A cover-up, did I hear someone say?
A game of passing the buck and obfuscation is going on in the controversy surrounding the severe beating with a steel pipe of Whitby teen Dafonte Miller by off-duty Toronto police officer Michael Theriault and his brother, Christian.
On August 16, at a press conference held at Queen’s Park by a coalition of community groups and activists, Miller’s lawyer, Julian Falconer, announced the filing of a formal complaint on behalf of his client with the Office of the Independent Police Review Director (OIPRD) alleging that Toronto and Durham police tried to conceal the attack.
The complaint alleges the police forces “blindly” accepted the brothers’ accounts of what happened and that Theriault’s father, John, a detective with the Toronto Police Service’s Professional Standards unit, made the call not to contact the province’s Special Investigations Unit (SIU), the independent civilian agency that investigates serious incidents involving police.
I was part of the group at the press conference, which included Noa Mendelsohn Aviv, acting executive director of Canadian Civil Liberties Association, and Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, calling on the Attorney General to immediately implement recommendations made by Justice Michael Tulloch on police oversight to the province in March. Tulloch’s report recommends clarity around language related to notification of the SIU as well as the police duty to co-operate in SIU investigations. Three decades after the unit’s creation following the shooting deaths of a number of Black men by Toronto police, we’re somehow still debating the issue.
The attack on Miller, which Falconer has described as “gratuitous, brutal and unprovoked” – Miller will need to have an eye surgically removed – was reported to the SIU by Falconer four months after the fact. And only then after charges laid against Miller after the incident were withdrawn by the Crown.
Theriault has since been charged with one count each of aggravated assault, assault with a weapon, and public mischief for his part in the beating and then (allegedly) lying about what happened to Durham police when they were called by Miller (and reportedly two other witnesses) to the scene.
Toronto Police chief Mark Saunders has decided to bring in the Waterloo Regional Police Service to conduct a review of Toronto police’s handling of the incident – and why the SIU wasn’t called as per provincial protocol. The Toronto Police Services Board has chosen to hide behind Saunders’s review rather than demand a public accounting by the chief.
Board chair Andy Pringle has claimed the decision to call in Waterloo police was based on the fact there were different versions of why the incident was not reported to the SIU. But it’s doubtful senior officers who may have had a hand in this scandal will be disciplined.
Some 15 officers of the Durham Regional Police Service attended the scene. A Toronto police officer was also reportedly present. Durham police claim that they informed the Toronto Police Service that it was their responsibility to notify the SIU. Whatever. The matter remained under wraps and Theriault carried on as a police officer as if nothing had happened.
No information has been forthcoming, for example, as to whether Professional Standards asked any questions, interviewed Theriault, put him on suspension or re-assigned him to administrative duties, pending an investigation.
What is known about the incident bears close resemblance to an act of vigilantism like what happened to Trayvon Martin in Sandford, Florida, on February 26, 2012, and sparked protests across the U.S.
Martin, a Black teenager on holidays, was walking down the street in an affluent, gated community where he was visiting relatives. George Zimmerman, the area’s neighbourhood watch coordinator, became suspicious of this stranger and challenged him. He also called the local police.
But instead of waiting for police to arrive he tackled Martin and, in the struggle that followed, shot and killed the 17-year-old. Though Zimmerman was acquitted, the fact remains that a Black youth was in the wrong place at the wrong time. He paid with his life.
Miller was walking with friends in a neighbourhood in Ajax in December 2016 when he was confronted by Theriault and his brother at approximately 3 am.
Conflicting media reports suggest the Theriaults confronted Miller about change allegedly stolen from their father’s car. Theriault reportedly identified himself as a police officer more than once during the incident.
Did the Durham cops who eventually arrived on the scene conduct a full investigation of the incident? Or did they decide that Theriault had acted in accordance with the law that Stephen Harper enacted in 2012 after what happened to David Chen, the owner of Lucky Moose Food Mart in Toronto’s Chinatown?
In 2010, Chen had caught and tied up a man he suspected of repeat shoplifting and tossed him in a delivery van while waiting for the police. Following its investigation, Toronto police charged Chen with kidnapping.
This caused a national furor and resulted in the law that came into effect in June 2012, empowering private citizens to arrest a suspect – when caught within a reasonable time after an alleged crime.
It would be ironic if the Chen law was officer Theriault’s justification for his action.
While the Chen law allows people to take “reasonable” actions to protect themselves, their family and their property, it is up to a judge to decide if the individual’s action was reasonable in the circumstances.
Durham police charged Miller, suggesting they concluded that officer Theriault was justified in assaulting Miller.
This is strange. Chen was charged. So was Toronto restaurant owner Naveen Polapady, who went after someone with a broom handle in August 2011. Polapady accused the man of repeatedly trying to steal from his restaurant and claimed that he got no help from the police despite repeated reports.
Another issue: after Durham police informed Toronto police, which is not disputed or denied, what action did it take on officer Theriault’s treatment of Miller?
Saunders has strenuously denied that there was any cover-up. In which case, this was either gross incompetence or the fraternity of the blue line acting like the three proverbial monkeys who saw no evil, heard no evil and spoke no evil about a brother officer’s conduct.
The basic, undisputed fact established by the SIU investigation is that the Theriaults’ actions merit criminal charges.
Toronto police constable Michael Theriault.
Theriault was off-duty and, as a Toronto cop, out of his jurisdiction.
If Miller had, indeed, been suspected of theft, the right course would have been to call the police – just as the Toronto police told David Chen and Naveen Polapady. As a police officer, Michael Theriault would have known this well.
You would have expected that both police service boards – Durham and Toronto – would have taken a dim view of this.
That expectation would be in keeping with the report of a previous independent review on behalf of the police chief – the review of former Supreme Court Justice Frank Iacobucci into police interactions with people in crisis. In that report, Iacobucci spoke at length about the kind of people who should be working for the police service.
The police service claims it has implemented the Iacobucci report. Its kid-glove treatment of Theriault makes you doubt that.
No one has said how quickly Waterloo police’s review will be conducted or whether its scope will include not only the conduct of Theriault but also those who first heard about his actions and apparently did nothing about it.
The Police Services Act Regulation 267/10 states that a chief of police shall “cause an investigation to be conducted forthwith into any incident with respect to which the SIU has been notified.” And, further, that the chief “shall report his or her findings and any action taken or recommended to be taken to the board within 30 days after the SIU director advises the chief of police that he or she has reported the results of the SIU’s investigation to the Attorney General.”
It’s been almost two months since the SIU announced the laying of charges against Theriault on July 17.
It’s not hard to understand why many in the community lack confidence that anything will come from the injection of another force to conduct a review.
Alok Mukherjee served as chair of the Toronto Police Services Board from 2005 to 2015. He is a distinguished visiting professor at Ryerson University.
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