The Ontario judge who acquitted Const. Michael Theriault of aggravated assault in the beat-down of Dafonte Miller was mistaken in his assessment of self-defence in the incident — an error that may have “tipped the balance” in the outcome, a Crown lawyer told the province’s top court Thursday.
That mistake — alongside what lawyer Susan Reid argued was an error in the judge’s assessment of Theriault’s arrest of Miller — forms the basis of the Crown appeal of a high-profile June 2020 decision that saw Theriault, an off-duty Toronto cop, convicted of assaulting Miller, a young Black man, but acquitted of the more serious charge of aggravated assault.
The Crown is also appealing Ontario Superior Court judge Joseph Di Luca’s ruling to find Christian Theriault, Michael’s younger brother, not guilty of aggravated assault and the acquittal of both brothers for attempting to obstruct justice.
The question of whether the Theriault brothers were acting in self-defence during the Dec. 28, 2016 incident in Whitby — in which Miller was seriously injured and lost an eye — was a central issue during the 10-day trial at an Oshawa courthouse.
Di Luca ultimately acquitted both Theriaults of aggravated assault after concluding they may have been acting in self-defence initially, after the judge found they chased Miller down moments after catching him stealing from their parents’ truck.
The judge could not rule out the possibility that Miller had, at some point, wielded a pipe and the brothers fought back in self-defence. It was during this earlier portion of the incident that the judge found Miller suffered the eye injury that formed the basis of the aggravated assault charge.
But near the end of the encounter — when Di Luca concluded Michael Theriault had picked up the pipe and struck a retreating and injured Miller with it — that “already razor-thin self-defence justification” had evaporated, and Di Luca convicted the off-duty officer of assault.
Making her arguments at a virtual proceeding before a panel of three judges, Reid said Di Luca’s assessment of self-defence improperly divided the incident into separate stages. Instead, the “whole chain of events” must be considered, and the Theriaults’ actions throughout be closely examined, Reid said.
The Theriaults, she suggested, were “very much are the authors of their own and Mr. Miller’s misfortune,” and a proper assessment that took into consideration the whole encounter could have “tipped the balance against self-defence,” Reid said.
“We have two, older white men chasing a young Black man late at night without saying anything about why, without identifying themselves,” Reid said.
“In my submission, that’s an explicit threat of violence.”
Defence lawyers Michael Lacy and Alan Gold, lawyers representing Michael Theriault and Christian Theriault respectively, have argued that Miller had no doubt why he was being chased — “Miller knew why he was being pursued, he knew why force was being applied,” Gold told the panel Thursday.
Gold also stressed to the judges that his client had far less involvement than his older brother in the encounter. After Christian Theriault punched Miller because he said he’d been struck with the pipe, he has little involvement, Gold said.
“It’s my respectful submission that none of the Crown’s complaints in any way impact on my client’s acquittal,” Gold said.
Thursday’s hearing was the second and final day of the appeal. On Wednesday, the panel — consisting of Ontario Court of Appeal Justices Michael Tulloch, Gary Trotter and Lois Roberts — heard arguments from Theriault’s lawyers, who are appealing the officer’s conviction and seeking leave to appeal his nine-month jail sentence.
Theriault’s lawyers have asked for an acquittal or a new trial. If the conviction is upheld, they have asked the Court of Appeal for a lower sentence, saying the nine-month penalty is outside of the normal range.
Crown lawyers have only asked for a new trial if Theriault’s assault conviction is overturned. If that conviction is upheld, prosecutors have said it is not in the public interest to hold another trial.
Tulloch said the court will issue its decision “in due course.”
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Theriault is currently suspended without pay from the Toronto police. He is out on bail pending the outcome of the appeals.
The case has drawn Canada-wide attention and criticism because of its broader racial tensions. In victim impact statements made late last year, Miller, alongside members of his family and the broader Black community said the incident had had a traumatic impact.
“As a young Black man, I have often heard stories of police abusing their power, but I had never experienced it like I did on Dec. 28, 2016,” Miller wrote in his victim impact statement.
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