Appeal Court Upholds Assault Conviction and Sentence for Off-Duty Police Officer

Written on behalf of Barrison Law

Earlier this week, the Ontario Court of Appeal upheld the conviction decision and nine-month sentence handed out to an off-duty Toronto Police officer for the assault of a man on December 28, 2016.

Following a ten-day trial, Michael Theriault (“Theriault”) was found guilty of assault in the attack of Dafonte Miller (“Miller”), who was left blind in one eye, and was sentenced to nine months in jail. Theriault was acquitted of aggravated assault and attempting to obstruct justice.


Theriault and his brother, who are white men, were both charged in connection with an incident that took place in the early morning hours in the area of Thickson Road and William Stephenson Drive in Whitby.

At their trial, the Theriault brothers maintained that the confrontation occurred after they attempted to arrest Miller, a young Black man, for trying to break into a car parked in their parents’ driveway. The Theriault brothers alleged that they were acting in self-defence when they assaulted Miller. However, the trial judge held that the assault occurred when Miller was “in retreat, seeking help”. Theriault was convicted of assault due to the final part of the altercation when he struck Miller in the head with a metal pipe as Miller sought assistance at a nearby house.


Theriault appealed both the conviction and the sentence. On behalf of Theriault, his lawyers argued before the appeal court that simple assault should not be considered an included offence; that the trial judge misapprehended evidence; and that the sentence was unfit given that it was outside the normal range. Theriault’s appeal was rejected on all grounds and both the conviction and the sentence were upheld.

According to section 686(1)(a)(i) of the Criminal Code, an appellate court can set aside a verdict “that is unreasonable or cannot be supported by the evidence”. If the verdict reached by the trial judge could be reasonably rendered by a properly instructed jury or judge a conviction is considered reasonable.

On this appeal, Theriault argued that the assault conviction was unreasonable based upon the trial judge’s consideration of Miller’s evidence due to credibility issues. The appeal court examined all of the evidence and concluded that the trial judge made no error in assessing Miller’s credibility and therefore the decision is entitled to deference on appeal.

The appeal court acknowledged that trial judges must consider relevant social context, including systemic racism, when assessing the credibility of witnesses.

The appeal court recognized the “racialized context with which the offence took place” and the elevated concern about race and policing in our community.

As our society comes to grips with disproportionate rates of police violence against Black people, it is integral that the need for denunciation of crimes that are emblematic of these broader social patterns develops accordingly.

 Justice M. Tulloch, on behalf of the three judge appeal court, wrote in the decision:

The existence of anti-Black racism in Canadian society is beyond reasonable dispute and is properly the subject matter of judicial notice. It is well recognized that criminal justice institutions do not treat racialized groups equally.

The appeal court reprimanded Theriault’s actions on the night in question and stated that his conduct “shattered a community’s trust in the very system that is supposed to protect them”.

Michael’s actions, as a white off-duty police officer who assaulted a retreating, injured Black youth, cannot, and should not, be divorced from the wider context.

 Mr. Miller may have broken the law that night, but he did not deserve what subsequently happened to him. The right to be free from excessive and unreasonable force does not discriminate. The trial judge’s treatment of this larger context in sentencing was laudable.

Theriault appealed the nine-month sentence and argued that it was “demonstrably unfit”. Lawyers on behalf of Theriault argued that the trial judge’s finding that he used significant force when striking Miller in the face was not grounded in the evidence and was unreasonable. The trial judge noted that the assault involved a “two-handed-strike with a metal pipe held above the shoulders” and damaged the glass front door of the Silverthorn residence. The appeal court agreed with the trial judge that the way the pipe was “wielded” and the damage that it caused to the glass demonstrated that the strike involved significant force. The appeal court also dismissed Theriault’s argument that the trial judge failed to consider self-defence as a mitigating factor.

According to the appeal decision:

The trial judge correctly concluded that this case called for heightened denunciation and I endorse his approach.


Miller expressed the importance of this appeal decision during a virtual news conference earlier this week. He stated:

For me, I just feel like the decision today was obviously a huge step forward because I find the acknowledgement that racism places in police interactions, not only in my situation specifically but other people who be going through the same situation as me, it was really important.

Thierault continues to be employed, but suspended without pay by the Toronto Police Service pending an internal disciplinary process.

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 Barrison Law 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.