Court rejects OPP finding of no ‘serious’ officer misconduct after pedestrian killed

An Ontario Provincial Police finding that there was no “serious” officer misconduct after a police car struck and killed a pedestrian has been rejected in court. 

The Ontario Superior Court of Justice ruled this week that the decision was “unreasonable” and the OPP failed to justify why it did not consider the conduct serious. 

A police vehicle struck and killed Tyler Dorzyk late at night in September 2020 near Midland, Ont., and his spouse filed a complaint with the Office of the Independent Police Review Director over the conduct of the driver and another officer who attended the scene.

The review body determined that both engaged in discreditable conduct. It concluded that Const. Jaimee McBain, who was on a coffee run, did not operate her vehicle safely, and that the attending officer made insensitive comments that lacked impartiality. 

Those findings required the OPP commissioner to hold a hearing to determine possible disciplinary action, or resolve the issue informally if it deemed that the misconduct was “not of a serious nature.” 

The OPP decided against a hearing and Courtney D’Arthenay, the spouse of the man who was killed, filed an application for judicial review over the decision.

The Superior Court ruling notes that in a letter communicating that decision, the OPP issued a single paragraph explaining why the misconduct of both officers was not serious. 

That paragraph provided what the court called “a list of generic factors to be considered in determinations of seriousness,” without stipulating which factors were considered important.

“It will not be readily apparent 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,” Justice Shaun O’Brien wrote in the decision published Monday. 

O’Brien also found that the OPP didn’t properly seek the consent of D’Arthenay in an alternative resolution to the complaint, as required by law. He wrote that she only learned via the court process that the OPP was requiring both officers to receive non-disciplinary counselling. 

The police force has been ordered to issue fresh decisions regarding both officers, and D’Arthenay was awarded costs.

The OPP did not immediately provide comment on the case.

The Canadian Civil Liberties Association, which intervened in the judicial review, wrote in a statement Tuesday that the court ruling is a step forward for meaningful police accountability. 

“Every person has a right to know and understand how a police complaint is treated,” Shakir Rahim, director of the association’s criminal justice program, wrote in a statement. 

“Where the police cause a civilian death, it is the bare minimum for the public to understand the reasons for not pursuing disciplinary action.”

Justin Safayeni, a lawyer for D’Arthenay, said the decision is an “important affirmation” that police decisions need to be transparent and justified. 

“It can’t just be boilerplate letters without any real explanation,” he said in an email. 

He added that even in cases where police are resolving complaints informally, the court decision shows complainants “still have an important role to play” in being consulted.

He said he hopes the OPP will take advantage of the opportunity to redo its decision-making process to “reach the right result.”