Dafonte Miller, the Black Whitby man who lost his eye in a violent confrontation with an off-duty Toronto police officer and his brother, is “without a doubt” deserving of sympathy — but that cannot determine the outcome of the trial, the cop’s lawyer told a full Oshawa courtroom Wednesday.

“Sympathy does not dictate the result in a case,” Michael Lacy said in closing submissions before Ontario Superior Court Justice Joseph Di Luca. “(Miller) is not entitled to the verdict that he wants. The community is not entitled to a particular verdict.”

Making repeated mention of the high-profile and divisive nature of the trial, lawyers for Const. Michael Theriault and Christian Theriault urged Di Luca, hearing the judge-alone trial, to acquit the brothers of the aggravated assault and obstruction of justice charges they face stemming from a violent December 2016 clash that left Miller, then 19, seriously injured.

Accusing Miller of lying on the stand — “I’m not going to soften my words because we have a courtroom of people,” Lacy said — the defence lawyers said Miller’s inconsistent and “false” testimony claiming he was attacked by a pipe-wielding Michael Theriault can’t be believed.

A finding of guilt would “vindicate” lying on the stand “and that’s a miscarriage of justice,” Lacy said, adding Crown lawyers had “no business” asking Di Luca to convict on any of the charges based on the evidence.

Acknowledging some credibility issues in their case — including competing accounts among Miller’s associates about what prompted the alleged assault — Crown prosecutors Linda Shin and Peter Scrutton nonetheless say that when all the trial evidence is considered, “there can be no doubt that Michael Theriault wielded the pipe — not Dafonte Miller.”

“We are asking you to accept that a retreating Dafonte Miller was the victim of a vicious, two-on-one assault perpetrated by Michael and Christian Theriault that left him with life-altering injuries,” Shin said in court Wednesday.

To render his decision, Di Luca will have to cut through the competing narratives to determine who was wielding the long, metal pipe found by Durham Region police officers summoned to Erickson Drive, the residential Whitby street where the Theriault family lives and the alleged assault took place. At trial, no one could account for where it came from.

According to Miller, Michael Theriault struck him with it moments after the brothers approached him and his friends while they were walking down the street. He alleges he was kicked and punched by both brothers and hit in the head with the pipe by Michael Theriault, causing his severe eye injury.

Michael and Christian Theriault say they heard Miller and another man breaking into their parents’ truck, and after giving chase, Miller armed himself with a pipe. Michael Theriault said he then began punching Miller as hard as he could, inadvertently causing the eye injury.

Court heard from a forensic pathologist that the most likely cause of the injury to Miller’s eye was at least one punch, though he said it was possible it was caused by the pipe.

The metre-long pipe was found spattered with only Miller’s blood.

According to Lacy and Christian Theriault’s lawyer Alan Gold, Miller had a motive to arm himself with the pipe after he was “caught in the act of committing the indictable offence” — stealing from the Theriault family truck.

With Miller wielding the pipe, the use of force used by Michael Theriault is therefore “completely reasonable and proportionate” because he was defending himself against someone armed with a deadly weapon. Lacy said if Di Luca accepts this version of events, “then the defendants necessarily need to be acquitted.”

Crown lawyers stress that independent evidence points to Michael Theriault wielding the pipe. No independent witness saw Miller touch the pipe, and in addition to his eye injury, Miller “suffered a fractured wrist that was consistent with a defensive injury from blunt trauma, like being hit with the pipe,” they state in written submissions.

Michael Theriault, meanwhile, suffered no injuries and Christian Theriault had a small scratch on his hand.

Responding to allegations about Miller’s credibility, Shin told Di Luca that many of the inconsistencies in his testimony are “insignificant and explainable.”

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She also noted the “extraordinary circumstances” under which he first told his version of events: when Durham police arrived at the scene, they did not help Miller — who had attempted to call 911 in the middle of the alleged assault — but immediately arrested him, believing the Theriault brothers’ account.

“Not one officer asked Mr. Miller about his injuries, or how he was injured,” Shin said

Crown lawyers allege it is in fact the Theriaults who lied, giving Durham police officers a false and misleading account. Scrutton told Di Luca that if he finds that Miller did not attack the Theriault brothers with the pipe, he must also conclude that the brothers lied to police, and therefore convict them on the attempt to obstruct justice charge.

In written filings, the Crown lawyers say the brothers’ misleading and false evidence was in an effort to “evade liability” — and it was initially successful.

“No one from the (Durham Regional Police Service) questioned or challenged their accounts,” the Crown lawyers write.

The Theriault case has attracted significant attention in part because of the racial dynamic of a white police officer and his brother beating a young Black man. At the outset of the trial, Kingsley Gilliam, with the Black Action Defence Committee, said he and other group members would attend the case to “send a message to the Durham police, the Toronto police, the police everywhere.”

“We will never accept this kind of conduct from them in a free and democratic society,” he told the Star last year.

Miller’s personal lawyer Julian Falconer, who is not part of the criminal case, has also alleged there was a police coverup: the alleged assault did not come to light until months after the fact, when Falconer brought the case to Ontario’s police watchdog, the Special Investigations Unit (SIU), which ultimately charged the brothers. Neither Toronto police nor Durham Region police contacted the SIU, despite Miller suffering serious injuries.

In written filings, the brothers’ lawyers say the “narratives” pushed by Miller at trial, as well as in the media and on social media “bear no resemblance to what actually happened.”

“This case is not about race,” the defence lawyers write. “It is not about excessive use of force by an off-duty police officer or a civilian.”

Di Luca is expected to return his decision April 9.