Officer guilty of neglect of duty during Theriault assault investigation in Whitby

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Published February 17, 2023 at 12:54 pm

The detective constable who investigated Toronto cop Michael Theriault’s assault on Dafonte Miller in Whitby has pled guilty to neglect of duty during his investigation into the 2016 attack that cost Miller his eye.

An Office of the Independent Police Review Director (OIPRD) investigation, led by Superintendent M.P.B. Elbers, found Det. Cst. Craig Willis had acted in “misconduct” and found his investigation into the case “lacked professionalism and credibility.”

Dafonte Miller, then 19, and brothers Michael and Christian Theriault got into a physical altercation outside the Theriault parents’ Whitby home on December 28, 2016. Michael was an off-duty Toronto Police officer at home for the holidays.

Miller testified the brothers began to harass him as he passed by their garage while the pair were smoking. The Theriault brothers both said they found Miller and a friend of his stealing change from the truck parked in the driveway.

The situation soon exploded and Miller ran from the Theriault brothers to a neighbouring yard, with Michael Theriault in pursuit. There, after a brief struggle, Theriault beat Miller with a metal rod inflicting major injuries, including broken jaw, a broken arm and a ruptured left eye

The case attracted a great deal of attention while underway in Oshawa, growing into a lightning rod for Black Lives Matter protests.

Michael and Christian Theriault were charged with aggravated assault and obstruction of justice. Ultimately, Christian was acquitted of all charges and Michael was convicted of the lesser charge of simple assault.

Following Theriault’s conviction independent investigations have uncovered issues with the investigation, particularly surrounding Willis’ investigation.

Willis was assigned carriage of the investigation following the arrests of the Theriaults when he started work as 6:30 a.m. After he started, Willis said he discussions about a witness with a fellow officer and decided not to interview the witness. However the OIRPD investigation by  found the other officer clocked out at 5:45 a.m. and thus this conversation could not have taken place.

Additionally, an third officer at the scene told Willis that the owner of the home where Miller was beaten may have used pipes to hold up plants along the side of the house. The origin of the pipe Theriault beat Miller with was paramount to the case. The defense argued at trial that Theriault brought the pipe with him from the garage while the defense argued it came from the yard and Miller had first used it in an attempt to defend himself.

Furthermore, Willis did not investigate the claim Miller was taking change from vehicles in the area. He neither checked for other such thefts in the area, nor interviewed John Theriault, the brothers’ father- himself a retired officer – about the contents of his truck. The OIPRD called this an “essential investigative step” Willis chose not to take.

“Willis never questioned the narrative provided by the Theriault brothers,” the OIPRD concluded. Willis also “failed to consider whether Mr. Miller might have wielded the pipe in self defence,” and “never appeared to consider whether the force that [the Theriaults used in defending themselves was proportionate.”

Willis also failed to re-interview Christian Theriault even though his first statement did not specify how Miller got hurt, failed to interview several neighbours who called 911, and never checked if Miller’s injuries matched the Theriaults explanation for them.

Finally, Willis did not submit the bloodied pipe for forensic analysis.

“The investigation conducted by Detective Constable Willis was really limited to an investigation of a theft from a vehicle,” the report read. “By failing to properly investigate the incident, Detective Constable Willis was neglectful and did not promptly and diligently perform a duty as a member of the police force,” it determined.

The report noted that Willis is a “well- respected investigator” within the Durham police ranks and stressed his investigative failure seem so out of character as to be “mind-boggling.”

Willis pled guilty to neglect of duty in the investigation and has been ordered to work 60 hours unpaid over the next six months. “This means [Willis] will attend [his] office on either rest days or annual leave days and work the prescribed hours until sixty hours have been accomplished,” the report stated.

Another issue raised by the OIPRD was regarding the Special Investigations Unit (SIU). Typically, after an interaction with police leaves someone injured, police services are required to reach out to the SIU to notify them. However, in the Theriault case, neither Durham Police or Toronto Police informed the SIU.

It was Miller’s lawyer, Julian Falconer, who eventually let them know what happened months after the fact. This prompted an independent investigation by Waterloo Police that found the the service and the inspector responsible had erred in not telling the SIU. However the inspector had retired by the time the review had completed.

Theriault was eventually sentenced to nine months in prison followed by a year of probation. After his conviction he was fired from Toronto Police. Theriault has attempted numerous appeals including to the Supreme Court, but all have been rejected.

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