These are offences that shatter a community’s trust in the system. They serve as a constant reminder of the presence of systemic racism. They prevent the healing that is required to move forward. Justice
Joseph Di Luca, sentencing Toronto cop Michael Theriault to nine months in jail for beating of Dafonte Miller.
In the early morning hours of Dec. 28, 2016, off-duty Toronto police officer Michael Theriault placed handcuffs on Dafonte Miller, the seriously injured Black man he had just assaulted. Nearly four years, a high-profile trial and a reversal of fates later, cuffs were placed on Theriault before he was led out of an Oshawa courtroom Thursday.
Following sentencing reasons called “groundbreaking” by Miller’s lawyers but denounced as too lenient by some critics, Ontario Superior Court Justice Joseph Di Luca sentenced Theriault to nine months in jail for “a gratuitous and violent offence on a vulnerable victim who posed no threat.”
“The fact that Mr. Theriault committed this offence despite his training and position as a police officer makes the offence all the more serious,” Di Luca said, reading for more than an hour from his detailed reasons.
In particular, Di Luca noted he had to consider the widespread impact caused when officers commit crimes against racialized minorities, particularly those in the Black community.
“These are offences that shatter a community’s trust in the system,” Di Luca wrote. “They serve as a constant reminder of the presence of systemic racism. They prevent the healing that is required to move forward because they demonstrate that true equality is not yet within reach.”
A jail sentence for assault committed by a police officer is unusual. In the rare instances where they are charged and convicted of assault, police officers far more typically serve either no sentence or receive a conditional discharge, each one an outcome requested by Theriault’s lawyer.
But Di Luca said “nothing short of a jail sentence” would adequately denounce Theriault’s beating of Miller under the alleged context of an arrest — an assault against a young man who had already suffered a devastating injury to his eye by the time Theriault struck him in the face with a metal pole.
Miller — who recently became a father to a son — “feels like he had a voice,” said Julian Falconer, one of Miller’s lawyers, following the sentencing.
“Dafonte is grateful that the court recognized the depth of destruction in his life that this police officer’s actions represented,” Falconer said.
“But I want to emphasize that nobody’s happy that someone is going to jail. Dafonte is not happy that any of this happened to him.”
Theriault, 28, has been suspended with pay from the Toronto Police Service since his arrest in 2017. Because he was sentenced to jail time, he will now be suspended without pay until his fate as an officer is determined at a disciplinary tribunal; Di Luca noted a jail sentence probably means Theriault’s employment as an officer will come to an end.
But Theriault will not begin serving his jail sentence immediately. Late last month, Theriault’s lawyers filed a court application to keep him out on bail pending the appeal of Di Luca’s verdict by both Crown and defence lawyers. Ontario’s Court of Appeal granted bail and Theriault was released from custody Thursday afternoon.
“This case has created a further divide between the police and the Black community, especially those who have lived experiences of discrimination in the justice system or by police,” interim Toronto police Chief James Ramer said in a statement.
This summer, Ramer apologized to Miller for the force’s handling of Miller’s assault, including the decision not to notify Ontario’s police watchdog, the Special Investigations Unit, of his injuries as required by law. Miller later called the apology a public relations exercise.
“We will continue to take the steps necessary to rebuild trust with our communities and to ensure accountability and transparency,” Ramer said Thursday.
Theriault’s case has drawn national attention and criticism in part because of the racial tensions at play.
Miller and members of his family previously told court in victim impact statements that the assault has had a devastating effect on their family and the broader Black community.
“Let me tell you: It’s not often that you see a policeman get sentenced to jail time,” said Kingsley Gilliam, a founding member of the Black Action Defence Committee, and who gave a community impact statement during sentencing submissions in September. Gilliam, who attended the hearing Thursday, said he had mixed feelings as he left the courthouse where he attended much of the high-profile trial. Di Luca’s sentence was reasonable for an assault, Gilliam said, but he felt Theriault should have been found guilty of the more serious aggravated assault charge.
But Gilliam was relieved to hear Di Luca say the behaviour was so egregious he could not defend a less rigorous sentence.
Syrus Marcus Ware, a member of Black Lives Matter Toronto, said racial justice can come only come from the dismantling of institutions such as policing.
“I don’t think justice is going to come from the justice system,” Ware said.
Falconer and co-counsel Asha James called Di Luca’s sentence “groundbreaking,” because it took into consideration the racial context.
“This is recognizing that in these situations where police are perpetrating these types of crimes against members of the Black community, a heightened level of denunciation is needed in order to try to repair some of the fractured relationships within the community,” James said.
Kate Puddister, a University of Guelph professor who researches police oversight, said her work shows Theriault’s sentence is far more severe than other cases where officers have been convicted of assault.
Her review of these cases has shown the most common sentence handed down in this scenario is an absolute or conditional discharge, with a minority receiving custodial sentences of less than two years, she said.
“The judge has sent a message to the public that important consequences can be brought to bear for police officers that break the law,” Puddister said.
In his June verdict, Di Luca found Miller was the victim of a “one-sided,” violent beat-down at the hands of Theriault in an altercation that began when Miller stole pocket change from the
Theriault family truck.
He did not find that the injury to Miller’s left eye, which later had to be removed, was caused during the assault. Theriault testified at trial that he caused the injury to Miller’s eye with his fist, while punching him in self-defence, as Miller was wielding a metal pole (the origin of the pole was never determined at trial).
Di Luca found he could not determine, beyond a reasonable doubt, that Miller had not wielded that pole at an earlier point in the encounter.
But Di Luca found that by the end of the violent clash, Theriault’s claim that he was acting in self-defence “evaporated,” ruling he was guilty of assault for wielding the pole and hitting Miller at least once in the face.
Speaking to reporters Thursday, Falconer said the sentencing decision does not mark the end of the case, and not only because Miller has filed a civil suit and Crown and defence lawyers have each filed an appeal of Di Luca’s verdict.
Falconer said big questions remain about the handling of the incident by both Toronto police and Durham Regional police; Durham officers responded to the scene of the assault and, believing Theriault’s account of what transpired, initially charged Miller with assault with a weapon, charges later withdrawn by the Crown.
Neither police service notified the SIU that a civilian was injured in an encounter with a police officer, as required by provincial legislation, regardless of the fact that Theriault was off duty. The watchdog was only notified months later by Falconer, resulting in the investigation that led to charges against Theriault.
“This ought not to be over,” Falconer said.
In his statement, Ramer, the interim police chief, said an external review of Toronto police handling of the case, being conducted by the Waterloo Regional Police Service, is ongoing and will be delivered to the Toronto police board.
At the outset of his reasons Thursday, Di Luca said it is often said sentencing is among the most difficult of a trial judge’s task — “in this case, the observation is an understatement.” Sentencing is neither an exercise of vengeance nor should there be “blind lenience” when an offence is someone’s first.
Even when they are based on “heartfelt sentiments,” calls made to impose the maximum sentence — five years — cannot sway his sentencing decision, Di Luca said.
“My role is not to simply ‘throw the book’ at Mr. Theriault because anything less will be seen as a ‘slap on the wrist,’” Di Luca said.
“These are offences that shatter a community’s trust in the system.” JOSEPH DI LUCA ONTARIO SUPERIOR COURT JUSTICE