The Whitby man who was partially blinded in a violent confrontation with an off-duty Toronto cop and his brother in 2016 is expected to testify at the siblings’ ongoing trial in Oshawa today.
Dafonte Miller was seriously injured on Dec. 28, 2016, during an alleged assault by Toronto Const. Michael Theriault and his younger brother, Christian, on Whitby’s Erickson Drive, near the Theriault family home.
For the past week, a criminal trial has heard details of the incident, which culminated with Michael and Christian Theriault jointly charged with aggravated assault and separately charged with attempting to obstruct justice.
Both men have pleaded not guilty in the judge-alone trial before Superior Court Justice Joseph Di Luca.
In five days of testimony at the Oshawa courthouse, the trial has heard from four Durham Regional police officers who responded to 911 reports of a fight and possible car thefts; two friends of Miller who gave conflicting accounts of what they were doing immediately before the violent encounter; and from residents of Erickson Drive, including a Toronto Fire chief who alleges he heard and saw two men violently beating on a third outside his home.
But the trial has yet to hear from Miller himself, who is expected to take the stand as early as Wednesday morning.
Miller, now in his early 20s, suffered as many as seven distinct injuries as a result of the alleged assault. The most severe of them — the rupture of his left eyeball, which left him blinded in that eye — was probably the result of blunt force, such as a single punch to the face, forensic pathologist Dr. Michael Pickup testified last week.
Court has heard the Crown theory that the Theriault brothers assaulted Miller then lied about it to the Durham Regional Police, who were summoned to the scene by 911 calls, including one placed by Miller himself. Specifically, the Crown alleges that the brothers lied when they said they were acting in self-defence and that Miller was in possession of a weapon at the time.
In defence statements files as exhibits, the Theriault brothers say they were in their garage smoking when they heard a noise outside that sounded like their parents’ truck’s doors closing. When they opened the garage door, they allege they saw two men getting out of the vehicle parked in the driveway.
Believing they had been breaking into the truck, the brothers chased after one of the men, later identified as Miller. They allege Miller ran away before attacking them with a pipe, and that they fought back in self-defence and feared for their lives.
An approximately one-meter long pipe has been entered into evidence at the trial.
Court has heard that Michael Theriault was not injured and that Christian Theriault suffered a cut to his hand and was later diagnosed with a concussion.
The case has been controversial both because of Miller’s injuries and due to the handling of the case by both Durham and Toronto police. Following the incident, neither police force contacted Ontario’s Special Investigations Unit, a civilian watchdog that investigates police-involved injuries and fatalities.
The SIU does not typically investigate off-duty police officers, but will under certain circumstances. In general, police services are expected to contact the SIU if they are in doubt about whether a case meets the threshold for an independent investigation.
But SIU was not called in to investigate the incident until months after Miller was seriously injured, when contacted by Miller’s lawyer, Julian Falconer. The watchdog then opened a probe into both Michael and Christian Theriault, which resulted in the brothers being charged in July 2017.
Testifying Tuesday, Durham Const. Sean McQuoid recounted his memories of the morning of Dec. 28, 2016, when he was one of the officers to respond to the scene. He later took a statement from Michael Theriault in his cruiser.
He told the court that near the end of his shift, he had a conversation with a colleague in Durham police’s Criminal Investigations Branch who informed him that officers had been detailed to secure the scene on Erickson Drive because “the SIU were going to be called in.”
McQuoid told the court this prompted him to go back to the Theriault residence because he wanted to make sure that Michael Theriault was advised that the SIU were coming and to ensure he would be able to speak with them.
“Realizing that I was the last person to speak with Michael Theriault, who was a police officer in Toronto — I’m sure he wasn’t aware that the SIU were coming,” McQuoid said.
He told the court he then drove over and had a conversation with an older gentleman who he had spoken to earlier in the evening and believed to be the father of Michael Theriault.
“Why did you go and do that?” Crown lawyer Linda Shin asked.
“I was the last one to speak with Michael, and I wanted to make sure that he was going to be available to the Special Investigations Unit when they attended,” McQuoid said.
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The stop at the Theriault home lasted “minutes” and McQuoid said he only spoke with the “older gentleman” — he didn’t speak with either Michael or Christian.
Court has not heard why the SIU were not contacted by either police service.
The trial continues.