Nearly ten and a half years after an incident at Millhaven Institution, a Correctional Service of Canada (CSC) officer has been found guilty of assault with a weapon for spraying an inmate in the face with pepper spray in an “unnecessary use of force.” Justice Geoffrey Griffin handed down the decision at the Napanee Courthouse on Friday, May 12, 2023.
The trial of Donald “Blair” Kay for the historic incident came about only after the victim, Christophe Lewis, was finally able to obtain video evidence in December 2019 from the Office of the Correctional Investigator. The video, which clearly shows what can only be described as a mob of CSC officers, with Kay in the middle, attempting to enforce a strip search of Lewis, formed the centrepiece of the case.
After the day in court, Lewis seemed tired and contemplative, saying, “I don’t really have any comments other than the fact that justice was served, you know. And I just feel like this was not just for me. It’s bigger than me, and that’s why I stuck to it.”
In 2011, a jury convicted Lewis of second-degree murder in the 2005 death of 24-year-old Kerlon Charles. Lewis was 20 when the killing happened and 26 when convicted; he received the mandatory sentence of life in prison.
Lewis is now out on parole, working as a youth counsellor in Montreal. At the time of his conviction, Ontario Superior Court Justice David McCombs set the ineligibility period for parole at 12 years, saying it was a “vicious and cold-blood murder” — but also acknowledging that Lewis was “entrepreneurial,” having started a modestly successful clothing business, that he had a daughter, and that there was possibility for rehabilitation. (Parole eligibility can be set between 10 and 25 years for second-degree murder.)
An issue with jury secrecy had come up after Lewis’s trial, so he had remained in pretrial custody for four months. By November 2012, when the violent incident took place, he had only been at Millhaven for seven months.
Lewis released the video of the incident, which can be seen on YouTube with his voice-over commentary, on June 4, 2020, in an attempt to draw attention to the crime and push for charges against the guards involved. The version of the video shown in the courtroom had no sound and was made “Exhibit 1” in the case.
The reading of the verdict took over two hours. First, as is routine in reading a decision, Justice Griffin summarized the testimony of all witnesses and provided an overview of all submitted evidence.
In his preamble, Griffin described the crux of the case as presented by both Kay’s defence attorney Matthew Hodgson and Crown attorney Tim Kavanagh.
The defence, Griffin recollected for the assembly, “argued that the use of the pepper spray was a reasonable use of force in these circumstances” and cited section 25 (1) (b) of the Criminal Code, ‘Protections of persons acting under authority,’ which reads, “Everyone who is required or authorized by law to do anything in the administration or enforcement of the law… (b) as a peace officer or public officer… 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.”
“The defence submits that the Crown has not proven beyond a reasonable doubt that the section 25 offence does not apply in this circumstance, and as such, Mr. Kay should be found not guilty,” read Griffith.
However, “the Crown submitted that Section 26 of the Criminal Code, ‘Excessive force,’” continued Griffin, states that “everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.”
The Crown had submitted that Mr. Kay’s use of the pepper spray in these circumstances was an excessive use of force as it was “objectively unreasonable,” the submission of the Crown being that “if one considers the video along with the whole of the evidence, the use of the pepper spray was objectively unreasonable and an unreasonable use of force” and “Mr. Kay is criminally responsible for the use of the pepper spray because he was not acting on reasonable grounds when he sprayed Mr. Lewis in the face on November 19, 2012.”
In his analysis of the evidence, Griffin relied heavily on CSC policy and procedure regarding strip searches and also the use of force.
“The evidence, in this case, is clear,” said the judge, “that the Correctional Service of Canada has a procedure which includes the search of a male inmate be done by only male officers… one officer to do the search and one officer to witness the search. The search is to be done in a private area out of sight of others.”
Kay testified earlier that if Lewis had listened to him and the other officers packed into the tiny strip search area and had begun to strip in front of them, everything would have been different; they would have left him alone to comply with the orders.
“I do not accept Mr. Kay’s proposition that Mr. Lewis ‘owned the situation’ and that ‘he had the power to end this,’ which Mr. Kay emphasized by snapping his fingers,” stated Griffin. “The power imbalance is such that the correctional officers have the power to maintain order and safety, while the inmate is subject to the authority of the correctional officers.”
In this case, the evidence of Correctional Manager Bruce McCallum was that he “directed the search was to be conducted by two male staff: one to complete the search, one to observe, and the rest [were told to] go away [and] ‘move along.’”
“However, the staff there did not comply… with the correctional manager’s request to ‘move along’… If Correctional Manager McCallum did not have the power to end it, how is it possible that Mr. Lewis had the power to end it?” asked Griffin rhetorically.
The judge noted Kay’s conflicting testimony that McCallum was ineffective, yet he couldn’t remember what McCallum was saying, “or what Mr. Lewis was saying,” just that Lewis was “mumbling something about stripping.”
“Although Mr. Kay agreed at one point with the Crown that Mr. Lewis said he was not going to strip in front of all the individuals present,” the judge pointed out, “at another point, Mr. Kay said he did not hear Mr. Lewis say that. And then he said Mr. Lewis is also a liar.”
The judge pointed out that Kay’s testimony in his own defence showed him to be quick-tempered and not thoughtful. “There was a certain abrupt manner to Mr. Kay’s testimony, an example of which is when he accused the Crown of calling him a liar. The Crown had done no such thing,” stated the judge, describing the Crown’s question as “perfectly reasonable.”
“Such blunt and snippy language would seem to be consistent with Mr. Kay’s actions, which can be observed on the video,” observed Griffin. “That is, while Mr. Lewis’s attention is drawn to another officer, Mr. Kay quickly produces the pepper spray and sprays Mr. Lewis in the face.”
Griffin found that Kay “subjectively believed,” at the point of his arrival on the scene along with several other officers, “that the use of pepper spray was necessary to get control of Mr. Lewis. The reasonableness of Mr. Kay’s belief is something he truly subjectively held.”
“However, the concern is whether that belief was objectively reasonable…. I agree with the defence counsel’s submission that Mr. Kay’s subjective belief, in all the circumstances as they existed at that time, caused Mr. Kay to determine the pepper spray was required. However, I am unable to conclude that… that belief is objectively reasonable.”
Again Griffin pointed to the video evidence. “It is the video, Exhibit 1, along with the testimony of Mr. Lewis, which makes clear that the use of the pepper spray was objectively unreasonable.”
Other officer’s involvement suspect
At this point, Griffin made what seemed a damning observation about the motives of officer Linda Gallimore. “Unfortunately, in this trial, we did not hear from correctional officer Gallimore, [whom] Mr. Kay referred to as one of his mentors and as an officer who is not particularly popular with inmates, as she does her job by the book.”
It was Gallimore who made the call for officers to converge on the strip search area outside of the Visitation and Correspondence office.
Lewis had claimed that Gallimore seemed to be withholding information about his visitation rights in the form of a letter sent by his mother, which had been claimed to have gone missing but which Lewis in fact saw on Gallimore’s desk. Lewis also stated that Gallimore had made Lewis’s visiting girlfriend very uncomfortable by asking her personal questions about why she was in a relationship “with that black guy.”
“Mr. Lewis gave credible evidence, very credible evidence, about an issue he had with Ms. Gallimore, concerning paperwork associated with having his daughter visit… His evidence made sense,” said the judge, “and was certainly consistent with what one observes on the video,” explaining that in the video Gallimore does indeed seem to indicate that Lewis should begin the strip immediately in her presence while Lewis protests without showing any aggression.
Then when a male officer, Eugene Barancian, joins Gallimore, Lewis goes to the strip search area. Gallimore can be seen walking out of the area while two female officers step out of the office area; then Lewis and Barancian start the search procedure, with Lewis handing the officer his prison ID. “Certainly, in the video evidence, Ms. Gallimore appears to be in control of the situation, and Mr. Lewis appears to be compliant, as he goes to the area he is directed to by Ms. Gallimore,” noted Griffin.
“Where Mr. Kay says he ‘saw fear from the body language, fear in Ms. Galllimore’s face,’ that is certainly not something that is depicted on the video. Nor is the ‘panicked’ look in her face [as described by Kay] consistent with the video,” concluded Griffin. “Rather, the video is consistent with the testimony of Mr. Lewis: namely that he wanted to discuss the issue of the paperwork associated with his daughter making visits, which it seems was not something Ms. Gallimore wanted to continue with, so she put an end to the conversation” by ordering him to strip search immediately.
“I do not want to speculate that what occurred is that Ms. Gallimore became irritated with Mr. Lewis challenging her on that paperwork in question,” observed the judge with irony, “so she became frustrated with him.”
“It is clear that she is not to be present when he strips, as correctional manager McCallum pointed out that female officers do not participate in strip searches of male inmates. As well, the video certainly does not show an officer with fear in her face, but rather shows an officer making orders which Mr. Lewis complies with: that is, going into the area for the strip search and beginning to empty his pockets.”
“Mr. Lewis was being reasonable when he determined he was not going to strip in front of a female, namely Officer Gallimore,” stated Griffin. “It would be contrary to the policy of the Correctional Service of Canada to strip in front of her.”
“McCallum’s direction to staff [to ‘move along’] was reasonable,” said the judge, “yet Mr. Kay maintains no one had control of the situation. This is unreasonable when one watches the video. It is clear the situation was under control before Mr. Kay and his team of officers arrived.”
Mr. Lewis testified that as he began to comply with the search, officer Barancian told him, “Don’t worry about it. Let it go. It is no big deal.”
“I believe that evidence,” declared the judge. “As the video shows, Mr. Lewis has no difficulty handing over his property to that officer. The situation was under control. It was unreasonable for Mr. Kay to suggest otherwise, because Mr. Lewis was standing where he was required to stand for a strip search, [and] Correctional Manager McCallum was present, as was Officer Barancian.”
“Commissioner’s Directive 567 sections 14 and 15 [read] as follows: ‘Every incident will be managed using the safest and most reasonable response and be limited only to what is necessary and proportionate to obtain the purposes of the [officer] to respond to the situation… The appropriate management strategies will be chosen following the initial and ongoing assessment of the situation including the inmate’s current behaviour,’” noted the judge.
“Surely an objectively reasonable response to the incident in question is to determine ‘what’s going on’… What is the non-compliance, and why is it not taking place?” suggested Griffin. “At no point does Officer Kay seem to do this: that is, speak to Correctional Manager McCallum, speak to Officer Barancian, or listen to what Mr. Lewis is saying.”
“What is unreasonable is Mr. Kay and his ongoing assessment of the situation… not knowing what Mr. Lewis was saying, other than mumbling something about stripping; the idea that he would disrobe in front of such a large number of people is not reasonable,” pointed out Griffin. “As well, the fact that Mr. Lewis was not displaying any sign of aggression… does not seem to have factored into Officer Kay’s assessment, which is also an unreasonable approach.”
“I am unable to conclude that objectively Mr. Kay had reasonable grounds to use the pepper spray,” concluded Justice Griffin. “The Crown is correct in the submission that Mr. Kay did not have the objective grounds to use the weapon. He cannot find refuge in section 25 of the Criminal Code, as the use of the weapon was an excessive use of force. I am satisfied beyond any reasonable doubt that Correctional Officer Blair Kay sprayed Mr. Lewis in the face with pepper spray. He did so when he did not objectively have the grounds to use that weapon. It was an excessive use of force.”
“Mr. Blair Kay will be found guilty in the events of the assault on Mr. Christophe Lewis with pepper spray in accordance with Section 267a,” pronounced Griffin.
Section 267a of the Criminal Code reads, “Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault, carries, uses or threatens to use a weapon or an imitation thereof.”
Kay will return to the Napanee court in late June, 2023, to receive his sentence.