A man assaulted six years ago by a guard while he was a prisoner at the Saskatchewan Penitentiary has been awarded $65,000 in damages.
Kelsey Stewart took the federal government to court seeking $240,000 in damages for his injuries, and to deter similar assaults in the future.
“The Attorney General of Canada (AGC), acting on behalf of Correctional Service Canada, admitted that the use of force during this incident was not proportionate to the circumstances. The AGC accepted that some damages should be paid to Mr. Stewart as a result of the injuries he suffered but proposed a significantly lower amount, in the range of $5,000–$15,000,” Federal Court Justice William F. Pentney wrote in a recent decision.
Three guards asked Stewart to leave his cell for a routine search around 10:15 a.m. on Feb. 4, 2020, said the April 16 decision.
Stewart, a medium-security prisoner at the time, didn’t want to comply, but after a short discussion with one of the guards, he agreed to leave his cell.
“You started to back out of your cell, with your hands up behind your head,” Pentney said.
“As you got close to the cell door, (one of the guards) reached out his hands and put them by your side, up near your armpits, to guide you out through the cell door. Once you were in the cell doorway, (the same guard) suddenly slammed you — hard — against the cell door.”
The guard in question produced a written report indicating that Stewart “turned violently” towards him, said the decision.
“Based on the video evidence, I don’t believe that you ‘turned violently’ or really that you turned much, if at all,” said the judge.
The guard “had no good reason to slam you against the cell door so hard,” Pentney said. “He is much bigger than you, and you had your back to him with your hands up by your head. You started to lower your hands and put them behind your back, so when he pushed you against the cell door you had no way to protect your face from hitting the bars on the door. At that point you did not look threatening in any way; you were still facing the back of your cell and the guards were behind you.”
After one guard pinned Stewart against the cell door with his body, another guard “grabbed” Stewart’s right wrist “and held it in a wrist lock,” said the judge.
The guard who slammed him against the cell door was pushing up against Stewart, Pentney said.
“It is hard to know exactly what was happening, but it is clear he was using force against your left side. He rocks back and forth, and you may have been struggling a bit, but he had you pinned against the cell door and (another guard) had control of your only free hand.”
Things “calmed down” after a short time and the guards patted Stewart down, then moved him to another area so they could search his cell. They returned him to his cell after the search.
“Around 2 p.m. that afternoon, a nurse visited your cell to do a post-use of force interview. That was recorded. The video shows injuries to the right side of your face — a cut by your eyebrow and a cut on your right cheek, plus some scratches. The video also shows that the left side of your face by your mouth was quite swollen. You told the nurse that you had been punched on that side. The nurse later took you to the nursing station and glued the cut by your right eyebrow. The wound re-opened later and then stitches were put in to keep it closed. You were sent to an eye doctor because you said your vision was blurry. By your second appointment, your vision had returned to normal.”
Pentney said he watched the surveillance videos “many times,” but “they do not show clearly” that the guard who slammed Stewart against the cell door was punching him.
“He may have been punching you with his left hand — these would have been short punches (sometimes called ‘rabbit punches’) because his arm never goes back to ‘wind up’ and punch you,” said the judge.
“He may have been slamming against the left side of your face with his forearm. It is just not clear. But he was using some type of force against you on your left side; that much is clear from the videos.”
He found that the guard “used some kind of additional force against the left side of your face after he had you pinned against the cell door. The video taken after the incident clearly shows that the left side of your face was noticeably swollen.”
Based on videos, testimony and written evidence, Pentney found that the injuries on the left side of Stewart’s face “were caused by the additional use of force by (the guard) after he had pinned you against the cell door. He might have punched you. Maybe he hit you with his left forearm. Whatever happened, I find that the injuries to both sides of your face were caused by an unjustified and unlawful use of force” by the guard.
The judge said he couldn’t make a general finding that the Correctional Service of Canada “needs to change its discipline approach or take other steps to prevent” the guard who injured Stewart “from continuing to have contact with inmates. The evidence just does not support that.”
But Pentney said he could recognize that the harm Stewart “experienced was made worse because of your situation as an inmate, subject to the authority of (correctional officers). That made you vulnerable to the assault.”
The judge also found that Stewart “did not provoke the attack and there appears to be no justification for such a sudden and violent action.”
He awarded Stewart $50,000 for the battery.
“I also find that the use of force violated your right to security of the person under the Canadian Charter of Rights and Freedoms,” said the judge. “The Charter is a very important law in Canada and breaking it is a very serious thing. That is what happened here. I am awarding you $15,000 in damages for the breach of your Charter right.”
The total is “a lot more than the government said you should receive,” Pentney said. “Part of the reason I chose that amount is that you experienced immediate and some continuing pain and suffering as a result of the assault, and you should be compensated for that. A portion of the money is to recognize the serious way your Charter right was violated.”
The judge also awarded Stewart $9,000 to cover his legal costs and another $1,246 in disbursements.
Reached Friday, Kelsey Stewart’s lawyer wouldn’t say if his client is still incarcerated or not. Regina Police issued a wanted notice last month for a man of the same name.
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