A mystery lies at the heart of Theriault charge
A fist is not a weapon.
Unlike, say, a gun or a knife or a baseball bat or a metal pipe.
Michael Theriault wielded a four-foot pipe when he assaulted Dafonte Miller after chasing the teenager down a residential street in Whitby in the early morning hours of Dec. 28, 2017. It was not possible to definitively determine who introduced that pipe into the altercation, though Ontario Supreme Court Justice Joseph Di Luca concluded both at some point likely brandished it and Miller may have swung it first.
While Di Luca last week found Theriault guilty of assault, he acquitted the off-duty police officer on a charge of aggravated assault. The maximum sentence for assault is five years; for assault with a weapon it’s 10 years.
As Di Luca noted in his decision: “To be clear, while the finding of guilt is for assault, I am satisfied beyond a reasonable doubt that the pipe was used as a weapon and it was used on more than one occasion … Despite this finding, a conviction for the offense of assault with a weapon is not available in this case. Assault with a weapon is neither a charge before the court, nor is it a lesser and included offense of aggravated assault.”
The troubling question: Why not?
The judge’s lengthy reasons for judgment — it took more than four hours for Di Luca to read in a rare, virtual court hearing because of COVID-19 restrictions — has been dissected six ways from Sunday, with many observers left confused by the outcome despite Di Luca’s exacting explanation of the laws applied and the onus on the prosecution to prove the accusations beyond a reasonable doubt.
Crucial to the befuddlement is why Theriault and his younger brother Christian — who was found not guilty on all charges — weren’t tried for the more serious assault with a weapon.
That took on added significance against the backdrop of these tumultuous times of societal reckoning over police brutality and racial injustice. Cops have historically enjoyed the benefit of the doubt when a civilian is injured or killed during confrontation with law enforcement, particularly when the officer professes that he or she feared for his or her life, a one-size-fits-all justification. This was the primary argument — self-defence — mounted by the Theriault lawyers.
It should be noted that the trial was held late last year and early this year, thus before the mass protest movement triggered by the killing of George Floyd, a Black man, by four Minneapolis constables, which has resonated around the world.
The Theriault brothers are white; Miller is Black. Di Luca recognized the racial dimension that animated public interest. “I am not saying that race has nothing to do with this case. Indeed, I am mindful of the need to carefully consider the racialized context within which this case arises. Beyond that, I also acknowledge that this case, and others like it, raise significant issues involving race and policing that should be further examined. To give but one example taken from the evidence in this case, one could well ask how this matter might have unfolded if the first responders arrived at a call late one winter evening and observed a black man dressed in socks with no shoes, claiming to be a police officer, asking for handcuffs while kneeling on top of a significantly injured white man.”
The crux of the why in charges prosecuted is that the Crown altered — downshifted — those charges from what the brothers originally were charged with by the Special Investigations Unit, which wasn’t even notified about the incident until four months later, by Miller’s lawyer, Julian Falconer.
In a statement released July 17, 2018, the SIU revealed Michael Theriault had been charged with aggravated assault, assault with a weapon and public mischief. Three days later, another release said Christian Theriault had been charged with the same offences.
It was not the SIU that altered the charges so it must have been the Crown Attorney’s office. The Star asked for an interview with the two Crowns who prosecuted the case — Peter Scrutton and Linda Shin — to explain the reasoning, but a spokesperson for the Ministry of the Attorney General declined “on behalf of the Crown.”
“As this matter is ongoing and remains before the courts, it would be inappropriate to comment,” Brad Gray wrote in an email received Friday. (What’s still before the courts is the sentencing phase and a potential appeal of Michael Theriault’s conviction.)
However, in discussion with other Crowns — off-the-record, on background only — it was theorized that Scrutton and Shin viewed aggravated assault, “the big Kahuna,” as a charge that captured all of the elements, the prosecution probably didn’t anticipate an acquittal on that charge, and conviction on aggravated assault would have resulted in a more severe sentence than assault with a weapon, so wasn’t necessary.
That approach took the emphasis off the weapon — and that weapon, the provenance of it, the injurious result of wielding it, was always problematic for the Crown.
Central to that dilemma was the expert medical evidence of the Crown’s own witness, Dr. Michael Pickup. The forensic pathologist testified to the sundry injuries Miller had suffered, which included a broken nose and a ruptured eyeball that resulted in two surgeries and, ultimately, removal. Miller now has a prosthetic in his eyeball socket.
But Pickup testified that the gruesome eye injury was, in his opinion, less likely to have been caused by a strike or jab with a metal pole and more likely to have been caused by other blunt force trauma, probably a hard punch or punches with the fist. As, indeed, Michael Theriault, on the witness stand, admitted he’d rained blows down on Miller with his hands, punching everywhere, but never struck him with the pole that was in his hands during part of the frenzied altercation.
A pipe that Theriault claimed he took off Miller when they initially tussled after Theriault pursued Miller between two houses. Miller adamantly denied he’d seized upon the pipe from a backyard when turning around to confront Theriault — whom he didn’t know was a cop because Theriault never identified himself as an officer until he had Miller pinned to the ground after the altercation had moved from a flower bed to the front door of a house to the driveway.
The sequence of events was pivotal. Leaning on the witness evidence of the homeowner, who saw part of the melee through the shutters of a bathroom window — he’d been awakened by Miller pounding on the door, pleading for someone to call 911 — Di Luca concluded that the earlier stage of the beating could have been an act of self-defence by Michael Theriault and Miller may have initially wielded the pipe, “it thereafter quickly became one-sided.” Miller, Di Luca deduced, likely suffered the profound eye injury at some point between the flower bed, after he broke free from the Theriaults, as he moved alongside the wall of the residence, leaving a blood trail that extended to the front door and then the driveway. “I do not accept Michael’s evidence that he did not hit Mr. Miller after he left the flower bed.”
Di Luca wrote he was satisfied that Miller was struck in the face with the pipe as he pounded on the door — a door that was gouged by the pipe during that fusillade of strikes, Miller’s blood on the weapon. Michael Theriault, Di Luca continued, had picked up the pipe again, after tossing it aside in the yard, brandishing it with both hands. “In Michael’s own evidence, Mr. Miller was in retreat at this stage. I find that regardless of why Michael initially retrieved the pipe, once he had it, he decided to use it to hit Mr. Miller.”
This was the essence of the conviction. “I am satisfied beyond a reasonable doubt that when Michael Theriault struck Mr. Miller with the pipe at the front of the … residence and thereafter, he was neither acting in self-defence nor in the course of a lawful arrest. As such, he committed an unlawful assault.”
Yet not assault with a weapon because that option was not before the court.
Di Luca didn’t say so, but somebody blew it.
That was the only conviction across the board, acquittal on aggravated assault for both brothers, acquittal on obstructing justice — which at trial had replaced the public mischief charge, relating to statements both Theriaults had given police that night and afterward, Di Luca unconvinced that either gave a false statement with the intent to cover up.
It should be pointed out, as the judge did, that police responding to the scene that night viewed the brothers as victims, did not ask questions that might have drawn out details supporting the obstruct charge and that it was Miller who was charged with a slew of offences, all subsequently withdrawn.
Sentencing guidelines will instruct Di Luca on what penance he imposes on Michael Theriault. On a first offence, it won’t be the maximum.
But there’s this, from the judge: “(T)he fact that a weapon was used in committing the assault will be considered an aggravating factor on sentence.”