With Crown appealing R. v. Theriault greater emphasis on race factor needed: Dafonte Miller’s lawyer

Appeal to focus on analysis of self-defence in the beating of Miller and reasonable force in arrest

With Crown appealing R. v. Theriault greater emphasis on race factor needed: Dafonte Miller’s lawyer

The Crown is appealing the Superior Court’s decision in R. v. Theriault, disputing the court’s assessment that the off-duty police officer and his brother were acting in self-defence and making a lawful arrest with reasonable force when they beat and seriously injured 19-year-old Dafonte Miller.

On June 26, Justice Joseph Di Luca found Michael and Christian Theriault not guilty of aggravated assault and obstruction of justice but found Michael – the police officer – guilty of the lesser charge of assault. The charges stemmed from a Special Investigations Unit investigation.

The Crown is appealing Di Luca’s decision on the grounds he erred in his analysis and assessment of Theriault’s self-defence defence and whether Miller was lawfully arrested with reasonable force.

Julian Falconer is a Toronto lawyer and Law Society of Ontario Bencher. He is representing the Miller family and says the case is an example of why the justice system needs to develop an ability to take racial dynamics and racism into greater consideration. He adds that the benefit of an appeal hearing is that the court will have a chance to hear from a “variety of perspectives” including public interest organizations with an expertise on race.

In his decision, Di Luca said that although he “is mindful of the need to carefully consider the racialized context within which this case arises,” his task is “not to conduct a public inquiry into matters involving race and policing.”

“I understand how difficult the job is for a jurist in these circumstances. They are not there to please people, and they are not there to obtain a result,” says Falconer. “These are very difficult cases to try. On the other hand, I think that if the justice system is to, in any way, keep up with the times, it's going to have to be able to factor in the role of racism in these kinds of cases and I don't think we're there.”

“Our legal structures, our legal formalities around things like the law on self-defence, on definitions of reasonable force, when they fail to take into account the role of racism, when they fail to take into account the realities of altercations, then they become very technical exercises, which start to depart from reality.”

Falconer says the Miller family is calling for a commission of inquiry.

At trial, Miller and the Theriault brothers presented the court with conflicting versions of the events that took place in the early morning ours of Dec. 28, 2016. The disagreement largely centred on in whose possession a four-foot-long metal pipe originated. Miller said he was chased and beaten with the pipe and the Theriaults said Miller had the pipe first, and they beat him out of self-defence and to arrest him for breaking into a car.

Undisputed was that Miller was arrested, charged with theft under $5,000 and two counts of assault with a weapon, and that during the incident Miller sustained an eyeball rupture, fractured orbital bone, broken nose, broken wrist and a number of other injuries which resulted in him losing an eye. The Crown later dropped the charges against him.

In his decision, Di Luca laid out the defence of self-defence, from s. 34 of the Criminal Code. First, the defendant must reasonably perceive a threat of force. They must respond “with defensive purpose” but not to “seek vengeance, impose punishment or vindicate honour.” Finally, the defendant’s actions must be reasonable, given the circumstances.

Under ss. 494 and 495, the Code also authorizes both citizens and peace officers to arrest a person committing an indictable offence, and under s. 25, that person is justified in using as much force as is reasonably justified.

As the Crown must disprove self-defence beyond a reasonable doubt, Di Luca said he could not exclude the possibility that Miller had the pipe initially, against which the Theriaults defended themselves.

It is unsurprising that the Crown appealed because the court could have made a deeper analysis of the reasonableness and proportionality of the defendant’s actions, says Annamaria Enenajor, who practises criminal defence, regulatory and constitutional law and is a partner at Ruby Shiller Enenajor DiGiuseppe Barristers.

“There's a lot that they can work with in terms of crafting and appeal,” she says.

“Section 34 and s. 34.2 of the Criminal Code lists a bunch of factors that must be considered in the reasonableness analysis. And it seems to me as if there wasn’t a rich analysis of those factors that one would have expected in this case, given the fact that His Honour concluded that Christian Theriault had an original purpose that wasn’t motivated by self-defence, that it was to seek vengeance and to beat on [Miller].”

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