A B.C. man with debilitating injuries sustained during an arrest in Saanich in 2010 missed the opportunity for compensation due to a technicality, a B.C. Supreme Court judge ruled.
After being pulled over on suspicion of impaired driving on May 15, 2010, an altercation with police ensued, leaving 55-year-old Don Lapshinoff with a dislocated shoulder, torn bicep muscle and two torn tendons in his shoulder.
Though Supreme Court Justice Ian Meiklem found Saanich Police used excessive force in the arrest, he dismissed the case Dec. 27 citing Lapshinoff’s failure to comply with a B.C. law to provide written notice to the municipality within two months of the incident stating the time, place and manner in which the damage was sustained.
On the evening of May 15, 2010, Lapshinoff, an electronics technologist, had just finished showing his boat to a prospective buyer at the Goldstream Marina and was driving back into Victoria with his common-law spouse around 9:15 p.m., court documents show.
A motorist called 911 to report that he had seen Lapshinoff driving erratically on the Malahat, and two Saanich motorcycle officers, Const. Brent Wray and Const. Erin Wagg, responded to the call.
As Lapshinoff neared the city he heard police sirens and turned onto Oak Street, stopping in a gravel parking lot between Oak and Roderick. According to his testimony, he thought the police were stopping him because of the dilapidated condition of his older model SUV.
Const. Wray testified that he drove up beside the SUV, travelling at about 5 km/h, reached out with his right leg and kicked the floorboard of the vehicle. The vehicle immediately came to a stop.
When Wray got off his bike and approached the vehicle, Lapshinoff asked why the officer had hit his vehicle and asked to see his police ID. Wray did not show his ID, according to court documents, and instead asked Lapshinoff to get out of the vehicle. He repeated the demand more emphatically with a profanity.
While Wray testified that Lapshinoff was “raving” and that he observed a strong odour of liquor emanating from the vehicle, Wagg, who keeps detailed and comprehensive notes, did not note any specific observations of impairment.
As Lapshinoff “reluctantly” started to respond, Wray grabbed Lapshinoff and “yanked quickly and as hard as he could” to pull him from the vehicle.
The judge found Wray’s actions “completely unnecessary” and “only explainable as Constable Wray acting out of a loss of self control and anger, rather than necessity.” Wray acknowledged that he was “engaged” and “heightened” and did not consider any less violent means of dealing with the situation.
Holding Lapshinoff with one arm, Wray made a radio call for a supervisor to attend. He testified that he then made a decision to take Lapshinoff to the ground with a leg sweep trip, and did so, falling to the ground with him.
Judge Meiklem stated that there was “a foreseeable and unnecessary risk of injury with a six-foot-three inch, 240-pound officer taking a person to the ground with a leg sweep trip while holding his upper body and falling with him.”
Wray made a second radio call known as a 10-33, which is an urgent call for assistance.
In Wray’s testimony, he agreed that Lapshinoff did not attempt to hit him and that Lapshinoff was not overtly resisting, but “sort of tussling.”
According to Wagg’s testimony, once Lapshinoff was on the ground, the two officers positioned him so that his arms were “turtled” and the two officers “were on top basically holding him down. There was no wrestling movement.”
Lapshinoff said he did not resist in any way while he was on the ground on his stomach and he remembered having no strength in his right arm. He was unsure whether that was because of injury or the weight of one of the officers on his back.
Within a very short timeframe, Constables Jason Whittaker and Matt Cawsey arrived on the scene.
Whittaker saw Lapshinoff on the ground on his stomach with the two officers “on top of him.” He was unsuccessful in trying to pull Lapshinoff’s right arm out from under him, so he delivered three knee strikes as hard as he could in rapid succession to Lapshinoff’s right shoulder and upper arm intended to cause what he described as a “Charlie horse” to cause pain and effect control.
After the arm was released, Whittaker described putting both knees on Lapshinoff’s shoulder, so that Lapshinoff was bearing his weight and was unable to resist the movement of his arm for handcuffing. He testified that Lapshinoff had been unresponsive to his demands to release his arms.
Whittaker did not observe any odour of alcohol from Lapshinoff or any other signs of intoxication. The ruling called the observation of an odour of alcohol evidence by Wray “suspect.”
Meiklem found that Whittaker’s use of force was justified. Though Whittaker acknowledged that he gave no thought to the safety of Lapshinoff, the urgent call for help and the circumstances he observed upon his arrival, had Meiklem deem that his actions were in accordance with accepted procedure.
Lapshinoff testified that he was taken to the police station and when the handcuffs were removed, his right arm flopped down. He had to pick his right arm up with his left to comply with an officer’s request to put his hands on his head.
After he was released, Lapshinoff went to the emergency department at Royal Jubilee Hospital at approximately 1:30 a.m. on May 16 and had his dislocated shoulder relocated. Later that day, he returned to the hospital regarding tingling and numbness. Ultrasound and X-ray imaging was ordered. An ultrasound on June 9 revealed a torn bicep muscle and two torn tendons in his shoulder.
He has undergone two surgeries to his shoulder, but is left with “an irreparable rotator cuff tear that is permanently disabling.” He has been told that he may eventually require shoulder replacement.
The Local Government Act states that “a municipality is not liable for damages unless written notice setting out the time, place and manner in which damage has been sustained is delivered to the municipality within two months from the date on which the damage was sustained.”
No written notice was filed to Saanich prior to May 2012, leading Meiklem to dismiss the case.
Lapshinoff can appeal the court’s finding.
Saanich Police Department and the District of Saanich chose to refrain from commenting due to the potential for an appeal.
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