— Strong language warning: this article contains direct quotes with language some may find offensive —
The fact that correctional officer Donald “Blair” Kay pepper-sprayed an inmate at Millhaven Institution is not up for debate. But was the action criminal?
That onerous decision is for Justice Geoffrey Griffin to make, after having heard final summations in the trial of Donald Blair Kay at the Ontario Court of Justice at 41 Dundas Street in Napanee, on Thursday, Mar. 9, 2023.
Kay used pepper spray against the former inmate, Christophe Lewis, in a 2012 incident at Millhaven, which began with a strip search request and ended in a melee that was captured on video.
After seven years of requests, Lewis and his legal team obtained a copy of the video surveillance footage of the incident, which Lewis asserts has left him with severe post-traumatic stress. The footage was then submitted to the Ontario Provincial Police (OPP).
An OPP investigation began on May 26, 2021, and as a result, Kay was charged with assault with a weapon under Section 267 of the Criminal Code.
In his summation, Kay’s defence attorney, Matthew Hodgson, relied on section 25 of the Criminal Code of Canada for much of his argument. Section 25(1) justifies certain acts by a protected class of persons, including peace officers, to use force “to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances.”
“Everyone who is required or authorized by law to do anything in the administration of the law is, if he acts on reasonable grounds, justified of doing what he is required or authorized to do, and in using as much force as is necessary for that purpose,” Hodgson pointed out. “So Officer Kay, by virtue of his difficult job, is required to carry on his duties as a correctional officer. He oversees dangerous convicted offenders who are already serving sentences for oftentimes violent and heinous crimes. He is tasked with ensuring the safety of everybody, not just the offender, but his fellow officers, in carrying out that job.”
Hodgson and his client contend that “[Kay] sprayed [Lewis] to distract him and he sprayed him so that an arrest could be effected, and he sprayed him with pepper spray so that he could go to segregation for a search.”
Hodgson argued that “[t]aking into account [Kay’s] training, the situation as it unfolded and the surrounding circumstance… while in hindsight, observers might point out options or argue that Officer Kay could have waited longer or wish that this had played out differently… We are doing that from an 11-year distance without being in that situation… without the context that surrounded that situation.”
Hodgson went on to argue that Kay did have reasonable grounds to use that force, noting that even though Lewis testified that he was willing to allow a strip search, that in fact, “prior to the arrival of officer Kay and the others, [Lewis had been] refusing for some period of time.”
“Mr. Lewis testified that he was waiting for de-escalation to work and said that at one point he ‘thought they would take more time before using force’ and I would suggest that his actions and his description of that would suggest that he’s playing some sort of game where he’s in essence, trying to argue and refuse these orders as long as he can. As he said, he’s done ‘hundreds of strip searches’. He knew how to end this. And he knew what he was doing when he kept talking rather than simply complying with [Officer Kay’s] orders.”
Hodgson indicated that while it was “noteworthy” that Lewis had seemingly begun to comply prior to Kay’s arrival, “I think Your Honour has to also recall that that takes place on the video before any of the officers arrived. So Officer Kay doesn’t have knowledge of that… that information wasn’t provided to him. And what’s more important is… There’s no further indication on the video that he’s going to remove any clothing. There’s no turning around. There’s no offering his hands. There’s no other actions that would indicate at that point he will comply. “
Hodgson asked Justice Griffin to consider what information Kay had going into the incident and used Correctional Service of Canada’s Commissioner’s Directive 567 for the Management of Incidents with respect to the management of security incidents, which “says that each situation has to be assessed on an ongoing basis, which is just common sense.”
Hodgson said this was the basis of Kay’s training and his impetus for assessing the situation. “The power was in Mr. Lewis’s hands from the moment that started and all he had to do was comply, agree that he would strip search, or turn around when he was ordered … and ‘I’m not stripping’ is what he said.”
The Crown’s argument
Conversely, Crown Attorney Tim Kavanagh argued that Christophe Lewis was the victim of an unprovoked attack by Kay, and that Kay’s actions were “precipitous”, that is, done suddenly, and without careful consideration.
Lewis, he argued, did not refuse to comply with a standard strip search, he refused to comply with a humiliating strip search performed in front of a large crowd of officers which included females.
“If we look at the video we see a contrast,” he noted, indicating the difference between Lewis’s apparent calm actions, without sudden movements, frantic gestures or clenched fists, whereas the officers attending, including Officer Kay, yell and move suddenly and with agitation.
In the video, Kay is “highly agitated” and “dominates” the scene, according to Kavanagh. “We can see that he is looking in different directions. He is the one that makes sudden gestures. He places his hand on his right hip, where his pepper spray is, at 30 seconds…”
Lewis, he argued, told the officers over and over why he would not comply, but was not listened to.
Kavanagh also noted that Lewis was compliant with aspects of the search order. “Mr. Lewis provides his lip balm and his ID card [to Officer Barancian] immediately before Officer Kay [and other officers] arrive on the scene.”
“Mr. Kay said nobody was taking charge,” said the Crown Attorney, reiterating Kay’s reason why he decided he needed to use the pepper spray. “We can see from the video that Officer Barancian is in charge, and so is Officer McCallum [Kay’s superior] who is standing there; neither of those individuals is expressing any anxiety, stress, or concern.”
“Officer Kay says, ‘I get there, nobody’s taking charge; I’m gonna take charge.’ That is very informative of what’s in Officer Kay’s head,” argued the Crown Attorney. “He is not interested in negotiation, he’s interested in taking control. Control was not necessary at that point because things were under control.”
Kavanagh reiterated that Kay decided he had to “take control” even though no one was yelling or acting violently at the time when Kay arrived. “That’s precipitous,” the Crown Attorney said. “Nobody else had pepper spray out.”
Noteworthy too, is that “Officer McCallum testified that he told the officers to disperse,” Kavanagh reminded the court, “which was ignored… what’s telling is that Officer McCallum had come to the conclusion that these [other responding officers] did not need to be there, which means, objectively, that Officer Kay did not have the grounds to use his weapon.”
Kavanagh argued that everything in Lewis’ testimony was confirmed by the video, but that much of Officer Kay’s testimony was not supported by the video. For example, Kay described calmly stating Lewis was under arrest, while Lewis said that he was ordered, “You’re gonna strip for us right fucking now.” Similarly, Kay said that Lewis was acting evasive and arguing, and yet the video shows Lewis standing calmly where he was told to stand.
Kavanagh said that, in his testimony, “Officer Kay was uncharitable in what he had to say about Mr. Lewis – calling him a liar and saying he wasn’t a model prisoner – although he testified he didn’t know [Lewis], never met him before.” Kavanagh noted that this reinforced to him that Kay was precipitous in his actions.
The judge interjected at this point in agreement, noting to the court that Lewis had only just arrived at Millhaven, and couldn’t have had any reputation yet, nor was there any CSC records indicating otherwise.
Kavanagh concluded that “it is unreasonable for Kay to suggest that Lewis had all the power” in this situation.
Going into deliberations
After hearing from the attorneys, Justice Griffin summarized the case as he sees it, pointing out that not only is this case a matter of great significance to the officer and the inmate directly involved, but that it is also of great significance to the public.
The case was deeply important to Mr. Lewis, “who it appears, during the last 12 years pursued this,” explained Justice Griffin, “because he felt that at the time that something had occurred that was improper and criminal.”
Lewis, the judge noted, “has been diligent despite certain odds against him even to get it to this stage where we are today.” Lewis has previously asserted that gathering evidence and pursuing justice, in this case, was a difficult task.
And this case is significant too, said Justice Griffin, “obviously for Mr. Kay, who has a 20-year career with The Correctional Service of Canada, and whose career likely could suffer a negative impact if convicted of this offence.”
Justice Griffin continued by addressing the wider issues at stake. “It is, of course, significant to the broader public as well to know that our administration of justice treats all people – both the complainant in criminal prosecution as well as the accused – in a fashion that would be characterized as fair and equal. And that is going to take place in this matter,” he asserted.
After deliberations, Justice Griffin will return Friday, May 12, 2023, with a verdict of guilty or not guilty.