saying he had grounds because Facey was “active resistant.”

“You didn’t have reasonable grounds because Chadd was not a physical threat to anyone,” Horgan continued. 

“He’s still a threat,” Au responded, because he was fleeing. 

While on the stand, both Benning and Au were pressed on why they didn’t formally report the robbery to Peel Regional Police.

Court heard a 911 call Benning made immediately after Au took Facey down, where he told the dispatcher he’d been robbed in a Kijiji deal “gone bad” but got his money back. After saying he was open to meeting officers, he then said they weren’t needed.

“You’re safe and you have your, your money back? Everybody’s OK?” the dispatcher asked.

“Yeah, yeah, yeah, we’re good. We don’t even really need police if that’s the case,” Benning responded. 

Asked why he didn’t go to the nearest police station after the incident, Au said that, “in retrospect, looking at the totality, I think, essentially, yes, we should have reported.”

But based on what they knew at the time, there were no “tangible observations” about any weapons, they couldn’t say there was a threat to public safety, Benning had gotten his money back and “we didn’t notice any signs of injuries,” Au said.

Both Benning and Au face separate professional misconduct charges stemming from the case, including for allegedly neglecting to identify themselves as police officers to the 911 operator, then failing to notify Peel police about the incident. Those proceedings have been set aside while the criminal case is ongoing and the charges have not been proven at the tribunal.

Closing submissions in Au’s trial are set for Tuesday.