Cop appeals conviction in Miller assault

Lawyers allege judge made errors in trial

Nearly a year after off-duty Toronto police Const. Michael Theriault was convicted of assaulting Black man Dafonte Miller in a high-profile verdict watched by thousands online, Ontario’s highest court is set to hear separate appeals by the officer and Crown prosecutors.

Arguments began Wednesday at a virtual hearing at the Ontario Court of Appeal, where a panel of judges will decide whether to uphold the June 2020 ruling that saw Theriault convicted of assaulting Miller in 2016, but acquitted the officer of the more serious aggravated assault charge and of attempting to obstruct justice.

Ontario Superior Court Justice Joseph Di Luca sentenced Theriault to nine months in jail; the officer, who is currently suspended without pay by Toronto police, is out on bail pending his appeal.

“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 in his reasons for sentencing last November.

Miller, then 19, was blinded in one eye after a December 2016 clash on a residential street in Whitby, not far from the Theriault family home. Di Luca found the assault happened after Theriault and his younger brother, Christian, caught Miller stealing change from their parents’ truck.

The judge found the brothers chased him down, leading to a fight where Miller eventually became the victim of a “onesided” assault by Michael Theriault.

Di Luca’s high-profile verdict drew 20,000 viewers when it was broadcast on YouTube last year, amid a global reckoning over police killings of Black and Indigenous people of colour, including the murder of George Floyd by ex-Minneapolis police officer Derek Chauvin.

In his verdict, Di Luca said the racialized context needed “careful consideration,” and in his sentencing decision said the assault was among a category of 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 because they demonstrate that true equality is not yet within reach,” Di Luca wrote.

After the 10-day trial in Oshawa, Christian Theriault was acquitted of aggravated assault and attempting to obstruct justice.

In documents filed with the Court of Appeal this year, lawyers for the Ministry of the Attorney General have appealed the brothers’ acquittals, arguing that Di Luca was mistaken in his assessment of self-defence, among other errors that impacted the verdict.

Michael Lacy and Deepa Negandhi, lawyers representing Michael Theriault, have appealed Theriault’s conviction for assault, calling it “unreasonable and/or irreparably tainted by misapprehensions of evidence” in materials filed this year. The lawyers argued Di Luca was mistaken in concluding the assault was a “lesser included offence” of the aggravated assault charge he was facing.