Anyone who likes their crime stories neat and tidy, with heroes and villains pulled from a wrapped-up-before-the-credits network TV cop show, needs to read the detailed, lengthy verdict of Ontario Superior Court Justice Joseph Di Luca in the case of R. v. Theriault. Widely known as “the Dafonte Miller case,” it was decided last week in an Oshawa court.
Like all criminal cases, this was a unique and singular incident; to determine innocence or guilt, the accused and the evidence have to be assessed solely on their merits.
But individual incidents sometimes illuminate systemic patterns. And when it comes to policing in Canada, what happened over the course of a few minutes in the early hours of Dec. 28, 2016, adds to the widespread sense that some things about police training and behaviour are not quite right.
Michael Theriault and his brother Christian were at the family home in Whitby, Ont. Michael was then a 24-year-old off-duty Toronto police officer; his brother was 21.
Around 3 a.m., they heard sounds coming from a family truck in the driveway. When they stepped outside to investigate, two men who had broken into the truck fled on foot. The Theriault brothers chased after one of them, Mr. Miller, then 19.
Although Michael Theriault argued before the court that his goal was to effect an arrest, he never said, “Stop, I’m a police officer, you’re under arrest.” Mr. Miller, not knowing who was chasing him and, after being caught, who he was fighting with, ended up banging on the doors of a nearby house, screaming for help.
The off-duty cop had a right to use reasonable force to effect an arrest, but he used more than reasonable force – Mr. Miller ultimately lost an eye from a blow to his face.
The judge believed that the manner in which the Theriaults pursued and subdued Mr. Miller suggested a desire not to arrest him, but to mete out vigilante justice. That can never be the job of a police officer – it’s one of the Peel Principles of policing. Police may only detain suspects; determining guilt or innocence, and deciding on punishment, is up to courts.
Also problematic was the fact that Durham Regional Police officers who arrived on scene knew that Michael was a police officer, and that Mr. Miller was gravely injured. When anyone is seriously injured in an interaction with police in Ontario, by law, the independent Special Investigations Unit must be called in.
Yet the SIU never heard about any of this until months later because of Mr. Miller’s lawyer. When it did, the two brothers were each charged with aggravated assault and obstruction of justice.
In short, the police side of this case dovetails with a number of concerns about policing. And those concerns are there even without mentioning the racial dimension.
Justice Di Luca said that “this case has attracted significant public and media interest,” as it involves a white police officer and an arrested person who is Black.
He acknowledged “that this case, and others like it, raise significant issues involving race and policing that should be further examined.” But he pointed out that his courtroom cannot be the place for such a broad examination. Trying to address systemic issues through an individual trial would itself be a travesty of justice.
“My task,” the judge said, “is not to be swayed or influenced by the attention given to this case. My task is not to deliver the verdict that is most clamoured for. Trials are based on evidence and not public opinion.” That’s how it has to be, and that’s what Justice Di Luca delivered.
The verdict, with Christian acquitted of both charges and Michael, the off-duty cop, convicted on a lesser charge of assault, has left many people dissatisfied.
But given the evidence – featuring, as do so many criminal cases, conflicting and uncertain testimony about what went down over a few short violent and confusing minutes – and the ancient guarantee that guilt must be proved beyond a reasonable doubt, this was the right verdict. Thousands watched the judge read it online, which took several hours; we urge you to read it in full on the free CanLII database.
For all the ways in which this case underlines concerns about systemic deficiencies in policing, it also tends to reinforce the impression of our courts as systemically independent, impartial and unbiased. Not perfect, but better than the alternative.