Front Burner - Lawyer Julian Falconer on Dafonte Miller’s fight for justice

Episode Date: June 29, 2020

In 2016 a violent altercation with an off-duty Toronto police officer, and the officer’s brother, cost Dafonte Miller his eye. On Friday, officer Michael Theriault was convicted of assaulting the Black young man. An Ontario Superior Court Justice acquitted Theriault and his brother of aggravated assault and obstruction of justice, but called their justification of self-defence “razor thin.” Today on Front Burner, Miller’s lawyer, Julian Falconer shares his thoughts on the long path to that single conviction, and the fight Black Canadians face to get justice for police violence.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hello, I'm Josh Bloch. We've come a long way, you know, because I remember the night when this happened to me. I ended up getting charged, you know, and now we're in a situation where an officer has been held accountable to some extent, you know? DeFonte Miller, talking about the night, a brutal altercation with an off-duty Toronto cop and his brother,

left him blind in one eye. I wasn't really feeling much anymore. Those are the words DeFonte Miller told me. He was beaten with a metal pipe on December 28th. So badly, his family says he will lose his eye. That night in 2016, police arrested Miller, and he was charged. But now, more than three years later, it's the officer who's awaiting sentencing. On Friday, an Ontario Superior Court judge found Michael Theriault guilty of assault.

But not guilty of aggravated assault and obstruction of justice. His younger brother, Christian Theriault, was found not guilty of any charges. But the judge also had a lot to say about what probably happened that night, even if it couldn't be proven in court. In his ruling, he went further, and he said that probably Theriault and his brother were involved in a case of vigilante justice. Today, DaFonte Miller's lawyer, Julian Faulkner, tells us about the long path to this ruling. And he shares his thoughts on the fight Black Canadians face in getting justice for police violence. This is FrontBurger.

It sounds like, I mean, is every week this intense for you? Yes. In short, am I in a constant state of chaos? Pretty well. We caught up with Julian after he had just flown himself to Ipperwash, that is piloting a plane, and he was in a car on his way to another case. Believe me, the accountability journey has only begun. Let me just ask you, I mean, DeFonte Miller was only 19 when he was assaulted and beaten so badly that he lost an eye. And when I saw him speak on Friday, he seemed relaxed. He sounded grateful when he spoke about the ruling.

A lot of times people are dying and officers are walking, you know. So I don't feel like I took a loss. I feel like we took a step forward. You know, I could have easily been convicted of one of those charges that they put on me that night when I lost my eye. But instead, I'm here today. What can you tell me about how DeFonte processed that verdict? disappointed with the result in that the two individuals were not found guilty of all charges. On the other hand, Defonte is philosophical, extraordinarily mature for his age and recognizing that his brothers and sisters in similar circumstances have faced themselves conviction and jailing.

There's a lot of people who are in my position who don't get the same backing that I got and don't get to have any vindication for what they're going through you know. Having been able to turn this around and make it a trial of the officers and having received a finding of guilt against Mike Theriault, he's, I think, grateful that at least there will be a sentencing of this individual. DeFonte Miller's treatment by the police was met by this enormous response from the community. This is miscarriage of justice. This is wrong. This is unjust.

And we must stand for justice. And it's an unbelievable outcome. It's an outcome that we all saw coming, but we didn't want to see coming because it's not fair. This backlash against police violence and the slogan here for Defonte was plastered across social media. And I was struck that more than 19,000 people tuned in to watch that live streamed verdict. That's a lot of attention for someone who was only 19 years old at the time of this incident. Can you just tell me about what kind of personal journey you've seen him go through over these three years?

go through over these three years? Well, it's important to understand that our criminal justice system has utterly failed to protect victims of police brutality. That is, they are inevitably re-victimized, horribly re-victimized through the trial itself, as highly resourced criminal defense teams who pursue hardball tactics put them through a grinder. And in essence, there is little or no safeguards. So when we talk about his journey, I'm extremely proud of him. The judge has made certain findings in respect of DeFonte's credibility. DeFonte knows what happened in his heart. You said at times it felt like DeFonte was on trial and not these two brothers It's a huge failing in the system

I understand It just kind of felt like the case was against me I was being cross questioned about me losing my eye It's like as if I felt like as if he was trying to flip the case onto me, you know?

You know, we've come to terms with it. We haven't fixed it, but we've come to terms with it in sexual assault trials where complainants in sexual assault cases, the re-traumatization they face in trials is now acknowledged in our justice system. Well, we haven't made any progress on police violence cases. Quite the contrary. It's an open season on complainants. Heaven help you if you decide to pursue a complaint in a matter against the police, because you will be dragged through the coals. Well, I want to ask you about what came out in this trial.

Of course, the result was that there was a single conviction of assault against Toronto police officer Michael Theriault. Both Michael and his brother, Christian Theriault, were acquitted of charges of aggravated assault and obstruction of justice. And I want to ask you about what happened on the night of this assault. In the judge's ruling, he talked about what was proven beyond a reasonable doubt and also what probably happened in this case. So the judge, in essence, broke down the encounter with DeFonte and what honestly amounted to two men in the night

chasing down a boy became different phases. The brothers had testified they were trying to arrest Miller, but Crown Peter Scraton said in fact their intention was to mete out some street justice. Anyone can read the judgment and understand that what really happened would have been this god-awful chase. It started with repeated punches and kicks. He was put in a headlock and kicked and punched some more. He wriggled out and then saw the short-haired man with a meter-long metal pipe.

And then this intense beating of a young black male by two grown men. Well, what the judge found was, while it may not have been proven beyond a reasonable doubt that Mike Terrio and his brother, Christian Terrio, were chasing DeFonte Miller with a view to assaulting him. As far as he was concerned, that was probably exactly what happened. Then the judge went on to find that at some point the steel rod became involved in the incident. And he couldn't find beyond a reasonable doubt at what stage it became involved. But he found that what probably occurred was that that steel rod was introduced while DeFonte was trying to defend himself

against these two individuals who he had no idea. One was a police officer that he simply sought safety, banging on doors, asking people for help. And he says it's within a possibility that DeFonte picked up the rod in the first place to defend himself, but he was stripped of it very quickly. The judge found it was probably the case that Mike Theriault and his brother

sought to assault DeFonte, not to arrest him. But he couldn't make such a finding beyond a reasonable doubt. Then he went on to find that it was probably the case that DeFonte Miller was not offering any defense whatsoever and that he was utterly defenseless. The Theriault brothers said that Miller broke into their father's car and that they were acting in self-defense. What did the judge make of that defense? The judge did find against DeFonte Miller in respect of the issue of car hopping, which is to find items of change or other possessions and cars and steal them. He found against him.

Nevertheless, the judge didn't find that that in any way justified the actions of the Theriault brothers. What he did find is that when there was an initial encounter, the defense, through their lawyers, had raised a reasonable doubt that there might have been individuals, that is Mike and Christian Theriault, acting in self-defense after they chased DeFonte Miller. He said that probably didn't happen, but he felt that there was a doubt about it. Therefore, he couldn't convict. But he said the chase probably didn't happen, but he felt that there was a doubt about it. Therefore, he couldn't convict. But he said the chase probably wasn't an attempt to arrest Miller. The fight and the most horrific injury that Miller sustained

may have been at least partly self-defense by the Terrios, but he couldn't be sure. With this verdict, there is no way that given all the evidence that we were given, that it's not a matter of race. In the end, these references to probably are meant to highlight that he, as a matter of common sense, can see what probably happened. He just couldn't find it beyond a reasonable doubt. Well, and the legal standard of proof in a criminal case is beyond a reasonable doubt. But to win a civil lawsuit, the test is different. It's the balance of probabilities.

Could this decision by Judge DeLuca be helpful in a civil lawsuit? Beyond the shadow of a doubt. You want to talk about beyond a reasonable doubt? I'll tell you what's beyond a reasonable doubt. This civil claim has been immensely strengthened by all the probability findings that this judge has made. This is a situation in which there will be accountability. No justice, no peace, no racism. Our judicial system does not favor or protect black bodies.

In the face of all the evidence, there are still police officers all over the world who have not been indicted for anti-black murder. And not just the civil level, I want to add. This is not over. There is an expectation that the Toronto police will do the right thing in terms of this police officer who continues to enjoy a salary. That the process will ultimately result in serious questions being answered. The police oversight body was only contacted

four months later by Julian Faulkner, the family's lawyer. By the Durham police. Durham Region's Chief of Police stepping in front of the camera. We don't have all the information available to us. We know our part. We know what happened on that particular day

and what we did. Toronto knows what they did and what they did on that particular day and their part in it. And the Toronto police. As Chief, I can't deny that this matter will have an increased strain on a relationship between police and the community, specifically the black community. How could it be that a 19-year-old is beaten within the inch of his life and it's never reported to the Special Investigations Unit until months later when his lawyers uncover what happened and report it? How could that happen?

With regards to this case, what happens next in terms of the sentencing of Officer Michael Theriault? So they're currently setting a date for the sentencing. I can tell you that it's very rare that someone is incarcerated in respect of a common assault. It's within the realm of possibility, but very rare. organization empowering Canada's entrepreneurs through angel investment and industry connections. Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income. That's not a typo. 50%. That's because money is confusing. In my new book and podcast, Money for Couples,

I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. You've been working on behalf of Black and Indigenous Canadians for decades, especially on these kinds of cases involving police brutality. Did this case play out differently than cases you've taken on 20 years ago or even 10 years ago? Or 25 years ago, sadly. 25 years ago, sadly. It's very important to appreciate that the system evolves in what amounts to inches, not feet. And that what I see today is a dramatic improvement in terms of the desire to prosecute these officers, in terms of the willingness of judges to recognize issues of race, all of that is different, very different than what I saw 25 years ago.

You will recall how Justice DeLuca started his reasons by referring to the question of would this have been different if DeFonte had been found in the position of Mike Terrio beating a white person on the ground. Would this have been treated the same way? If I was the one that ended up beating out one of their eyes, that I probably, you know, wouldn't have gotten as much of a shot as Michael Theriault and Christian Theriault

got. You know, I probably would have been arrested in 2017. And he points out that he can't answer that question in a criminal trial. And that's exactly why the family is calling for a federal commission of inquiry into the beatings and killings of racialized and indigenous people in police custody. It's high time Prime Minister Trudeau pursued something other than platitudes. other than platitudes, the RCMP, the OPP, these are all police services that need to have a measure of systemic accountability that is currently not present. So do you think that the George Floyd protests and the Black Lives Matter movement more broadly had anything to do with the way this,

with the judge's ruling in this case? I think obviously it goes without saying that the public interest in the case i mean we are talking as i understand it close to 20 000 viewers on the issuance of the judgment i think the judge and judges in the system have got to behave in a way that resonates with communities, that inspires confidence. I know that there are some who will think that I'm trying to say that, you know, they've got to give people the result they want. That's not what I'm saying. I'm saying what's important is people have to sense justice is done. And they are more cynical and more skeptical about judges today than they ever were before.

It's part of the black experience. It's just, you're told about it, and you just got to live with it. So much blows to the head. Two more blows, what would have happened? We cannot get distracted. I'm in pain. I'm in rage. And time will tell where Justice DeLuca falls in all of this. One part of that cynicism seems to come from the fact that DaFonte Miller was the one who

was arrested and charged initially. Miller was initially charged with assaulting them, despite the fact Constable Theriault did not suffer any injuries. And then the charges were dropped months later. What does that say to you about the way police violence is handled by the police? It is essential that this is understood. The first thing that is done by police when they engage in force against the public in excessive force situations is charges end force against the public and excessive force situations, is charges end up against the individual.

And what I've called for is a monitoring of these kinds of charges in these incidents. Police should not be able to use these charges as a way to shield themselves from accountability, should not be able to re-victimize the individual they've just illegally beaten through the usage of assault police and resist arrest charges. Any of us who do this work know that that is the instant out of the manual reaction of a police officer.

And I want to emphasize there's many good police officers. The sad part about all of this is that their good work is marred and tainted by the work of these bad officers. You combine the existence of these bad officers with poor leadership that simply is unable to get them under control or be transparent about accountability. And what do you have left? What you have left is the system we're in right now. It's huge cynicism about police behavior. But there are many good police officers out there that do good work. It's just the problem is the system is unable to create accountability for the bad work. There was clearly a lot of anger and frustration from people in the community when this ruling came down, that a conviction on one charge just simply wasn't enough, that this wasn't justice served. Today was a huge miscarriage for justice. Today, our court failed black people. What would you say to people who feel that level of anger and frustration right now? Well, I'm not going to deny the legitimacy of their feelings.

What I'm going to say is that the battle continues. DeFonte understands, and so do I, that this is not a battle won overnight. This is progress in inches, not feet, not yards, but it is progress. I understand from the outside looking in in it might seem a little hopeless, but I'm from the inside looking out and I know where I'm coming from, so there is hope for us. While we would have preferred on these facts to have seen a stronger finding by the court, we also recognize that the system has turned a corner in creating this element of a finding of guilt,

and that the system has turned a corner by understanding and accepting that DeFonte Miller was a victim. So I couldn't agree more with people. I simply also see the important evolution on where we are today. We need to do better. People need to push the judiciary to apply a common sense approach to these kinds of cases. And all of that doesn't happen immediately. It's a process. Do you think that DeFonte Miller's case has the potential to be the catalyst for some of the systemic change that you're looking for? I think so. But I also think there has to be a true going to the next level partnership between Indigenous communities and Black communities and racialized communities around these issues. And that's happening. There's important discussions and synergies. I think we have to take that to the next level.

Different people have different ideas on what the solution is. I think people have to give each other room. Understand that the most active grassroots movements for police reform may not look the same as an old fart racialized barrister such as myself that has been doing this battle for years. But we all have to give each other room to push for reform. There has to be a joining. And I think that's an important piece in all of this. Julian, thank you so much for speaking with me today.

Pleasure. That's all for today. I'm Josh Bloch. Thanks for listening to FrontBurner.