Judges reject OPP decision on officer misconduct

An Ontario panel of judges has rejected an Ontario Provincial Police decision that found an officer’s misconduct behind the wheel that resulted in the death of a pedestrian in 2020 was not serious. They said the force must reconsider its decision and at least explain it to the man’s grieving widow.

The decision could set a new standard for transparency in police abuse cases in Ontario, after a CTV News investigation found the OPP wrote multiple letters with identical paragraphs that did not explain to complainants why the abuse was deemed to be “not serious.”

In this case, Courtney D’Arthenay, who was seeking answers about the death of her husband Tyler Dorzyk, was given a boilerplate letter. Instead, the OPP should have provided reasons, the panel wrote.

“A complainant has a legitimate expectation of being given a statement of reasons why his conduct was not ‘of a serious nature’ when it resulted in the death of a civilian,” wrote the panel, which included Justices Fitzpatrick, O’Brien and Cullin.

“It will not be obvious to many members of the public why police misconduct resulting in death is not considered serious. At the very least, there is a reasonable expectation that it will be explained,” the panel wrote.

D’Arthenay said in an interview that she believed her husband would be proud.

“He would be happy that he has that legacy and that it will help people going through this,” she said. “We both believe in standing up for what’s right.”

D’Arthenay’s lawyer, Justin Safayeni, said the court’s message was that transparency and accountability in police discipline are important principles that must be respected.

“I hope that if the decision is taken seriously, it will mean that there will be no more cases like Courtney’s. No more cookie-cutter decisions that don’t explain why the forces made the decision they did,” Safayeni said.

Dorzyk died just after midnight on September 28, 2020, as he and a friend were crossing Highway 12 at Jones Road in Midland, Ont. He was driving into town for work and crossed into the dark against a light in the rain.

The investigation revealed that Const. Jaimee McBain was driving an unmarked SUV, returning from the scene to get coffee for another officer. She told investigators she did not see Dorzyk. She turned the vehicle around and tried to revive him.

McBain was not charged, although the Police Watchdog found she had committed a misdemeanour by driving between 72km/h and 97km/h over the speed limit, even though the speed limit had dropped from 80km/h to 60km/h before the junction where the crash happened.

Because the supervisory body did not specify whether the misconduct was serious, that decision could have been made by the OPP, which deprived D’Arthenay of the opportunity to participate in the hearing and narrowed the scope of the officer’s punishment.

However, the judges rejected D’Arthenay’s request to make a decision on his own merits, finding that the offence was of a serious nature.

“The record provides material to support both conclusions regarding the seriousness of the offence,” the judges wrote, finding reasonable grounds that McBain had driven dangerously but also that her offence was “close to the limit”.

James Girvin, who represented McBain at the hearing, said in an email that he was disappointed and believed the court did not follow precedent.

“In doing so, the court created procedural obligations for Commissioners/Chiefs that went beyond the intent of the legislature when it created the Police Services Act. I will discuss the decision with PC McBain and the OPP regarding the possibility of seeking review of the court’s decision,” Girvin wrote.

CTV News reached out to the OPP for comment on what steps it will take in light of the ruling.