SHOULD THE CHARGE HAVE BEEN AGGRAVATED ASSAULT?

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On June 26^th, 2020 an off-duty Toronto police officer was found guilty of assaulting Dafonte Miller, a nineteen-year-old Black man who lost his left  eye during the altercation with the officer three years ago in the Town of Whitby that is just east of the City of Toronto, Canada’s largest city.

Const. Michael Theriault and his younger brother Christian were originally jointly charged with aggravated assault in connection with a violent dispute that took place on a residential street in Whitby in the darkness of night in December 2016.

During a virtual decision read for four hours by judge Di Luca in the morning until 0ne in the afternoon when twenty thousand viewers witnessed his decision being read via the internet.

The suspended officer who was 24 years old at the time of the assault had been a member of the Toronto Police Service since 2014. The verdict by judge Di Luca was that Const. Michael Theriault was not guilty of the more serious crime of aggravated assault and instead he was found  found guilty of the lesser charge of common assault and his bother Christian who was not a police officer  was found not guilty of any crime  in the incident.

         

          During the trial, the Toronto cop took the stand and admitted that            he caused the victim's eye injury.  The victim thought that he                        would go blind after the beating by Const. Theriault.  While he                   was being beaten by the cop, his left eyeball popped out of his eye                     socket and slid off the hood of the car.

During the early morning hours of Dec. 28, 2016, Miller, who was 19 years old at the time, was walking with friends near Thickson Road and William Stephenson Drive when he passed by two white men standing inside a garage.

His account of the events that followed was vastly different from the testimony of the suspended cop that was  provided during the judge-alone trial in the fall of 2019.

According to Miller, he and two friends were simply walking down the sidewalk when they were approached and questioned by Michael and Christian,” Ontario Superior Court Justice Joseph Di Luca said while reading his 62-page ruling during a four-hour long virtual hearing.

Miller and his friend were asked where they lived and what they were doing in the neighbourhood.

Why would the Toronto cop ask two citizens of Whitby where they lived and why they were in the neighbourhood? It was none of his business. If someone in my neighborhood asked me those questions, I would give him  a very loud tongue lashing.

Miller and his friends were obviously scared and ran and were chased by Michael and Christian who  both eventually caught Miller in between two houses and beat him viciously with the Toronto cop  using a metal pipe and his brother using his hands and feet.”Miller sustained a “horrific eye injury” in the altercation, the judge said.

His eye was dislodged from its socket and was split in four pieces. He was left permanently blind in his left eye and following two surgeries, had it replaced with a prosthetic. He also sustained other physical injuries.

According to the testimony of Michael ( the Toronto cop ) and Christian Theriaul, they were in the garage at their parents' home when they heard a commotion inside one of their vehicles parked on the driveway,

The judge quoted the testimony of the cop and his brother who  said, “They opened the garage door and saw two males inside one of their vehicles.

That is obviously a lie. I will explain. Miller and his friend testified that they were walking on the sidewalk and saw two men in the garage. Now why would Miller and his friend get into a car on the driveway with the two men in the garage watching them?  The garage door was obviously open otherwise Miller as per his testimony wouldn’t have testified that he saw two men in the garage as while he and his friend were walking on the sidewalk.

Miller and his friend ran in different directions.

“Michael and Christian chased one male, later identified as Miller, as they wanted to arrest him and hold him for police.” Miller later denied that he had been breaking into cars that night.

The chase spanned approximately 140 metres of the residential street, according to Di Luca, until Miller and the cop and the cop’s brother  ended up in between two homes.

During the altercation, a four-foot long aluminum  pipe, described by Di Luca as “hollow” and “aluminum,” was produced. Now it is obvious that the cop had it in his hand.

Judge Di Luca said he is satisfied with the evidence that Miller was struck in the face with the pipe while standing at the front door of one of the two homes while Miller was calling out for  help.

Miller testified that as he was banging on the door, he looked back to see where Michael was and he was struck in the face by the metal pole,” the judge said. “Miller believes that this is when his eye was injured. He noted blood on the doorstep and on the door and realized he was bleeding profusely. “He then walked over to the car (on the home’owner's driveway) and essentially surrendered.”

Judge Di Luca said that “in view of all of the evidence, I believe him on this issue” and added that he rejects Michael’s  ( the cop’s ) evidence that he never struck Miller with the pipe.

Homeowner James Silverthorn, a district chief with Toronto Fire Services, was a Crown witness. He said he woke up even before the banging on the door to the sounds of screaming.

He said that he looked through his side window and saw two men beating another man. "It was continuous. It was very hard," he told the court.

He said later, that when the men had moved to the front of his house, he saw one man holding an object, stabbing down with it, to keep the man on the ground from getting up. That is when Miller’s left Eye was gouged out of his eye socket. The  long metal pole with blood on it was found at the scene.

However, Judge Di Luca said he is “simply left with reasonable doubt” that Michael was acting in self-defense during this portion of the incident. I cannot  fathom how this  judge  can have doubts whey the cop didn’t or did use the pipe as a defence considering that the home owner testified that he saw the cop stabbing Miller with the pipe while Miller was on the ground.  

If Miller initially had wielded the pipe, Michael and Christian would have been entitled to act in self-defense by repeatedly punching Miller to disarm him and thereafter prevent him, within reason, from engaging in any further assaultive conduct.” But Miller didn’t have the pipe in his hand so that suggestion is a non-issue.

Judge Di Luca noted in his reasoning that assault with a weapon is not a lesser charge of aggravated assault and therefore is not available in this case, but said that the fact that a weapon was used in committing the assault will be considered as an aggravating factor in sentencing for the committing the crime of assault with the pipe.

Subsequently, Judge Di Luca found Christian not guilty in the altercation as “there is no evidence suggesting that he had any direct involvement in what happened at the door.” But evidence by the homeowner was stated at the trial earlier that he used his hands and feet on Miller. That was  an assault.   

In a perfect world, once Miller was disarmed, the two men would have stopped hitting him.” The judge e added that the self-defense justification then became “razor thin” and eventually evaporates.”

I don’t see how those two men could claim that they acted in self defence since Miller was on the ground while one of them stomped on him and the other man used the pipe to subdue him.  

The title  of this article is SHOULD THE CHARGE HAVE BEEN AGGRAVATED ASSAULT?

I will define the differences between aggravated assault and common  assault.

Aggravated assault is an attempt to cause serious bodily harm to an individual with disregard for human life. Factors that raise an assault to the aggravated level typically include the use of a weapon, the status of the victim, the intent of the perpetrator, and the degree of injury caused.

In order to get a conviction, all these factors listed in black have  to be proved.  The hardest factor to prove is the cop’s intent.   

If the cop yelled, “Die you bastard!”  then the attempt would be proved. But there is no record of him saying anything like that.

If he was convicted of that particular crime, he would be sentenced to fourteen  years in prison.

Instead, he was charged and convicted of common assault.  The offence of common assault is set out in section 265 of the Canadian Criminal Code. It is the most basic of offences of violence. Section 265 sets out three ways for the offence to occur. It can be through the intentional non-consensual application of force. It can also be an attempt or threat of non-consensual application of force or lastly the interference with a person while having a weapon.

In this particular case, the cop had the pipe in his hand and it was a weapon that caused the injury to Miller’s left eye. 

In my opinion, the cop will have a hard time trying to convince  the judge that he  didn’t use the pipe to gouge out Miller’s left eye. Even if that wasn’t his intention, the way he used the pipe on Miller resulted in Miller losing his left eye. 

The penalty for a conviction of common assault is five years in prison.  I will remind you that the judge said in his decision, “The  fact that a weapon was used in committing the assault will be considered as an aggravating factor in sentencing for committing the crime of assault with the pipe.”

Needless to say, the cop was previously suspended from the T0ronto Police Service with pay for what he did to Miller.    

The salary for a Toronto Police constable is $116,836 a year. The taxpayers paid as much as $635 thousand dollars to this creep so that he could stay at home doing nothing at the expense of the taxpayers.

Originally, there was an  attempted  cover-up of this incident by both the Toronto Police Service and the Durham Police Department.

When a serious incident occurs, the typical protocol is for the police service to inform the investigative agency in their province of the incidence.  This was not done in this particular incident. 

In my opinion,, both of the chiefs  of police should resign before they are fired.  The Toronto Chief has announced that he is going to resign.

I would be surprised if Miller doesn’t sue both of the Theriaul brothers and the Toronto Service for millions of dollars. 

I am sure of one thing and that is that those two criminals will find it difficult trying to get a job. What company would want to hire two violent men like those two criminals? 

This incident raises the issue of race. There is no doubt in my mind that the cop and his brother would not have chased two white men and brutalize them like they did to Miller.