Off-duty Toronto cop found guilty of assaulting Dafonte Miller

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TORONTO — An off-duty Toronto police officer has been found guilty of assaulting Dafonte Miller, a young Black man who lost an eye during the altercation three years ago.

Const. Michael Theriault and his younger brother Christian were jointly charged with aggravated assault in connection with a violent dispute that took place on a residential street in Whitby, Ont. in December 2016.

During a virtual hearing held on Friday morning, Michael, who was 24 years old at the time and had been a member of the Toronto Police Service since 2014, was found guilty of the lesser charge of assault and Christian was found not guilty in the incident.

In the early morning hours of Dec. 28, 2016, Miller, who was 19 years old at the time, previously told the court he was walking with friends near Thickson Road and William Stephenson Drive when he passed by two white men standing inside a garage.

His account of the events that followed was vastly different from the testimony Michael provided during the judge-alone trial in the fall of 2019.

“According to Miller, he and two friends were simply walking down the sidewalk when they were approached and questioned by Michael and Christian,” Ontario Superior Court Justice Joseph Di Luca said while reading his 62-page ruling during the four-hour long virtual hearing.

“They were asked where they lived and what they were doing in the neighbourhood. Miller and his friends ran and were chased. Michael and Christian eventually caught Miller in between two houses and beat him viciously, Michael using a metal pipe and Christian using his hands and feet.”

Miller sustained a “horrific eye injury” in the altercation, the judge said.

His eye was dislodged from its socket and was split in four. He was left permanently blind in his left eye and following two surgeries, had it replaced with a prosthetic. He also sustained other physical injuries.

“According to (Michael and Christian), they were in the garage at their parents' home when they heard a commotion inside one of the vehicles parked on the driveway,” Di Luca said. “They opened the garage door and saw two males inside one of their vehicles. The males ran in different directions.”

“Michael and Christian chased one male, later identified as Miller, as they wanted to arrest him and hold him for police.”

Miller previously denied that he had been breaking into cars that night.

However, Di Luca said detailed factual findings presented throughout the trial proved otherwise.

The judge said Miller was “car hopping” with his friends and were caught in the act while stealing from the vehicle parked on the driveway of the Theriault home.

Lengthy foot chase led to physical altercation

The foot chase spanned approximately 140 metres of the residential street, according to Di Luca, until the three males ended up in between two homes. During the chase, the court heard, Michael never once identified himself as a police officer or uttered any words of arrest.

“The failure to identify himself as a police officer and utter words of arrest continued during the physical interaction," Di Luca said.

Michael testified that everything unfolded quickly that evening and he said he did not have time to identify himself as a police officer and utter words of arrest. He noted that in hindsight he should have.

“To be blunt, I would have had expected the first thing out of Michael’s mouth as he was chasing Miller while wearing only socks to be ‘Stop, you are under arrest. I am a police officer,’” Di Luca said in his ruling.

During the physical altercation, a four-foot long pipe, described by Di Luca as “hollow” and “aluminum,” was produced.

Di Luca said he is satisfied with the evidence that Miller was struck in the face with the pipe while standing at the front door of one of the two homes seeking help.

“Miller testified that as he was banging on the door he looked back to see where Michael was and he was struck in the face by the metal pole,” the judge said. “Miller believes that this is when his eye was injured. He noted blood on the floor and on the door and realized he was bleeding profusely.”

“He then walked over to the car (on the driveway) and essentially surrendered.”

Di Luca said that “in view of all of the evidence, I believe him on this issue” and added that he rejects Michael’s evidence that he never struck Miller with the pipe.

However, Di Luca said he is “simply left with reasonable doubt” that Michael was acting in self-defense during this portion of the incident.

“If Miller initially wielded the pipe, Michael and Christian would have been entitled to act in self-defense by repeatedly punching Miller to disarm him and thereafter prevent him, within reason, from engaging in any further assaultive conduct.”

“In a perfect world, once Miller was disarmed, the defendants would have stopped hitting him.”

He added that the self-defense justification then became “razor thin” and eventually “evaporates.”

“In my view, it is obvious that once Miller moves to the side of the wall of the residence, and heads towards the door, he is in retreat,” Di Luca said. “He is heading towards the door to seek assistance and he is badly injured.”

“The already razor thin self-defense justification evaporates at this stage.”

The judge said he is satisfied beyond a reasonable doubt that when Michael struck Miller with the pipe at the front door of the home he was “neither acting in self-defense, nor in the course of a lawful arrest” and therefore concluded that he committed an unlawful assault.

Di Luca noted in his reasoning that assault with a weapon is not a lesser charge of aggravated assault and therefore is not available in this case, but said that the fact that a weapon was used in committing the assault will be considered as an aggravating factor in sentencing.

Meanwhile, Di Luca found Christian not guilty in the altercation as “there is no evidence suggesting that he had any direct involvement in what happened at the door.”

“By the time Michael armed himself with the pipe and moved towards the front of the home where Miller was seeking help, Christian was moving toward the foot of the driveway and was either already on his phone or about to be on his phone,” he said.

Michael and Christian were separately charged with obstruction of justice as well, but were both found not guilty of that charge.

Racial context was carefully considered, judge says

Prior to and throughout the trial, Miller’s lawyers argued the altercation was racially motivated.

In his decision, Di Luca noted that racial context was “carefully considered.”

“I want to make one thing clear, I am not saying that race has nothing to do with this case,” he said.

“I acknowledge that this case and others like it raise significant issues involving race and policing that should be further examined.”

Di Luca went on to state the hypothetical situation of the races of the defendants and the complainant being reversed.

“One could well ask how this matter might have unfolded if the first responders arrived at a call late one winter evening and observed a Black man dressed in socks with no shoes, claiming to be a police officer asking for handcuffs while kneeling on top of a significantly injured white man.”

Speaking on Friday afternoon, Toronto Police Chief Mark Saunders commented on the verdict.

“As chief, I can’t deny that this matter will have an increase strain on the relationship between police and the community, specifically the Black community, especially those who have lived experiences of discrimination in the justice system or by the police,” he said.

Saunders stated that the service still has “a lot of work to do” moving forward.

“When we look at what is going on in today’s environment, there are a lot of people who have concerns. Our organization has done everything we possibly can when it comes to maintaining public trust and we will continue to have those discussions.”

He said his heart goes out to the Miller family.

Miller ‘disappointed,’ but ‘grateful’

After the verdict was rendered, a statement was issued on Miller’s behalf by his lawyers.

Miller said he is “disappointed” that the Theriault brothers were not convicted of all charges laid against them, but added that he is grateful Di Luca found Michael guilty of assault.

“I am grateful that the judge recognized that what ‘probably’ happened was much worse,” he said. “The judge recognized that I was running for my life from people who were trying to harm me not arrest me.”

Miller went on to accuse Michael of abusing his authority and said the police officer “needs to be held accountable.”

“I want to thank my family for all their love and support during these challenging times,” he said. “I would also like to thank the community for all their support.”

“My family and I are forever grateful.”

‘Justice for who?’ ‘Dafonte’

Awaiting the ruling on Friday morning, a large group gathered outside the Oshawa courthouse, where the trial took place, in support of Miller.

At around 9 a.m., one of the organizers of the gathering was heard shouting “Justice for who?” with the crowd responding “Dafonte.”

“This is a solidarity protest,” she said while addressing the crowd. “We are here for Dafonte and his family. We are here for Black families who are still awaiting verdicts.”

“Regardless of what the verdict is, we stand for justice, regardless of what the verdict is, we stand for the Miller family, regardless of what the verdict is, Black bodies have and will always matter.”

“There will always be work to do, before and after this protest.”

Three more investigations underway

Michael, who has been suspended from the Toronto Police Service under the Police Services Act since July 2017, will remain on bail until his sentencing hearing.

He is due back in court to be spoken to on July 15.

At the conclusion of the criminal proceeding, three more investigations will continue.

The Toronto Police Service will resume its professional standards investigation into the events that transpired that evening in 2016 and a report under Section 11 of the Police Services Act will be completed.

As well, an investigation led by the Office of the Independent Police Review Director will continue.