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Sentencing arguments begin for off-duty cop who assaulted Dafonte Miller

PAOLA LORIGGIO, THE CANADIAN PRESS | posted Friday, Sep 25th, 2020

Sentencing arguments are expected to begin Friday in the case of an off-duty Toronto police officer convicted of assault in the beating of a young Black man.

Const. Michael Theriault and his brother, Christian Theriault, were charged with aggravated assault and obstruction of justice in connection with the December 2016 incident in Whitby, Ont.

Prosecutors alleged the Theriault brothers chased Dafonte Miller, then 19, and beat him with a metal pipe, leaving him with a ruptured eye and several other injuries.

The defence argued the pair wanted to arrest Miller after catching him and his friends breaking into the Theriault family truck.

They alleged Miller was the one armed with a pipe and the brothers were forced to defend themselves.

In a widely watched virtual hearing in June, Ontario Superior Court Justice Joseph Di Luca said he couldn’t rule out the possibility that self-defence played a role in the early portion of the encounter.

It was during that part of the incident that Miller sustained the eye injury that warranted the aggravated assault charge, Di Luca said.

However, the judge said the self-defence argument fell apart shortly afterwards when Michael Theriault grabbed a roughly metre-long pipe and hit Miller in the head as the young man was trying to flee.

Theriault was thus acquitted of aggravated assault but convicted of the lesser charge of assault.

The officer was also found not guilty on the obstruction of justice charge, and his brother was cleared of all charges.

Michael Theriault’s lawyers had filed an application to vacate the verdict, arguing assault was not listed as an option on the indictment and should not have been available for a guilty verdict.

Di Luca dismissed the application earlier this month and released his reasons for doing so on Wednesday.

In the decision, the judge said the defence’s bid was not based on fresh evidence or a change in law, but rather on a new legal argument that was not raised during closing arguments “despite there having been ample opportunity to do so.”

He noted that the argument that he made an error in law is one that should be left to the Appeal Court.

The judge also took issue with the defence’s interpretation of aggravated assault, which he said would lead to a “fundamental change” in the hierarchy of assault-related offences.

“Ultimately, I see no reason to depart from the settled understanding of the offence of aggravated assault, which situates the offence consistently and cohesively within a scheme of offences against the person,” Di Luca wrote.

The Crown is also challenging the verdict, arguing Di Luca “erred in his analysis and assessment of the defence of self-defence.”

Miller and his family are expected to give victim impact statements during Friday’s hearing in Oshawa. The sentencing decision is expected to come at a later date.

The case has spurred numerous protests against anti-Black racism and police discrimination.

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