Millhaven correctional officer accused of assault testifies in own defense

A Correctional Service of Canada officer accused of assaulting a prisoner with a weapon during a controversial 2012 incident at Millhaven Institution took the stand yesterday to give his side of the events.

The trial of Donald “Blair” Kay continued Thursday, Mar. 2, 2023, with Defense Attorney Michael Hodgson calling witnesses to testify before Justice Geoffrey Griffin in the Superior Court of Justice at 241 Dundas Street in Napanee. Crown Attorney Tim Kavanagh presented the Crown’s witnesses in early January 2023. At that time, a security video taken on the day of the incident, Monday, Nov. 19, 2012, was entered into evidence as exhibit number one.

At the outset, Hodgson called the accused, Blair Kay, to take the stand in his own defense.

Kay, who is fair and tall with light brown hair, wore a black suit with a black dress shirt, and a black and gold patterned tie. In his pocket was a bright white pocket square. Guided by Hodgson, Kay testified that, at the time of the incident on November 19, 2012, he was a correctional officer with a CX-2 designation. Kay explained that a CX-2 is “always, always in the units with inmates, so your inmate contact is every day, all the time.”

Hodgson established that, during Kay’s time at Millhaven from 2003 to 2012, Kay had been assaulted numerous times by different inmates. This included three severe incidents which Kay described: in 2006 he had been “sucker punched in the face” and dragged into a cell, he had had his nose broken in 2009 “with such force that it is still deviated,” and in 2011 he was punched by an angry inmate and his eye was blackened.

On the day of the incident, November 19, 2012, Kay said that he was working in the “N Area in Millhaven, conducting J Unit around lunchtime,” when he heard a “panicked female voice” over the radio say, “Staff to V&C! Staff to V&C!” For clarity, ‘V&C’ stands for “Visitation and Correspondance” area, and ‘J Unit’ refers to a section housing long-term inmates within Millhaven’s ‘N Area.’

Hodgson asked Kay to explain. “Everyone who is able to, stop what it is you are doing and respond as quickly as possible [to the area indicated],” he said. “To me, that means the adrenaline kicks in, that means there’s a serious problem. If anyone goes on the radio and says ‘staff to’ anywhere, it means it’s a serious incident.”

“I immediately dropped everything and ran at full speed to V&C,” Kay continued, noting that he was met in the corridor outside by Officer Gallimore. “She said to me ‘he dared me to touch him and he’s not cooperating with the strip search.’”

Kay, who described Gallimore as a senior officer and one of his mentors when he came to Millhaven in 2003, said, “her body language was a look of fear in her face and I knew something was up.”

Kay testified that he then immediately entered the room at V&C where strip searches are conducted, and saw the inmate, Christophe Lewis, “in the corner” behind the privacy barrier, which was covering him from just above his hips down. “He’s literally in a corner, the only way to deal with him is head-on.”

Kay described that he also saw two female officers and in the room was “one male officer, small in stature, he’s not engaged at all… I see no one basically taking charge of the situation.”

“And so what was your assessment of the situation at that point, sir?” asked Hodgson.

“My assessment, as I am responding to a call for assistance, when I come in and have an officer tell me that someone is refusing to strip and they made a threatening gesture to an officer, I have this individual in a corner…” said Kay who was then interrupted by the Judge.

“Hold on, I never heard about any [gesture],” the Judge questioned.

“He dared me to touch him and he’s not cooperating,” Justice Griffin read from his notes, “Are you saying it was more than that?”

“No, no, he is not compliant with the strip [search],” clarified Kay.

“So you’re saying [Officer Gallimore] said, ‘He dared me to touch him. He is not compliant. He won’t strip,” the judge confirmed.

“Yes, sir,” Kay stated.

“So, now you’re going to take charge?” the judge asked, pausing to again look at his notes. “You said no one else was taking charge…”

Hodgson resumed his questions, “OK so, does the fact that this is in V&C have any impact on your assessment of the situation?”

Kay indicated that the fact that this occurred immediately after Lewis had been in contact with the public weighed heavily on his assessment of the situation, because the inmate may have had access to contraband, such as drugs or weapons. 

“I have alarm bells going off [in my head] because I have Mr. Lewis… who I’m not ignorant of the fact that he’s not a model inmate, he’s in for murder, he’s a big strong man, and he just had contact with the public and we were currently having a problem [with contraband]… my first indication is he’s got something, he’s being evasive… Why else would he not cooperate?”

Hodgson asked if there had been any discussion of a female officer planning to conduct a strip search, to which Mr. Kay replied he had never seen a female conduct a strip search on a male in his 20 years working with CSC.

Next, Kay testified that he told Lewis to strip, and gave that order “approximately two times” while an officer to his left also gave the same order. There was, in his words, “zero indication that he was going to comply, so at that point I gave up and shifted my strategy, and I went into arrest mode.” 

Kay said he told Lewis “you’re under arrest twice, again mirrored by a second officer,” and stated that, in his opinion, “as an inmate, you would start to make a gesture, indicate you are going to comply…,” but “He’s giving me nothing. All he had to do was indicate he was going to comply, and the other officers would have gone down the hall. We’ve done it a thousand times everybody falls back, it’s standard practice.”

Kay indicated that he thought, “I need to get control, he needs to be in handcuffs. I am convinced without a doubt that he has contraband or a weapon, I am not naive.”

Hodgson asked if Kay had any indication from Lewis that he would comply with the search. Kay said no, that Lewis “owned the situation” and “he had all the power in the world.”

Hodgson then took a different tack, asking Kay to discuss his training, which Kay said he was “100 per cent relying” upon in the situation.

Kay indicated that the Situation Management Model (SSM) for corrections indicates the use of force options for officers in a situation where an inmate is verbally resistant and physically uncooperative, “According to SMM, we have two options: pepper spay and physical handling.”

Kay said he chose to pepper spray Lewis, giving the reasoning that he didn’t want to be sucker punched and, “in my mind that [pepper spray] was a lesser option,” and there was less chance of the inmate or officers being injured.

His ultimate goal, Kay said, was to “get control and get cuffs on [Lewis],” and that the spray “temporarily blinded” Lewis. Then, “the officer beside me goes to grab him and struggles,” he said, adding as an aside “when you have too many officers, you often end up fighting each other incidentally.” The tight quarters where all of this took place were “like a sardine can, officers were struggling, I had nothing to grab onto, officers were grabbing other officers,” Kay testified.

Kay described that everything happen quickly. “When I was grabbing his upper body, it looks — to anyone who doesn’t know — like I have him in a choke hold [in the video].” However, he said, “that’s absolutely ridiculous,” noting that a chokehold requires a substantial amount of pressure and that the layperson watching a video wouldn’t be able to identify a chokehold.

“I had so much care,” said Kay, “I laid him down.” He mimed laying man down gently and protecting him from hitting his head.

“Did Mr. Lewis at any point lose consciousness?” asked Hodgson.

“No, that’s an utter lie,” Kay responded, indicating that, in that case, all of the officers would have begun procedures for a medical emergency and they wouldn’t “just rush him up to his feet, that’s absurd.”

Hodgson asked Kay to look back on the situation overall and give his thoughts. Kay said that “the response was very quick” and it wasn’t working, “it was not ideal,” but at the time, he used his best judgement.

Hodgson recalled that Lewis has suggested in the media that the whole incident felt like a pre-planned assault and asked pointedly, “Was this a pre-planned assault?”

“No that’s impossible,” answered Kay. “I don’t know what went on before I arrived at V&C… but for an officer to make a hoax call for an emergency over the radio, that would probably be the worst thing you can do and it’s never been done.”

More to come: Crown Attorney Tim Kavagnah’s cross-examination of Kay, as well as a second witness’s testimony for the defense will be covered in Part 2 of this developing story.