(The Canadian Press)

Toronto cop convicted of assault in beating of Dafonte Miller; brother acquitted

Const. Michael Theriault was cleared, however, of the more serious charge of aggravated assault

An off-duty Toronto police officer’s “razor-thin” claim to self-defence evaporated when he struck a badly injured and retreating Black teen in the head with a metal pipe, an Ontario judge said Friday in convicting him of assault.

Const. Michael Theriault was cleared, however, of the more serious charge of aggravated assault in the 2016 beating that left Dafonte Miller, then 19, with a ruptured eye and other serious injuries.

Ontario Superior Court Justice Joseph Di Luca said that while Miller’s eye injury met the threshold for aggravated assault, he could not rule out the possibility that Theriault and his brother Christian were acting in self-defence as they delivered the blows that caused it — though he acknowledged they “probably” weren’t.

However, the self-defence argument vanished when the off-duty officer armed himself with a roughly metre-long metal pipe and attacked Miller, who had slipped away from the two men and was trying to get help from a nearby home, the judge said.

Christian Theriault was no longer involved in the fight at that point and thus must be acquitted, Di Luca said.

Both brothers were also acquitted on obstruction of justice for how they described the incident to investigators. They had pleaded not guilty on all counts.

The verdict, delivered amid ongoing protests against systemic racism and calls to defund the police, sparked outrage among many who called it further proof of discrimination in law enforcement and the justice system.

Miller, who was arrested as he lay bleeding on the ground and only saw the charges against him dropped months later, said the ruling does not feel like a loss.

“I remember the night it happened to me and I ended up getting charged. Now we’re in the situation where an officer has been held accountable to some extent,” Miller, now 22, told a news conference Friday afternoon.

“There’s a lot of people in my position who don’t get the same backing I got and don’t get to have their day to have any vindication for what they’re going through.”

Miller’s lawyer, Julian Falconer, said “important progress” had been made in the ongoing battle to hold authorities accountable.

“The force used that night by the Theriault brothers was found to have been more than likely intended to exact vigilante justice,” he said in a statement.

“The events of that night raise questions about the entire approach of the Toronto Police Service and the Durham (Regional) Police service in attempting to shield the Theriault brothers from being held to account for their actions. We have to put an end to this type of brutality and inevitable cover up.”

The case has spurred protests by members of Black Lives Matter and other anti-racism activists, and a rally was held outside the Oshawa, Ont., courthouse Friday morning, although the hearing was held over videoconference from various locations.

Friday’s hearing drew significant public attention, with thousands of viewers observing the livestream at various times. An online fundraiser for Miller’s family received more than $35,000 on Friday, nearly doubling in total.

In reading his decision Friday, Di Luca said he was mindful of the social context surrounding the case.

The case, and others like it, “raise significant issues involving race and policing that should be further examined,” Di Luca said.

But the judge said his task was not to conduct a public inquiry on race and policing, or to deliver the verdict sought by the public — it was to determine the case based on the evidence.

Prosecutors had alleged the brothers chased Miller in the early hours of Dec. 28, 2016, cornering him between two homes in Whitby, Ont., and beating him with a pipe out of a desire to mete out street justice.

Defence lawyers argued the brothers caught Miller and his friends breaking into the Theriault family truck and sought to arrest him, then found themselves fighting for their lives as Miller turned on them and attacked with a pipe.

Miller testified last fall, and denied stealing from cars that night. He told the court he had no chance to fight back against the attack.

Michael Theriault, who testified last, admitted to hitting Miller but said he only did so with his fists. Christian Theriault did not take the stand.

Di Luca flagged credibility issues with multiple witnesses, including the Theriault brothers and Miller, whom the defence accused of perjury.

As a result, the judge said he could not conclusively determine certain facts of the case, including where the metal pipe came from or who first wielded it.

He found Miller and his friends were, in fact, stealing items from cars, and that Michael Theriault’s initial intent was “likely not to arrest Mr. Miller, but rather to capture him and assault him.”

It’s possible Theriault also sought to arrest Miller, but at no point during the chase or ensuing fight did he identify himself as a police officer or mention an arrest, which the judge deemed “inconceivable.”

Theriault bodychecked Miller against a fence as the young man was trying to escape, the judge said.

It’s possible Miller grabbed a nearby pole from the yard to defend himself, Di Luca said, though it’s also possible one of the brothers did or that they had brought the pipe with them.

“Even assuming that the pipe was first introduced by Mr. Miller, it was quickly removed from him and the incident became one-sided, with Mr. Miller essentially being beaten by Michael and Christian Theriault,” he said.

Ideally, the pair would have stopped hitting Miller once he was disarmed, but self-defence does not require “clinical precision,” he said.

“To be clear, I am simply left with reasonable doubt on this issue. The defendants were probably not acting in self-defence at this stage, and by the end of this portion of the incident, the self-defence justification would have been razor-thin,” he said.

Di Luca said he rejected Michael Theriault’s testimony that he never hit Miller with the pipe, noting there was a gouge in the glass of the door the young man had been pounding on in his efforts to seek help.

One end of the pipe also had Miller’s blood on it, and even if Miller held the pipe at first, he was not bleeding until later in the fight, the judge said. A trail of blood marked Miller’s path from the area where his eye burst to the door and then the driveway, he said.

The judge said Theriault hit Miller a few more times with the pipe afterwards, as described by a neighbour during trial.

Di Luca said he was also “troubled” by Christian Theriault’s comment, heard on one of the 911 calls, that Miller and his friends had chosen the wrong car to break in to, saying it suggested that “deserved retribution” had been delivered.

The decision was initially scheduled for April, but was postponed in light of public health measures that dramatically reduced court operations. The matter is due back in court July 15 to discuss dates for a sentencing hearing.

Paola Loriggio, The Canadian Press

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