The trial of Donald “Blair” Kay, a Correctional Service of Canada (CSC) officer charged with assaulting a prisoner with a weapon in a historic incident at Millhaven Institution, got underway at the Superior Court of Justice in Napanee, Friday, Jan. 6, 2023, after a delay on Thursday.
At the outset, the honourable Justice Geoffrey Griffin addressed the court, especially those watching the proceedings on Zoom. The judge warned that Zoom would cut out when the video evidence is presented because the equipment will be in use to show the video in the physical courtroom, where there is only one television. He reminded them that “this is an in-person trial,” that observers were welcome at any time to join the courtroom in person, and that Zoom would be cutting out “for no other reason” than this.
Kay pleaded not guilty to one count of assault with a weapon. The charge stems from an altercation involving inmate Christophe Lewis at Millhaven Institution in 2012.
The first witness called by Assistant Crown Attorney Timothy Kavanagh was Janice Whalen, an Institutional Preventive Security Officer (IPSO) at Millhaven Institution at the time of the incident. She has worked for CSC for over 23 years and testified that she considers herself “fairly familiar” with Millhaven Institution.
A security video taken on the day of the incident, Monday, Nov. 19, 2012, was entered into evidence as exhibit number one.
Through Whalen’s testimony, the Crown established that the incident recorded on security cameras took place in an area at Millhaven Institution just outside the visitation area. The area, dubbed “C&V” for “correspondence and visitation,” consists of an office, a small area where strip searches are conducted behind a waist-high privacy wall, and hallways leading in and out of the area.
According to Whalen, it is a standard procedure that maximum security prisoners are subjected to a strip search after every visit to prevent the passing of contraband from visitors to the prisoner.
Correctional Manager Bruce McCallum, who has worked with CSC since 1989, was the next witness called by the Crown.
McCallum was employed at Millhaven Institution from 2009 to 2016 (he now works at Warkworth Institution). McCallum testified that he is present in the video of the incident that occurred in 2012, and that he was called in over the radio when a request was made for additional staff to attend the area known as C&V.
He testified, “There was a request over the radio for additional staff to come to C&V,” and he attended because “a manager should attend; we always attend when additional staff is requested.”
In the video, McCallum can be seen arriving on the scene wearing his correctional manager’s uniform, which consists of a lighter blue shirt than those of the rest of the officers. At this point, he said, he observed “inmate Lewis” asking for “a keeper” to be present. A keeper is a term used by inmates to refer to a Correctional Services Manager.
Asked what is being discussed in the video between Lewis and the other staff who file into the room, McCallum explained that Lewis had not been in compliance with the strip search. “I don’t know what the conversation was,” he stated, noting he had “no recollection of the volume” of the discussion.
In the confusion, at some point “just previous to, or just as” the pepper spray was being deployed against Lewis by Kay, McCallum testified, “I gave direction for one man to observe the strip search, one to complete it, and rest of the staff to go along.”
“And do you recall the reaction of the individuals to whom you gave that direction?” asked the Crown.
“Non-compliance. They didn’t move along,” stated McCallum.
McCallum was asked what equipment Corrections Officers have on their person to deal with situations as they arise. He said they are “equipped with a set of handcuffs, OC spray [Oleoresin Capsicum (OC) aerosol sprays — commonly referred to as pepper sprays], search gloves, CPR barrier mask, and other than that we are required to have no other equipment.”
The Crown asked if McCallum had his handcuffs during the incident, to which he replied, “Millhaven had removed my handcuffs because they didn’t want me involved in any use of force, or applying them, a policy I don’t understand. But no, I didn’t have handcuffs, and I didn’t bring any OC spray.”
Defense Attorney Mike Hodgson had some questions for McCallum on cross-examination. He began, “Corrections officers are expected to use their experience as an officer to assess situations?”
“Yes, sir,” replied McCallum.
“When attending a call for additional staff,” Hodgson inquired, “you might not know what is coming — it could be anything… and you don’t know what you are responding to when you get a call like that?”
“I do not,” McCallum replied.
McCallum testified that it is standard practice for inmates to be strip searched after an open visit because there is a concern that the inmate could have been passed contraband by the visitor, and that contraband could include anything from drugs to weapons. Hodgson then established, based on McCallum’s statements, that “if an inmate is refusing to comply, in your experience, it is a reasonable suspicion that the inmate may have contraband… anything from drugs to weapons.”
Next the defence went over proper strip search protocol, establishing that only male officers can search male prisoners, and that there should be two male officers present, one to search and one to observe.
“Madame Justice Arbour made sure we only have men strip men,” answered McCallum, seeming to reference the Commission of Inquiry into Certain Events at the Prison for Women in Kingston prepared by former Supreme Court Justice Louise Arbour. He later clarified that this is in fact a standard procedure and that it is well established that officers know this rule.
In the video, Kay can be seen speaking to Lewis prior to pepper spraying him, but McCallum testified that he could not remember what was being said. He also stated that he could not remember when officers indicated to Lewis that he was being “arrested” for noncompliance and taken to segregation.
“Is it fair to say that, in a maximum-security institution like Millhaven, inmates don’t get to pick and choose what orders they will comply with?” asked Hodgson.
“No, they do not,” replied McCallum.
After establishing that an object seen in McCallum’s hand in the video was a radio, the defence finished the cross-examination.
Christophe Lewis was the last witness called by the Crown.
After taking the stand, Lewis asked Justice Griffin if he might address the court. Griffin allowed this, for which Lewis thanked him, saying, “I have waited 12 years for this.”
Lewis’s testimony will be featured in part two of this article.