Lapshinoff’s failure to comply with a B.C. law to provide written notice within two months of the incident to the District of Saanich, led to his case being dismissed. (Black Press File Photo)

Court denies compensation to man with debilitating injuries from 2010 Saanich arrest

Judge found Saanich police used excessive force but dismissed case over not providing written notice

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.

ALSO READ: Saanich police board insists on provisional budget

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.

ALSO READ: Report shows Saanich police officer retroactively fired over corruption, deceit, relationship with sex worker

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.


 

keri.coles@blackpress.ca

Follow us on Instagram
Like us on Facebook and follow us on Twitter.

Saanich Police Department

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Cat owners are being warned to keep their pets indoors after a threatening note was found posted in a North Saanich neighbourhood. (Kendra Crighton/News Staff)
ROAM warns Peninsula cat owners after threatening note posted in neighbourhood

Note writer doesn’t want cats pooping in their yard, threatens to trap them

West Shore RCMP are investigating a crash on Sooke Road. (Photo courtesy of Rebecca Wilde)
Langford emergency crews on scene at Sooke Road crash

Almost 3,000 BC Hydro customers without power

Coun. Tara Ney rakes leaves behind Oak Bay municipal hall. Ney’s motion asking staff to do a report on alternative options to the ongoing use of gas-powered leaf blowers in Oak Bay. (Travis Paterson/News Staff)
Oak Bay a step closer to banning gas leaf blowers

Council leans toward a study on alternatives

Provincial health officer Dr. Bonnie Henry arrives for briefing on the COVID-19 situation, B.C. legislature, Oct. 26, 2020 (B.C. government)
B.C. records 217 more COVID-19 cases, mask use urged

Infection spike continues, 21 senior facilities affected

Police service dog Herc helped RCMP locate and arrest suspects in the Ladysmith area on Oct. 23, 2020, related to a stolen vehicle. (Submitted)
RCMP nab prolific property offender in Ladysmith with assist from police dog Herc

Police attempted to stop the vehicle but it fled from the area towards Chemainus.

President Donald Trump speaks at a campaign rally in Allentown, Pa. on Oct. 26. (AP Photo/Alex Brandon)
POLL: How closely are you following the U.S. presidential election?

It may feel like it’s been going on forever but the U.S.… Continue reading

Health care employees take extensive precautions when working with people infected or suspected of having COVID-19. THE CANADIAN PRESS/Chris Young
WorkSafeBC disallows majority of COVID-19 job injury claims

Health care, social services employees filing the most claims

Conservative leader Erin O’Toole rises during Question Period in the House of Commons in Ottawa on Wednesday October 28, 2020. (Adrian Wyld/The Canadian Press)
Conversion therapy ban gets approval in principle, exposes Conservative divisions

Erin O’Toole himself voted in favour of the bill, as did most Conservative MPs

CBSA. (Black Press Media File)
4 sentenced in B.C. steroid smuggling, distribution ring that spilled into U.S.

Canadian Border Services Agency announced the results of a lengthy investigation it called ‘Project Trajectory’

Search and Rescue Technicians carry a stretcher to the CH149 Cormorant during a 442 Squadron Search and Rescue Exercise in Tofino on February 28. (Photo by: Cpl Joey Beaudin, 19 Wing Imaging, Comox)
Father and son found dead after weeklong search near Pemberton

The father and son had set out for a day of mushroom picking last Thursday

A full moon rises over Mt. Cheam on Saturday, Feb. 8, 2020. (Jenna Hauck/ The Progress)
Rare full moon, Daylight Saving makes for a uniquely spooky Halloween – despite COVID-19

We can’t host costume parties but this weekend is still one for the history books

A woman wears a face mask and plastic gloves while browsing books as a sticker on the floor indicates a one-way direction of travel between shelves of books at the Vancouver Public Library’s central branch, after it and four other branches reopened with limited services, in Vancouver, on Tuesday, July 14, 2020. (THE CANADIAN PRESS/Darryl Dyck)
B.C. reports 234 new COVID cases, 1 death of senior who had attended small birthday party

Roughly 5,700 people are isolating due to being exposed to a confirmed case

Most Read