The man beaten by an off-duty Toronto constable says he doesn’t understand why it took more than a year for the Toronto Police Service to release a report detailing why its officers didn’t call in Ontario’s police watchdog to investigate.

The TPS says it’s put in place new procedures to ensure the Special Investigations Unit are called as required by law in future situations involving death or serious injury at the hands of police — though Dafonte Miller is raising questions about whether anyone will be held accountable.

“No explanation has been provided as to why we are only learning of this October 2020 report a full year later, in November of 2021,” Miller said in a statement. “This is not an effective way to build bridges with my family and the Black community.”

Two officers mentioned in the report have retired, which puts them beyond the range of any disciplinary investigation, said Miller’s lawyer, Julian Falconer.

“The Toronto Police Service failed Dafonte Miller in December of 2016, and they have failed him again today by not holding those responsible for trying to keep a lid on what was done to Dafonte Miller,” Falconer said in a statement.

The report, by Supt Eugene Fenton of the Waterloo Regional Police Service, details the series of decisions made that night in December 2016 after a series of 911 calls to a disturbing scene involving Const. Michael Theriault.

Theriault was later convicted of a vicious assault on Miller, who lost an eye in a beating involving a metal pipe. Theriault’s brother Christian was acquitted.

Dafonte Miller

At the time, police charged Miller, and didn’t notify the SIU about Const. Theriault’s involvement, even though Fenton’s review found the off-duty cop told Miller he was under arrest, searched him, and handcuffed him.

“We were there to determine whether the Toronto Police should have called the SIU, and they should have,” Fenton told the Toronto Police Services Board meeting on Tuesday.

Toronto police say they are changing their policy to call the SIU anytime an off-duty officer is involved in a death or injury, as long as they were using their police powers. That’s roughly in line with a new provincial law, enacted about a year ago.

“I think we made the wrong decision at the time,” Toronto Police Chief James Ramer told the board.

Reached at a news conference, Ontario’s Solicitor-General, Sylvia Jones, said she supported the change.

“Those are good practices that many of our chiefs already do and they will continue to improve their processes as we see necessary,” Jones said.

But Abby Deshman with the Canadian Civil Liberties Association said the policy changes may actually be a step backwards. Ontario’s old law required police forces to notify the SIU in all cases of death and serious injury involving police, whether on or off duty, she said.

“This was legislation that was passed by this government to remove notification requirements to the SIU. Notification requirements that were not followed in the Dafonte Miller case. We know that stronger requirements were in place and they still were not effective in this case,” she said.

“We are encouraged to see that the city of Toronto has stepped up to implement their own progressive policing measures after the conservative Ford government repealed the Ontario Liberal plan in 2019." said Ontario Liberal MPP Lucille Collard. 

Fenton’s report says the officer that night who was responsible for the decision not to notify the SIU, Insp. Ed Boyd, said he didn’t notify because Theriault didn’t identify himself as a police officer, no Toronto equipment was used, and the officer was acting as a civilian.

Boyd has now resigned, as has Const. Theriault’s father, a Toronto detective who attended the scene. Fenton’s report found though Det John Theriault worked in the professional standards unit, he played no role in influencing the investigation and was there only to support his sons.

The resignations put both officers beyond the reach of police disciplinary actions, Falconer said. Miller has filed a civil lawsuit alleging, among other things, the officers attending “collectively entered into an agreement, constituting a conspiracy, to unlawfully cause and maintain the baseless charges against Dafonte [Miller] and to protect PC Theriault and Christian Theriault from criminal prosecution.”

There is a notice to defend the suit at Ontario Superior Court, but nothing more specific in defence has been filed.