On June 26th 2020, Justice Di Luca of the Ontario Superior Court rendered his verdict in a controversial case of an assault by white police officers on a black teenager. Justice Di Luca, an experienced justice and former defense attorney, commented on the current racial tensions, but cautioned that in the court of law he cannot be persuaded by such considerations. Instead he needed to apply the law as it stands in our statutes and common law decisions. Nevertheless, his verdict left many confused as to what his ruling actually meant.


The facts of the case which the justice accepted as true at trial are as follows. 19 year old Dafonte Miller and two friends engaged in a night of “car hopping” on December 28th, 2016. Effectively, this meant that they walked from car to car, looking for open doors, and stealing loose change. Eventually they approached the Theriault residence, where brothers Michael Theriault and Christian Theriault were having some beers and smoking cigarettes in the backyard. They heard Dafonte and one of his friend enter the truck parked in their driveway. They opened the garage door and the two youths in the vehicle fled in separate directions. The brothers chose to chase Dafonte. The chase lasted somewhere around 100 meters and ended in between two houses. At this point, Dafonte attempted to scale a fence but was body checked by Michael before he could do so. Even though the brothers were both police officers, they were not on duty this night. They were not wearing any uniforms, nor did they identify themselves to Dafonte as police officers.

At this point in the narrative Justice Di Luca conceded some uncertainties, which will be crucial. After Michael body checked Dafonte, he came into the possession of a metal pipe. The justice ruled that the metal pipe was probably introduced into the melee by Michael, but he could not be certain beyond reasonable doubt. He conceded that it was unlikely that Dafonte introduced the pipe to the fight but could not rule it out as a possibility. The Justice found that it was possible, though unlikely, that Dafonte swung the pipe at Michael.

The Justice then found that Christian put Dafonte in a headlock, and Michael began striking him with his fists. An eye-witness, the home owner of one of the houses, who was found to be credible, described a vicious beating with many blows to the body and head of Dafonte. A medical expert found that it was likely at this point that Dafonte sustained terrible injuries to his left eye. The injuries ultimately resulted in him loosing the eye.

The Justice next found that Dafonte went to the house of the eye-witness and began pounding at the door asking for help. The brothers again attacked him, and the eye-witness described Michael hitting Dafonte with the pipe.

Eventually the police arrived and arrested Dafonte, who was charged with several offences related to entering the car. These charges were ultimately dropped. The two brothers gave statements on the night in question, and another one several months later. Their statements  were inconsistent with the physical evidence. After several months, both men were charged with Aggravated Assault and Obstruction of Justice.


An aggravated assault charge means that the assault had to wound, maim or disfigure the victim. There is no question that the eye injury to Dafonte more than met this threshold. Obstruction of Justice is a charge when individuals actively try to hinder a police investigation.

The confusion arises out of the fact that the brothers were both acquitted of the aggravated assault charge and the obstruction of justice charge, but Michael was convicted of a different offence of simple assault.

Effectively, the Justice ruled that while the brothers were probably engaging in a vicious, illegal assault, and not trying to affect an arrest as they claimed, he was not satisfied beyond a reasonable doubt that this was the case. In other words his finding of their probable guilt, were not enough to find them criminally responsible. Accordingly, it was unlikely but possible that Dafonte hit Michael with the pipe first and the initial punching was therefore justifiable self-defense. Since this was where the eye injury likely occurred, he could not convict them of the aggravated assault.

However, once Dafonte approached the door and asked for 911 to be called, any justifiable self defense on the part of the brothers was no longer warranted. Accordingly, when Michael hit him with the pipe, it was an illegal assault. However, since it was not certain what, if any, injuries were sustained during this part of the interaction, the justice could not find Michael guilty of aggravated assault, and therefore only found him guilty of the lesser assault charge.

As for the obstruction of justice charge, even though the justice found that both brothers were dishonest and not credible, their misconduct here did not raise to the level of actively trying to impede a police investigation.

It is possible that a different judge on a different day may have come to a different verdict. Unfortunately, litigation is not an exact science, despite the best efforts of judges and attorneys to turn it into such. A good defense attorney is aware of this difficulty and works diligently towards raising the said doubt in the judge’s mind, rather than actively trying to prove the innocence of their client.