Awakened to screams so loud he thought they were coming from inside his house, James Silverthorn got out of bed and looked out his bathroom window onto his typically quiet Whitby street.

There, in the early morning hours of Dec. 28, 2016, Silverthorn could see two individuals bent over a third who was “cornered” against the side of his neighbour’s home. The two people were punching the third repeatedly, “very hard and fairly rapid.”

“It was continuous, it was very hard, something that, in my opinion, could extremely hurt somebody,” Silverthorn told an Oshawa court Tuesday during the first day of an assault trial for an off-duty Toronto police officer and his brother.

“If you received enough blows to the torso it could end up killing someone.”

Moments later, there was frantic banging on his front door, so violent that Silverthorn said he thought the door would break open.

He could see it was a Black man who was “screaming to call 911,” Silverthorn said.

Nearly three years after the beating of Dafonte Miller, the trial of Toronto police Const. Michael Theriault and his younger brother Christian Theriault finally began Tuesday in an Oshawa courtroom.

The brothers are jointly charged with aggravated assault, and separately charged for attempting to obstruct justice, meaning they are alleged to have willingly given a false or misleading account of the events.

Michael Theriault, the larger of the two brothers with a shaved head, and Christian, who has shoulder-length dirty blond hair, stood next to their lawyers as they pleaded not guilty to all charges.

In his opening statement, Crown lawyer Peter Scrutton alleged that the brothers had chased Miller down Erickson Dr. before they attacked him, and continued beating him after he briefly escaped.

Miller, then 19, suffered such severe damage to his eye that it had to be removed, as well as a broken orbital bone, a broken nose and a fractured wrist.

The eye injury meets the criteria for aggravated assault because the beating served to “wound, maim or disfigure” him, Scrutton said.

Following the confrontation, each brother then “lied about his interaction” with Miller to members of the Durham Regional Police Service, the Crown lawyer told the court.

Those lies included “that Mr. Miller possessed a weapon during this altercation, that he hit them with a weapon, that they feared for their lives, that they fought for their lives, and that they acted in self defence,” Scrutton said. “The defendants’ statements also omit to explain or reference their use of a weapon during this altercation.”

The court heard that the Theriault brothers said in their statements of defence that they chased Miller after catching him and another individual breaking into a car in their driveway.

Scrutton acknowledged that one “factual issue” relates to what Miller was doing immediately before the interaction with the Theriaults. He said he expects that Miller will say that he was “simply walking with his friends” before he was accosted, chased and beaten.

However, Scrutton said, he expects that one of the friends Miller was with that night will say they had been breaking into cars.

The Crown submits that the charges against the Theriaults “apply on either version of the events precipitating the assault.”

Silverthorn, a longtime district chief with Toronto Fire Services, testified that he did not know Miller or the Theriaults. He said he decided to call 911 after “realizing that one individual was being beaten by two others.”

Moments later, he said, he heard and saw a man banging on his door while calling out for someone to dial 911.

“Is that being said? Is that being yelled?” Scrutton asked.

“Screamed,” Silverthorn replied.

Silverthorn testified that he could then see the fight had moved to near his wife’s vehicle in front of the house. One man — the larger of the two he’d seen punching an individual moments earlier — was standing over an individual who was on the ground.

The larger man appeared to be holding “something in their hand that appeared to be a broomstick or a piece of pipe,” he said, estimating it was about four feet in length.

The man appeared to be using the object to push the other man down, he said, forcing him to the ground.

“All I can say is it wasn’t in a friendly manner. It was in an aggressive manner,” Silverthorn told the court.

In a recording of his 911 call that was played in court Tuesday, Silverthorn told the dispatcher, “There’s a guy with a stick that’s probably about 4 feet long.”

“Like a wooden stick?” the dispatcher asked him.

Loading... Loading... Loading... Loading... Loading... Loading...

“You know what? I think he’s going to strike the guy again,” Silverthorn replied.

An aluminum pole, approximately a metre in length, that was found at the scene by Durham Regional Police was entered as an exhibit in court.

The first Crown witness called to testify Tuesday was Durham Regional Police Const. Jennifer Bowler, one of the first officers to arrive at the scene.

As the designated “scene of the crime officer” that morning, it was her job to photograph evidence. She said she took pictures of the pole because it had blood on it.

Bowler testified that, prior to arriving on scene, she was told 911 callers had given varying accounts of what had happened, including that a person was being restrained in front of a home on Erickson Dr., that there was an armed person with a stick, and that there was an off-duty police officer at the scene.

After she arrived, she saw a Black male lying on the ground and a white male on top of him.

The Black male appeared to be “very bloody” and had a significant injury to his eye, she said. “You couldn’t see the eye. It was just swollen and there was … red under the eye.”

Asked by Crown lawyer Linda Shin for her reaction to the injury, Bowler said, “It made me a little queasy.”

Asked about injuries to the Theriault brothers, Bowler said she took photos of Christian Theriault because he had a cut to his right hand below the thumb and bruising to the top of his hand. She said she didn’t take photos of Michael Theriault because he didn’t report any injuries.

The judge-alone trial before Superior Court Justice Joseph Di Luca is expected to last about two weeks.

Michael Theriault was off duty at the time of the confrontation. He and his brother, who is not a police officer, were charged in July 2017 by Ontario’s Special Investigations Unit (SIU), the police watchdog that probes deaths and serious injuries involving police.

Michael Theriault is also facing professional misconduct charges in connection with the incident and its aftermath. He is currently suspended with pay from the Toronto police force.

When they responded to the scene in December 2016, Durham police charged Miller with theft under $5,000, assault with a weapon and possession of a small amount of marijuana.

Those charges were later withdrawn by the Crown.

The Theriault brothers were not arrested until eight months later, following the SIU investigation that was prompted by a complaint from Miller’s lawyer, Julian Falconer.

The Toronto and Durham police forces have come under fire for not contacting the SIU on the day of the incident. Toronto police have said that, based on the information they had at the time, they did not believe that the incident met the threshold to notify the SIU.

The Toronto Police Services Board has since called in the Waterloo Regional Police to conduct an external review of how Toronto police handled the case. That review is on hold during the criminal trial.

Durham police have since created a policy that requires the SIU be notified of every incident involving an officer that results in a serious injury, regardless of whether the officer was from its force or off duty at the time.

The SIU generally does not investigate incidents involving off-duty officers but will do so under certain circumstances, including if the officer identifies himself or herself as a police officer during an interaction that results in a serious injury.

In general, police forces are expected to notify the SIU if there is any doubt about whether the situation warrants an investigation.

With files from Star staff

Wendy Gillis is a Toronto-based reporter covering crime and policing. Reach her by email at wgillis@thestar.ca or follow her on Twitter: @wendygillis

Read more about: