Dafonte Miller testimony pushed to Wednesday in trial of 2 brothers accused of beating him

Dafonte Miller is now expected to testify Wednesdayin the trial of a Toronto police officer and his brother, who are accused ofbeating himwith a metal pipe nearly three years ago.

Miller was supposedto enter the witness box Tuesday, but court proceedings took longer than expected, with three witnesses giving testimony.

When Miller does testify, it will bethe first time the court has heard from himin person. A 911 call he placed to police on the night of the confrontation has been entered into evidence.

Michael Theriault, a Toronto policeconstable,and Christian Theriault, a civilian, are on trial in connection with theincidentinWhitby, Ont., on Dec. 28, 2016 that leftMiller with abadly damaged eye that later had to be surgically removed.

Miller, then 19,also sufferedreduced vision in his other eye and a broken orbital bone,nose, jaw and wrist, as well as bruised ribs. He similarlyexperienced severe psychological and emotional distress,according to the family's lawyer, Julian Falconer.

The trialby judge alone began on Oct. 29 in the Ontario Superior Court in Oshawa. It is expected to last three weeks.

The Theriault brothers werecharged by the province's police watchdog, theSpecial Investigations Unit,in July 2017 with one count each of aggravated assault and obstructing justice.

Crown prosecutor Peter Scrutton said the brothers could be found guilty of aggravated assault for carrying out an unlawful arrest or using excessive force during that arrest.

They have pleaded not guilty to all charges.

Friend says they were 'car hopping'

Earlier in the trial, the court heard thebrotherstold police they caught Miller breaking into their car. Millerwas arrested that night but the charges were later dropped.

Justice JosephDi Luca, who is hearing the case and has already heard testimonyfrom a number of witnesses, called on two young men who say they were with Miller that night.

BradleyGoode said Monday thathe,Miller and their friend Antonio Jackwere "car hopping" stealing items from any vehicle that was unlocked.

During the last of what Goode saidwere between 10 and15 theftattempts,two men started chasing them. He and Jack managed to evade them, but they caught up to Miller.

'Which version is true?'

Jack, who is currently in custody andalso testified on Monday, denied that the trio was "car hopping." Jacktestifiedtheywere on their way to buy cannabis when the incident took place.

Jack's testimony continued Tuesday. Defence lawyer Michael Lacy pressed himabout the different versions of events he offered at trial, duringthe preliminary inquiry phase and when Miller's lawyer first interviewed him in 2017.

"Which version is true?" Lacy asked.

"I can't remember it now," Jack said.

Michaelhandcuffed Miller: witness

Durham policeConst.Barbara Zabdyr testified Tuesday. She said she arrived to the scene to findone male on the curb, waving herdown.

Miller, she said, was face down on the groundwith blood on his left eye. He was still trying to get up when she arrived. ZabdyrsaidMichael Theriault wason top of him.

Knowing he was an off-duty police officer, Zabdyr gave him her handcuffs to restrain Miller because"space was very limited."

She said that, at one point during the night, Millerwas screaming that he got beat up by two males the Theriault brothers and that the pairwere hitting him with something.

When she accompanied Miller to the hospital that night, she said she remembers there being"just a lot of vomit."

"When I told him I was an officer with Durham police, that's when he threw up," Zabdyr said.

Earlier in the trial, Zabdyr's partner,Durham police Const. Jennifer Bowler, said she was tasked with helping photographthe area and anything that seemed relevant, including any injuries.

Among the things Bowler saw and photographed were blood spots and droplets, a pair of black gloves,two cellphones some coins and a metal bar.

While Miller's friend Jack saidone of the men chasing them had a metal pipe or pole, Goode denied ever seeing one.

Miller hit brothers with pipe first,Michael Theriaultsays

The court also heard that, in addition to Miller's, two other calls were made to 911 one from neighbours, the Silverthorns, and another from the Theriault brothers.

In theircall, Michael Theriaultsaidhe and his brother were smoking in the garage, heard rattling, went out and then chased two people running from the truck in their driveway, according to an agreed statement of facts submitted in court.

While he didn't mention a metal pipe during the 911 call,both brothers referenced a pipe during later statements to police.

One of those statements was made to Durham police Const. Sean McQuoid, who also testified Tuesday.

In his statement to McQuoid that night, Michael Theriaultsaid Miller was trying to scale a fence and get away, so he body checked him to keep him from escaping.

At that point, hetoldMcQuoidthat Miller produced a pipe from somewhere although he didn't know where and started swinging at the brothers.

"He immediately started to swing at me and hit me an unknown amount of times,"Michael Theriaultsaid in his official statement, according to the agreed statement of facts.

"I feared for my life."

Michael Theriaulttold McQuoidthey managed to wrestle the pipe away, and then held him down to keep him from running away again.

When asked in court if he ever told Miller he was a police officer,Michael Theriaulreplied, "No ... He started hitting me with a pipe and I did not even know he had a pipe."

Brothers had been drinking, officer says

On Mondaythe court heard from another one of theofficers on scene that night, Durham policeConst. Justine Gendron.

Gendron said that when she arrived on scene, she was told people had been breaking into cars.

Gendron also spoke with neighbour Jim Silverthorn, who witnessed the incident. She testified that she remembers Silverthorn saying that, just because people were allegedly breaking into cars, "they didn't have to kill the guy."

Gendronalso testified that when she arrived, a person was already in custody standing next to a vehicle.She knew he was injured, she said,but didn't know how badly.

At around 3:35 a.m., Gendron was asked to take astatement fromChristian Theriault.

Before she took the statement, Gendronsaid she spoke to him abouthow much he had drunk that night. She concluded that he wasn't "too intoxicated to give a statement."

In the statement, Christian TheriaultclaimedMiller hit him and his brother repeatedly.