20,000 Watch Livestream of Judgment as Off-Duty Officer is Found Guilty of Assault

Written on Behalf of Affleck & Barrison LLP

Last week, an unprecedented event took place when more than 20,000 people watched Justice Joe Di Luca read his 62 page ruling for four hours in an online livestream. 

Justice Di Luca found off-duty Toronto police Constable Michael Theriault (“Michael”) guilty of assaulting Dafonte Miller (“Miller”).  Michael was acquitted of the charges of obstruction of justice and his brother, Christian Theriault (“Christian”), was acquitted of all charges of aggravated assault and obstruction of justice.

PUBLIC INTEREST DEMANDS LIVESTREAM OF JUDGE’S DECISION

In his judgment, Justice Di Luca recognized the immense public interest that the case before him generated given the issues of racism and police accountability.  However, he stated that his duty was not to “conduct a public inquiry into matters involving race and policing”, his responsibility was to decide “whether the Crown has proven the offences charged beyond a reasonable doubt based on the evidence that was presented in court”.

The fact that so many people were watching the decision streaming live demonstrates that the public wants to have access to the court process and see justice in action.  The decision by Justice Di Luca to livestream his decision also shows the court’s dedication to legitimacy and authenticity.

Justice Di Luca stated in his decision:

This case has attracted significant public and media interest.  This interest is welcome as the openness of the court process is one of its core defining principles.  It is also welcome because public and media interest fosters legitimate debate, criticism and change, all of which are essential features of a functioning modern democracy.

WHAT HAPPENED?

The depiction of the events that occurred in the early morning hours of December 28, 2016 were incompatible between Miller and the Theriault brothers.

According to Miller, he was walking down the sidewalk with friends when he was approached and questioned by the Theriault brothers.  Miller and his friends ran, but he was eventually caught and viciously beaten.  Michael allegedly used a metal pipe and Christian used his hands and feet.  Miller was struck in the eye with the metal pipe and suffered serious injuries to the bones around his face, his wrist was broken, he lost vision in his left eye and had difficulty seeing out of his right eye.  As a result of this incident, Miller underwent two surgeries and had to have his damaged eyeball removed and fitted for a prosthesis.

According to the Theriault brothers, they were inside the garage at their parents’ home when they heard a commotion outside.  They opened the garage to find two males inside one of their vehicles.  The individuals ran in different directions.  The brothers chased Miller, with the intention of arresting him and waiting for police to arrive.  The cornered him in between two houses at which time Miller produced a metal pipe and began swinging it.  Christian alleges that he was hit in the head and a struggle ensued.  Michael proceeded to punch Miller multiple times in the face, likely causing Miller’s eye injury.  Michael denies hitting Miller with the metal pipe.  The Theriault brothers contend that they used reasonable force in their attempt to arrest Miller and acted in self-defence when Miller used the metal pipe as a weapon.

Miller was arrested at the scene and charges were laid, including theft under $5,000 and assault with a weapon.  In the end, these charges were withdrawn by the Crown.

The Special Investigations Unit investigated the incident and the Theriault brothers were jointly charged with aggravated assault and separately charged with attempting to obstruct justice given their dishonesty with the Durham Regional Police Service.

JUSTICE DI LUCA’S DECISION AT TRIAL

Justice Di Luca specifically acknowledged that there were credibility issues with multiple witnesses and therefore he could not conclusively determine a number of important facts in this case.  Specifically, he could not positively determine where the metal pipe came from or who first handled it.

Justice Di Luca found that Miller and his friends were stealing items from cars and that Michael’s initial plan was “likely not to arrest Mr. Miller, but rather to capture him and assault him”.  Michael never identified himself as a police officer or mentioned an arrest during the chase or the fight.  Justice Di Luca stated:

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.

Although it was not clear as to the origin of the metal pipe, Justice Di Luca stated:

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.

Justice Di Luca was “left with reasonable doubt” that Michael was acting in self-defence.  When Miller headed towards the door of the nearby home to seek assistance and was badly injured, he was essentially in retreat.  Justice Di Luca stated:

The already razor thin self-defence justification evaporates at this stage.

Justice Di Luca was satisfied beyond a reasonable doubt that when Michael struck Miller with the pipe he was not acting in self-defence or in the course of an arrest, and therefore committed an unlawful assault.

WHAT HAPPENS NEXT?

Michael is currently suspended from the Toronto Police Service and has been since July 2017.  He will continue to remain out on bail until his sentencing hearing. 

A professional standards investigation is underway on behalf of the Toronto Police Service with respect to the events that transpired and the Office of the Independent Police Review Director is also continuing to investigate this incident.

We will provide additional information regarding any developments as they take place in this blog.

In the meantime, if you have been charged with an assault or related offence or have any questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.