'Pro-police bias:' Durham officers found guilty of professional misconduct in Dafonte Miller case

Three Durham police officers have been found guilty of discreditable conduct, and one of them has also been found guilty of neglect of duty by a disciplinary tribunal in connection with the handling of the 2016 incident which saw Dafonte Miller severely assaulted by an off-duty officer.

Miller was chased down by Michael Theriault, an off-duty Toronto police officer, and his brother Christian who believed the then-19-year-old Black man was breaking into cars around the family’s home in Whitby. The teen lost an eye after he was beaten with a metal pipe in the incident.

A judge found Michael Theriault guilty of assault in the case in 2020 and he resigned from the Toronto Police Service last year.

But there were many questions around the handling of the case. Officers who arrived on scene cooperated with Theriault as if he were making an arrest and Miller was the one initially charged in the incident despite his severe injuries.

Ontario’s Office of the Independent Police Review Director (OIPRD), responding to a complaint, said in 2021 that misconduct by the officers had been established and the case was turned over to a disciplinary hearing.

The tribunal handed down its decision Wednesday on the conduct of the officers involved and found that all three “demonstrated a pro-police bias” in their handling of the case.

Retired OPP Superintendent Greg Walton wrote the report and called the evidence “clear and convincing,” adding that it “is so weighty, so reliable, and so cogent” that he was able to reasonably draw his conclusions about the officers.

He found constables Andrew Chmelowsky, Justine Gendron and Barbara Zabdyr guilty of discreditable conduct and additionally found Gendron guilty of neglect of duty.

A fourth officer — Detective Constable Craig Willis — was dealt with separately and pleaded guilty in January to one count of neglect of duty in connection with the case.

Walton found that Gendron was negligent for not carrying her memo book with her when she went to speak to two potential witnesses. She said that she did not feel it was necessary to record what they told her because she believed from their comments that they had not observed what happened.

He also found her guilty of discreditable conduct for treating Christian Theriault as the victim of an assault when she arrived on scene, and not questioning his account of events or trying to determine how Miller had sustained his injuries.

Chmelowsky was also found guilty of discreditable conduct for not questioning the Theriaults’ account or trying to determine how Miller had sustained his injuries.

Zabdyr and her partner were the first ones to arrive on scene. She knew that Theriault was an off-duty officer and passed her handcuffs to him so that he could handcuff Miller.

“While being restrained on the ground, Mr. Miller stated to Constable Zabdyr that he had been hit with something,” the report states. “Constable Theriault then escorted Mr. Miller to the police cruiser with the assistance of a Durham Regional Police officer and conducted a pat-down search.”

Zabdyr called for an ambulance as soon as the pat down was complete. She advised him as she walked him over to the ambulance that he was under arrest for breaking into cars and for assault.

“Constable Zabdyr knew that Constable Theriault was an off-duty officer and only considered the Theriault brothers’ account of the events that had transpired that night,” the report states. “She did not conduct formal statements with the Theriault brothers and did not listen or follow up with Mr. Miller’s statements about having been ‘hit with something,’ and that they had ‘the wrong guy,’ and that ‘he and his friends were just walking down the street and suddenly got jumped by these two guys.’”

All three officers knew Theriault was an off-duty police officer when they arrived on scene and demonstrated a “pro-police bias” in their handling of the matter, Walton found.

“I find the evidence clear and convincing; despite the obvious evidence at the scene, no one questioned the disparity of injuries, they accepted the version of events presented by the Theriault brothers,” Walton wrote in his report. “I find it difficult to comprehend that not one of the officers in attendance thought it prudent to investigate whether the injuries suffered by Mr. Miller were justified, excessive, and/or proportionate.

“I am convinced it was the fact that an off-duty officer effected the arrest that influenced the responding officers to accept his version of events without the need to investigate accordingly.”

Lawyers for the officers argued that they generally acted appropriately and knowing that Theriault swore an oath as an officer, expected him to honour his oath of office and be truthful. Their behavior was not therefore the result of a “pro-police bias,” the lawyers argued.

However Walton disagreed.

“While I agree there is an expectation that police officers are to be honest and trustworthy, nonetheless, police officers are dutybound to investigate; they needed to consider that the explanation provided was self-serving, the evidence needed to be examined to ensure it aligned with the version of events being proffered” he wrote. “Instead, that did not occur because of a pro-police bias; they accepted his version of events, unequivocally and unchallenged.”

He added that the officers never considered why Miller, who was the alleged suspect in the incident, called 911 himself to seek assistance.

He wrote the public “would find it unacceptable that the officers overlooked the obvious evidence and chose to not explore how Mr. Miller sustained his serious injury” and that their behaviour “is far beyond that of a technical breach of the law, it was not an error made in good faith, nor was it an error in judgement or carelessness.”

Durham Regional Police said they would not be commenting on the report as the case remains “subject to a penalty and appeal process” before the tribunal.

“At this time we will be not be commenting until the entire process has come to a conclusion,” the force said.

The OIPRD receives, manages and oversees all complaints about police in Ontario.

The officers have 30 days to appeal the decision of the hearing. If it stands, penalties can include anything from a reprimand to dismissal.

In an interview with CTV News Toronto Wednesday, one of Miller’s lawyer, Asha James, said the result sends an important message that complaints “will be taken seriously” even though a member of the public still has to bring them forward.

“I think what Mr. Miller and his family want to see is that this is a message that police officers are not above the law,” James said. “They're not entitled to some kind of special treatment or special belief when officers show up on the scene; that they have to be investigated; that the proper steps have to be taken.”

She said the key takeaway from the tribunal is that “we expect police to be held to the same standard as the rest of us.”

A civil suit brought forward by Miller remains ongoing.