A forcible arrest has led to a six-figure award for an electronics technologist in B.C. Supreme Court.
Don Lapshinoff filed a lawsuit against the District of Saanich and four of its police officers—Brent Wray, Erin Wagg, Jason Whittaker, and Matt Cawsey—in connection with an incident on May 25, 2010.
According to a recent decision by Justice Ian Meiklem, Lapshinoff, then 55 years old, was suspected of impaired driving.
In the course of being arrested, Lapshinoff's shoulder and arm were injured. He has since twice undergone surgery and has an "irreparable rotator cuff tear", which may eventually require shoulder replacement.
Meiklem ruled that the arrest—which included Lapshinoff being thrown to the ground and kneed three times—was lawful.
However, the judge also concluded that it involved "excessive force". Moreover, he stated that this was "completely unnecessary and is only explainable as Constable Wray acting out of a loss of self control and anger, rather than necessity".
That led to a $120,000 award for the motorist.
According to the ruling, an "antagonistic atmosphere" was created when Wray's motorcycle struck Lapshinoff's SUV prior to the arrest.
Wray kicked his vehicle and then ordered him to get out. Wray also testified that Lapshinoff refused.
Lapshinoff, on the other hand, claimed that he was complying with the officer's order but also repeated requests for the officer's identification.
Wray, who was 6'3" and 240 pounds at the time, yanked the driver out of the vehicle and threw him to the ground.
"The fact that Constable Wray was able to pull the 200-pound Mr. Lapshinoff out of the truck in one pull, even though he said that he did so as hard as he was able, is consistent with Mr. Lapshinoff being turned and beginning to get out on his own," Meiklem wrote. "If both his feet were still in the vehicle and he was facing forward when he was yanked out, it is difficult to see how he could have emerged even partially on his feet."
The judge concluded that Wray did not follow police procedure, which emphasizes using communication before escalating to physical means.
"Not only did Constable Wray forego reasonable efforts to communicate, he was so antagonistic and engaged in enforcing his commands that he resorted to the use of force notwithstanding that Mr. Lapshinoff had started to comply with his demand to get out of his truck," Meicklem wrote.
Knee strikes administered "exuberantly"
According to the ruling, Whittaker's knee strikes should be seen as a separate action and were not offside with police procedure.
"He was certainly exuberant in administering three knee strikes as hard as he could in quick succession, and acknowledged that he gave no thought to the safety of Mr. Lapshinoff, but considering the urgent call for help and the circumstances he observed upon his arrival, I find that his use of force was justified," Meicklem declared in his ruling.
The decision noted that Lapshinoff's common-law spouse, Susan Aitken, got out of the vehicle and asked officers to stop, tellling them that "he's a grandfather".
"She was terrified," Meicklem wrote. "She was ordered to get back in the truck by both the male officer and female officer and complied. She could not understand why the officer was so angry, starting, it seemed, when they mentioned someone hitting the truck."
Aitken testified that she had no more than two alcoholic drinks that night and that she didn't see Lapshinoff drink or mix anything.
Wray, on the other hand, testified that he could smell "a stgrong odour of liquor" and that Lapshinoff, with a "droopy, glassy eye look", was "yelling, screaming, ranting, and raving" after being pulled over.
Lapshinoff received an administrative driving prohibition and was charged with impaired driving, refusing to provide a breath sample, and obstructing a police officer.
Legal issues arose over filing dates
The lawsuit wasn't submitted in court until May 25, 2012, which was within the two-year period allowed under the Limitation Act.
But Saanich argued that under section 286 of the Local Government Act, a municipality is not liable for damages unless written notice is delivered within two months of an alleged wrongdoing.
The only exceptions are if there was a "reasonable excuse" or if "the defendant has not been prejudiced in its defence by the failure or insufficiency".
Lapshinoff subsequently amended his notice of civil claim, alleging that there was "wilful misconduct" that amounted to "gross negligence". This, he argued, violated his charter rights.
The defendants responded that these new claims were inadmissible under the Limitation Act.
In the end, the plaintiff did not follow through by arguing wilful misconduct but tried to demonstrate gross negligence.
Meiklem stated he was satisfied that Lapshinoff was unaware of the requirement to give notice to the municipality within two months of his intention to file a legal claim.
The judge added that it "might be reasonable" to infer that his former lawyer—who was later replaced—was also ignorant of this requirement.
"The case is essentially a case of ignorance of the statutory requirement standing alone as the operative excuse," Meiklem wrote. "Taking into consideration all the evidence that bears on the matter, I am unable to come to the belief or opinion that it is reasonable to excuse the plaintiff from the failure to comply with the notice requirement of s. 286(1)."
As a result, Meiklem dismissed claims of vicarious liability against the municipality in connection with the actions of the defendant police officers
The judge also didn't award any punitive damages.
"I have found the use of force employed by Constable Wray to be unjustified and, therefore his actions constitute the tort of assault," Meicklem wrote. "As liability flows to the municipal defendant from that finding, it is unnecessary to decide the question of whether the applicable standard of care was breached so as to also constitute the tort of negligence.
"This is not a case where any different type or measure of damages would follow from such a finding," the judge continued. "However, assuming the assault by a police officer in this case was also negligence, I do not find that it would amount to gross negligence."More