R. v. Marenchuk, 2018 NUCJ 14

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Marenchuk, 2018 NUCJ 14 Date: 20180426 Docket: 11-16-54 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Paul Marenchuk ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Crown): M. Lapointe Counsel (Accused): A. Crowe Location Heard: Iqaluit, Nunavut Date Heard: February 26, 2018 – March 1, 2018 Matters: Use of force; Criminal Code , RSC, 1985, c C-46, s 25 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Paul Marenchuk is a member of the Royal Canadian Mounted Police (RCMP). Most recently he was the Staff Sargent at the Pond Inlet detachment. He is charged with assault on a prisoner who was in cells at the Pond Inlet detachment. II. BACKGROUND [ 2 ] The facts that constitute the basis of the charge are not in dispute. [ 3 ] In September of 2015, Sgt. Marenchuk was in charge of the Pond Inlet detachment. Pond Inlet is a small community of approximately 1,600 people on the north end of Baffin Island.

It is approximately three hours by plane from Pond Inlet to Iqaluit. [ 4 ] On September 10, 2015, there were four RCMP members in Pond Inlet. Three of them were on duty that evening. Sgt. Marenchuk was at a Hamlet council meeting, providing a regular report to council. He had with him a new member, CF, who had been in the community less than three weeks. Also on duty was a member, CS, who was there doing relief duty. [ 5 ] While Sgt. Marenchuk and CF were at the council meeting, a call came in. LK was reportedly intoxicated and in a residence causing trouble. The homeowners wanted him removed. [ 6 ] Sgt.

Marenchuk told CF to respond to the call while he finished up at the meeting. [ 7 ] CF and CS responded to the call. They located LK and were able to handcuff him and place him in the police truck with little problem. On the way to the detachment LK was agitated and talking about suicide and wanting to “join his brother”. [ 8 ] CF and CS did not know LK and had not dealt with him before.

They did not know that LK’s brother had committed suicide. [ 9 ] Because of the threats of suicide, a decision was made that it was necessary to strip LK of his clothing and to place him in a suicide gown. [ 10 ] LK was placed in cells at approximately 7:52 p.m. CF and CS spent some time talking to LK to try to persuade him to remove his clothes. They were unsuccessful. They used physical force to remove LK’s clothing. [ 11 ] Although the officers were able to remove LK’s outer clothing, they were not able to remove his underwear. The officers provided LK with a gown, which he eventually put on himself.

They continued to talk with him in an effort to have him remove his underwear; however, LK was not cooperative. [ 12 ] CF left the detachment to pick up Sgt. Marenchuk. As the two of them drove back to the detachment, Sgt. Marenchuk was briefed on the situation. He was advised that LK was in cells but that he still had his underwear on. [ 13 ] At the detachment the three officers spoke with LK. The door to the cell was open and they were in the hallway. LK was curled up on the floor and his arms were inside the gown. At one point, Sgt. Marenchuk used his foot to roll LK over. The officers spoke with LK

for approximately eight minutes. [ 14 ] Sgt. Marenchuk took out his oleoresin capsicum (OC) or pepper spray and shook it. The door to the cell was closed. LK was lying in front of the closed door. Sgt. Marenchuk deployed his OC spray under the closed door. The three officers retreated from the hallway to remove themselves from the spray zone. They then entered the cell to remove LK’s underwear. All three officers used physical force but they were able to remove the underwear. [ 15 ] LK did not appear to feel the effects of the OC spray. When he was released the following morning, Sgt.

Marenchuk spoke with him to ensure he was okay. LK had no recollection of the event. When he was interviewed by the police approximately six weeks later, he had no recollection of being arrested or being in cells. III. CRIMINAL CODE [ 16 ] An assault is defined as the intentional application of force, directly or indirectly, to another person, without that person’s consent. The degree of force applied is not relevant to whether or not an assault occurred. [ 17 ] We know from our daily experience that people come into physical contact with each other on a daily basis without having committed an assault.

Most often people consent to the contact, such as a handshake or a hug. Often the contact is not intentional, such as accidentally bumping into someone. [ 18 ] Police officers have special protections under the law because of the role they play in society. They are often required to come into physical contact with people under circumstances that would clearly constitute an assault but for protections provided under the law. [ 19 ] The Criminal Code , RSC, 1985, c C-46, provides: 25

(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

a) as a private person, (

b) as a peace officer or public officer, (

c) in aid of a peace officer or public officer, or (

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. [ 20 ] To rely upon the protection provided in s. 25 of the Criminal Code , the following criteria must be met: 1. the person seeking to rely on the

section must be required or authorized to administer or enforce the law; 2. he or she must be acting within the scope of the duties; 3. he or she must act reasonably; 4. he or she must not use more force than is necessary.

[ 21 ] There is no dispute that Sgt. Marenchuk was required to enforce the law and that he was acting within the scope of his duties as a police officer when he assessed the conditions under which LK should be detained and took steps to achieve those conditions, those being stripped down and in a gown. [ 22 ] The issue is whether Sgt.

Marenchuk acted reasonably and, if he is found to have acted reasonably, whether he used more force than was necessary to achieve his objective. [ 23 ] The police officer must subjectively believe that the force used is necessary and this belief must be reasonable when assessed objectively. IV. EXPERT EVIDENCE [ 24 ] The Court heard from two use of force experts. [ 25 ] The RCMP use the Incident Management Intervention Model (IMIM) to train their members on the use of force. The IMIM trains officers to think about the various factors that must be considered before force is used.

This thought process leads them through the options available. It is important, when force is used, that the officer involved is able to articulate the reasons why force was used. This assists in considering the options available and ensuring the level of force used is appropriate. [ 26 ] The IMIM sets out six principles for when and why there might be police intervention.

Those principles are: 1. it is the duty of police to preserve and protect life; 2. public safety is the primary objective of police intervention; 3. officer safety is essential to public safety; 4. police intervention must be consistent with the law; 5. intervention must occur in the context of risk assessment of loss of life, injury, and damage to property; 6. risk assessment and management is a continuous process. [ 27 ] The IMIM states that in assessing risk an officer must consider situational factors, a subject’s behaviour, and tactical factors.

Essentially, this means that an officer must consider the environment or context they are in (situational factors), anything they know about the person they are dealing with (subject’s behaviour), and what resources and backup they have available (tactical factors). [ 28 ] The IMIM shows escalating police response as the threat being faced increases.

The police response may simply be a police presence, increasing to communication or negotiation, increasing to physical control and, ultimately, lethal force. [ 29 ] Physical control may be “soft” and increase to “hard or intense” control, which may include the use of intermediate weapons, such

as OC spray. While it is important to remember that IMIM boundaries are not fixed and many factors are taken into consideration in determining an appropriate response, the consideration of the use of weapons may come into play once a subject is actively resistant. This is not to say that just because a subject is actively resistant the use of a weapon will be reasonable and justified. Again, the use of force must be assessed regarding multiple factors. [ 30 ] The IMIM is not a strict rule book. It is a guide. It assists an officer in thinking through a situation.

There may be more than one reasonable option in a given situation. [ 31 ] Further, an officer’s perception of a situation is vital. People respond to situations and circumstances as they perceive them to be. A. Crown Expert [ 32 ] The expert witness called on behalf of the Crown is of the opinion that the use of OC spray in the circumstances of this matter was not reasonable or justified. He is of the view that the use of OC spray was unreasonable, disproportionate, and unnecessary. He reached this conclusion for the following reasons: 1.

LK was small in stature in comparison to the officers; 2. there were three officers available; 3. LK was “passive resistant” and not a threat to the officers; 4.

LK was not actively using his underwear to harm himself at the time the OC spray was deployed. [ 33 ] The Crown expert was not aware of certain relevant factors, such as the high rate of suicide in Nunavut (which includes incidents of suicides in police cells), LK’s criminal history (which includes incidents of violence), LK having previously brought a lighter into RCMP cells by putting it in his underwear, and the operational restrictions and demands on the Pond Inlet detachment. [ 34 ] Also, the Crown expert did not have any information about Sgt.

Marenchuk’s state of mind or perceptions, except through a letter provided by his counsel to RCMP administration for a purpose unrelated to the investigation. In his evidence in Court, the expert testified that an officer’s perceptions are unique, that different officers may make different risk assessments and that officer response will depend on the officer’s risk assessment. B. Defence Expert [ 35 ] The Defence expert is of the opinion that Sgt. Marenchuk’s use of OC spray was necessary, reasonable, and prudent.

He reached this conclusion for the following reasons: 1. police had a duty to protect LK and that necessitated his underwear be removed; 2. direct physical force has a greater chance of causing injury.

V. ANALYSIS [ 36 ] As previously stated, there is consensus that Sgt. Marenchuk was authorized and required to enforce the law and that he was acting within the scope of his duties when he was dealing with LK. The issue is whether the use of OC spray was reasonable or whether it exceeded the force necessary to deal with the situation. [ 37 ] Amongst the three RCMP members who were dealing with LK it is agreed that it was of the utmost importance to remove his underwear. LK was suicidal. For Sgt.

Marenchuk, this was foremost in his mind as he was aware of a recent inquest which looked into the death of a prisoner in cells, where the prisoner died by using his belt as a ligature. Underwear can also be used as a ligature. Sgt. Marenchuk was concerned as these situations can escalate quickly. [ 38 ] In my view, leaving LK alone in the cell with his underwear on was not a reasonable option. A suicide threat must always be taken seriously. It takes little time to self-harm. [ 39 ] The members could not be expected to remain in the detachment indefinitely to “wait out” LK.

This might have left at least one of them at the detachment throughout the night, until LK was released. This is not a reasonable use of police resources nor does it provide for the possibility of an urgent call coming in. [ 40 ] Leaving LK in the care of a guard was not an option as long as he still had the means to hurt himself. [ 41 ] The evidence was that the only viewing monitor for the cells was located in the main detachment and not in the cell area, where the guard would be; so a guard would not be able to provide constant monitoring. Guards are required to check on inmates every 15 minutes.

This leaves ample time for a prisoner to self-harm. In any event, guards are not able to enter cells under any circumstances. A guard can only call an RCMP member, by which time it may be too late.

Further, all of this assumes that the RCMP members would be available to respond to LK and would not be on another call. [ 42 ] I conclude that it was both reasonable and necessary for the members to take steps to remove LK’s underwear. [ 43 ] There was evidence regarding the relative sizes of LK and the RCMP members who were dealing with him. [ 44 ] Although the two officers are significantly larger, CS being 5’11” tall and 200 pounds and CF being 6’4” tall and 240 pounds, and both are in good physical condition, it took both of them to remove LK’s clothing. [ 45 ] CS described LK in the following way: “for being a small person he was very wiry and it was obviously a very difficult, not a simple task, even though he was not the largest person”. [ 46 ] CF testified but had no independent recollection of the incident.

Approximately six or seven weeks following the incident he provided a statement to the officer in charge of investigating it. CF testified that his memory of the incident was fresh at that time, that he “obviously didn't lie in this statement”, that he did his best to tell the truth and give an accurate and comprehensive statement, and that he was prepared to stand by the contents of his statement.

Given the circumstances under which the statement was taken, I find that the statement is essentially CF’s past recollection recorded and that it may be admitted for the truth of its contents. [ 47 ] In the statement, CF stated: Well the fact that the threats were coming honestly. The threats were coming and he was keeping his hands underneath him. So I'm not saying he is going to beat us with his hands underneath him and the other three of us but he does have the potential to try something not in the IMIM, it's assaultive behaviour.

[ 48 ] And further on in the statement, he said: “he’s [LK] not the biggest guy but honestly I was wrestling with him on the ground and I could feel his strength”. [ 49 ] The video footage confirms that LK was difficult to manage even for two police officers who had a definite size advantage. Although the force used to remove the outer clothing has been described as “minimal”, the video shows the two officers in physical contact with LK for over three minutes before getting his pants removed.

At one point LK is able to move around even though the officers are restraining him. [ 50 ] Once the gown was on LK and the officers backed off, LK was passive but he was still uncooperative in that he did not remove his underwear. The video shows that each time the officers moved in to do something LK became combative. He was displaying more than passive resistance, as a protester might by going limp. He was actively resisting the officers. [ 51 ] Having concluded that it was necessary to remove LK’s underwear, they were left with few options. It was clear that some kind of force was going to be necessary.

Each time the officers had tried to approach LK he would actively resist. While it is true that two officers had been able to remove his outer clothing, it was not without some difficulty. [ 52 ] Sgt. Marenchuk testified that he had been advised by CF that LK had been combative. Sgt. Marenchuk was entitled to rely upon this information as it was credible firsthand knowledge. It was also consistent with Sgt. Marenchuk’s experience with LK during his three years of being in the community. In my view, it is also consistent with the video footage. [ 53 ] Sgt.

Marenchuk was concerned that two officers have been unable to remove LK’s underwear despite having LK in their custody for what he considered sufficient time for the task to have been completed. The fact that this was not done is also consistent with the information he had received that LK is combative. [ 54 ] Sgt. Marenchuk had personal experience with LK, which included LK having brought in to cells contraband secreted in his underwear. This knowledge was not known to the other officers. Sgt.

Marenchuk had many years of experience of community policing in Nunavut and was sensitive to issues particular to the North. I am not saying the other officers were insensitive to these issues, but they are issues Sgt. Marenchuk grappled with daily. [ 55 ] Sgt. Marenchuk testified that he used the OC spray to lessen the resistance of LK. [ 56 ] Sgt. Marenchuk chose OC because he was of the view that, if three officers had to exert physical force to remove the underwear, there was a greater chance of injury to LK.

While OC spray is often painful, its effects are temporary. [ 57 ] It is questionable whether the OC spray had the desired effect as it seems to have had little to no impact on LK. He was still combative when they entered the cell to take his underwear off. [ 58 ] One must be careful not to consider Sgt. Marenchuk’s actions with the benefit of hindsight. Nor should the Court attempt to determine whether the course of action chosen by Sgt. Marenchuk was the best or preferable option. The test to be applied is whether it was reasonable, given the knowledge of Sgt.

Marenchuk and the circumstances at the time. [ 59 ] I am unable to conclude beyond a reasonable doubt that Sgt. Marenchuk’s use of OC spray was unreasonable or that it was excessive use of force. The Crown has not discharged its burden in this matter. [ 60 ] I find the accused not guilty.

Dated at the City of Iqaluit this 26th day of April, 2018 ___________________ Justice S. Cooper Nunavut Court of Justice