Sask. judge rules alleged inmate assault against guard 'just did not happen'
Judge says 'it defies all logic' why Crown didn't want to enter videotape of incident into evidence
A Saskatchewan judge has found an inmate not guilty of assaulting a guard after a videotape the Crown wanted to exclude showed no such attack occurred and it was the staff that acted unlawfully.
According to a recent decision by provincial court Judge Kevin Lang, inmate Kevin Otu was charged in August 2016 with assaulting Regina Provincial Correctional Centre peace guards Christopher Lemay and Nicholas Hutchins.
Lang wrote that the Crown intended to call both officers as witnesses and advised it would not enter a videotape of the incident as evidence.
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"There can be no better evidence than clear videotaped evidence of an incident," Lang wrote.
"It defies all logic why the Crown would not be quick to enter a videotape such as this into evidence. One reason would be if the videotape did not support the testimony of the Crown witness, as was the case here."
Of the two officers, only Lemay was called as a witness because the Crown stayed the charge involving Hutchins.
Inmate walked too slow, disobeyed order: guard
Lemay testified he was on duty on Aug. 30, 2016 when he spotted Otu on level three of the jail's cell area, where he's not allowed.
He said he told Otu to return to the first level and noted the inmate "somewhat reluctantly" and slowly walked down a staircase.
He then told Otu to walk faster or he would be confined to his cell for the rest of the day.
The decision states that while Otu was still descending the staircase, Lemay — still displeased with his pace — told him he was being confined to his cell.
"Lemay's order to have the accused confined into his cell for the entirety of the day for such a minor or trifling infraction seemed to me to be excessive, and perhaps led to what happened next," Lang wrote.
Lemay testified that Otu then disrespected his order by not retreating to his cell but going to the basketball court.
Lemay and Hutchins told Otu to get back inside six times, with Hutchins reaching for him.
That's when, according to Lemay testified, Otu tried to punch him, grazing his right cheek just below the eye.
Video shows assault 'just did not happen'
"Unfortunately for the Crown and Lemay, the videotape told a much different story," wrote Lang.
The video showed that, 21 seconds after confronting Otu about getting back to his cell, Lemay, along with Hutchins, appeared on the court.
Four seconds after that, they approached Otu while he was shooting a basketball and "manhandled" him, "both grabbing the accused and applying considerable force to him" and pushing him up against the wall of the basketball court, as described in the decision.
Lang said the video shows that Otu's head goes down and left arm comes up, but that no actual punches were thrown and the accused appears to have been trying to defend himself.
"It just did not happen," Lang said of the alleged assault.
The decision points out that Otu has a slim build and is shorter than the average person, while Lemay is of medium build and height and Hutchins is much larger.
Guards used unreasonable force
Lang also found that both guards did not act lawfully or use a reasonable degree of force in their handling of Otu.
"Lemay and Hutchins had one purpose in mind when they entered the basketball court. That purpose was to physically take down the accused as quickly as possible," he wrote.
"Lemay and Hutchins did not take or legitimately attempt any other reasonable measure of resolution short of physical force."
Lang found Otu not guilty because the Crown failed to prove beyond a reasonable doubt that an assault happened or that Lemay acted lawfully in the execution of his duty.