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)

Man permanently disabled from excessive force arrest in Saanich files appeal

Judge ruled 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

My FED Farm, created by Food Eco District (FED), is aiming to help people affected by the COVID-19 grow food in their own back yard. The program is in collaboration with Sooke Region Food CHI, Transition Sooke and the Sooke Garden Club. (File - Black Press Media)
Sooke backyard food program returns

The Sooke Backyard Food Program is returning for a second year. Sooke… Continue reading

Father Marinaldo Batista, who served at Catholic parishes in Saanich and Sooke, died April 1 in Brazil from complications of COVID-19. (Facebook/St. Elizabeth Church)
Brazilian priest who served in Saanich and Sooke dies from COVID-19

Father Marinaldo Batista, 53, went to Brazil to visit his parents and died there April 1

Colwood resident Maria Curcic shows off a one-of-a-kind hat that she created. Curcic is one of several artists that took part in the annual Stinking Fish Studio Tour. (Contributed - Maria Curcic)
Curtain closes on Stinking Fish Studio Tour

The Stinking Fish Studio Tour will live on through the lasting legacy… Continue reading

Colwood restaurants can use city property for patios. (Black Press Media file photo)
Temporary patios back on for Colwood restaurants

Council voted to extend temporary permits to 2022

A photograph of the real firearm beside the replica firearm seized by VicPD in the early hours of April 18. (Courtesy VicPD)
Police seize loaded firearm, drugs during traffic stop in Victoria

Officers find cocaine, methamphetamine and fentanyl along with loaded handgun

In this image from NASA, NASA’s experimental Mars helicopter Ingenuity lands on the surface of Mars Monday, April 19, 2021. The little 4-pound helicopter rose from the dusty red surface into the thin Martian air Monday, achieving the first powered, controlled flight on another planet. (NASA via AP)
VIDEO: NASA’s Mars helicopter takes flight, 1st for another planet

The $85 million helicopter demo was considered high risk, yet high reward

Families of two of three workers killed in a train derailment near Field, B.C., in 2019 have filed lawsuits accusing Canadian Pacific of gross negligence. The derailment sent 99 grain cars and two locomotives off the tracks. THE CANADIAN PRESS/Jeff McIntosh
Families of workers killed in Field train derailment allege negligence in lawsuit

Lawsuits allege the workers weren’t provided a safe work environment

(New Westminster Police)
4 youth arrested after 30-person brawl in New Westminster leaves 1 seriously injured

Police are looking for witnesses who saw the incident take place

South Surrey’s Paul Cottrell, who works with the DFO, tows a grey whale out of Semiahmoo Bay Sunday. (Contributed photo)
Dead whale floating near White Rock towed to shore for necropsy

Animal has been dead since at least April 15

Wickaninnish (Clifford Atleo) plays the drum while singing the Nuu-chah-nulth song on the court steps in Vancouver In a picture from April 2018. Photo credit, Melody Charlie.
Five western Vancouver Island First Nations celebrate legal fishing victory

Court ruling confirms Nuu-chah-nulth fishing rights in case dating back to 2003

Sunday’s storm rocked one of the ferries crossing Kootenay Lake. Photo: Dirk Jonker
VIDEO: Storm makes for wild ferry ride across Kootenay Lake

The video was captured by ferry employee Dirk Jonker

Dr. Bonnie Henry gives her daily media briefing regarding Covid-19 for the province of British Columbia in Victoria, B.C, Monday, December 7, 2020. THE CANADIAN PRESS/Jonathan Hayward
Toddler marks youngest British Columbian to die related to COVID-19

Child one of eight people to die from virus this weekend

Chakalaka Bar & Grill remains open in defiance of orders from Island Health to close. (Cole Schisler photo)
Island Health seeks injunction against restaurant defying COVID-19 orders

VIHA says Ladysmith-area Chakalaka Bar and Grill also violating water and sewer regulations

Pharmacist Barbara Violo arranges all the empty vials of the Oxford-AstraZeneca COVID-19 vaccines that she has provided to customers at the Junction Chemist which is a independent pharmacy during the COVID-19 pandemic in Toronto, on Monday, April 19, 2021. THE CANADIAN PRESS/Nathan Denette
B.C. to open up AstraZeneca vaccines for all people 40+, set up clinics in hot spots

A total of 13 neighbourhoods and communities will receive the AstraZeneca vaccine

Most Read