The criminal trial of a Toronto police officer and his brother who were charged in the beating of Dafonte Miller is scheduled to begin Tuesday, nearly three years since the violent confrontation on a residential street in Whitby.
Const. Michael Theriault and Christian Theriault are jointly charged with aggravated assault, and separately charged for attempting to obstruct justice.
Miller, who was 19 at the time, was badly injured during the confrontation on Dec. 28, 2016. He suffered damage to his eye so severe it had to be removed, a broken orbital bone, a broken nose and a fractured wrist.
The judge-alone trial began Tuesday at the Oshawa courthouse before Superior Court Justice Joseph Di Luca. It’s expected to last about two weeks.
None of the charges against the Theriault brothers have been proven in court.
Michael Theriault was off duty at the time of the confrontation. He and his brother, who is not a police officer, were charged in July 2017 by Ontario’s Special Investigations Unit (SIU), the police watchdog that probes deaths and serious injuries involving police.
Michael Theriault is also facing professional misconduct charges in connection with the incident and its aftermath. He is currently suspended with pay from the Toronto police force.
When they responded to the scene in December 2016, Durham Regional Police charged Miller with theft under $5,000, assault with a weapon and possession of a small amount of marijuana.
Those charges were later withdrawn by the Crown.
The Theriault brothers were not arrested until eight months later, following an SIU investigation prompted by Miller’s lawyer, Julian Falconer.
The Toronto and Durham police forces have come under fire for not contacting the SIU on the day of the incident. Toronto police have said that, based on the information they had at the time, they did not believe that the incident met the threshold to notify the SIU.
The Toronto Police Services Board has since called in the Waterloo Regional Police to conduct an external review of how Toronto police handled the case. That review is on hold during the criminal trial.
Durham police have since created a policy that requires the SIU be notified of every incident involving an officer that results in a serious injury, regardless of whether the officer was from its force or off duty at the time.
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The SIU generally does not investigate incidents involving off-duty officers but will do so under certain circumstances, including if the officer identifies himself or herself as a police officer during an interaction that results in a serious injury.
In general, police forces are expected to notify the SIU if there is any doubt about whether the situation warrants an investigation.