That Correctional Service of Canada (CSC) officer Donald “Blair” Kay deployed his pepper spray against inmate Christophe Lewis is not in question; what is at issue is whether or not he had the right to do so. An often tense cross-examination of the officer, who is charged with assault with a weapon, made up the majority of the third day of testimony before Justice Geoffrey Griffin on Thursday, Mar. 2, 2023.
After a morning of testimony under the guidance of his defence team, Kay seemed to take umbrage with the Crown’s line of questioning.
Crown Attorney Tim Kavanagh spent most of his cross exmination leading the accused, Kay, through the video surveillance footage of the incident where he is accused of unlawfully pepper spraying Christophe Lewis while the latter was in custody at Millhaven Institution in 2012.
Kay claimed he had twice told Lewis he was under arrest for failing to comply with a strip search. Kavanagh asked if Kay could point out when in the video those orders happened, in the “one minute between when you arrive and when you utilize the pepper spray.”
“Well, I’m not going to know exactly where it is,” said Kay quietly as the video began.
Seconds after Kay arrives in the video, Kavanagh pointed out, he can be seen nodding. “Can you tell us why you are nodding your head?… [Aren’t you] engaging Mr. Lewis in conversation at that time?”
“Uhm… I think Mr. McCallum is finishing up something, but clearly, it’s not working… I don’t remember,” Kay replied.
“I told [Lewis] he needs to start to strip… so what I’m looking for is compliance… either verbal or in body language,” testified Kay. He said, “I don’t recall [what Lewis said], but it wasn’t anything that satisfied me he was going to comply.”
“Is it likely that he was saying there are too many people here for me to strip?” asked Kavanagh.
“I don’t recall, it was 2012,” Kay answered.
“But that would be something that would be reasonable if he said it, wouldn’t it?” Kavanagh asked.
Kay said that if Lewis “would have given indicators that he was going to strip,” the team of officers would have cleared the scene, “as we have done hundreds and thousands of times before.”
Kavanagh asked what the highest number of officers had been at any strip search Kay attended. Kay answered three.
“None of those other officers [present at the Lewis incident] were satisfied either,” Kay said.
“That’s for them to say, not you, sir,” Kavanagh reminded him.
Kavanagh had Kay go through a number of gestures he makes in the video which might be considered “aggressive,” including one point where it looks like he unlatches his pepper spray on his belt, one point where he pops the collar on his shirt, and the fact that he looks away from Lewis multiple times as though he isn’t listening to him.
Kay said all of these were “nervous gestures”: that he was feeling fear, and that he didn’t open the spray until the moment he drew it.
At one point in the video, another officer can be seen apparently yelling at Lewis and shaking his finger at him. “Do you agree it’s an aggressive stance by the other officer?” asked Kavanagh, suggesting that, by comparison, “Mr. Lewis was not aggressive… His hands are open.”
“His hands are open, he could grab a weapon from his waist, he could punch someone,” suggested Kay.
Kavanagh asked Kay if Lewis had clenched his fist at any time and, if not, whether that was significant.
“No, not to me,” was Kay’s reply.
Kavanagh asked whether, if Kay told Lewis to turn around because he was putting Lewis under arrest, he would get out his handcuffs. Kay replied no, because Lewis had not turned around and been put in control.
“Your training is [to have] someone turn around [first], then pull out handcuffs?” asked Kavanagh.
“Correct,” said Kay, going on to explain, “I can pull my handcuffs out in half a second. I can do it blindfolded.”
“Well,” continued Kavanagh, “you made a report… You don’t mention anything in that report about handcuffs.”
“No, and I will be the first one to admit that that report was not detailed enough,” Kay said.
“But you added to it [later],” noted Kavanagh, pointing out that the additions were made by hand, not typed, and that at no point in the report did Kay mention handcuffs. “You never said he was under arrest in the report.”
Kay explained that when he “was forced to write the report before leaving the institution,” he was “full of adrenaline” and “not able to think straight.”
“I made assumptions. What I didn’t put in was everything I did,” said Kay. He said he hadn’t mentioned cuffs or arrest because “that’s just standard practice.”
“It’s very significant to say ‘you are under arrest,’ isn’t it?” Kavanagh asked.
“Nope,” replied Kay.
“Even when you are about to take the next steps of using force?” continued Kavanagh.
“So, at this point, you are calling me a liar,” said Kay in apparent frustration, “which is not the case. I gave him an order, and he is under arrest, which is why I used force.”
In another tense exchange, Kavanagh asked if Officer McCallum had been telling the group of officers to disperse, as he had previously testified.
Kay said McCallum “didn’t say very much. I don’t recall what he said.” He thought McCallum was trying to get Lewis to strip, but “he was ineffective.”
Kay said multiple times that if Lewis had turned around and begun to take off his clothes, the officers would have dispersed and given him privacy.
“How does [Lewis] know that?” asked Kavanagh.
“Because he’s a seasoned inmate,” was Kay’s reply.
Kavanagh reminded Kay of Lewis’s testimony that he couldn’t comply with the strip search in front of a large crowd that included female officers, and that he had repeatedly tried to tell the officers so.
“He’s also a liar,” said Kay. “I never heard that.”
Kavanagh suggested, “You didn’t hear much of anything… I’ll suggest that the uniformed individuals [in the video] are acting aggressively, not the man in white [Lewis].”
Kay testified that he based his actions on his experience and that the Crown’s interpretation of the video was inaccurate. “This is the danger of video,” he remarked.
Kay also said, “I will happily admit there were too many officers in that confined space… It was actually a detriment in this case… But in max[imum security prisons], more is always better.”
The defence called its second and final witness, Correctional Manager Michael Kirkwood, who was a CX-1 (Correctional Officer) at the time of the incident and who attended that incident alongside Kay.
In part of his testimony, Kirkwood recalled the incident when Lewis was sprayed and then arrested: “It became a melee… a little bit confused. Officers were pushing one way, others pulling another,” he said, declaring that it all happened with “suddenness and there was no time to coordinate the arrest… People were planning their own actions in their own minds.”
He described the officers speaking to Lewis in an “angry” tone, saying things “like ‘you are going to strip for us right fucking now.'”
Kavanagh asked Kirkwood, “Had you determined pepper spray needed to be used?” prior to when Lewis was sprayed.
“I wasn’t carrying it, ” said Kirkwood, “I don’t even remember if it was part of our issue [then] … I don’t always carry mine.”
As for strip searches in general, Kirkwood described them as “the most undignified thing I have ever done in my job. Being involved in a strip search — it’s one of the worst parts of my job that I have been a part of.”
He told Kavanagh he didn’t know how many officers had attended the incident. “I didn’t know how many were there — there were too many, I agree with that, more than were necessary.”
The defence and Crown will make their final submissions to Justice Griffin on Thursday, Mar 9, 2023.