A Toronto police officer who beat a Black teenager so badly he lost an eye has been found guilty of assault, but not aggravated assault.
Const. Michael Theriault and his brother Christian Theriault were involved in a violent altercation with Dafonte Miller in the early morning hours of December 28, 2016 in Whitby, Ontario.
Miller, who was 19 at the time, was seriously injured in the attack, and suffered from a burst left eye, which had to be replaced with a prosthetic, and fractures to his nose, wrist and orbital bone.
The brothers were charged with aggravated assault and obstruction of justice, as they were accused of misleading police about the incident. Both were acquitted of obstruction Friday, and Christian was acquitted of aggravated assault.
Michael, who made more than $100,000 last year, has been suspended from the Toronto Police Service with pay since being charged in July 2017. He was off-duty when he attacked Miller.
On Friday, Ontario Superior Court Justice Joseph Di Luca said he could only find Michael guilty of assault, not aggravated assault, even though Miller’s injuries satisfy the elements of maiming and disfigurement required for an aggravated assault.
The judge said he had major concerns with key aspects of the Theriaults' evidence and that both men probably weren't acting in self-defence, but that he cannot convict based on probability.
In a livestream after the verdict, Miller said he doesn’t believe today was a loss.
“We’ve come a long way. I remember the night when this happened to me, I ended up getting charged,” he said. “A lot of times people are dying and officers are walking. So I don't feel like I took a loss, I feel like we took a step forward.”
Toronto Police Chief Mark Saunders said the force accepted the court's findings but would not say whether Michael would stay on as a police officer.
"As chief, I can't deny that this matter will have an increased strain on the relationship between police and the community, specifically the Black community," he said.
On the night in question, Miller said the men questioned him and his friends on a residential street in Whitby, then chased and beat him.
The brothers said Miller had broken into their parents’ truck and that he attacked them with a four-foot-long metal pole after they chased him to arrest him. They said Miller was trying to climb a fence between two homes on Erickson Drive when Michael body checked him, at which point Miller produced the pole and began hitting both of them with it.
They said they punched him in self-defence, using “reasonable force” in the course of making an arrest, but said they never hit Miller with the pole.
Miller said he ended up on the ground after he ran between the houses, where Christian put him in a headlock and Michael began beating him on his back and head with the pipe. He said he managed to get out of the headlock, but the two men took him down again and both beat him, delivering forceful punches and hitting him with the pipe. Then he said he got to the front door of one of the homes and banged on it, calling for help, as Michael continued to strike him with the pipe, causing his eye to burst.
Miller said he then retreated to the driveway of the home, as the homeowner, James Silverthorn called police. Miller and Christian also called 911.
Silverthorn, a deputy fire chief, testified that he saw Michael jabbing Miller with the pipe as he was lying down on the driveway.
Di Luca said he believes Miller and his friends were car hopping (stealing stuff from open vehicles) that night and did enter the Theriaults’ parents truck.
However, he said “I must keep in mind that as a young Black man Mr. Miller may have had many reasons for denying any wrongdoing” including a distrust of law enforcement given that he was beaten that night and subsequently arrested.
He said he did not accept significant parts of the Theriaults’ evidence, rejecting Michael’s assertion that his initial intention was to arrest Miller and that Miller somehow produced the pipe when he was body checked while trying to climb the fence. He also dismissed Christian’s suggestion that Miller may have been walking around with the metal pipe in his pants.
Di Luca said Michael's likely intention when he left the garage was to assault Miller.
Di Luca said it is “inconceivable” that Michael, who was pursuing Miller on foot without shoes on in winter, failed to identify himself as a police officer or indicate that he was trying to arrest Miller.
Michael only did so when Miller called 911, after the attack.
During his 911 call, Christian is heard telling Miller, "You fucking, you fucking in cars and shit, eh? You picked the wrong fucking cars.” Di Luca said that comment indicates Christian was administering retribution, undermining the self-defence narrative.
Di Luca said although the brothers were “probably just beating on Mr. Miller” during the initial part of the altercation, when the three of them were in between two homes, there is still a reasonable doubt that the brothers were acting in self-defence. However, once Miller moved to the front of a neighbour’s house, banging on the door for help, Michael hit him again in the face with a pipe.
Di Luca said that part of the beating constitutes assault with a weapon, as Miller was clearly in retreat. He said he can’t say beyond a reasonable doubt that it was aggravated assault because the rupture to Miller’s eye may have occurred earlier.
Di Luca said there was no option to convict Michael of assault with a weapon, only assault. However, he said the use of the metal pipe will be considered an aggravating factor in Theriault’s sentencing.
A Durham police officer who arrived on scene to find Miller bleeding allowed Michael to handcuff Miller. Police initially charged Miller with assault with assault, possession of a weapon, theft and weed possession. Those charges were later dropped. Police accepted the accounts of the Theriault brothers.
In July 2017, after Miller’s lawyer informed Ontario’s police watchdog, the Special Investigations Unit, the brothers, whose father John Theriault is a Toronto police detective, were charged.
Despite it being a serious incident involving a cop, neither Toronto police nor Durham police contacted the SIU.
The brothers were accused of lying to police, which resulted in the obstruction charge.
They did not mention Miller hitting them with a pipe when Christian called 911, or when police arrived. Only in subsequent interviews with police, did they discuss being hit with the pipe.
When the 911 dispatcher asked how Miller was injured, Christian replied, “He’s fighting us back we were trying… we’re all fucking bloody right now.” However, there was no visible blood on either brother. Christian’s injuries from that night were a scratch on his hand, a bruise on his right thigh, tenderness on his head and base of thumb, and pain in his right elbow. He also said he had a concussion. Michael said he had no injuries.
“If they had been attacked by Mr. Miller with a pipe, surely that would be the main thing they would communicate to 911 in the immediate aftermath of such an attack,” the Crown’s submission said.
Di Luca said that while aspects of the brothers’ statements were likely misleading police, he could not find them guilty beyond a reasonable doubt of obstruction.
Di Luca said he’s mindful of the interest in the case, given the larger conversation about police brutality against Black people.
“This case and others like it raise significant issues with race and policing that should be further examined,” he said, for example, “How this matter might have unfolded if the first responders arrived… and observed a Black man dressed in socks and no shoes asking for handcuffs while kneeling on top of a significantly injured white man.”
Miller said he felt like he was on trial when he testified.
“I felt [the defence lawyer] was just trying to flip the case onto me instead of really trying to get the bottom of what happened that night.”
Following the ruling, Miller’s lawyer Julian Falconer said he has outstanding questions for Durham and Toronto police, including how Miller was arrested when he was the one who was badly injured, why neither police service involved the SIU, and what role the brothers’ dad, a police detective, played in a cover-up.
He is calling for a federal inquiry into police brutality against racialized people.
The Toronto police's handling of the case will be reviewed by Waterloo police.