self-defence

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.

New Trial Ordered for Homeowner Who Killed Car Thief

Written on Behalf of Affleck & Barrison LLP

In a unanimous decision, a Hamilton-area man who killed a car thief in front of his home has been ordered to stand trial on the charge of second-degree murder. 

The Ontario Court of Appeal has overturned Peter Khill’s (“Khill”) finding of not guilty.

On appeal, the court has ruled that the trial judge failed to instruct the jury to consider Khill’s conduct leading up to the moment he pulled the trigger and killed Jon Styres (“Styres”), a First Nations man.

In June 2018 (please see our blog regarding the trial), Khill, a homeowner and former army reservist, was found not guilty following a 12-day jury trial where he maintained that he fired his gun in self-defence.  An individual can use reasonable force to alleviate a threat to themselves or others under the laws of self-defence in Canada.

WHAT HAPPENED?

On February 4, 2016 at approximately 3 a.m., Khill and his girlfriend were woken up by two loud, banging noises.  When he looked outside, Khill saw that the lights were on in his 2001 GMC pickup truck.

Given his military training, Khill proceeded to grab a 12 gauge shotgun from his bedroom closet.  He loaded it with two shells and ran outside to confront Styres, who was trying to steal his truck.  He came up behind Styres, who was leaning over the passenger-side seat, and shouted “Hey, hands up!”.  Styres reacted by turning toward Khill with his hands sweeping forward in a motion that allegedly led Khill to believe that he had a gun.  Khill argued that this response provoked him to fire two close-range shots that killed Styres, almost immediately. 

At his trial, Khill told the court:

I felt that I was being threatened and that I wasn’t in control of the situation.  I needed to gain control of the situation and neutralize any threat that was there. … I thought my life was in danger and I think the right to self-defence is overlapping between military and civilian life.

The Crown prosecutor argued that Styres did not pose a reasonable threat and that Khill and his girlfriend should have called 911 and waited for police to arrive, rather than approach Styres with a loaded shotgun. 

At the trial, the jury learned that Styres did not have a gun that night and was only carrying a folding knife in his pocket.

Khill pleaded not guilty and his lawyer argued that the shooting was “justified” as Khill believed that Styres had a gun and he feared for his life.  Furthermore, it was argued that Khill was following his training as a military reservist and was acting reasonably to defend himself under the circumstances.  A Hamilton jury found Khill not guilty of the murder of Styres.

THE APPEAL

At the appeal, the Crown prosecutor argued that the trial judge made four errors.  It was argued that three of the errors involved instructions to the jury regarding self-defence and the fourth error was in regard to the admissibility of evidence from an expert.

The appeal court agreed with one of the Crown’s submissions of an error by the trial judge, allowed the appeal and ordered a new trial on the basis that the trial judge failed to appropriately instruct the jury.  Specifically, the trial judge failed to instruct the jury to consider Khill’s conduct leading up to the moment the trigger was pulled leaving them incompetent to evaluate the “reasonableness” of his actions.

The Appeal Court said:

Mr. Khil’s role in the incident leading up to the shooting was potentially a significant factor in the assessment of the reasonableness of the shooting.  The failure to explain that relevance and to instruct the jury on the need to consider Mr. Khill’s conduct throughout the incident in assessing the reasonableness of the shooting left the jury unequipped to grapple with what may have been a crucial question in the evaluation of the reasonableness of Mr. Khill’s act.  On this basis, the acquittal must be set aside and a new trial ordered.

Khill’s lawyer has stated that he is reviewing the appeal court decision and considering whether to make an application for an appeal to the Supreme Court of Canada. 

Khill is also facing an ongoing civil lawsuit for more than $2 million brought by Styres’ spouse and two young daughters.

We will continue to follow any updates regarding this case and will provide any new developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise. 

Domestic Assault Charges in Canada

Written on Behalf of Affleck & Barrison LLP

In Canada, domestic assault is a very serious offence and the nature of the offence is considered an “aggravating factor” during sentencing for those found guilty.  That is to say that the penalty will be more severe than for those found guilty of an assault not having taken place in a domestic context.

WHAT IS DOMESTIC ASSAULT?

Although domestic assault is not specifically defined in the Criminal Code, it is treated differently than regular assault by the police and the courts. 

Domestic assault is an assault that occurs in the context of a domestic or intimate relationship between two people.  This includes relationships such as boyfriends and girlfriends, spouses or common-law partners, and other family members. 

In Canada, domestic assaults are treated more seriously by police and the courts for the following reasons:

  • Domestic abuse is widespread in Canada;
  • Domestic abuse can devastatingly impact children;
  • There is a high risk that domestic violence will escalate if it is not dealt with quickly and effectively.

The Crown prosecutor has the burden to prove the charges of domestic assault beyond a reasonable doubt, including:

  • That the complainant was in a domestic relationship with the accused (i.e. family member, romantic relationship, spouse or common law partner);
  • That the accused directly or indirectly applied force to the complainant without consent;
  • That the application of force was intentional or through the use of words or actions or threatened to apply force to the complaint and had the ability to carry out the threat or the accused accosted or begged the complainant while holding a weapon or imitation of a weapon.

Thus, domestic abuse does not necessarily involve physical abuse, but can include the threat of assault, coercion, sexual abuse and economic abuse.

WHAT IS THE BURDEN OF PROOF AND WHAT EVIDENCE CAN BE USED IN COURT?

If you are charged with domestic assault, it is up to the Crown prosecutor to prove the charges beyond a reasonable doubt.  The Crown needs to have enough evidence to prove the case.  However, even if the Crown has the evidence to satisfy the burden, there may be other evidence to contradict the Crown’s evidence. 

The main witness in a domestic assault case is the alleged victim, the person who has been allegedly assaulted.  This person is likely the husband or wife, girlfriend or boyfriend of the accused.  This person will provide “viva voca” evidence (spoken words) to tell their side of the story regarding the alleged assault.

If there are alleged physical injuries, medical records or testimony from medical professionals may be used as evidence in court.  There will also be evidence from one or more police officers to testify as to what he/she saw or heard when they arrived on the scene.

WHAT DEFENCES ARE AVAILABLE IN DOMESTIC ASSAULT CASES?

Consent

The Crown prosecutor has the burden to prove that the accused assaulted his/her spouse/partner without his/her consent.  However, if the accused and his/her spouse agreed to take part in rough sex play, for example, the judge may find that the Crown has not proved the essential element of consent. 

Self-Defence

Self-defence is a common defence to any type of assault charge.  However, there have been recent changes in the law and an accused can only use this defence when a number of criteria set out in the Criminal Code are met.  The following are the criteria necessary in order to make a successful self-defence argument:

  • Force is being used against you, or you had reasonable grounds to believe that force would be used against you;
  • Your response to the threat was for the purpose of defending or protecting yourself from the threat or use of force;
  • Your response to the threat was reasonable in the circumstances (i.e. a reasonable person in the same situation would have acted in a similar way).

A court will also consider the following factors in determining what was reasonable in the circumstances, including: 

  • The history of the two parties;
  • Whether either party was intoxicated at the time of the offence;
  • The size, age, gender and physical capabilities of the parties;
  • The nature of the force being used against the accused;
  • Whether there were other ways to respond;
  • Any prior force events;
  • Whether the responding force was proportional to the initial force.

WHAT ARE THE PENALTIES FOR DOMESTIC ASSAULT?

In Canada, the penalties for domestic assault depend upon the circumstances of each case and can range from a peace bond to jail time.  If the Crown is proceeding by summary conviction (less serious offences), the offender may be required to pay restitution to the wronged party or pay for property damage or medical bills.  If the crime does not warrant a jail sentence, the offender may receive a suspended sentence (i.e. remain under probation) or conditional sentence (i.e. house arrest).

However, if the Crown is proceeding by indictment (most serious offences), it is likely that the assault was very serious in nature and the accused will face jail time if convicted.  For charges such as sexual assault or assault causing bodily harm, the accused can face up to 10 years in prison.  However, if the conviction is for aggravated assault, the accused can face up to 14 years in prison.

Offenders who are convicted of more serious forms of domestic assault are also likely to receive ancillary orders, such as a DNA order or firearms prohibition.  A DNA order requires the offender to submit samples of DNA to a national database that can be accessed by police officers across Canada.

If you are facing domestic assault charges, it is strongly recommended that you contact the experienced criminal defence lawyers at Affleck & Barrison LLP today online or at 905-404-1947 to find out what your options are to achieve the best possible result. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.