Michael Theriault, centre, and Christian Theriault, left, arrive at the Durham Region Courthouse in Oshawa, Ont., ahead of Dafonte MIller's testimony, on November 6, 2019. THE CANADIAN PRESS/Cole Burston

Off-duty Toronto cop sentenced to nine months in jail in assault of Black man

Off-duty Toronto cop sentenced to nine months in jail in assault of Black man

TORONTO — A Toronto police officer convicted in the brutal assault of a young man was sentenced to nine months in jail on Thursday in a ruling the victim’s lawyer hailed as historic for its consideration of systemic violence toward the Black community.

Ontario Superior Court Justice Joseph Di Luca said that although Const. Michael Theriault was off-duty when he assaulted Dafonte Miller, who is Black, his “training and position” as a police officer makes the offence “all the more serious.”

“These are offences that shatter a community’s trust in the system,” he said. “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.”

He said the punishment is also warranted given the facts of the case.

“This is not a case where in the course of self-defence, an accused simply went too far,” Di Luca said. “This is a case where after any reasonable, possible threat had abated, the accused armed himself with a weapon and struck the injured and retreating victim.”

But he also weighed the officer’s high chance of rehabilitation and the conditions he will face in jail.

Di Luca also sentenced Theriault to 12 months of probation following his jail term, along with a five-year weapons prohibition.

Theriault was released on bail later Thursday pending an appeal of the verdict.

Julian Falconer, a prominent lawyer representing Miller and his family, said that while no ruling can undo the trauma the then-19-year-old endured, Di Luca’s sentencing decision should be commended.

“Justice Di Luca issued reasons for sentence that are nothing short of historic,” he said hours after the sentence was delivered. “They are groundbreaking in their clear and penetrating recognition of the socioracial context that police encounters represent for victims in these kinds of cases.”

Miller and his family did not comment.

Prosecutors sought a jail term of 12 to 15 months and several other restrictions for Theriault, while defence lawyers asked for an absolute discharge or suspended sentence.

Theriault and his brother, Christian, were charged with aggravated assault and obstruction of justice in connection with the incident, which took place in Whitby, Ont., about 45 minutes east of Toronto.

Prosecutors alleged during trial that the brothers beat Miller with a metal pipe, leaving him with a ruptured eye and other injuries.

The defence presented a different account, saying the Theriault brothers wanted to arrest Miller after catching him and his friends stealing from the family truck.

They alleged the pair feared for their lives after Miller confronted them with a pipe and acted in self-defence.

In delivering his verdict in June, Di Luca said he couldn’t rule out the possibility that self-defence played a role in the early portion of the incident.

It was during that part of the encounter that Miller sustained the eye injury that warranted the aggravated assault charge, the judge said.

But Di Luca said he didn’t buy the self-defence argument regarding Theriault’s actions shortly afterwards, when the officer grabbed a pipe and hit a retreating Miller in the head.

As a result, Theriault was cleared of aggravated assault but convicted of the lesser charge of assault. He was also found not guilty on the obstruction of justice charge, while his brother was acquitted of all charges.

Miller laid out the lasting impact the incident has had on his life in a statement that prosecutors read to the court in September.

In it, he said the encounter permanently altered his view of police, adding he had never previously experienced an abuse of power to that degree.

“No one questioned him. Only I was worthy of suspicion … Because of the colour of my skin, Michael Theriault could have got away with what he did to me,” the statement said.

Miller had said he would like Theriault to spend time behind bars, stressing the guilty verdict is only a step in holding the officer accountable for his actions.

Theriault, meanwhile, told the court he has been publicly demonized and called a racist, which he said does not reflect who he is. The officer said he never intended to seriously hurt Miller.

Defence lawyers have argued Theriault had no previous disciplinary issues before the incident, but could face “employment consequences” including the loss of his job if forced to serve jail time.

The Crown has appealed the verdict, alleging the judge made errors in his analysis on the self-defence argument.

Defence lawyers sought earlier to have the verdict vacated but Di Luca said the issue would be better left to the appeal court.

Theriault still faces a disciplinary hearing with the Toronto police. He had been suspended with pay since his arrest, but the force said Thursday that he will now be suspended without pay.

This report by The Canadian Press was first published Nov. 5, 2020.

Nicole Thompson and Paola Loriggio, The Canadian Press

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