RCMP member not guilty of assault in Pond Inlet pepper spray case
Nunavut judge says risks of self-harm should be taken seriously
A Nunavut RCMP member, Sgt. Paul Marenchuk, is not guilty of assault for his use of pepper spray on an intoxicated man held inside a Pond Inlet holding cell in 2015, Justice Susan Cooper has ruled.
“I am unable to conclude beyond reasonable doubt that Sgt. Marenchuk’s use of OC [pepper spray] was unreasonable, or that it was excessive use of force,” Cooper said April 26, when she gave her decision at the Nunavut Court of Justice.
(“OC” stands for “oleoresin capsicum,” a form of highly-concentrated pepper used in many pepper spray devices.)
Cellblock video from Sept. 10, 2015 shows Marenchuk directing pepper spray underneath the closed door of a cell at the Pond Inlet detachment, where he served as a staff sergeant at the time.
The spray was meant for Pond Inlet man Lanny Kippomee, who was curled up in a ball on the floor on the other side of the door and wearing a thick, tear-resistant gown, Cooper said.
Cooper described pepper spray as an “intermediate weapon.” The spray causes tears, eye pain and temporary blindness.
Marenkchuk sprayed Kippomee so that officers could remove the man’s underwear, a piece of clothing Cooper said could be used by someone who is suicidal to harm themselves.
RCMP arrested Kippomee after he was found intoxicated at a home, where residents reported him for “causing trouble.”
In the police car, Kippomee was “agitated” and “was talking about suicide and wanting to join his brother,” Cooper said.
Officers did not know Kippomee, and they didn’t know that his brother had died by suicide, Cooper said.
Those officers had already removed Kippomee’s clothes when Marenchuk arrived at the detachment, following a meeting of hamlet council.
The three officers on duty had been unable to remove Kippomee’s underwear, despite outnumbering him and despite being larger in stature.
Marenchuk was familiar with Kippomee and thought it necessary to remove the man’s underwear. One time before, Kippomee had taken a lighter into a police cell by concealing it in his underwear.
Officers then spent about eight minutes trying to remove Kippomee’s underwear, Cooper said.
At one point, Marenchuk used his foot to roll Kippomee over.
Kippomee was “not cooperative,” and at one time went limp in protest, Cooper said.
“At that point Sgt. [Marenchuk] took out his pepper spray or OC spray and shook it. The door to the cell was closed. [Kippomee] was lying in front of the door, Sgt. [Marenchuk] deployed his OC spray under the closed door,” she said.
“LK was curled up on the floor with his arms in the gown.”
The three officers had walked away to remove themselves from the spray zone.
Afterward, they entered the cell to remove his underwear. All three officers were required to forcefully remove the underwear, even with the pepper spray, she said.
The next morning, Kippomee had no recollection of the pepper spray incident.
In a statement, Marenchuk said that the spray was less likely to hurt Kippomee than if the three officers had used force to remove the garment.
“There is no dispute that Sgt. Marenchuk was required to enforce the law and that he was acting within the scope of his duties,” Cooper said.
“The issue is whether he acted reasonably … and whether he used more force than was necessary to achieve his objective.”
Two use of force experts consulted by the Crown and defence disagreed on whether Marenchuk’s choice of pepper spray was reasonable, proportionate and necessary.
But Cooper said the Crown expert who opposed the use of force was not familiar with Nunavut’s high rates of suicide, or with the lack of resources at small northern RCMP detachments.
“The suicide threat must always be taken seriously,” she said. “In my view, leaving (Kippomee) alone in a cell with his underwear on was not a reasonable option.”
She said cell guards are only required to check on people every 15 minutes and guards are not able to go into a cell under any circumstances.
At the Pond Inlet detachment, video cameras do not allow guards to monitor cells at all times.
Should a person hurt themselves while in a cell, all the guard can do is call an RCMP officer, who might be busy responding to another call.
“By which time it may be too late,” Cooper said. “It takes little time to self harm.”
She concluded that it was both “reasonable and necessary” for steps to be taken to remove Kippomee’s underwear, and that because video footage confirmed he was “difficult to manage even for two police officers who have a definite size advantage,” the pepper spray was appropriate.
“It was clear that some kind of force was necessary,” Cooper said.
Court files for Marenchuk’s case showed that no members of Nunavut’s RCMP “V” Division had been charged for using pepper spray within the last 10 years
Those files also showed that assault charges against Marenchuk were stayed, Feb. 26, for a similar incident when he used pepper spray on a man held at a Pond Inlet cell less than two weeks earlier, on Aug. 30, 2015.
Correction: An earlier version of this story referred to Kippomee wearing a straightjacket. It’s since been revised to describe what he wore as a thick, tear-resistant gown.