Trial begins Tuesday into case involving severe beating of Dafonte Miller

A Toronto police officer and his brother are set to go on trial on Tuesday to face charges after a young black man was severely beaten in Whitby, Ont., in a case that made headlines nearly three years ago.

Michael Theriault, a Toronto Police constable, and Christian Theriault, a civilian, are charged with one count each of aggravated assault and obstructing justice.

The brothers are accused of beating Dafonte Miller, then 19, with a metal pipe on Dec. 28, 2016 in the area of Thickson Road and William Stephenson Drive, a residential area of Whitby, east of Toronto. Michael Theriault was off duty at the time. 

Miller's left eye was badly damaged in the beating and had to be surgically removed. He suffered reduced vision in his right eye, a broken orbital bone, a broken nose, jaw and wrist and bruised ribs as well as severe psychological and emotional distress, according to the family's lawyer, Julian Falconer.

"I'm still waiting for justice," his mother, Leisa Lewis, said in a recent tweet.

In July 2017, Lewis told CBC Toronto: "Two, three more blows, my son could have been dead. This is what goes on in my head every day."

The trial, by judge alone, will be heard in a courtroom in Oshawa, Ont., starting at 9:30 a.m. Ontario Superior Court Justice Joseph Di Luca will hear the case. The trial is expected to last three weeks.

Case led to review, investigation, complaints

The case has spawned protests at Toronto police services board meetings, an internal review by the Durham Regional Police Service, an investigation by the Waterloo Regional Police Service into the handling of the case by the Toronto Police Service, and complaints to the Office of the Independent Police Review Director (OIPRD).

The OIRPD, an independent civilian oversight agency, handles public complaints about police conduct.

The case has raised questions about police accountability and prompted accusations that the attack was racially motivated.

Falconer notified the Ontario's Special Investigations Unit (SIU) about the case on April 27, 2017, nearly four months after the alleged assault. The SIU, an arm's length agency, investigates cases involving police where there has been a death, serious injury or allegations of sexual assault.

Toronto police never told SIU 

The Toronto police never reported the incident to the SIU. 

The SIU alleges that, at about 2 a.m. on Dec. 28, 2016, the Theriaults "were involved in an interaction with a man" in Whitby. The SIU said Durham police officers arrived and arrested the man. The man was then taken to hospital, where he was diagnosed with serious injuries, the SIU said.

Initially, Miller was charged in the case, but those five charges — theft under $5,000, two counts of assault with a weapon, possession of a weapon and possession of marijuana — were later dropped.

The SIU charged both Theriaults, Michael first, then Christian, in July 2017. 

Michael Theriault was suspended with pay from the Toronto police after he was charged. Then he was charged with misconduct under the Police Services Act in relation to his alleged role in the assault. Michael Lacy, his lawyer, has said the misconduct charge will be dealt with after the trial.

In a July 21, 2017 news release, former SIU director Tony Loparco said the SIU alleges that the Theriaults "acted together and were parties to the same assault." He said "in view of the exceptional circumstances of the case, I am satisfied that the overall interests of justice are best served by trying both accused together in one trial."

'2 very different stories'

Falconer, back in 2017, argued that the assault was racially motivated and he accused the police of a cover-up. He also alleged that Durham police failed to investigate the case properly, saying they failed to get a statement from a credible eyewitness.

The father of both accused, Toronto Police Det. John Theriault, has since been removed from the Toronto police's professional standards unit, according to Toronto Mayor John Tory. John Theriault was accused of trying to intervene in the police probe into the beating allegedly involving his sons, according to one OIPRD complaint.

The OIPRD said in an email to CBC Toronto that it cannot disclose any information publicly about specific complaints due to confidentiality provisions under the Police Services Act.

Toronto Police Chief Mark Saunders said after a Toronto Police Services Board meeting in July 2019: "There are two very different stories as to what went on that day." Saunders said he looks forward to the court case because he said the trial "will present the most truthful component as to what happened."

When questioned by reporters about the Waterloo police report into the Toronto police's handling of the case, Saunders added: "Anything that they can see with us when it comes to procedure or policy change or training, or any of those things, we definitely will look forward to and seeing what we can do to improve anything that we need to improve on."

The Toronto police have not yet responded to questions about the Waterloo police report.

Lewis, Miller's mother, added: "I just hope that my son gets justice for what happened to him. Then he can heal."