The verdict is in. Now the investigation into how Toronto police handled Dafonte Miller’s assault can finally begin,
Waterloo police probing Toronto force’s handling of high-profile case
On the night Dafonte Miller was beaten by off-duty officer Michael Theriault, why didn’t Toronto police call Ontario’s police watchdog in to investigate?
Three-and-a-half years after the assault, the answer to this question — asked repeatedly by protestors, Miller’s lawyers and journalists — can finally be pursued by an investigation into Toronto police’s handling of the high-profile incident.
Late last month, Ontario Superior Court Justice Joseph Di Luca convicted Const. Michael Theriault of assaulting Miller, a young Black man, in Whitby on a December night in 2016, a beating that left Miller so seriously injured his left eye had to be removed. Theriault and his younger brother, Christian Theriault, were found not guilty of the more serious charge of aggravated assault and of obstruction of justice.
Now that the criminal trial is nearing its end — Michael Theriault still has to be sentenced — a separate probe into how police handled the incident has at last begun.
In July 2017, Toronto police Chief Mark Saunders tapped the Waterloo Regional Police Service to conduct a review that’s mandatory after every investigation by Ontario’s Special Investigations Unit, the watchdog that probes deaths, serious injuries and allegations of sexual assault involving police officers.
On Tuesday, a spokesperson for the Waterloo regional police confirmed the review has officially begun and is being conducted by “experienced senior officers.”
“There will be more to come on the process of police oversight and how it unfolded in this case, and in particular, the failure to notify the SIU,” said Kate Puddister, a University of Guelph professor who researches police oversight and has been closely following the Theriault trial. “This investigation and its findings will be very important going forward.”
Here’s what’s in store with the investigation, and whether critics believe it can address the police accountability questions raised by the case:
What is the investigation?
Every time the SIU launches an investigation into the actions of an officer, the police service involved is required to conduct its own review. Referred to as a Section 11 report after the provincial law that requires it, the review examines police handling of an incident and determines if discipline is warranted or training or policy changes are necessary.
The review is usually done internally. But, facing intense scrutiny over Toronto police handling of Miller’s assault, Saunders and the Toronto police board tapped the Waterloo police to perform the review.
“The chief has advised the board that due to the fact that there are two very different versions of this case in the public domain, it is important to take this opportunity to have another agency that is independent and separate to conduct the Section 11 investigation,” the Toronto police board said in a statement in July 2017.
What’s at stake?
Much of the criticism centred on why neither Toronto police, nor the Durham Regional Police Service officers who responded to the scene, notified the SIU about the incident.
The watchdog is supposed to be called in whenever someone is seriously injured in an interaction with police. Although Michael Theriault was not working at the time, the SIU does investigate off-duty incidents under certain circumstances and the general expectation is the SIU will be notified in cases where it may have cause to investigate.
The SIU was only notified months after the assault by Miller’s lawyer, Julian Falconer. It was only after this that the SIU investigated and charges were laid against Michael and Christian Theriault.
Shortly after the Theriaults’ arrest, Saunders said members of his professional standards unit determined the case had not met the threshold to report to the SIU with the information they had “at that time.” Durham police, meanwhile, said they did not contact the SIU because that was Toronto police’s role as Theriault’s employer.
Durham police have since changed its policy to state that the SIU will be called in under similar circumstances, regardless of whether the officer is from an outside service.
Part of the criticism has centred on the fact Theriault’s father, John Theriault, was a police officer working with the Toronto police professional standards unit at the time. Falconer has since alleged there was a coverup, something Saunders has denied.
“How could this coverup … have been jointly orchestrated by two police services (Toronto and Durham) to protect a Toronto police officer and his brother?” Falconer asked in a statement hours after Michael Theriault’s conviction.
John Theriault has since retired from the Toronto police service. Waterloo Regional police spokesperson Cherri Greeno said the investigation can interview non-police officers, “however, we can’t compel cooperation of potential witnesses except police officers.”
What caused the delay, and when will the review be completed?
It has been three years this month since the Toronto police board tapped the Waterloo police to conduct the review.
According to Toronto police and its board, the delay was caused because of the ongoing criminal trial.
“It is normal practice for Section 11 investigations to be put on hold until both the criminal investigation and trial have concluded, as has occurred in this case,” the Toronto police board said in a statement last month.
The delay in the Waterloo probe inspired protests at the Toronto police board, including a demonstration last July that demanded action by the board and prompted an early end to the meeting.
Greeno confirmed to the Star that Waterloo police investigators have begun their investigation, but said there is not yet an end date; “it will depend on where the review takes us, including how many witnesses need to be interviewed, impacts of COVID, etc.”
A spokesperson for the Toronto police board confirmed to the Star that the review will be made public. The police board did not previously release such reports publicly, but changed its policy in 2016 following intense backlash to the Toronto police fatal shooting of mentally ill Black man Andrew Loku.
Will a review by another police service be independent?
After Michael Theriault was convicted last month, the Toronto police board released a statement saying the external review could now begin, calling the Waterloo Regional Police Service “an independent and neutral agency.”
But critics have questioned the independence of having another police service conduct the review, as opposed to a civilian investigation.
“Again we have a situation where the police will be, in essence, investigating themselves,” University of Toronto criminologist Julius Haag told the Star in a recent interview.
Speaking to the Star Tuesday, Falconer, Miller’s lawyer, asked why a police service with no “prominent reputation in independent review work” was tapped. “Frankly, I can’t conceive of it other than the hope for a friendly hearing,” he said.
He added: “I don’t think police investigating police in 2020 in an acceptable answer in this context.”
Following the verdict last month, Falconer called for a broader review of police accountability, saying a federal royal commission of inquiry is required “to bring out the truth about beatings and killings of racialized and Indigenous people in police custody.”
What happens next for Const. Michael Theriault?
Const. Michael Theriault is still employed by the Toronto police service, where he remains suspended with pay as required by provincial law. If he is sentenced to jail time — assault carries a maximum sentence of five years in jail — he will no longer be paid.
He will now face a professional misconduct hearing, which had begun in 2018 but was on hold during the trial. He is charged with discreditable conduct stemming from the attack on Miller, though the charge may change due to his conviction.
His next court appearance is Wednesday to set a date for submissions on his sentence. Following the sentence, Theriault has 30 days to appeal.