Royson James, about last week’s ruling.
Black people need some hope — in something. In the Dafonte Miller case, the already besieged community was served with callous indifference, bordering on contempt.
I watched in unsettling bemusement last Friday as lawyers tripped over themselves not to tag Superior Court Justice Joseph Di Luca’s judgment for what it is: poppycock. And a miscarriage of justice.
Some people think Dafonte Miller got what was coming to him on Dec. 28, 2016 — a good whipping for breaking into cars on a winter night in Whitby. He cracked open the wrong vehicle, at a home where an off-duty policeman and his brother were waiting for him. And they beat Miller to a pulp, knocking out his eyeball.
That is one view. Di Luca does not countenance street justice, but it didn’t help Miller one iota.
Di Luca says Toronto off-duty cop Michael Theriault and his brother Christian chased down a19-year-old Black man, with one intent. “Michael Theriault’s initial intent was likely not to arrest Mr. Miller, but rather to capture him and assault him.”
The cop didn’t say he was a cop. He didn’t declare the thief under arrest. The Theriaults assaulted Miller for grabbing spare change from unlocked cars — “just beating on him,” the judge said. “Probably.”
“Probability, however, is not the test for a criminal case,” the judge goes on.
Miller did not “probably” lose an eye. Just look at him, Your Honour.
In fact, this most hesitant of judges when it comes to looking at the evidence and deciding the obvious, concludes the cop used a metal pipe on Miller’s head. And surprise, among all his qualifiers and probabilities, Di Luca concludes the blows with the pipe came clearly after the brothers were not in danger and Miller was in retreat, pounding on a frightened stranger’s door to escape the beating in the middle of the night.
In other words, at the point where the judge can say blows were being rained down on Miller — it happened just outside the door of a deputy fire chief who called 911 — the attackers clearly were not acting in self-defence, the core claim of the two men charged with assault and aggravated assault.
“The already razor-thin defence justification vanishes,” Di Luca said. Case over. Vigilante justice. Guilty.
The crown needs to prove the case beyond a reasonable doubt. What’s in doubt?
The Theriault brothers say Miller had a four-foot metal pipe, running with it while he was being chased. Probably in his pant leg, Christian had theorized to police earlier. Even Di Luca, the lover of probabilities, would not swallow that one. It’s likely the attackers had the pipe. But wait. Where did they get it?
It’s possible, yes, there is a chance, Miller found the pipe first at the side of the house where he is cornered. And there is a chance he then came at the attackers with the pipe — a-ha!
So up to this point where they had beaten the living daylights out of Miller, you are telling the public that the brothers might, possibly, be in a position of claiming to be defending themselves. Because, maybe, the pipe they were using as a lethal weapon was — who knows, maybe, first branded by Miller.
So, if they disabuse Miller of the pipe and use it on him, it could be viewed as blows of self-defence. Possibly. So, if the eye was lost during this possible time of self-defence, the injury might be classified as not resulting from an assault? And, certainly, not aggravated assault.
You kidding me? Everybody is cleared of aggravated assault. Nothing here. Just move along, everyone.
Further, Di Luca astounds the observer with this: After this possible period of self-defence, Miller reaches the door of the stranger, begging for help, and it is here, Di Luca can safely say, that the cop brother hits Miller with the pipe. Christian, the civilian attacker, therefore, incredibly, is not the assaulter of record; his cop brother is.
So Michael Theriault is guilty only of assault, not aggravated assault. And Christian walks free.
Charges of obstruction of justice — centred around lies the crown claims Michael Theriault concocted to cover his steps — didn’t have a chance. Let’s not even talk about the alleged collusion of the Durham and Toronto police force; the fact the Special Investigations Unit (SIU) were not told about the incident until Miller’s defence lawyer Julian Falconer alerted them. And the unsettling disclosure that both the attackers’ father, John, is a Toronto police detective.
Some readers think if you lip off a cop you should expect to get your cheeks boxed. Or if you are in a protest march and come up against a phalanx of police officers you should anticipate a baton upside your head, being pushed to the ground and trampled and stuffed with tear gas. And if you run from a beer-belly cop he can save himself the trouble of a foot chase and shoot you in the back. And if you are in an empty streetcar with a knife, a policeman can end your life because you are a danger to society. Or if you are resisting arrest, all bets are off and when you are brought under control expect to taste the officer’s rubber boots in your mouth, or his weight on your neck.
Yes, the Atlanta mayor fired a cop for shooting a suspect in the back — the incident captured on video. Other cops are facing criminal charges for killing suspects. The RCMP is under attack for roughing up a First Nations chief. Legislatures are recasting rules governing police interactions with civilians. The world around police conduct seems to have been flipped overnight.
But here in Toronto, we are left with befuddlement. The learned judge — praised to high heaven for his scholarship and skill — turns out to be no earthly good when it comes to dispensing common sense. Even after four hours live on the internet. And 62 pages of judgment.
I cannot explain the court decision to my grandson; neither to my grandmother. It does not pass the smell test. The average guy on the street is left with his mind boggled. And if that is the result of three years of preparation for a trial and a judgment — then the law is an ass.
When you first hear of the case, you are thinking, Michael Theriault is a cop at all times so he can catch and arrest this dude Miller. You are probably thinking that you, reader, could effect a citizen arrest if someone did that to your car.
But you are also thinking that you can’t take the garden shovel from the shed and bash the kid’s head in. Or grab an iron pipe and knock out the robber’s eye.
You are neither a lawyer nor a police officer nor a criminology student, but you learn over time that the concept of unnecessary force is going to come into play if someone is injured.
You also know, probably, that if you drive a getaway car for a bank robbery you are going to be liable for a teller being shot during the robbery.
So how does Christian Theriault walk free? And how is the cop given such kid glove treatment — and the benefit of the doubt?
We already know public confidence in police has hit rock bottom. Are the courts next?
We expect people like Justice Di Luca to step back from the minutiae of the law and determine its intent. How is your reasoning and judgment relevant to the man in the street? If we want citizens to respect the law we must abide by the social contract: all of us — ALL — are equal before the law and protected by the law.
What is the point of acknowledging the anti-Black racism convulsions engulfing North America and the world, and then ignore its effects in your courtroom? It’s called intellectual dishonesty. And it is an affront.
Less restrained and less balanced victims riot and burn property in the wake of such injustice. It creates a crisis of confidence in the legitimacy of the justice system as it pertains to marginalized people. The dangerous conclusion is, “the law does not protect me.”
Black people need some hope — in something. In the Dafonte Miller case, the already besieged community was served with callous indifference, bordering on contempt. The effects will be felt, and measured, not far hence. It may be wise to remember this moment.
The learned judge in the Theriault case — praised to high heaven for his scholarship and skill — turns out to be no earthly good when it comes to dispensing common sense