Photo taken of Lapshinoff’s injuries seven days after the excessive force arrest by Const. Brent Wray of Saanich Police. (Submitted)

Photo taken of Lapshinoff’s injuries seven days after the excessive force arrest by Const. Brent Wray of Saanich Police. (Submitted)

B.C. man permanently disabled from excessive force arrest files appeal

Lower court ruled Victoria’s Don Lapshinoff missed window for compensation

A B.C. man with debilitating injuries sustained during an arrest in Saanich in 2010 is appealing a court ruling that denied him $120,000 in compensation over a failure to comply with a notice requirement.

Supreme Court Justice Ian Meiklem found Saanich Police used excessive force in the arrest of Don Lapshinoff, resulting in a dislocated shoulder and permanent injury to his arm and shoulder. However, the judge dismissed the action in his Dec. 27 ruling over Lapshinoff’s failure to comply with a B.C. law to provide written notice to the municipality within two months of the incident.

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.”

Meiklem acknowledged that Lapshinoff was unaware of the notice requirement and that Lapshinoff stated his desire to sue Saanich to two lawyers during the two-month notice period, but that neither lawyer advised him of the notice requirement and neither lawyer provided notice on his behalf.

Meiklem ruled that ignorance of the statutory requirement is not a reasonable excuse, thereby dismissing the action and, as a result, compensation.

He did note that this is one of the cases described in the Law Reform Commission’s 1990 Report on Notice Requirements in Proceedings Against Municipal Bodies, where it was stated: “In many cases a failure to give notice of the claim does not prejudice the municipality and the only function of the requirement is to provide a ‘technicality’ behind which the municipality and its insurer can hide to defeat otherwise worthy claims.”

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

“Section 89 of the amended Police Act made it a responsibility of the Chief Constable of the Municipal Department to immediately report to our office if there is a death, a serious harm or a reportable injury,” said Deputy Police Complaint Commissioner Rollie Woods.

Police footage from the holding room, where Lapshinoff was held after his arrest, shows him expressing concern about his shoulder multiple times to multiple officers, receiving cold packs on a couple of occasions. But Meiklem noted in his ruling there was no evidence of any documentation by the police of the injuries sustained during his arrest.

The Saanich Police didn’t notify the Office of the Police Complaint Commissioner until Lapshinoff launched his suit in 2012.

When asked why an investigation wasn’t launched in 2012 when they became aware of the case, the OPCC said it was because it did not receive a complaint from Lapshinoff.

The Police Act states the OPCC has the independent power to order an investigation, whether a complaint is made or not.

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

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.

After being pulled over on suspicion of impaired driving by Const. Brent Wray of Saanich Police, an altercation ensued, leaving Lapshinoff, 55 at the time, with a dislocated shoulder, torn bicep muscle and two torn tendons in his shoulder.

The judge found Const. Wray’s actions “completely unnecessary” and “only explainable as Constable Wray acting out of a loss of self-control and anger, rather than necessity.”

Lapshinoff testified, and video footage from the station holding room corroborates, that 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. Over the span of two and a half hours, the video shows Lapshinoff discussing his shoulder with officers. He testified that he requested paramedic attention.

Saanich police attempted to get breath samples from Lapshinoff while he was at the station. In his testimony, Lapshinoff said his chest pain was too severe to permit him to provide the breath sample demanded of him.

Lapshinoff was charged with refusing to provide a breath sample, a charge the Crown would stay on March 27, 2012.

After he was released, hospital records show 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. 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.

A Notice of Appeal has just been filed by Lapshinoff’s lawyer.

Saanich Police Department and the District of Saanich declined to comment due to the upcoming appeal.


 

keri.coles@blackpress.ca

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

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

 

Photo taken of Lapshinoff’s injuries seven days after the excessive force arrest by Const. Brent Wray of Saanich Police. (Submitted)

Photo taken of Lapshinoff’s injuries seven days after the excessive force arrest by Const. Brent Wray of Saanich Police. (Submitted)

Just Posted

The Delta Police Department’s Equity, Diversity and Inclusion Unit: (from left) Const. Joel Thirsk, analyst Jody Johnson and Staff Sgt. Sukh Sidhu. (Delta Police Department photo)
Delta police respond to rising number of hate crimes

Police have received 15 reports so far in 2021, compared to 12 in all of 2020

Marchers supporting Indian farmers rallied in Surrey last month, from Bear Creek Park to Holland Park along King George Boulevard. (File photo: Tom Zillich)
Surrey MP says mayor’s motion to support Indian farmers is his to make

“He has his own sovereignty, right,” Sukh Dhaliwal says

Researchers say residents should leave sleeping bats alone while they exit hibernation. (Cathy Koot photo)
Spring ‘signal’ brings White Rock, Surrey bats out of hibernation

Community Bat Programs of BC says it’s best to leave sleeping bats alone

(Photo: Creative Outlet)
YOUR MONEY: Tax tips for a complicated tax season involving CERB and more

With April 30 tax deadline, ‘it is important to understand the tax implications (benefits) will have’

This map illustrates the number of active COVID-19 cases in Greater Vancouver from April 4 to 10, 2021. (BC Centre for Disease Control image)
Active COVID-19 case in Delta hit new high

262 cases for the week of April 4 to 10, most since BC CDC began releasing weekly city-level data

A woman wears a protective face covering to help prevent the spread of COVID-19 as she walks past the emergency entrance of Vancouver General Hospital in Vancouver, B.C., Friday, April 9, 2021. COVID-19 cases have been on a steady increase in the province of British Columbia over the past week. THE CANADIAN PRESS/Jonathan Hayward
Top doctor warns B.C.’s daily cases could reach 3,000 as COVID hospitalizations surge

There are more than 400 people in hospital, with 125 of them in ICU

The father of Aaliyah Rosa planted a tree and laid a plaque in her memory in 2018. (Langley Advance Times files)
Final witness will extend Langley child murder trial into May or June

Lengthy trial began last autumn with COVID and other factors forcing it to take longer than expected

The corner of 96th Avenue and Glover Road in Fort Langley now has traffic signals, and new “touchless” signal activation buttons. (Matthew Claxton/Langley Advance Times)
Busy Fort Langley intersection gets ‘touchless’ crosswalk signals

The new traffic light started operation in April

A crossing guard stops traffic as students wearing face masks to curb the spread of COVID-19 arrive at Ecole Woodward Hill Elementary School, in Surrey, B.C., on Tuesday, February 23, 2021. A number of schools in the Fraser Health region, including Woodward Hill, have reported cases of the B.1.7.7 COVID-19 variant first detected in the U.K. THE CANADIAN PRESS/Darryl Dyck
COVID-infected students in Lower Mainland schools transmitting to 1 to 2 others: data

Eight to 13 per cent of COVID cases among students in the Lower Mainland were acquired in schools, B.C. says

Dr. Bonnie Henry – in a B.C. health order that went into effect April 12 – granted WorkSafe inspectors the power to enforce workplace closures with COVID-19 spread. THE CANADIAN PRESS/Jonathan Hayward
24 workplace closures being enforced in Fraser Health under new COVID-19 order

WorkSafe inspectors the power to enforce closures if COVID-19 has spread to 3 or more employees

Maple Ridge Fire and Rescue were conducting training operations at Gold Creek Falls when a firefighter broke their leg. (Eileen Robinson photo - Special to The News)
Firefighter suffers broken leg during swift water rescue practice in Golden Ears park

A training exercise at Maple Ridge waterfall on Wedesday results in mishap

Norm Scott, president of Royal Canadian Legion Branch # 91, is disappointed the Legion does not qualify for COVID financial assistance from the provincial government. (Black Press Media file photo)
B.C.’s pandemic aid package passing Legion branches by

Federal non-profit status stymies provincial assistance eligibility

Latest modelling by public health shows cases generated by COVID-19 infections into places where it can spread quickly. (B.C. Centre for Disease Control)
Industrial sites, pubs, restaurants driving COVID-19 spread in B.C.

Infection risk higher in offices, retail, warehouses, farms

Most Read