Durham officers guilty of 'pro-police bias' in Dafonte Miller case: tribunal

Three Durham police officers committed professional misconduct when they showed "pro-police bias," conducting an inadequate investigation of the incident that led to the conviction of an off-duty Toronto constable for assaulting Dafonte Miller in 2016, according to a disciplinary tribunal ruling.

Citing the serious injuries sustained by then-19-year-old Miller, retired Ontario Provincial Police Supt. Greg Walton, who oversaw the disciplinary proceedings, said in a ruling dated June 26 that the officers ignored clear signs that a thorough investigation was warranted. 

"The inequity in injuries and one-sided result of the altercation alone begged for questions to be asked," Walton said.

"I am convinced that the main reason those inquiries did not occur is because of the involvement and role of an off-duty officer." 

Lawyer Ian Johnstone, one of the prosecutors in the proceedings, said disciplinary charges and convictions for showing "pro-police bias" are rare. 

"I don't know of another case in Canada," Johnstone, who regularly prosecutes police disciplinary matters, said in an interview.

The Durham Regional Police Service (DRPS) moved forward with the prosecution of the three officers after the Office of the Independent Police Review Director (OIPRD) notified it in 2021 that the oversight body had deemed some misconduct allegations against the officers to be "substantiated."

The OIPRD also deemed misconduct by a fourth officer to be substantiated; he pled guilty earlier this year to neglect of duty, according to Walton's ruling. 

Both Johnstone and Asha James, a lawyer who represented Miller during the disciplinary proceedings, confirmed that the proceedings arose from a complaint Miller filed with the OIPRD in 2017.

Latest legal decision from 2016 case 

Superior Court Justice Joseph Di Luca found Michael Theriault guilty of assault in 2020, saying the off-duty Toronto police officer had struck Miller with a pipe after he and his brother Christian found the teenager and a friend stealing from the brothers' parents' vehicle. 

Although he expressed doubts about parts of the incident, Di Luca said in a ruling that the brothers were, at one point, "probably just beating on Mr. Miller," who was badly injured, and later underwent surgery to remove his left eye. 

Christian Theriault was acquitted of aggravated assault and obstruction of justice. 

In this week's disciplinary ruling, Walton found DRPS Const. Andrew Chmelowsky guilty of discreditable conduct for "accepting and not questioning the evidence of the Theriault brothers," and for failing to fully investigate Miller's injuries.

Walton made a similar finding against Const. Barbara Zabdyr and Const. Justine Gendron, saying the latter accepted Christian Theriault's evidence, and failed to record relevant information.

Lawyers for the Durham officers declined to comment. 

James, Miller's lawyer, said the Miller family was pleased with the outcome.

"The members of the public expect that we hold police to a high standard and that they don't get special privileges when their behaviour breaches the law," James said.

'Beyond troubling'

Walton's ruling highlighted failures of each officer. 

After arriving on scene, Gendron spent only 30 seconds speaking with a neighbour, James Silverthorn, who told the officer, "They did not have to kill that guy," according to a portion of an OIPRD report quoted in Walton's ruling. 

Gendron said she did not believe Silverthorn had witnessed the actual incident, and concluded his comment was not important. The officer, who was interviewed by both the OIPRD and the Special Investigations Unit (SIU), said her notebook was out of date at the time of the incident, and she would sometimes make notes on her hand.

The officer also accepted Christian Theriault's claim that Miller had repeatedly struck him with a pipe, even though his only visible injury was a scratched hand — a claim Walton found should have "questioned, examined, and maybe even doubted by an investigator."

When Zabdyr and a colleague walked a handcuffed Miller to an ambulance and told him he was under arrest for assault and breaking into cars, Miller said they "had the wrong guy."

Zabdyr responded sarcastically: "We always do," according to a portion of an OIPRD report cited by Walton. 

"There is no evidence indicating that she wished to hear his side of the story, period," Walton said.

Citing a comment Chmelowsky made in an OIPRD interview while discussing Miller's claim that the brothers had jumped him, Walton criticized the officer — an acting sergeant at the time of the incident — for not investigating whether the force used by the Theriaults was appropriate.

"He found it fitting that a person might suffer a severe facial injury as the price to be paid for stealing from vehicles," Walton said. 

That Chmelowsky accepted the Theriaults' narrative without an independent witness and without extending the same credulity to Miller, Walton said, "is beyond troubling." 

Lawyer expects officers to remain on the job

Durham police said all three officers remain on active duty.

Sentencing will likely take place this summer, Johnstone said, after which defence counsel could launch appeals.  

Officers found guilty of serious misconduct can be fired or ordered to resign.

While James said she does not expect any of the officers to lose their job, she hopes to see a significant penalty.

"We want to ensure that the penalty is sufficient to send a clear message that this kind of conduct will not be accepted and tolerated," she said.

Citing Di Luca's ruling, James said the role race played in the 2016 events was significant, imagining a scenario in which the races of Miller and Michael Theriault were reversed.  

"How would things have been if the police showed up and it was a Black man in shorts and socks standing over a young white man with his eye hanging out of his head?" James said.

"That's definitely something that Dafonte will be raising in his submissions in regards to the penalty phase."