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Julian Falconer says the role of racism in the justice system and involvement of senior Toronto police – including the father of the officer convicted in the assault – need to be explored
It was difficult to sit through Ontario Superior Court Justice Joseph Di Luca’s decision Friday into the police beating of Dafonte Miller and not come to the conclusion that Toronto constable Michael Theriault and his brother Christian were on a mission to mete out street justice on the night they got into a violent confrontation with Miller on December 28, 2016. Some have called it a cover-up.
There were the 911 calls. The obvious omissions by both Theriault and his brother in statements about the incident to Durham regional police. The version offered by Theriault to investigators and his testimony in the courtroom, large parts of which Di Luca termed troubling. Then there was the four-foot metal pipe used in the assault on Miller and the fact Miller, who was 19 at the time, lost an eye in the altercation.
On Friday, Theriault, who was off-duty at the time of the incident, was found guilty of assault. He was found not guilty, however, on the more serious charges of aggravated assault and attempt to obstruct justice. His brother Christian was found not guilty of aggravated assault and obstructing justice.
While the verdict was a partial vindication of Miller, who was originally charged with several offences related to the events of that night – all of which were later withdrawn – the questions about the case shouldn’t stop there, says Miller family lawyer Julian Falconer.
Falconer says that the role of Toronto police detective John Theriault, the father of Michael and Christian, in the initial stages of the investigation by Durham police into the incident, and why the province’s police watchdog Special Investigations Unit (SIU) wasn’t called, are issues that need to be explored.
He’s calling for a federal commission of inquiry “to bring out the truth about the beating and killings of radicalized people in police custody. The Dafonte Miller experience is hardly an isolated incident.” Falconer says the Theriault case illustrates the racial divide in the justice system and how it continues to use “hardball tactics in the courtroom that serve to repeatedly and mercilessly re-victimize victims of police abuse.”
Toronto constable Michael Theriault was found guilty in the assault of Dafonte Miller.
Di Luca addressed the issue of racism in a lengthy decision on Friday.
He offered that “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.”
But he stressed that his job was not to delve into issues of race or “to deliver the verdict that is most clamoured for. Trials are based on evidence and not public opinion.”
While the judge was “troubled” by much of Theriault’s testimony in the case – he rejected outright several key claims by the officer – he nevertheless argued that legal precedents required that he also weigh Miller’s credibility, despite finding that as a young Black man it was reasonable to see why Miller would not be completely truthful with police as events unfolded that night. In particular, Miller’s testimony about a pair of black knit gloves and flashlight found in his possession at the scene, as well as sunglasses that the judge found belonged to Christian Theriault.
The court heard widely differing versions of what happened.
According to Miller, he was out walking with three other friends in the early morning hours of December 28 on Erickson in Whitby when the Theriault brothers emerged from their garage and started asking where they lived and what they were doing in the neighbourhood. The judge heard that the bothers had been drinking that night. Some testy words were exchanged and a chase ensued. Miller says he was caught between two houses down the street where he was viciously beaten by Michael and Christian Theriault. He says he managed to free himself and run to the front door of one of the houses where he started banging on the door to call 911 when Theriault hit him with a metal pipe on the eye.
Michael Theriault offered a completely different narrative.
He said that he and his brother were in the garage of their parents’ home having a cigarette when they heard a commotion inside one of the vehicles parked in the driveway. Michael Theriault says he rolled under the front door of the garage door as it was opening and saw two males exit the vehicle and run in different directions. The bothers gave chase after one of the males with the intention, Micheal Theriault testified, of handing him over to police.
They say they caught up to Miller between two houses some 140 metres distance down the street. They say it was Miller who produced a metal pipe. They say they managed to wrestle it from him. Michael Theriault denies ever hitting Miller with the pipe. He says he punched Miller in the face many times. (A forensic expert testified that it’s a more likely cause of the injury to Miller’s eye). Theriault claimed to be acting in self-defence.
But there were more than a few gaps in Theriault’s recounting. The judge found “significant concerns” with the officer’s overall credibility. For example, he rejected the officer’s claim that he only intended to arrest Miller – Theriault never identified himself as a police officer throughout the entire encounter. He found that Theriault was out to “capture and assault” Miller.
“When Michael Theriault left his garage, he was not dressed for the weather. He was not even wearing shoes.
“To be blunt, I would have expected the first thing out of Michael Theriault’s mouth as he was chasing Mr. Miller while wearing only socks would have been ‘Stop…you are under arrest…I’m a police officer”, or words to that effect. The fact that nothing was said during the chase is telling, especially in view of the distance covered.”
The judge also said he had “significant concerns” about Theriault’s description of his struggle with Miller. And that he was “troubled” by Theriault’s claim that it was Miller who produced the pipe, possibly from an air conditioner rough out between the two houses where the altercation took place.
Still, he said the issue for him to decide is not whose version is more believable, but whether the Crown had proved its case beyond a reasonable doubt.
“Even if I completely reject all of the exculpatory portions of his [Theariault’s] testimony and statement I must, nonetheless, assess whether on the basis of the rest of the Crown’s case I am satisfied beyond a reasonable doubt that Michael committed an aggravated assault on Mr. Miller.”
Christian Theriault did not testify in his own defence, but statements he made to investigators were submitted by the Crown at trial.
He claimed that it was Miller who pulled the metal pipe, possibly from his pants. The judge described the claim as “an obvious attempt to paint a less than favourable picture of Mr. Miller.”
The Crown claimed the pipe came from Theriault’s parents’ garage. The judge was prepared to accept that as a “reasonable possibility,” but “a more likely scenario is that the metal pipe was introduced at some point during the altercation, perhaps as the parties were running into the area between the homes.” Court heard that a resident of one of those homes was a gardener and kept sticks and rakes by the side of the house which he used to hold up his plants.
But there is no doubt from forensic evidence that it was Miller’s blood on the pipe. And that it got there when Miller was hit with the pipe in the face by Micheal Theriault as Miller was banging on the door of the residence at 113 Erickson to call 911. The judge noted blood evidence and a gouge and a scrape on the front window of the house consistent with contact from a metal pipe. James Silverthorn, the owner of the house also testified that he witnessed Theriault “jab” Miller with the pole several times as Miller was on all fours on the driveway.
But the judge said he could not conclude conclusively that the injury to Miller’s eye was caused when he was struck with the pipe. He found that it could have happened while Theriault was punching Miller. And as such could not convict on the charge of aggravated assault.
On the Crown’s theory the Theriaults were out to mete out “street justice” the judge noted Christian Theriault’s 911 call in which he is heard saying to Miller, “I’m on 911 you fucking, you fucking in our cars and shit, eh? You picked the wrong cars.” The judge found that “This comment is telling. It suggests that, at least in Christian’s mind, retribution had been served.”
He also rejected Theriault’s self-defence claim as the judge said the altercation between the brothers and Miller “quickly turned one-sided.”
On whether Theriault attempted to obstruct justice in his initial statements to Durham police about the incident – statements which the judge said advanced the self-defence narrative – the judge found that he could not conclude “beyond a reasonable doubt that the core narrative of the statements provided by the defendants at the scene is false. Again, it is probably false, but probably false is not enough.”
The judge continued: “Even assuming for the sake of argument that the omission was an intentional and independently proven fabrication, it would only be circumstantial evidence supporting an inference that Michael possessed and perhaps wielded the pipe at some point during the altercation.”
While the judge was “troubled” by Christian Theriault’s failure to mention to Durham police that his brother wielded the pipe at any time during the altercation, the judge notes that Christian Theriault was not asked any specific questions about that by Durham police.
And that while he found that Christian Theriault was “not completely open and forthright about what happened that night…, I am not satisfied beyond a reasonable doubt that the failure to mention Michael Theriault’s possession and use of the metal pipe at the end of the incident amounts to an attempt to obstruct justice.”
Miller family lawyer Julian Falconer offered during a press conference following the verdict on Friday that Miller “almost seemed to be as much on trial as the Theriault bothers.
“This is not one bad incident,” Falconer said. “This is not one bad apple. This is happening across North America not because all police officers are bad but because the victimization of racialized and Indigenous people is a systemic, chronic problem.”
Falconer added that it’s worth recalling “how this started with numerous counts of assault against Dafonte Miller. How is it that someone can end up with catastrophic injuries, his left eyeball leaking on the hood of a car without one officer from the Durham police questioning it?”
For Miller, the verdicts offer only partial vindication. He noted during the press conference that “there are a lot of people who are in my position who don’t get the same backing I got.”
For Theriault, meanwhile, his future on the Toronto force remains uncertain.
Whether his lawyers see fit to appeal remains an open question. The Toronto Police Association issued a brief statement Friday saying it will be reviewing the judgment and figuring out its next steps.
Theriault has been suspended with pay since charges were laid by the SIU in 2017. There are separate investigations ongoing into his conduct in the affair. An internal disciplinary hearing, an investigation by OIPRD, the Office of the Independent Police Review Director, and an investigation by Waterloo police into the events surrounding the Toronto and Durham police’s failure to report the incident to the SIU. Miller has also filed a civil suit against Toronto police.
Theriault is scheduled to appear in court on July 15 to set a date to discuss sentencing. Anyone convicted of assault can face a term of up to five years in prison. In delivering his verdict, Di Luca advised that the extent of the injuries suffered by Miller should be considered an aggravating factor during sentencing.
Chief Mark Saunders was reluctant to offer comments on how the assault verdict might affect Theriault’s future on the force. He offered that the focus should be on the “big picture.
“We have a lot of work to do as law enforcement,” Saunders said. “There are a lot of people that have concerns when it comes to public trust.”