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The highly anticipated verdict in the case of an off-duty police officer and his brother who allegedly beat a young Black man and later misled investigators about it will be delivered via livestream Friday – against the backdrop of a month of global protests denouncing anti-Black racism and police brutality.

Toronto Police Service Constable Michael Theriault and his brother, Christian Theriault, are accused of aggravated assault and obstruction of justice resulting from a 2016 encounter on a Whitby, Ont., street with a then-teenaged Dafonte Miller, who was beaten so badly he lost an eye.

During the two-week judge-only trial last year, Justice Joseph Di Luca of the Ontario Superior Court was presented with two competing narratives of what happened on the morning the Theriaults crossed paths with Mr. Miller.

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Here is some of the evidence Justice Di Luca must consider as he decides which version of events most likely occurred and, ultimately, if the accused are guilty.

How did Dafonte Miller cross paths with Michael and Christian Theriault?

On the frigid morning of Dec. 28, 2016, Michael and Christian Theriault were at their home on a residential street in Whitby when Mr. Miller and two friends walked down the street.

Mr. Miller testified in court that he and his friends were walking through the neighbourhood, on their way to meet some girls, when they passed by the Theriaults, who were standing on the street. The Theriaults, he said, demanded to know where they were going. As the three friends tried to walk past them, the Theriaults gave chase, Mr. Miller said.

Michael Theriault, meanwhile, told police at the scene that he and his brother were in their garage smoking when they heard what sounded like someone opening the doors to their parents’ pickup truck, which was parked in the driveway. He said they exited the garage to see Mr. Miller and another man stepping out of the truck (in their version of events, there was no mention of a third man).

Defence version
Image of Agreed Statement of Facts
Image of Agreed Statement of Facts

Michael Theriault: “Me and my brother Christian Theriault were inside of the garage at [house number] Erickson Drive, having a cigarette. Amongst the converstation we heard a noise coming from directly outside. The garage was closed, and it sounded like someone was going through the truck, our truck, ahh and we knew our whole family was sleeping. We immediatly opened up the garage door, the second we opened up the garage we heard unknown males talking. I rolled under the garage door, my brother followed me. When I exited out of the garage I saw the male that I arrested leaving the driver’s seat of my dad’s truck. In my peripherial vision I saw an unknown male exit the front passenger seat of the truck.”

Crown version

Dafonte Miller’s testimony: “Pretty much we were walking and as we’re walking we get stopped and we’re asked if we live in the neighbourhood. AJ answered and said we don’t and pointed to where we lived. They asked what we were doing there then. I asked why we were being asked these questions.”

“You know when you feel the energy? You can feel it in the question? [Michael Theriault] said he was a cop and he can ask what he wants. AJ started laughing and shook his head. We started walking away … As I turned my back, they were still in their driveway. Then we started to realize that we’re being chased. I can see a reaction from Bradley. He grabbed my shirt and I got loose and started running.”

How did the chase and struggle play out?

By both the Crown’s and defence’s accounts, the Theriaults ran after Mr. Miller down the street, and Mr. Miller veered into the space between two houses.

According to Mr. Miller, who took the witness stand, Christian Theriault grabbed him, put him in a headlock and pulled him to the ground. He told the court both brothers hit him and Michael Theriault struck him with a metal pipe.

In a statement Christian Theriault gave police, he said Mr. Miller tried to jump over a fence and then began swinging a metal pipe at both brothers, striking them repeatedly.

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Defence version
Image of Agreed Statement of Facts
Image of Agreed Statement of Facts

Christian Theriault: “... we opened the garage door and saw two males, running away from the house, one was running north on Erickson Dr. with a grey hood on and the other was running east on Erickson, my brother was pursing the one running east so I followed my brother, coming up to [house number] Erickson the guy who was breaking into our car decided to try and run in between the houses and attempt to jump the fence, once he realized we caught up to him he started swinging a steel pipe at both my brother and myself, so we tried to defend our selves and stop him, he continued to swing the pipe at us and hit me repeatedly with the pipe all over and was hitting my brother, eventually we were able to stop him from hitting us ...”

Crown version
Image of the Crown's written submissions
Image of the Crown's written submissions

Written submission

    “15. According to Dafonte Miller, following the chase down Erickson Drive the assault proceeded in four stages:

  • (i) Mr. Miller diverted towards [house number] Erickson Drive and ended up on the ground with Christian Theriault, who had him in a headlock on the flowerbed at the side of [house number] Erickson Drive, while Michael Theriault beat him on his back and head with the pipe;
  • (ii) after Mr. Miller managed to get out of the headlock on the flowerbed, he was taken to the ground again on the grass between [house number] and [house number] Erickson Drive and was beaten by both defendants as he lay there facing the fence;”

Where did the pipe come from?

A four-foot metal pipe stained with blood was found on a snow-covered lawn by police who attended the scene.

When he took the stand, Mr. Miller said he only noticed the pipe after he had been struck in the back with it by Michael Theriault. He said he did not bring it with him to the scene and never held it. In final submissions, the Crown told the judge the most likely origin of the pipe was the Theriaults’ garage, where Michael Theriault probably grabbed it with the intent to use it as a weapon when going out to confront Mr. Miller and his friends.

Almost two weeks after the altercation, Christian Theriault provided a video statement to police stating that when he, his brother and Mr. Miller were between the two houses, his brother indicated that Mr. Miller had a bat, at which point Mr. Miller began swinging the metal pipe at him. In that interview, he rejected the suggestion that it could have come from his house. The defence suggested to the court that Mr. Miller had likely found the pipe in the garden beside the space where he and the Theriaults fought and used it as a weapon against the brothers, who both deny ever striking Mr. Miller with it.

Scene photo taken by Durham Regional Police Service
Scene photo taken by Durham Regional Police Service, Dec. 28, 2016
Crown version

Dafonte Miller’s testimony: “I was on the ground and I ended up squirming out of the headlock. That’s when I seen the pole. The first time I was getting hit with the pole. I was back on the ground and was getting hit with the pole. There was a point where I wasn’t really feeling it no more.”

“The pipe, to be honest, at the time, it just looked shiny. It looked about like maybe almost three, four feet.”

Defence version
Video clip of Christian Theriault’s police interview, Jan. 9, 2017

What happened at the neighbour’s front door?

Much of the violent interaction between the Theriaults and Mr. Miller occurred between two houses, one of them the home of Byron James Silverthorn, who was called as a witness.

He said he woke up to the sounds of a struggle outside and from the window saw two individuals repeatedly punching another at the side of his house. Then a man banged on his front door, screaming that he call 911. The 911 call from Mr. Silverthorn, describing what he witnessed, was submitted as evidence.

The Crown alleges Mr. Miller, having been beaten with the pipe, briefly escaped from the Theriaults and ran to the Silverthorns’ front door to seek help. While he was pounding on the door, the Crown says, Michael Theriault struck Mr. Miller on the side of the face with the pipe, causing his eye to burst. Later, as Mr. Miller and Mr. Silverthorn testified, Michael Theriault held Mr. Miller down with the pipe on Mr. Silverthorn’s driveway.

In his testimony in court, Michael Theriault said Mr. Miller used the pipe to beat him and his brother until he was eventually able to disarm him. Mr. Miller, he said, did walk up to the Silverthorns’ door and bang on it, while he, Michael Theriault, yelled that he wanted the occupants of the house to call 911. He said he never struck Mr. Miller with the pipe but held onto it so Mr. Miller could not arm himself with it again. Mr. Miller’s injuries, he testified, were a result of punching him repeatedly in self-defence.

Scene photo taken by Durham Regional Police Service
Scene photo of blood splatter on the Silverthorns’ front door taken by Durham Regional Police Service, Dec. 28, 2016
Crown version
Audio of James Silverthorn’s 911 call, Dec. 28, 2016
Defence version

Michael Theriault’s testimony: “We believed he was possibly done fighting now and just when Christian ran and let go of him, I ran and grabbed the pole. I wasn’t sure he was going to arm himself with it again so I wanted to make sure I had it and not him.”

“I was yelling at Mr. Miller to get down all the way from the side of the house to the front door. I saw him banging on the front door.”

“I was yelling to whoever was inside the house to call 911. I heard some voice come from inside saying ‘they’re already on their way’ or ‘we already called’ or something like that.”

What injuries were suffered by the parties?

Before he was transported from the crime scene to a nearby hospital, police photographed Mr. Miller’s face, which was covered in blood and what appears to be tissue. Michael Pickup, a forensic pathologist, testified for the Crown that Mr. Miller suffered multiple injuries: a ruptured left eye that required multiple surgeries and the eventual use of a prosthetic, a fractured left orbital bone, an eyelid injury, a fractured nose, lacerations to his forehead and above his eye, and a fractured wrist.

The defence says Michael Theriault suffered no injuries and Christian Theriault suffered a concussion and leg bruise as a result of being hit by Mr. Miller with the pipe, though no medical evidence was submitted to support this. On the 911 call that morning, Christian Theriault told a dispatcher, “We’re all ... bloody right now.” A photo taken by police at the scene shows a small cut on Christian Theriault’s hand.

Scene photo taken by Durham Regional Police Service - warning graphic

Warning: The following image contains graphic content

Scene photo of Dafonte Miller’s bloodied face taken by Durham Regional Police Service, Dec. 28, 2016
Scene photo taken by Durham Regional Police Service
Scene photo of cut on Christian Theriault’s hand taken by Durham Regional Police Service, Dec. 28, 2016

What happened at the end, as Dafonte Miller was restrained?

Mr. Miller testified that after he was struck in the face with the pipe, he tried to make it to another house to call for help but collapsed in the Silverthorns’ driveway. He tried to call 911 on his cellphone but said Michael Theriault climbed on his back, took the phone and spoke to the dispatcher. In the call, Michael Theriault tells Mr. Miller, “Dude, you’re under arrest.” Mr. Miller later tells him, “Bro, you got the wrong guy.”

While his brother held down Mr. Miller, Christian Theriault also called 911 and told the dispatcher that he and his brother had caught Mr. Miller breaking into their car and were holding him. At one point during the call he tells Mr. Miller, “You [messing] in our cars ... ? You picked the wrong cars.”

Crown version
Audio of Dafonte Miller’s 911 call, Dec. 28, 2016
Defence version
Audio of Christian Theriault’s 911 call, Dec. 28, 2016

All media above were court submissions in the case of R. v. Michael Theriault and Christian Theriault heard at the Ontario Superior Court of Justice in Oshawa, Ont.

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Design and development by Danielle Webb; audio and video editing by Timothy Moore.

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