The legal team representing Constable Michael Theriault has filed an application to vacate the verdict, arguing the conviction for assault was not available to the court.
Theriault and his brother, Christian Theriault, were charged with aggravated assault and obstruction of justice in relation to a December 2016 incident that left Dafonte Miller with a ruptured eye and other serious injuries.
In a ruling delivered in June, Ontario Superior Court Justice Joseph Di Luca said he could not rule out the possibility that self-defence played a role in the early portion of the encounter.
It was during that period that Miller sustained the eye injury that warranted the aggravated assault charge, he said.
However, Di Luca said the self-defence argument collapsed when Theriault later armed himself with a roughly metre-long pipe and hit Miller in the head as the then-19-year-old was retreating.
As a result, Theriault was acquitted of aggravated assault but convicted of the lesser charge of assault.
The officer was also acquitted on the obstruction of justice charge, and his brother was cleared on all counts.
Theriault’s lawyers argue in court documents that assault was not listed as an option on the indictment and should not have been available for a guilty verdict.
Theriault was “never on notice” that he was being tried for “assaultive conduct” not connected to the eye injury, the document says.
“Given that there was no jurisdiction on this indictment to find the applicant guilty of an assault that was not charged and was not included in the counts on the indictment, it is appropriate for the court to grant this application and vacate the finding of guilt,” the application states.
The Crown is also challenging the verdict, which was delivered amid ongoing protests against systemic racism and calls to defund the police.
In a notice of appeal filed late last month, prosecutors allege Di Luca “erred in his analysis and assessment of the defence of self-defence.”
The case sparked multiple demonstrations, and many have denounced the ruling as further proof of anti-Black discrimination in law enforcement and the justice system.
Prosecutors alleged the Theriault brothers chased Miller in the early hours of Dec. 28, 2016, cornered him between two homes in Whitby, Ont., and beat him with a pipe because they wanted to deliver street justice.
The defence argued their clients caught Miller and his friends breaking into the Theriault family truck and wanted to arrest him. They said the two men found themselves fighting for their lives when Miller, who they said was armed with a pipe, attacked.
Di Luca flagged credibility issues with multiple witnesses, including the Theriault brothers and Miller. He found that Miller and his friends were stealing items from cars and that Michael Theriault’s initial intention was “likely not to arrest Mr. Miller, but rather to capture him and assault him.”
Miller was arrested by Durham regional police officers who arrived at the scene, though the charges against him were later dropped. The brothers were charged in the summer of 2017, months after the incident took place.
Toronto police has said that Theriault remains suspended with pay, and that any potential disciplinary action would take place once the court case is concluded.
Earlier this month, an independent review of the Toronto force’s handling of the incident found its former chief, Mark Saunders, breached the Police Services Act by not reporting the incident to the province’s police watchdog.
The report also found, however, that Saunders was kept in the dark about the incident for five months.
The force’s interim chief, James Ramer, issued an apology for the department’s decision not to immediately notify the Special Investigations Unit.
Miller dismissed the apology as a “public relations exercise,” and said in a statement that neither he nor his lawyers were notified of the review’s findings until minutes before their release.