B.C. judge dismisses man's claim for injuries sustained during arrest

A man seeking damages for injuries he sustained during an arrest on Vancouver Island more than eight years ago has been denied his claim in B.C. Supreme Court. 

The ruling from B.C. Supreme Court Justice Ian Meiklem said Don Lapshinoff, suffered a dislocated shoulder and serious tendon tears when he was arrested in May 2010 by four officers of the Saanich Police Department.

The arrest, the judge noted, left Lapshinoff, 55 at the time, with an irreparable rotator cuff tear that is "permanently disabling" and could require shoulder replacement surgery.

However, Lapshinoff's claim was ultimately dismissed because he did not comply with a B.C. law to provide written notice to the District of Saanich before filing his claim.

According to The Local Government Act, a municipality is not liable for damages unless written notice is delivered to the municipality within two months of the date the damage was sustained.

The court found Lapshinoff failed to do this, and had no reasonable excuse not to have done so.

Lapshinoff has the opportunity to appeal this court's finding to the B.C. Court of Appeal. 

'Loss of self control and anger'

According to the ruling, Lapshinoff was driving with his common-law wife from the Goldstream Marina in Victoria in a "dilapidated" Toyota 4-Runner.

He was showing his boat to a potential buyer and said he had "one drink" from a vodka beverage prepared by his common-law wife.

As he was driving, another motorist called 911, describing erratic driving.

Lapshinoff was pulled over in Saanich by two officers on motorcycle, Brent Wray and Erin Wagg, near the intersection of Oak Street and Roderick Street.

Wray ordered Lapshinoff out of the SUV. Meiklem, in his findings, said Lapshinoff was exiting the vehicle "perhaps somewhat reluctantly," but Wray pulled him out and Lapshinoff banged his shoulder on the door on the way out.

"In my view, this very forceful removal was completely unnecessary and is only explainable as Constable Wray acting out of a loss of self control and anger, rather than necessity," Meiklem wrote.

"[Wray] acknowledged that he did not consider any less violent means of dealing with the situation."

Wray, Meiklem found, then tripped Lapshinoff, sending him to the ground. Wray then called for backup.

One of the responding officers was Jason Whittaker, who testified that he kneed Lapshinoff three times in the shoulder or upper arm to render him compliant.

Charges stayed

Wray painted a different picture of the situation, testifying that Lapshinoff was yelling and screaming at him almost from the outset of the encounter.

Wray said that he only pulled Lapshinoff out of the vehicle when he would not get out on his own.

Meiklem did not accept that version of events and noted inconsistencies in Wray's evidence.

"It is clear that he was either blind to the fact that Mr. Lapshinoff was starting to comply with his demand to get out, or that he simply expected a faster response and was making that point with physical aggression," Meiklem wrote.

Lapshinoff was taken into custody and then released. He went to the emergency room at Royal Jubilee Hospital where he was treated for a dislocated shoulder. An ultrasound found a torn bicep muscle and two torn shoulder tendons. His recovery involved three months of physiotherapy.

Criminal charges against Lapshinoff stemming from the arrest were stayed by the Crown in 2012.