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Decision handed Toronto cop in Dafonte Miller beating “historic,” lawyer says

In another time in another place not so long ago, Toronto constable Michael Theriault might have gotten away with beating Dafonte Miller with a metal pipe within one inch of his life. Some still think he has.

Miller lost a left eye in the December 2016 incident. Theriault was convicted of assault in June. On November 5, he was sentenced to nine months behind bars. He was released on bail pending an appeal of that decision. Some say the punishment handed down by Superior Court Justice Joseph Di Luca is not nearly enough – a slap on the wrist.

To be sure: Theriault was found not guilty of the more serious charge of aggravated assault that could have landed him in prison for as many as five years. It still could – the Crown has appealed the officer’s acquittal on that charge. (Theriault’s younger brother was found not guilty of aggravated assault and obstructing justice in the matter.)

So for now, Theriault remains a free man as the appeals wend their way through court. But his conviction means he will no longer receive pay (as he has for the last four years) while he’s under suspension from the Toronto force. A discipline hearing into his conduct will determine if Theriault will keep his job. Toronto Police Service spokesperson Meaghan Gray confirms in an email to NOW Magazine that Toronto police are reviewing the sentencing decision “to determine next steps.”

Given the conviction and the severity of the sentence against Theriault – and the fact a condition of his sentence is that he is not allowed to carry a restricted weapon for five years – it’s highly unlikely Theriault will remain on the Toronto force when the legal process is said and done.

That process may take a while. The Toronto police union has deep pockets. And history shows that it has been willing to go to the wall for officers charged with criminal offences.

But this one will prove a little more difficult to justify playing a legal waiting game until such time as appeals run out – or the case gets before a judge to overturn the verdict or reduce the sentence. Di Luca’s reasons for judgment have pretty much seen to that. It raises a number of issues around Theriault’s credibility and version of events.

Di Luca’s decision also took the unprecedented step of setting out the racial context surrounding the incident. He offered in his initial decision that the case raised what he called “significant issues involving race and policing that should be further examined.”

Theriault’s lawyers had argued for a conditional sentence with no jail time. But Di Luca ruled that the severity of the attack warranted a jail sentence to deter others. Di Luca reasoned that to do otherwise would send the wrong message.

Following the sentencing, Miller’s lawyer Julian Falconer called Di Luca’s reasons “historic” and “the most penetrating decision I’ve ever seen” on the issue of race. According to court testimony, Theriault and his brother Christian set off after Miller and his friends after they were allegedly caught stealing pocket change from a car parked in the Theriaults’ driveway. Miller maintains the Theriaults appeared out of the blue as he and his friends were walking down the street of a Whitby neighbourhood. An altercation ensued after a chase in which Miller was hit in the face with a steel pipe. Theriault was off duty at the time and never identified himself as a police officer. And while the judge stopped short of saying in his initial decision that the Theriaults were not out to mete “street justice,” the judge noted Christian Theriault’s 911 call to Durham police. “It suggests that, at least in Christian’s mind, retribution had been served.”

Falconer says the “revolting gratuitous nature of this attack is unforgivable. There is a reason why Michael Theriault is going to jail.”

But Falconer offered that “it’s only the first step in police accountability in this case.” There are a number of outstanding legal proceedings related to the incident, including Miller’s civil suit against Toronto police, that still need to be heard.

An investigation by the Office of the Independent Police Review Director (OIPRD) and an investigation by Waterloo police into the events surrounding the Toronto and Durham police’s failure to report the incident to the province’s Special Investigations Unit are ongoing.

From the evidence already heard in court, it’s clear that there was an attempt by Toronto and Durham police who responded to the scene to cover up what happened.

OIPRD has already determined that former Toronto police chief Mark Saunders was kept in the dark about the incident for some five months. At the time, Theriault’s father, John Theriault, was a detective with the Toronto police’s professional standards unit, which reviews police conduct. He was removed from the unit in 2017 following the opening of an OIPRD investigation into his alleged role in the Miller incident. He retired from the Toronto Police Service in February 2020 after 35-plus years of service. As such, says TPS spokesperson Gray, “he is not compelled to participate in any of the past or ongoing investigations into this matter.”

On that count there are still questions to be answered.

“The public should be asking police leadership for accountability,” says Falconer.

@enzodimatteo

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