According to a Toronto Star article, lawyers for Toronto police officer Michael Theriault are asking Ontario’s Superior Court to toss the off-duty cop’s recent conviction in the beating of Dafonte Miller. In the rare legal challenge, Theriault's lawyers are arguing the guilty verdict for assault (and not the original charge of aggravated assault) wasn’t an option for the judge at trial.
"There is a live, albeit technical and difficult legal argument concerning the decision to drop the assault with a weapon charge — including whether the Crown 'boxed itself in' by not proceeding on the assault with a weapon charge," says Professor Tanovich. "Thereby limiting what was at issue at trial."
In terms of timing, Tanovich adds: “Tactically, I can see why they would want to raise it now so as to prevent the Court of Appeal from rejecting the argument because it wasn’t raised when there was an opportunity to do so at trial.”