Durham Officers Found Guilty of Substandard Investigation into Dafonte Miller Injuries

On June 26, 2023, a Disciplinary Hearing under the Police Services Act (“PSA”) found 3 Durham Regional Police Service officers—Constable Andrew Chmelowsky, Constable Justine Gendron, and Constable Barbara Zabdyr—guilty of discreditable conduct for conducting a substandard investigation into the catastrophic injuries that Dafonte Miller (“Mr. Miller”) sustained during a brutal assault by convicted former Toronto Police Officer, Michael Theriault. The presiding officer, Superintendent (Ret.) Greg Walton, also found Cst. Gendron guilty of Neglect of Duty.

Superintendent Walton determined that all 3 officers demonstrated pro-police bias by accepting and not questioning the evidence of Michael Theriault and his brother, Christian Theriault, by failing to sufficiently investigate how Mr. Miller sustained his injuries, and by refusing to accept that Mr. Miller was the victim of a crime. In arriving at his decision, Superintendent Walton emphasized the responsibility of responding officers to be unbiased in situations involving the use of force by police against civilians:

“Police officers are highly trained in the field of use of force, they are keenly aware that any level of use of force must be justified when police officers arrest or detain a civilian. It is not simply inexcusable behaviour that in this instance, Constable Gendron, Constable Zabdyr, and Constable Chmelowsky completely ignored this responsibility; it rises to the level of misconduct if it was due to a pro-police bias.

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. 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.”

Additionally, Cst. Gendron was found to be neglectful by not promptly and diligently performing her duty to properly record or document evidence from witnesses – evidence that would have ultimately substantiated Mr. Miller’s account of his assault. Superintendent Walton found this “wilful [sic], neglectful action and inaction … cross[ed] the line from a mere performance consideration to that of misconduct.”
Falconers LLP has the honour of representing the public complainant, Mr. Miller and his family, in this matter. Lead Counsel Asha James, alongside co-counsel Mitch Goldenberg advocated that inexcusable conduct has consequences and held the three officers to account.

Related Documents
Decision of Superintendent (Retired) Greg Walton dated June 26, 2023

Decision of Superintendent (Retired) M.P.B. Elbers dated January 30, 2023

Notice of Hearing – Detective Constable Craig Willis dated July 1, 2021

R v Theriault, 2020 ONSC 3317

R v Theriault, 2021 ONCA 517

Media Coverage: 

Joshua Freeman, CP 23 (June 28, 2023) – “’Pro-police bias:’ Durham officers found guilty of professional misconduct in Dafonte Miller case”

Stephen Davis, CBC (June 27, 2023) – “Durham officers guilty of ‘pro-police bias’ in Dafonte Miller case: tribunal” 

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