Before 3 a.m. on an unseasonably warm December morning, a raucous commotion shook Jim Silverthorn awake.

In a confused haze, the veteran Toronto Fire district chief at first thought the shouts were coming from inside his home. Then he followed the sound to his upstairs bathroom, where, peering through the shutters, he saw the source of the clamour.

Down below, a violent fight was unfolding in a small stretch of yard between his home and his neighbours’. Two men appeared to be pummelling a third with continuous and “very hard” punches. Silverthorn raced downstairs, arriving to the sound of someone banging violently on his front doors, “screaming” to call 911.

“I thought he was going to kick our door in,” Silverthorn told the 911 dispatcher at 2:49 a.m. as he looked out his windows to describe the scene.

“OK, seriously, the one guy’s got a stick,” Silverthorn, who had armed himself with a Christmas decoration as a makeshift weapon, continued, his voice rising with urgency. “I think he’s going to strike the guy again.”

Precisely what happened outside Silverthorn’s Whitby home that Dec. 28, 2016, morning has been the central focus of the last two weeks in the Oshawa courtroom where off-duty Toronto police officer Michael Theriault and his younger brother Christian were standing trial, accused of beating Dafonte Miller, a young Black man from Whitby who was left with life-changing injuries so severe his left eye ultimately had to be removed.

The case has struck a nerve in the GTA and beyond because of the larger issues at play. Miller’s lawyer Julian Falconer has alleged race played a part in the incident, suggesting the case was an example of a police officer seriously injuring a young Black man, then a system attempting to cover it up. The province’s police watchdog, the Special Investigations Unit (SIU), was never contacted by either police service involved; the investigative agency was only called in months later, by Falconer. It was only then that it charged the brothers.

Ontario Superior Court Justice Joseph Di Luca will soon decide whether the Theriault’s actions were criminal or, as the brothers claim, done in self-defence.

To make that decision, the judge will have to weigh the conflicting accounts of Miller, the Theriaults and several witnesses like Silverthorn. Di Luca will also have to consider evidence including a series of 911 calls made following the altercation.

One key question he’ll have to decide is who was wielding the metre-long aluminum pole found at the scene with traces of blood on it. Miller says the Theriaults beat him bloody with the pole. The brothers claim he used it to hit them.

Here are highlights of what the Star heard during the 10-day trial:

What happened?

That’s contested.

What’s not disputed is that Michael Theriault, 27, and Christian Theriault, 24, fought with Miller near the Theriault family home on Whitby’s Erickson Drive at some point after 2 a.m. on Dec. 28, 2016. That’s when the brothers went into the garage to have a cigarette shortly before Miller and two friends, Antonio Jack and Bradley Goode, passed in front of the house on foot.

Court heard two different accounts of what happened next.

What is Miller’s account?

Miller said he and two friends were walking down Erickson Drive when they were stopped by two white men who had been in their garage. Miller told the court the men started asking what they were doing in the area and if they lived nearby. Miller said he asked why they were being questioned, to which Michael Theriault responded that, because he’s a cop, he can ask what he wants.

It was after he, Goode and Jack began walking away that Miller said he realized he was being chased — “I started running,” Miller said.

As he was running, Miller testified he felt himself being grabbed and tried to veer towards a nearby house to get help, but was brought between houses at 113 and 115 Erickson Drive. It was there, he said, that he was kicked, punched and ultimately hit in the head with a pipe by Michael Theriault. He also said he was put in a headlock by Christian Theriault.

He testified to feeling hits all over his body but then “felt something harder hit my head,” which he said was a metal pipe.

According to Miller, he began pounding on the door of 113 Erickson Dr. — Silverthorn’s home — desperate for help, as Michael Theriault continued to strike him with the pipe. Miller said he turned around and was struck twice in the face, the blow he believes burst his left eye.

“I said, ‘You’re going to kill me,’ and my eye got hit,” Miller testified last week.

What’s about the Theriaults’?

The Theriaults say they were in their garage when heard a rustling sound like someone was going into their parents’ Ford F150 parked in the driveway. When they opened up the garage door, the brothers say they saw two men get out of the truck and run in opposite directions. They ran after one of the men, Miller.

“I didn’t know if they were stealing stuff from it, or if they were going to hot-wire the truck,” Michael Theriault testified last week, taking the stand in his own defence.

The brothers say they followed Miller between the two houses, where he tried to jump a fence to “flee.” On the stand, the older Theriault said he then bodychecked Miller to stop him from getting away.

Map for Theriault trial wrapup showing where alleged assault of Dafonte Miller took place.

Immediately after this, Theriault said, Miller began hitting him with something he at first thought was a bat, then later realized was a pipe. He said Miller then struck Christian on the side of the head with the pipe, prompting Michael to start punching Miller as hard as he could, wherever he could, to “disarm” Miller.

Michael Theriault said he then grabbed the pipe so Miller did not re-arm himself with it.

According to his account, Theriault never identified himself as a police officer during the chase or the violent confrontation. The prosecution pressed him on why he never did so, suggesting it could have de-escalated the situation. The off-duty officer testified that everything was happening quickly and he’d been focused on apprehending Miller.

What about Miller’s friends?

Goode backed the Theriaults’ account, telling the court that the trio had been “car-hopping” — looking for unlocked vehicles and snatching up any valuables inside, such as change or sunglasses.

Jack, the other man Miller was with, denies that, saying the trio had gone to another friend’s house to get marijuana, then were walking down the street when he heard Miller raise his voice and then, suddenly, two or three white males came out of a garage and started chasing them.

According to the Crown, what caused the confrontation doesn’t matter because, in their view, the charges against the Theriaults “apply on either version of the events precipitating the assault.”

What are the charges?

The Theriault brothers are jointly charged with aggravated assault.

Crown lawyer Peter Scrutton said the brothers used excessive force against Miller, and that the severity of Miller’s eye injury meets the criteria for aggravated assault — namely, the injury wounded, maimed or disfigured the victim.

The brothers are also separately charged with attempting to obstruct justice, meaning they are alleged to have willingly given a false or misleading account to the Durham Regional Police officers who investigated the incident.

Specifically, the Crown alleges both brothers lied about the interaction with Miller, including their claim they fought back against Miller because he was wielding a pipe and that they feared and fought for their lives. The Crown also alleges the brothers failed to explain or reference their use of a weapon.

Both brothers have pleaded not guilty. Although Michael Theriault admitted on the stand that he caused Miller’s eye injury with his fist, he claimed he had done so in self-defence.

Theriault also faces professional misconduct charges under Ontario’s Police Services Act in connection to the alleged assault. He has been suspended with pay since July 2017.

What happened immediately after the confrontation?

Two 911 calls were placed at 2:48 a.m. — right after Miller started banging on Silverthorn’s door. Christian Theriault dialed in first from the sidewalk, telling the dispatcher he and his brother had just caught a man trying to break into his vehicle and that his brother, an off-duty cop, was holding him down.

Twenty seconds later, Silverthorn placed his call, telling the dispatcher about the fight and that one man armed with a long stick was holding down another on his driveway. The dispatcher advised Silverthorn that another call had come in, likely from the third man Silverthorn could see talking on the phone outside. She advised him that “one guy was trying to break into the other guy’s car there.”

“Yeah, I know, but I don’t know that, like I said, it looks like it was getting pretty —” Silverthorn said, his voice concerned.

“Yeah,” the operator interrupted, “I guess he was trying to restrain him, that’s why.”

At 2:52 a.m., Miller dialed 911. Both he and Michael Theriault agree that call happened as the off-duty officer was holding him down.

“Hello, 911?” Miller, breathing heavily, says in the call.

In the background, Theriault can be heard telling Miller he’s under arrest and to “back the f--- up.” Theriault eventually takes the phone away from Miller, and it’s the off-duty officer speaking to the dispatcher for the majority of the 66-second call. The dispatcher informs him police will be there shortly.

Theriault testified that he’d been holding the pole — “right up” in case he had to use it — but at some point after getting Miller under control, he tossed it into the snow to get it out of the way.

Where did the pipe come from?

That’s not clear.

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Miller testified he had never seen it before he started being struck by it.

Michael Theriault told police that although he never lost sight of Miller, he could not account for how he got the pipe. He told Durham police in his statement that Miller may have gotten it from the gas line at 113 Erickson Drive.

At trial, Theriault said that was speculation — “I still don’t know. I have no idea where he got it from,” he said.

Scrutton, a Crown lawyer, suggested Theriault took the pole with him from his parents’ garage before rushing out to chase after Miller, something Theriault denied.

Christian Theriault, meanwhile, told police he assumed Miller had the approximately meter-long pole in his pants, or from the side of a house. “It’s really dark between the houses, and he just turned and hit me with it, I didn’t even see it coming.”

During the testimony of George Forde, Silverthorn’s next-door neighbour, the prosecution implied the pole may have been ripped off a flower trellis in his yard or from piping running alongside his house. He said he didn’t recognize the pipe when shown it in court, but said he couldn’t rule out that it came from his home.

On the witness stand, Silverthorn provided further detail about what he’d observed about the pipe, saying it was being held by the bigger of the two men he’d seen earlier at the side of his house, punching another man. The man was using the pipe to push the other man down, forcing him to the ground.

Silverthorn told the court that later that night, he’d spoken casually with one of the Durham Regional Police officers called to the scene (he was never asked to give a formal statement).

“I said ‘Well, just because someone breaks into your car doesn’t give you the right to try to kill them.’”

Crown lawyers entered a photo into evidence of the front of the Silverthorn home, showing a scratch on the front door of the home they suggested was made by Michael Theriault as he swung the pipe at Miller.

On the stand, Michael Theriault denied he or Christian ever swung the pipe at Miller.

What happened after police arrived?

Durham police Consts. Jennifer Bowler and Barbara Zabdyr were the first two officers on scene, arriving at 2:55 a.m. They had been given varying accounts of what had happened, including that a person was being restrained in front of a home on Erickson Drive, that there was a person armed with a stick and that an off-duty police officer was on scene.

As they arrived, Christian Theriault was waving them down and Michael Theriault was on top of Miller. Bowler testified that she noticed Miller’s injuries, that he was very bloody and that the injury “made me a little queasy.”

Zabdyr testified that she was told Miller, the man on the ground, had been seen breaking into cars. He was arrested. She gave her handcuffs to Michael Theriault and allowed him to place them on Miller, due to what she said were space constraints in the area where Miller was being restrained.

Miller was taken to hospital by ambulance. He was charged with theft under $5,000, assault with a weapon and possession of a small amount of marijuana, all later withdrawn by the Crown.

Bowler, meanwhile, photographed evidence, including a metal pole lying in the snow not far from where Miller had been restrained. She also went down the road to the Theriault residence to take pictures of the truck, in which the centre console was flipped open.

Const. Sean McQuoid was among other officers arriving on scene. He took an initial statement from Michael Theriault, before taking him into his vehicle for a formal statement.

The Theriaults’ father — John Theriault, a longtime Toronto police officer who was then working with the force’s professional standards unit, which performs internal investigations — arrived some time later. Michael Theriault testified that he spoke to his father, possibly before giving his second formal statement to police, but couldn’t recall.

What is the medical evidence?

Michael Theriault was not injured in the alleged assault, aside from what he called “general soreness.”

Following the alleged assault, Christian Theriault had a cut on his hand and later reported suffering a concussion.

In addition to his eye injury, Miller’s nose and the bone around his eye was also fractured; his recovery took months and he’s permanently blinded in the left eye.

Forensic pathologist Dr. Michael Pickup testified about Miller’s injuries, saying there were as many as seven. Asked what caused the rupture to Miller’s left eyeball, as well as fractures to his nose and orbital bone, Pickup said he believed the cause was blunt force, such as at least one punch.

Pickup said it was possible the pole caused Miller’s eye injury. But, he testified, he would have expected even more severe injuries if it had caused the eye rupture.

Under questioning by Michael Lacy, Michael Theriault’s lawyer, Pickup said other marks on Miller’s body that were photographed after the alleged assault were not caused by the pole because they hadn’t left what’s known as “tram track” bruising, or two parallel lines. The pathologist also expressed uncertainty about whether a fracture Miller suffered to his right forearm was a result of the alleged assault or happened on another occasion.

Why wasn’t Ontario’s Special Investigations Unit called?

This remains unclear. Because the trial concerned the actions of the Theriault brothers specifically, court heard little evidence about why the civilian watchdog — which probes police-involved injuries and fatalities — was not contacted.

After the Theriault brothers were charged in 2017, the case drew controversy in part because the SIU was not called by either Durham police or Toronto police, Michael Theriault’s employer. The SIU was ultimately contacted about the case five months later by Miller’s lawyer, and it was that investigation that resulted in the charges against the brothers.

The SIU generally does not investigate incidents involving off-duty officers but will under certain circumstances. If in doubt, police forces are generally expected to notify the SIU to allow the watchdog to determine if an investigation is warranted.

On the stand, one of the Durham officers who responded to the alleged assault did mention the SIU. McQuoid told the court that he had a conversation with a colleague in Durham’s Criminal Investigations Branch who informed him officers had been detailed to secure the scene because “the SIU were going to be called in.”

McQuoid testified that this prompted him to go back to the Theriault residence because he wanted to make sure that Michael Theriault was advised that the SIU were coming and to ensure he would be able to speak with them.

“Realizing that I was the last person to speak with Michael Theriault, who was a police officer in Toronto — I’m sure he wasn’t aware that the SIU were coming,” McQuoid said.

He told the court he then drove over and had a conversation with an older gentleman who he had spoken to earlier in the evening, believed to be John Theriault. Asked why he did that, McQuoid said it was because he wanted to make sure that Michael Theriault was going to be available to the SIU. He did not speak to Michael or Christian, McQuoid testified.

A section of a Durham police interview with Christian Theriault from January 9, 2017.

Following the controversy about why they didn’t contact the SIU that day, Toronto police have said that they did not believe the incident met the threshold to notify the SIU, based on the information they had at the time. The Toronto Police Services Board has tasked the Waterloo Regional Police to conduct an external review of how Toronto police handled the case.

Durham police have since created a policy requiring the SIU to be notified of every incident involving an officer that results in a serious injury, regardless of whether the officer was off duty.

What comes next?

The trial will resume on Jan. 29 for final submissions from the prosecutors and defence. The date was put off into the New Year in part to allow time for transcripts of the trial to be done to aid lawyers in their arguments.

It’s expected a decision from Di Luca will come soon after that, though it’s not known when. After hearing from the trial’s final witness Tuesday, the judge acknowledged a need for expediency, calling the proceeding an “important case that needs to be decided quickly.”

With Star files