A long-awaited external review has concluded that Toronto police made the wrong decision by failing to notify the province’s police watchdog about off-duty officer Const. Michael Theriault seriously injuring Dafonte Miller — an assault by Theriault that would later send him to jail.
But Insp. Edward Boyd, the senior officer who decided not to alert the Special Investigations Unit (SIU) that day, has since retired, meaning Toronto police can’t act on a recommendation by the independent reviewer, the Waterloo Regional Police Service, to consider taking disciplinary action.
The findings by the Waterloo police are the latest development in a nearly five-year-old case that spurred public outrage — including over the failure of the two police services involved to call in Ontario’s civilian police watchdog, although they were legally required to do so.
In a new report to the Toronto police board ahead of its meeting Tuesday, Toronto police Chief James Ramer said changes have been made in response to the Waterloo police report so that the same mistake is not repeated.
“Important changes to service procedures have been identified by this investigation, which will bring clarity and consistency to the notification of the SIU in the future,” states a November 10 report from Ramer.
That includes the addition of a detailed list of scenarios describing when the SIU should be contacted about off-duty incidents, since the watchdog only probes non-work police incidents under certain conditions.
Ramer has previously acknowledged that Toronto police “made the wrong decision” by not calling in the SIU.
Theriault, a white officer, is serving a nine-month jail sentence after being convicted of assaulting Miller, a Black man, in a Dec. 28, 2016, incident in Whitby. The violent clash — which began after Miller stole change from the Theriault family truck, a judge found — left Miller with serious injuries, including being blinded in one eye, and prompted outrage and protests over police brutality and anti-Black racism.
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Theriault is suspended without pay from Toronto police. Ramer’s report says the force will be seeking his termination at a future disciplinary tribunal.
In 2017, Toronto police tapped WRPS to conduct a review of the force’s handling of the incident after it was revealed that neither Toronto police, nor the Durham Regional police officers who responded to the Whitby incident, notified the SIU about serious injuries to a civilian caused by an off-duty officer.
Instead, it was Miller’s lawyer, Julian Falconer, who notified the SIU months later, prompting the criminal investigation that led to the charges against Theriault. Falconer has alleged that the police services attempted a “cover-up” of the incident, which saw a bleeding and injured Miller — not Theriault — initially arrested by Durham police.
According to the 11-page report from Waterloo, Toronto police officers “failed to follow the procedure by not notifying the SIU of this incident at the time.” The same conclusion was drawn last year in a separate review by Ontario’s police complaints agency, the Office of the Independent Police Review Director (OIPRD), an investigation prompted by a 2017 complaint by Miller.
Boyd, who was the Toronto police chief’s “SIU On-Call Designate” at the time, made the decision not to call the SIU alongside another senior officer. The Waterloo report recommended that the decision by these officers “should be referred to the Chief for discussion on appropriate action” including discipline under Ontario’s Police Services Act.
But Ramer’s report said the other officer was subordinate to Boyd and should not face discipline, and that Boyd couldn’t be disciplined because he’s no longer an employee.
The Waterloo report also examined allegations that Theriault’s dad, John Theriault, had “improperly influenced” any decisions about SIU notification in his capacity at the time as an officer with the Toronto police Professional Standards Unit.
The Waterloo report stated that John Theriault, who has since retired, was present at the scene of the incident “to support his sons after the confrontation,” which was not far from the family home. But Waterloo found no “information or indication that he offered any undue influence in this matter or became involved in this matter, or was involved in any decision regarding the notification of the SIU,” the report states.
Wendy Gillis is a Toronto-based reporter covering crime and policing for the Star. Reach her by email at [email protected] or follow her on Twitter: @wendygillis
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