A B.C. man will be compensated for debilitating injuries he sustained during an arrest in Saanich in 2010 after a B.C. Supreme Court judge ruled that police used excessive force.
In his ruling Thursday, Supreme Court Justice Ian Meiklem awarded Don Lapshinoff $120,000 in damages for a dislocated shoulder, torn bicep muscle and two torn tendons in his shoulder that occurred during an altercation with police after he was pulled over on suspicion of impaired driving.
The 55-year-old 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 at about 9:15 p.m. on the evening of May 15, 2010, 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 that the police were stopping him because of the dilapidated condition of his older model SUV.
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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.
As Lapshinoff “reluctantly” started to respond, Wray grabbed Lapshinoff and “yanked quickly and as hard as he could” to pull him from the vehicle.
Meiklem 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.
Meiklem ruled that there was “a foreseeable and unnecessary risk of injury with a 6 foot 3 inches, 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.
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, he 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.
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 rule 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.
In Meiklem’s ruling, he deemed the arrest lawful, even if unnecessary, but found the use of force employed by Constable Wray to be unjustified and, therefore Wray’s actions constitute assault.
Lapshinoff is awarded general damages in the sum of $120,000 against the District of Saanich.
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