A new trial has been ordered in the case of a B.C. man who suffered debilitating injuries during a 2010 arrest in Saanich after the Court of Appeals could not determine whether the arresting officer had been engaging in “wilful misconduct” or “gross negligence.”
After being pulled over on suspicion of impaired driving on May 15, 2010, an altercation with police ensued, leaving Don Lapshinoff, 56, 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 on Dec. 27, 2018, 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.
Lapshinoff appealed the dismissal of the claim, asserting that under the Police Act, Const. Brent Wray was not acting in accordance with his duties and was guilty of wilful misconduct, despite not arguing that in the first trial.
Wray argued that because a judge found him not guilty of gross negligence, it implies he was also found not guilty of wilful misconduct.
On the evening of May 15, 2010, a motorist called 911 to report someone driving erratically on the Malahat, and two Saanich motorcycle officers responded to the call, one of which was Wray.
Wray testified that he drove up beside the vehicle, traveling 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.
As Lapshinoff “reluctantly” started to respond, Wray grabbed Lapshinoff and “yanked quickly and as hard as he could” from the vehicle.
During trial, the judge found Wray’s actions “completely unnecessary” and “only explainable as Wray acting out of a loss of self control and anger, rather than necessity.”
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.
Meiklem stated that there was “a foreseeable and unnecessary risk of injury with a six-foot-three, 240-pound officer taking a person to the ground with a leg sweep trip while holding his upper body and falling with him.”
The meanings of “gross negligence” and “wilful misconduct” represent a marked departure from expected standards of conduct, but differ in their focus states Court of Appeals Justice Harvey Groberman.
“Gross negligence is a species of negligence: the focus is on a failure to take due care and on the magnitude of the risk resulting from that failure. Wilful misconduct, on the other hand, focusses on deliberate flouting of norms, or indifference to following those norms in the face of a duty to do so,” stated Groberman.
In order to determine whether Wray was engaged in wilful conduct would require determining his state of mind, which would need a “nuanced assessment of the evidence and an evaluation of the credibility and reliability of the witnesses,” and a new trial was ordered.