Dafonte Miller testimony pushed to Wednesday in trial of 2 brothers accused of beating him

Dafonte Miller is now expected to testify Wednesday in the trial of a Toronto police officer and his brother, who are accused of beating him with a metal pipe nearly three years ago.

Miller was supposed to enter the witness box Tuesday, but court proceedings took longer than expected, with three witnesses giving testimony. 

When Miller does testify, it will be the first time the court has heard from him in person. A 911 call he placed to police on the night of the confrontation has been entered into evidence. 

Michael Theriault, a Toronto police constable, and Christian Theriault, a civilian, are on trial in connection with the incident in Whitby, Ont., on Dec. 28, 2016 that left Miller with a badly damaged eye that later had to be surgically removed. 

Miller, then 19, also suffered reduced vision in his other eye and a broken orbital bone, nose, jaw and wrist, as well as bruised ribs. He similarly experienced severe psychological and emotional distress, according to the family's lawyer, Julian Falconer.

The trial by judge alone began on Oct. 29 in the Ontario Superior Court in Oshawa. It is expected to last three weeks. 

The Theriault brothers were charged by the province's police watchdog, the Special Investigations Unit, in July 2017 with one count each of aggravated assault and obstructing justice.

Submitted by Leisa Lewis

Crown prosecutor Peter Scrutton said the brothers could be found guilty of aggravated assault for carrying out an unlawful arrest or using excessive force during that arrest. 

They have pleaded not guilty to all charges.

Friend says they were 'car hopping' 

Earlier in the trial, the court heard the brothers told police they caught Miller breaking into their car. Miller was arrested that night but the charges were later dropped.

Justice Joseph Di Luca, who is hearing the case and has already heard testimony from a number of witnesses, called on two young men who say they were with Miller that night.

Bradley Goode said Monday that he, Miller and their friend Antonio Jack were "car hopping" — stealing items from any vehicle that was unlocked.

During the last of what Goode said were between 10 and 15 theft attempts, two men started chasing them. He and Jack managed to evade them, but they caught up to Miller.

Special Investigations Unit

'Which version is true?'

Jack, who is currently in custody and also testified on Monday, denied that the trio was "car hopping." Jack testified they were on their way to buy cannabis when the incident took place. 

Jack's testimony continued Tuesday. Defence lawyer Michael Lacy pressed him about the different versions of events he offered at trial, during the preliminary inquiry phase and when Miller's lawyer first interviewed him in 2017.

"Which version is true?" Lacy asked.

"I can't remember it now," Jack said.

Michael handcuffed Miller: witness

Durham police Const. Barbara Zabdyr testified Tuesday. She said she arrived to the scene to find one male on the curb, waving her down. 

Miller, she said, was face down on the ground with blood on his left eye. He was still trying to get up when she arrived. Zabdyr said Michael Theriault was on top of him. 

Knowing he was an off-duty police officer, Zabdyr gave him her handcuffs to restrain Miller because "space was very limited."

She said that, at one point during the night, Miller was screaming that he got beat up by two males — the Theriault brothers — and that the pair were hitting him with something. 

Pam Davies/CBC

When she accompanied Miller to the hospital that night, she said she remembers there being "just a lot of vomit." 

"When I told him I was an officer with Durham police, that's when he threw up," Zabdyr said. 

Earlier in the trial, Zabdyr's partner, Durham police Const. Jennifer Bowler, said she was tasked with helping photograph the area and anything that seemed relevant, including any injuries.

Among the things Bowler saw and photographed were blood spots and droplets, a pair of black gloves, two cellphones some coins and a metal bar. 

While Miller's friend Jack said one of the men chasing them had a metal pipe or pole, Goode denied ever seeing one. 

Miller hit brothers with pipe first, Michael Theriault says

The court also heard that, in addition to Miller's, two other calls were made to 911 — one from neighbours, the Silverthorns, and another from the Theriault brothers.

In their call, Michael Theriault said he and his brother were smoking in the garage, heard rattling, went out and then chased two people running from the truck in their driveway, according to an agreed statement of facts submitted in court. 

Sketch by Pam Davies

While he didn't mention a metal pipe during the 911 call, both brothers referenced a pipe during later statements to police.

One of those statements was made to Durham police Const. Sean McQuoid, who also testified Tuesday.

In his statement to McQuoid that night, Michael Theriault said Miller was trying to scale a fence and get away, so he body checked him to keep him from escaping. 

At that point, he told McQuoid that Miller produced a pipe from somewhere — although he didn't know where — and started swinging at the brothers. 

"He immediately started to swing at me and hit me an unknown amount of times," Michael Theriault said in his official statement, according to the agreed statement of facts.

Ontario Court of Justice

"I feared for my life." 

Michael Theriault told McQuoid they managed to wrestle the pipe away, and then held him down to keep him from running away again. 

When asked in court if he ever told Miller he was a police officer, Michael Theriaul replied, "No ... He started hitting me with a pipe and I did not even know he had a pipe." 

Brothers had been drinking, officer says 

On Monday the court heard from another one of the officers on scene that night, Durham police Const. Justine Gendron.

Gendron said that when she arrived on scene, she was told people had been breaking into cars.

Gendron also spoke with neighbour Jim Silverthorn, who witnessed the incident. She testified that she remembers Silverthorn saying that, just because people were allegedly breaking into cars, "they didn't have to kill the guy." 

Gendron also testified that when she arrived, a person was already in custody standing next to a vehicle. She knew he was injured, she said, but didn't know how badly. 

Pam Davies/CBC

At around 3:35 a.m., Gendron was asked to take a statement from Christian Theriault.

Before she took the statement, Gendron said she spoke to him about how much he had drunk that night. She concluded that he wasn't "too intoxicated to give a statement."

In the statement, Christian Theriault claimed Miller hit him and his brother repeatedly.