Judges quash OPP’s decision that officer misconduct in fatal crash was 'not serious'

A panel of Ontario judges has thrown out a decision by the Ontario Provincial Police that an officer’s misconduct behind the wheel that killed a pedestrian in 2020 was not serious, saying the force must reconsider, and at least explain its decision to his grieving widow.

The decision could introduce new standards of transparency in cases of Ontario police misconduct, after a CTV News investigation found the OPP had written multiple letters with identical paragraphs that did not explain to complainants why it had found misconduct “not serious.”

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

“A complainant has a legitimate expectation of receiving reasons justifying why conduct is not “of a serious nature” when the officer’s conduct caused a civilian death,” wrote the panel, which consisted of Justices Fitzpatrick, O’Brien, and Cullin.

“It will not be readily apparently to many members of the public how police misconduct causing death is not considered serious. At a minimum, there is a legitimate expectation in having this explained,” the panel wrote.

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

“He’d be pleased that he has this legacy and 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 is that transparency and accountability in police disciplines are important principles that must be respected.

“Hopefully if the decision is taken seriously it means there won’t be another case like Courtney’s. No more boilerplate decisions that don’t explain why the force reaches the decision it did,” Safayeni said.

Dorzyk died just after midnight on September 28, 2020, when he and a friend were walking across Highway 12 at Jones Road in Midland, Ontario. He was travelling to the city for work and crossed against the light in the rain in the dark.

An investigation found Const. Jaimee McBain was driving an unmarked SUV, returning from getting coffee for another officer at a crime scene. She told investigations she didn’t see Dorzyk. She turned the vehicle around and tried to revive him.

McBain wasn’t charged criminally, though a police watchdog found she committed discreditable conduct, speeding between 72 and 97 km per hour even though the speed limit had dropped from 80 km per hour to 60 km per hour in the run-up to the intersection where the crash occurred.

Because the watchdog didn’t specify whether the misconduct was serious, that allowed the OPP to make the decision, which denied D'Arthenay the ability to attend a hearing and narrowed the scope of punishment for the officer.

But the judges rejected a call from D’Arthenay to make a decision from the bench that the misconduct was serious.

“The record provides material that could be used to support either conclusion about seriousness,” the judges wrote, pointing to reasonable grounds that McBain operated he vehicle dangerously, but also that her transgression was “close to the line”.

James Girvin, who represented McBain in the hearing, wrote in an email he is disappointed and didn’t believe that the court followed precedent.

“In doing so the court has created procedural obligations for the Commissioner/Chiefs that is outside of the legislature’s intent when they crafted the Police Services Act. I will be discussing the decision with PC McBain and the OPP regarding consideration of seeking a review of the court’s decision,” Girvin wrote.

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