Toronto cop found guilty in Dafonte Miller beating asks court to scrap assault conviction
Const. Michael Theriault (left) and Dafonte Miller (right) are seen in this composite image. (The Canadian Press)
TORONTO -- Lawyers representing the off-duty Toronto cop found guilty in the beating of Whitby teen Danfonte Miller have submitted an application asking the court to scrap his assault conviction.
In the application filed in court in Oshawa this month, Michael Theriault's lawyers Alan Gold and Michael Lacy requested that the constable’s conviction be vacated, arguing that the trial judge “lacked jurisdiction" to convict their client on the simple charge of assault.
Theriault and his younger brother Christian were both charged with aggravated assault and obstruction of justice in connection with the violent incident in Whitby in December 2016 that left Miller blind in one eye.
A judge-alone trial was held in the fall of 2019 and in June, Ontario Superior Court Justice Joseph Di Luca acquitted Christian Theriault of all charges and found Michael Theriault guilty of the lesser charge of assault.
In his decision, Di Luca said that while the two brothers may have acted in self-defence during a portion of their interaction with Miller, the young man eventually began to retreat.
Di Luca found that Michael Theriault was not acting in self-defence or trying to make a lawful arrest when he struck Miller in the face with a metal pipe near the end of the altercation, after his eye had already been damaged.
For this reason, Theriault was only found guilty of simple assault rather than aggravated assault.
But in their application, Theriault's lawyers argue that their client was never notified that this charge was on the table.
"The only issue at trial was whether the assault on the complainant was legally justified," the application states.
"The Court had a reasonable doubt as to whether the assault that caused the aggravated injury was committed in circumstances of self-defence."
The lawyers stated that the court concluded Theriault "could be found guilty of assault for other assaultive conduct that was not connected to the aggravated injury."
"Given that there was no jurisdiction on this indictment to find (Theriault) guilty of an assault that was not charged and was not included in the courts in the indictment, it is appropriate for the court to grant this application and vacate the finding of guilt," the application concluded.
Theriault, who was suspended from the Toronto Police Service in July 2017, is currently out on bail as he awaits his sentencing hearing, which is scheduled for Sept. 25.
An assault conviction carries a maximum penalty of five years in prison.
Miller's lawyers previously said that the judge is not expected to deliver his decision at next month's hearing but will release it at a later date.
Earlier this month, interim Toronto Police Chief James Ramer released a public apology for the police service's handling of the case.
The apology came following the release of an Office of the Independent Police Review Director (OIPRD) report that found Toronto police were wrong not to notify the Special Investigations Unit (SIU) on the night of Miller's assault.
"We made the wrong decision that night," Ramer said. “As a result of that decision, trust has been broken between the police, Dafonte Miller and the broader community. For that, on behalf of the Toronto Police Service, I want to apologize."
In a statement released the following day, Miller said he received the OIPRD report minutes before the apology and suggested that the police service's response was a "public relations exercise" that did "nothing to build bridges."