Here for Dafonte—Theriault brothers trial, week 1


A police photo of $13.50 seized from Dafonte Miller when he was arrested on December 28, 2016. Police charged Dafonte with stealing this money, although the Crown withdrew this charge and all others against him several months later.

***This piece contains graphic and disturbing descriptions of police brutality and anti-Black racism. ***

Nearly three years ago, someone attacked a Black youth named Dafonte Miller, who was then 19 years old, on a suburban street in Whitby, Ontario, and caused him serious injuries, including the loss of his left eye. At first, no one was charged with the attack—in fact, the Durham Regional Police Service (DRPS) officers who attended the scene laid five criminal charges against Dafonte, including assault with a weapon, possession of a dangerous weapon, and theft under $5,000.

DRPS officers claimed Dafonte had assaulted two white men they found at the scene with him, off-duty Toronto police officer Michael Theriault, then 24, and his younger brother Christian, then 21. The Theriault brothers didn’t have any serious injuries, but DRPS officers accepted their story that Dafonte had tried to break into their truck, assaulted both of them with a metal pipe, and resisted their attempts to hold him down until police came. The two men gave the briefest of statements to police and went home; Dafonte went to the hospital in handcuffs and in DRPS custody.

Things changed dramatically in late April of 2017, when Dafonte’s lawyer contacted the Special Investigations Unit, the agency responsible for investigating injuries, deaths, and sexual assault allegations involving police officers. The SIU hadn’t heard about the incident between the Theriault brothers and Dafonte—DRPS failed to report it to them, but did notify Toronto police the night of the attack. Toronto police also chose not to notify the SIU, and allowed Michael Theriault to go back to work.

The Miller family fought against Dafonte’s outrageous criminal charges, and in early May the Crown (the lawyers representing the government) dropped all the criminal charges against Dafonte. The SIU closed its investigation in July of 2017 and recommended criminal charges against the Theriault brothers. Although Christian isn’t a police officer, he became the first civilian the SIU has laid charges against, as investigators determined he and Michael had acted together. The Theriault brothers are each charged with aggravated assault, as well as obstruction of justice for allegedly misleading DRPS officers who responded to 911 calls.

Of course, no one needed to mislead the officers who arrived on scene on December 28, 2016. As the first week of trial showed, and as Dafonte has already alleged in a separate police oversight complaint, DRPS officers helped the Theriault brothers cover up their violence. The Crown’s evidence includes a 911 call from Christian telling the dispatcher that Michael was an off-duty police officer. The responding officers’ took direction from the brothers, and from their father John, who is also a Toronto police officer, and framed Dafonte as the assailant in his own beating.

DRPS officers aren’t on trial here—on the contrary, the first two officers who arrived at the scene are Crown witnesses, one of whom gave testimony last week. But the facts and testimony thus far have shed more light on DRPS complicity in and cover up of the beating.

Evidence before the court

Court documents include an agreed statement of facts, which both the Crown and defence accept as fair evidence. The two sides only agree on a few things: that Michael Theriault was an off-duty Toronto police officer on the night of the incident; that Dafonte’s wounds satisfy the criminal code definition of aggravated assault; that the expert witness are qualified and medical info are admissible.

The agreed statement of facts also includes: audio and transcripts of three 911 calls, one each initiated by Christian Theriault, a civilian witness, and Dafonte Miller; statements from the Theriault brothers to DRPS officers; DRPS logs of their activities in responding to the incident; a biology report of the scene; and a series of photgraphs taken by a DRPS officer, SIU investigators, and Dafonte’s family. Additional evidence, including documents from the trial’s preliminary inquiry, is also being used in court.

The agreement that Dafonte’s injuries had to be caused by someone else is very important. There’s no evidence that anyone other than the Theriault brothers had a violent encounter with Dafonte. It seems their best hope of acquittal is for their lawyers to convince Justice Joseph Di Luca that their violence was a necessary and acceptable form of self-defense.

The brothers told police they chased Dafonte after finding him and a friend sitting in their parents’ truck close to 3 a.m. The brothers say they believed the young men were stealing from the truck, and pursued Dafonte to apprehend him until police came. Both brothers claim that after they chased Dafonte approximately 150 meters down the street and cornered him, he produced a metal pipe and began striking each of them in the head, torso, and legs.

Neither brother could say with any confidence where this pipe came from. Michael, who says he led the pursuit, told DRPS he never lost sight of Dafonte, but nevertheless said he never saw where the pipe came from or how it got into Dafonte’s hands. The pipe is an exhibit inside the courtroom which lawyers can refer to when questioning witnesses. It is approximately four feet long and made of solid metal, and it still contains markings of blood.

Both brothers told the police they feared for one another’s lives, yet neither of them sustained any major injuries or were immediately admitted to hospital. Christian showed police a cut on the outside of his right hand, which an officer photographed. Other than this, police who attended the scene didn’t see any injuries on either man. Michael reported no injuries, while Christian said that besides his hand, he had no other injuries apart from a sore head. Twelve days after the attack, Christian went back to DRPS for a second interview, during which he stated he had received medical treatment for a concussion. 

DRPS officers appear not to have asked Christian how Dafonte sustained his brutal injuries on the night they responded to the scene. At his subsequent police interview Christian said he defended himself after Dafonte struck him repeatedly with the pipe and his fists. He told a detective, “I got hit a couple of times—I had a darker eye—and that’s when I just, you know what, he’s fighting, so I was using my fists to defend myself, to stop—to stop him from hurting us.” When the detective asked Christian how many times he’d struck Dafonte with his fists to subdue him, he replied, “I don’t recall how many times. I was just going—I was just—it was—the amount of times was just until he stopped hitting us with the pole, then that’s when—that’s when we stopped.”

Although Christian suggested both he and his brother were punching Dafonte, Michael never offered this information, and neither man acknowledged hitting Dafonte with the pipe. DRPS officers have no documentation of themselves asking either brother if they hit Dafonte with the pipe.

Crown witnesses

The Crown’s first witness, DRPS Constable Jennifer Bowler, testified that after she and her partner were the first officers to arrive and see Dafonte bloodied and badly wounded, she doesn’t remember herself or her partner having any conversation with him. Bowler further testified that she never saw Dafonte’s eventual arrest, or have any recollection which of her colleagues laid the multiple charges against him.

Bowler said she did speak with the man standing over Dafonte when she arrived, and we now know that man was Michael Theriault. She says Theriault told her that he believed there was another person responsible for breaking into his truck, and pointed Bowler in the direction he believed the person fled. She testified that she did walk a little way up the road and saw no one.

Bowler, who was responsible for documenting and seizing evidence that evening, returned to retrieve her camera and begin documenting the scene. She took a photo of Dafonte’s eye injury as he lay in an ambulance, the metal pipe presented in court, evidence of blood on the front porch, driveway, and truck of the house where the brothers were holding Dafonte. Bowler took photographs of the cut on Christian Theriault’s hand, and of his face, which showed no signs of injury; she didn’t photograph Michael at all, and testified this is because he reported no injuries.

At this point Bowler said another man appeared and told her a vehicle he owned down the road had been broken into. Although we now know this man was John Theriault—the men’s father and a Toronto police officer himself—Bowler’s testimony suggests she didn’t know exactly who he was, when he arrived on the scene, and how he was related to the other men she’d encountered. Nevertheless she accompanied him to his property well down the street to photograph his truck.

Bowler took several photos of John Theriault’s truck. In her photos the truck doors are closed, as is the electronically-operated garage door the brothers claimed they had run out of to pursue Dafonte. Although Dafonte would later be charged with stealing money from the truck, John didn’t tell Bowler any money or other items were missing. Bowler said she found no evidence that someone had broken into the truck. Dafonte’s theft charge, which the Crown later withdrew, seems to suggest he stole the $13.50 police found in his pocket while arresting him. 

Crown lawyers accepted Bowler’s bizarre account without asking any obvious follow-up questions about why she repeatedly took directions from the Theriaults. In order to get its conviction of the brothers, the Crown is disregarding the obvious fact that Durham police were there to assist the Theriaults and not Dafonte. The Crown needs Bowler and her police colleagues to appear credible so the judge will accept the parts of their evidence that incriminate the brothers.

Similarly, defence lawyers made no efforts to question Bowler’s account. They want us to believe the police’s callous response to Dafonte was normal, that they only took direction from the Theriaults because they were innocent victims of a crime. The DRPS cover-up of the crime is an unacknowledged siren in the courtroom, an alarm no one wants to answer.

A key Crown witness is a man I’ll call Bill, who lives with his family at the house where police found Dafonte and the Theriault brothers (Bill isn’t his real name, but I’ve changed it because of the sensitivity of his testimony, which contradicts the police and the Theriault brothers in many instances). Bill and his family woke up to sounds of screaming outside their home on the night of the attack. He testified that he went to his bathroom window, and saw two men at the side of his house, punching down at a third person in between them.

Bill shouted to his wife to call 911, and eventually went downstairs after hearing someone banging loudly at his front door. He heard a voice asking anyone inside to call 911, and said he believed it came from the person who was banging. When Bill’s wife got a dispatcher on the line, he took the phone and described what he was seeing and hearing.

At one point Bill went to the upstairs window and told the dispatcher he saw one man standing over another with a long object, and that he feared the person without the weapon would be struck. Bill further testified in court that he saw the armed person using the long object to stab down at the man below him to keep him from getting up. He also saw another man who appeared to be on a cell phone pacing up and down the street in front of his driveway.

The Crown played Bill’s phone call for the court, and in a devastating moment after Bill expressed fear for Dafonte’s safety, the 911 dispatcher replies, “Yeah, I guess he was trying to restrain him, that’s why.” The dispatcher continued, “judging based on what you’re saying, I assume the guy that broke into the car is the guy that’s on the ground.”

This assumption by the dispatcher was based on info coming in at the same time from Christian, who called 911 only twenty seconds before Bill did, and informed the operator his brother, a police officer, had apprehended a thief. Bill also testified that although several police officers attended the scene at his house and saw him standing outside, none of them took a formal statement from him.

The court also heard from Michael Pickup, a medial professional who reviewed all of the medical evidence regarding Dafonte’s injuries. Pickup said that while it was possible a pipe had caused Dafonte’s injuries, he believed it was more likely caused by blows from fists. Dafonte’s eye was dislodged and split into pieces, and surgeons ultimately removed it. The charge of aggravated assault doesn’t hinge on the use of a weapon, so the judge doesn’t necessarily need to find that any weapon was used in order to find the Theriault brothers guilty on that charge. 

Crown lawyers called Mike Federico to the stand to give evidence about police use of force, particularly regarding the responsibilities of off-duty police officers. Federico is a former deputy chief of the Toronto police, and was serving in that capacity when Dafonte was attacked. Federico also happens to be overseeing the DRPS while its current chief, Paul Martin, faces  an unrelated misconduct investigation. Federico’s experience with both forces involved in this cover-up makes him an interesting person to cite as an expert, and suits the climate of indifference to police corruption that hangs over this trial.

Federico said that generally speaking, a police officer maintains certain responsibilities even when they are not on duty. He said officers are expected to respond to crimes they witness, even if that simply means calling 911. In Federico’s opinion, an off-duty officer has more responsibilities than a civilian when witnessing or responding to criminal activity, such as taking extra steps to identify themselves, and clearly justifying any force they may use.

As defense lawyer Michael Lacy cross-examined Federico, he revealed part of his team’s strategy. Lacy suggested that Federico is not an expert in the laws of self-defence, and that off-duty police officers can engage in a citizen’s arrest to protect themselves and their property. This is clearly the story the Theriault brothers’ lawyers intend to paint, despite the fact that Michael and Christian both informed authorities that Michael is a cop.

In the second week of trial, the Crown has called two friends who were with Dafonte on the night of the attack, and heard from two other DRPS officers who arrived early to the scene. Dafonte himself is expected to testify later this afternoon. The experience will force Dafonte to not only relive all the events of that evening, but to endure harsh cross-examination, during which defense lawyers will surely challenge the truth of his story. May he and his family find strength for that experience—I’ll have another update soon.

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