A month after assaulting Chadd Facey, who later died, this Toronto cop shot two other racialized teenagers

Const. Calvin Au is again at the centre of a serious police misconduct case. This time, criminal charges against a Toronto man — who was 18 at the time — have been thrown out by a Superior Court judge.

“This is one of those exceptional cases where the state misconduct is so egregious that moving forward with the trial would be offensive,” Justice Heather McArthur wrote in her ruling to stay charges police laid against the teen in May 2021, including five counts of aggravated assault.

Details of how Au and six police colleagues followed the teen into a Toronto Community Housing Corporation (TCHC) parking garage in Flemingdon Park, before questioning him without cause or authority, as the situation quickly escalated, is detailed in the newly released decision.

Critically, the judge found it was unreasonable for Au to use excessive force by firing four bullets at the fleeing vehicle driven by Orlando Zaragoza.

One of those bullets struck the arm of a young man who was a passenger in the car, requiring surgery, while another pierced Orlando Zaragoza’s baseball cap while he was in the driver’s seat, nearly hitting him in the head, McArthur wrote. A third bullet caused damage to Zaragoza’s arm when it hit the car’s dashboard.

Both Au and another officer, Tiberiu Stoica, who the judge found had racially profiled the teen, declined to comment through the Toronto Police Association (TPA), which represents uniformed officers. 

In a statement, TPA president Clayton Campbell said the SIU had conducted a “thorough” investigation without any findings against the officers and that “adverse comments” made by a judge do not automatically equate to misconduct.

“It will be up to the Service (or an organization of its choosing) to determine if they believe misconduct has taken place,” the statement said. “If that does happen, the officer will have an opportunity to challenge this belief at a later time or accept the findings.”

Campbell also pointed out the judge didn’t factor the Facey case into her decision and suggested the Star should not equate the two.

Toronto police spokesperson Stephanie Sayer said they conduct investigations into all “adverse judicial comments or findings against a police officer,” and if any misconduct is found, “disciplinary action will be taken.” No officers have been suspended related to the Zaragoza case, she said.

“We take judicial comments and findings very seriously and are legislatively required to conduct an investigation into any potential misconduct. Police officers give evidence in thousands of cases, and it is only in rare instances that adverse comments or findings are made.”

The judge’s findings are in contrast to the conclusions of the SIU, the independent body that investigates incidents of serious bodily harm involving the police.

Four months after the shooting, SIU director Joseph Martino, in a report that does not disclose the name of the officers, cleared Au of any wrongdoing in the case.

Approached by the Star, the SIU is now promising to review McArthur’s decision to see if it “raises information that might cause us to re-open our case,” SIU spokesperson Monica Hudon said in an email.

The court decision also comes just weeks before Au is set to be sentenced for assaulting Chadd Facey, a 19-year-old teen who was selling an Apple watch to Au’s colleague on Kijiji.

It was May 30, 2021 — 34 days after Facey’s death — when Au and his fellow officers were assigned to crowd control of a protest. After it was discovered their help was not needed, the officers — all on bicycles — decided to go on a “general patrol” in the Flemingdon Park area, the judge wrote.

“P.C. Au testified they were there to ‘fly the flag’ — meaning that the officers were to make their presence known,” the decision said.

Another officer, Stoica, was in front of the “convoy”, as the officers described it, when he noticed “a young, racialized male standing on the grassy area beside the ramp that leads into an underground parking garage.” Stoica provided “shifting evidence” about whether he noticed the man’s skin colour, McArthur wrote.

After looking away briefly, the man was no longer visible.

Stoica testified in court that he decided to go into the garage to see where the man had gone because he was “curious,” the decision said.

The officer saw Zaragoza in his black Mercedes, which was turned on but stationary, inside the garage. Another young man, who is Black, was in the passenger seat. The car was missing a front licence plate. The ownership, the court heard, had not yet been transferred after Zaragoza purchased the vehicle weeks earlier. Stoica began questioning the teen, who is Filipino, about whether he lived in the building, the court heard.

McArthur wrote that Stoica “wondered if Mr. Zaragoza was the man he had seen, but thought it seemed odd, as his clothing was different from the man.”

The judge concluded: “I find it likely that P.C. Stoica’s actions were taken, at least in part, because of the racial characteristics of the man on the ramp. He then turned his focus to Mr. Zaragoza because his skin colour was similar to the man on the ramp. That is, he selected Mr. Zaragoza for questioning based, at least in part, on his skin colour.”

Inside the garage, Stoica asked Zaragoza if anyone was in the back seat. The teen rolled down the window to show him there wasn’t.

A second officer arrived and began trying to speak to Zaragoza, telling him his front licence plate was missing but that he didn’t intend to ticket him, the decision said. A third officer put her bike in front of the car’s front bumper and yelled for the teen to turn the car off, saying he was being investigated for a missing front plate. A fourth officer arrived at the front bumper, putting his hand on the car. Two more officers entered the garage on their bikes — one of them Au. A seventh officer rode his bike down the ramp and stood in the middle of it, blocking the exit.

After officers continued to tell Zaragoza he was missing his front licence plate, the teen put the car in reverse and revved his engine before reversing “at a high rate of speed” and hitting a brick wall. One of the officers was hit by the car’s side mirror, sustaining a “minor injury.”

Zaragoza then revved the engine and one of the officers shouted for his colleagues to make room. That officer abandoned their bike and several of them took shelter by cement pillars in the garage as Zaragoza sped toward the exit ramp, taking some of the bikes with him.

What happened outside the garage is captured on CCTV footage entered in Zaragoza’s criminal case and provided to the Star by the court.

In it, Au can be seen running out of the garage onto the ramp and then backing up onto a grassy embankment. He points his gun at the approaching car, gripping it with both hands, and can be seen firing as the car passes by on the ramp.

The SIU investigation found Au fired four times with his .40 calibre firearm at the fleeing vehicle and hit it four times.

The police watchdog documented the injuries to the passenger’s forearm — the injury which warranted their investigation.

An image taken by the SIU shows Zaragoza wearing his black L.A. Dodgers New Era baseball hat, a blue straw stuck through the front and protruding out an exit in the back to show the bullet’s trajectory.

It’s a photo, the judge wrote, that “makes clear that P.C. Au came within a hair of shooting Mr. Zaragoza in the head.”

Au was hired by Toronto police in 2014 and after police college went on the road in early 2015, according to his testimony in the application to stay the charges against Zaragoza in October.

Au argued that he shot his gun because he was scared the driver could harm — or had already harmed — his fellow officers, who were outside of his field of vision inside the garage.

“I fired because I perceived an immediate threat of death and grievous bodily harm. Also, like, the SIU investigated me as well, and they did not proceed with any criminal charges,” he said, later adding he’d done nothing wrong.

“I didn’t do anything excessive.”

But the judge concluded that Au did not believe lethal force was necessary to prevent an imminent threat of death or bodily harm but “because he believed that Mr. Zaragoza might have already harmed the officers in the garage,” McArthur wrote. “He did not appreciate that his authority to use deadly force was only permitted to prevent death or grievous bodily harm.”

She went on to write: “The officers inside were not in any peril. Any risk to them had passed.”

Zaragoza told the court he was trying to put the car in park when he was in the garage “but because he was scared, he mistakenly put the gear shift in reverse,” the decision said.

That’s when the Mercedes “shot back and hit the wall.”

“Mr. Zaragoza then saw one of the officers reach for his belt and he was afraid that he was going to get his gun and shoot him,” the decision summarizing his testimony said.

“Because he feared for his life, and because the officers had run out of the way, he decided to drive his car away from the scene.”

Zaragoza’s lawyer Kathryn Doyle told the Star that McArthur’s ruling is a reminder that “regardless of how much progress we have made and regardless of how many officers carry out their duties responsibly, there are still some who allow inappropriate factors to motivate their conduct.”

“All of us in the legal community look forward to the day when we no longer need to advance racial profiling applications on behalf of our clients,” Doyle said in a statement.

The shooting took place during a reckoning within Toronto’s public housing agency about the power it extended to police to stop people on their properties, which McArthur pointed out.

But after global protests about racism and policing, TCHC launched a probe into the ways racism, especially against Black people, had seeped into its own operations. The deals were put under a spotlight, and the final report from the probe recommended eliminating them.

Police were given written notice that their powers had changed months before the Flemingdon Park incident, McArthur noted in her decision — with their authorization to enforce the trespass law revoked by TCHC officials on March 29.

The SIU director’s report said while the authority to investigate trespassers had been revoked, police were not barred from the area and would be “expected” to patrol and enforce other provincial and federal laws which he wrote they were doing when, as Martino characterized it, investigating a missing front licence plate.

With files from Wendy Gillis