Trial begins for Toronto cop and his brother accused of assaulting Dafonte Miller

Key witness speaks at trial for officer, brother A key witness spoke at the trial of two brothers, one of them a Toronto police officer, accused of brutally beating a black teen.

OSHAWA, Ont. -- A man testifying in the trial of two brothers, one of them a Toronto police officer, accused of brutally beating a black teen nearly three years ago described peering through his window that night and seeing two people repeatedly punching someone against a wall.

James Silverthorn told the court he awoke in the early hours of Dec. 28, 2016, to the sound of screams so loud he believed they were inside his Whitby, Ont., home, and after realizing they came from outside, rushed to see what was happening through the shutters of his bathroom window.

"I could see that one individual was being beaten by two other people," between his home and the neighbouring one, Silverthorn said Tuesday. "It was continuous, it was very hard."

Shortly afterward, a black male began pounding on Silverthorn's front door, yelling for someone to call 911, he testified. Silverthorn's wife had already made the call and he quickly went back upstairs to speak to the dispatcher, he said.

The banging at the door stopped, and at some point, Silverthorn looked through his front window and saw someone on the ground of his driveway next to his wife's SUV, he told the court.

One of the two people he had seen doling out punches earlier stood nearby, holding what looked like a broomstick or pipe and using it to "stab down" and prevent the person on the ground from getting up, he said. The other person from earlier was at the end of the driveway talking on a cellphone, he said.

Silverthorn, a district chief with Toronto Fire Services, took the stand in the trial of Michael Theriault, a Toronto police constable, and his brother Christian Theriault, who are jointly charged with aggravated assault in the beating of Dafonte Miller in the early hours of Dec. 28, 2016.

Michael Theriault, who was off duty at the time, and his brother are also separately charged with obstruction of justice in connection with how they portrayed the incident to investigators. They have pleaded not guilty to all charges.

Prosecutors allege the brothers saw Miller, then 19, walking in the area with friends, chased him, assaulted him, then continued that assault after he briefly escaped them.

Court heard the pair told police they caught Miller breaking into their car. The young man was arrested that night but the charges were later dropped.

In a brief opening statement on Tuesday, Crown attorney Peter Scrutton said the brothers could also be found guilty of aggravated assault for carrying out an unlawful arrest or using excessive force during that arrest.

A police officer called to investigate the incident testified that she first saw Miller face down on the ground with a white man restraining him, but was able to see him more clearly after the teen was pulled up.

"There was a quantity of blood coming from his left eye… it appeared to me to be a significant injury," Durham Regional Police Service Const. Jennifer Bowler told an Oshawa, Ont., court.

"It made me a little queasy," she said.

Bowler said she was dispatched to the outside of a home after three calls were made to 911 -- one by Miller, one by a resident, and one by a man reporting that he had caught someone breaking into cars.

She was tasked with photographing the area and anything that seemed relevant, including any injuries, the officer said.

Bowler said she took photos of Miller and of Christian Theriault's hand, which had a cut, but that no other injuries were reported or visible. She told the brothers to get in touch if injuries appeared in the next few days but to her knowledge, they did not, she testified.

Under cross-examination, the officer said it was possible the brothers would have been in shock immediately after the incident, and would have seen a doctor rather than police if any injuries emerged later.

Among the other things Bowler saw and photographed at the scene were blood spots and droplets, a pair of black gloves, a metal pole, two cellphones and some change, she told the court.

The constable eventually went to take photographs of a truck at a nearby home after another man, this one in his 50s, said it was "entered as part of the incident," she testified. Bowler took photos that showed the inside console of the truck was left open.

When she returned to the original scene, she noticed blood on the hood of a car in the driveway, and assumed the "tissue" came from Miller's eye, she said.

After collecting items at the site, Bowler took them to a police station for processing, and noticed that some of them appeared to have blood on them, including the metal pole, she said.

The pole, roughly a metre long, was shown in court Tuesday.

Lawyers for Miller have previously alleged race was a factor in the incident, and that the Theriault brothers kicked their client and hit him in the face with a metal pipe.

Miller's left eye was knocked out of its socket and split into four, his lawyers have said. He also suffered a broken nose, broken orbital bone, bruised ribs, reduced vision in his right eye and a fractured wrist, they said.

This report by The Canadian Press was first published Oct. 29, 2019.