Cop guilty of beating Black teen
Live online ruling ignites discontent
A white Toronto police officer is guilty of beating a Black teenager with a metal pipe and his fists at night while off duty, an Ontario court judge ruled in a closely watched case highlighting issues of race and policing.
Const. Michael Theriault was found guilty of assault on Dafonte Miller but not guilty of the more serious charge of aggravated assault; his brother Christian Theriault was found not guilty of any assault.
Both men were found not guilty of obstructing justice.
Because of COVID-19 restrictions, the four- hour verdict and reasons for judgment was broadcast live online, a rarity in Ontario, which has strict rules against broadcasting, making it one of the most watched criminal hearings.
It allowed more than 20,000 people to watch Ontario Superior Court Justice Joseph Di Luca declare: “I am satisfied that Michael Theriault’s initial intent was likely not to arrest Mr. Miller but rather to capture him and assault him.
“The defendants were probably not acting in self- defence at this stage ... they were probably just beating on Mr. Miller. Probability, however, is not the test for a criminal case.”
It ignited a wave of discontent over the verdict.
The broadcast allowed people to witness a common feature of criminal court: the enormous gulf between what a public sees as obvious conclusions and a judge’s weighing of reasonable doubt.
As such, the two accused men were probably just beating on Miller, who lost the whole of an eye from the vicious attack, but are found not guilty, one of the aggravating feature of assault and the other acquitted entirely. And that some statements given to police were “probably false,” but they were found not guilty of obstructing justice, because “probably” equates to not guilty in a criminal court where findings must be beyond reasonable doubt.
Testimony and evidence about the encounter between Miller and the Theriault brothers in Whitby, just east of Toronto, about 2: 30 a. m. on Dec. 28, 2016, featured starkly different accounts.
Di Luca distilled the evidence and weighed the credibility of the testimony.
He concluded there were lies on both sides.
Di Luca ruled that Miller, 19 at the time, and two of his friends were in the Theriaults’ neighbourhood “car hopping,” meaning going into parked vehicles to steal stuff, despite Miller’s denials.
The Theriaults were outside smoking, heard a noise in their family’s garage and confronted the men, who ran. They gave chase and caught up to Miller as he tried to climb a fence.
Michael Theriault said he was trying to arrest Miller, who turned around with a metal pipe and started hitting him and his brother and they feared for their lives. Theriault claimed he punched Miller to defend himself, but denied hitting him with the pipe.
“I cannot exclude the reasonable possibility that Mr. Miller first wielded the metal pipe,” after picking it up in a neighbour’s yard. “It is also reasonably possible that the pipe was first wielded by either Michael or Christian Theriault, who either brought it with them from their garage or retrieved it,” from the yard.
“Given the credibility issues with the evidence, I am not in a position to determine the issue one way or the other.”
Who first swung the pipe was crucial.
“If Mr. Miller initially wielded the pipe, Michael and Christian would have been entitled to act in self- defence by repeatedly punching Mr. Miller to disarm him,” Di Luca said.
Di Luca ruled, however, that Michael Theriault did hit Miller with the pipe, despite his denials. The judge also dismissed Theriault’s claim he was simply trying to arrest Miller for car theft.
The gruesome injury to Miller’s eye, however, was unlikely to have been caused by the pipe. Rather, medical experts testified, it was more likely to have been from Theriault’s fists.
Miller’s eye was lost, one medical expert testified, “by at least one punch with significant or considerable force. The force would have been significant enough to cause the eyeball to rupture from the inside out, like a water balloon.”
The subtleties of the timing of the eye injury — at a point when it was plausibly self- defence as opposed to when the attack became utterly unjustified — makes the difference between an aggravated assault and a simple assault. In court, at least, but not necessarily for the wider public.
All of this legal parsing came at a time of heated emotion and sensitivity to the issue of race and policing.
Di Luca addressed it as a preface to his judgment.
“Public and media interest fosters legitimate debate, criticism and change, all of which are essential features of a functioning, modern democracy,” Di Luca said.
“My task is not to deliver the verdict most clamoured for. Trials are based on evidence and not public opinion.
“My task is also not to conduct a public inquiry into matters involving race and policing. In stating this, I want to make one thing very clear: I am not saying race has nothing to do with this case. Indeed, I am mindful of the need to carefully consider the racialized context this case arises.
“This case and others like it raise significant issues involving race and policing that should be further examined.”
After the verdict, Miller told reporters the decision offered a measure of vindication.
“We’ve come a long way,” he said, noting he was charged the night of his assault. The charges were later dropped.
“Now, we’re in a situation where an officer has been held accountable to some extent,” Miller said.
“There are a lot of people who are in my position who don’t get the same backing I got and don’t get to have their day to really find vindication.”
Michael Theriault is still to be sentenced.
The province acknowledged the importance of the case.
“We recognize that this has been an emotional and difficult case,” said Brian Gray, spokesman for the Ministry of the Attorney General. “We know that systemic racism and systemic barriers have a disproportionate effect on racialized persons and marginalized communities. Everyone in Ontario deserves to be treated fairly and served equitably.”