Criminal courts no place for needed policy changes
We ask too much of our criminal courts.
Like almost 20,000 other people, I tuned in on Friday, as a Superior Court judge in Oshawa found that an off-duty police officer assaulted a Black teenager in an altercation that resulted in the loss of the boy’s left eye. The off-duty officer’s brother, who was also involved in the altercation, was found not guilty of assault. The public was left with questions.
The criminal trial of the Theriault brothers took place against the backdrop of a growing public awareness of the way in which police brutalize Black lives, treating them as disposable and valueless. The trial of the two brothers seemed like it might challenge the narrative that it is impossible to get justice for the victims of police brutality.
There appeared to be an abundance of evidence that, in their pursuit of Dafonte Miller, Michael and Christian Theriault were solely motivated by retribution, that the fight that ensued was entirely one-sided and that even if the brothers were acting in self-defence, their use of force was grossly disproportionate. Moreover, the trial judge appeared to be very much alive to the racialized aspects of this case. So why, then, were the brothers not convicted of aggravated assault?
Because we ask more of our criminal courts than what they can achieve. Criminal courts serve a limited function. They are designed to create a narrow form of justice — not social justice, not restorative justice. They only answer the focused question of whether the Crown proved its case beyond a reasonable doubt.
In making his decision, the trial judge was limited by the evidence that came before him in court, the way in which it was presented and the credibility issues of the witnesses through which that evidence was narrated.
To be sure, the trial judge found that the Theriault brothers probably did all the reprehensible things they were alleged to have done. But his hands were tied — “probably” is not the standard in criminal cases. In criminal cases, the standard is “proof beyond a reasonable doubt.” On the evidence before him, the trial judge concluded that the Crown failed to disprove beyond a reasonable doubt that the brothers were acting in self-defence during the portion of the fight during which Dafonte Miller lost his eye. So, he had to acquit.
The elevated burden of proof in criminal cases exists for good reason — to protect the innocent. It must not be relaxed, even in difficult cases.
As a Black criminal defence lawyer, I’m particularly sensitive to police brutality. I remain haunted by the image of Dafonte calling for help, his left eye burst and oozing. I am haunted by the fact that when the police arrived, they chose to arrest Dafonte, not the Theriault brothers, and they handcuffed his wrist so tightly that he suffered nerve damage. How do we ensure that this never happens to another Black teenager?
The limited function of criminal courts means that they are not the place to implement the broad-based policy changes needed to prevent this from happening again. The trial judge alluded to this in his reasons when he stated that this case raises significant issues in race and policing that should be further examined, but that was not his task.
Any verdict in the Theriault trial would have left the public with an abundance of unanswered questions:
Why did the Toronto and Durham Police fail to report this case to the SIU as required by law?
What role did Det. John Theriault, the brothers’ father and a Toronto police detective, play in delaying the charges against his sons?
What do we do about police who habitually shield themselves from accountability by criminally charging the victims of their misconduct?
These important questions would have remained unanswered even if the brothers were both found guilty of aggravated assault.
These questions need to be addressed by politicians, not judges and juries. What we need is a federal commission of inquiry into police use of force against racialized and Indigenous people in this country.
We need truly independent and powerful civilian police oversight informed by an understanding of the operation of systemic racism. And we need our politicians to fundamentally rethink the role of police in our communities.
Criminal courts simply weren’t designed to do all this. And we should not ask them to.