RCMP officer who used pepper spray on inmate says force was necessary, court hears

The four-day trial of a former Nunavut RCMP officer charged with assaulting a prisoner with a weapon in Pond Inlet in 2015 wrapped up Thursday at the Nunavut Court of Justice.

• Veteran Mountie in Pond Inlet charged with 2 counts of assault

Lawyers presented closing arguments before Justice Sue Cooper in Paul Marenchuk's judge-alone trial, which began with the accused facing two assault charges but ended with only one charge remaining.

"The issue here is whether my client was in compliance with section 25 [of the Criminal Code of Canada]," said defence lawyer Alison Crowe.

Marenchuk, a 30-year veteran of the force, sat beside Crowe at the defence table, wearing a dark grey suit and thick square glasses.

Section 25, often used in defence of police charged with assaulting prisoners, states peace officers are justified in using "as much force as is necessary" while carrying out their duties.

Use of pepper spray in question

The force Marenchuk used when he pepper sprayed Lanny Kippomee in the Pond Inlet detachment on Sept. 10, 2015 was necessary and proper, argued Crowe.

But Manon Lapointe, Crown counsel from Ottawa, argued the force was excessive: Kippomee had not been combative and was lying on the cell floor when Marenchuk pepper sprayed him.

According to the court record, Marenchuk was detachment commander in Pond Inlet from 2012 until October 2015.

On the night of the alleged assault, two other officers were called to Kippomee's home, who Crowe said was "intoxicated, angry, suicidal and potentially homicidal."

At the detachment, the arresting officers placed Kippomee in a cell and removed his outer clothing because they deemed him a suicide risk, the court heard.

When Marenchuk arrived at the detachment, he became "extremely concerned" that Kippomee was still wearing his underwear.

Crowe said her client feared the underwear could be a safety risk to a suicidal inmate, and could hide contraband.

"The two other officers tried to gain compliance and remove Mr. Kippomee's underwear for a good 30 minutes. When force isn't effective, greater force is allowed," she said.

Marenchuk used a "short burst" of pepper spray, added the defence lawyer.

One charge dropped on first day of trial

The second assault with a weapon charge alleged Marenchuk had pepper-sprayed Joshua Enookolo unnecessarily in a cell on Aug. 15, 2015. But the charge was dropped on the first day of trial following testimony by police Const. Patrick Higgins.

Higgins was the sole arresting officer in that incident. He testified that Enookolo had been banging his head against a Plexiglas window in the police vehicle, and the officer used pepper spray to prevent Enookolo from harming himself. Marenchuk was not involved.

Higgins testified further that he faced no discipline for his actions.

The Crown did not enter any evidence to suggest Marenchuk had used pepper spray on Enookolo in the cells. And that charge was dropped.

"In light of the evidence ... the Crown would like to enter a stay of proceedings on count number one," said Lapointe.

"How did the Crown not know about this?" asked Crowe during her closing arguments.

'Emotionally upset'

The prosecutor painted a different picture of Marenchuk's involvement with Kippomee.

The arresting officers testified that Kippomee was "never aggressive or combative towards them" and instead was "emotionally upset," said Lapointe.

There was no need to quickly remove Kippomee's clothes, and no other calls coming into the detachment, said the prosecutor.

When one arresting officer, Greg Sutherland, left the cell area to get a suicide-proof gown, he left the cell door open — proof that Kippomee was not a threat to anyone, said Lapointe.

But when Marenchuk arrived, the commanding officer admitted to being "irritated" and made "derogatory comments about Kippomee and his family," the court heard.

"Mr. Marenchuk took matters into his own hands because he thought Mr. Kippomee was not being compliant, and he wanted to make him compliant," said Lapointe.

Even though Kippomee was lying "incapacitated" on the floor, Marenchuk used the pepper spray, which Lapointe argued was neither reasonable nor proportionate.

In reviewing relevant cases, Lapointe said she has not heard of a case where pepper spray was used in cells to gain compliance in the removal of clothes.

In the cases she reviewd, she said pepper spray is usually used during "dynamic arrests."

Justice Cooper scheduled a decision to be delivered in Iqaluit on April 26 at 9:30 a.m.