Mr. Routley asked the officer whether Mr. McKay had said anything when he had his fist cocked back. The officer responded that although he had not, he thought Mr. McKay was going to assault him. Mr. McKay then suggested to the officer that the first words the officer had said when he opened the cell were "We’re tired of putting up with your bullshit." Officer Noon-Ward denied this and stated that Mr. McKay had simply been asked to take his clothes off. Mr. Routley asked if there was any other witnessing officer, and Officer Morrison was called. He testified that he was in the control bubble at the time of the incident. He cracked open Mr. McKay’s cell prior to the search and switched his intercom on so he could monitor the situation. He heard Mr. McKay "become verbal" to Mr. Noon-Ward and make the usual remarks prisoners make when they are asked to do something they dislike. He then saw something fly out of the cell, although he could not tell what it was. He saw Officer Noon-Ward go into the cell and after that he heard the sounds of a scuffle, but he was not able to observe anything from where he was. Mr. McKay, in his defence, said that Officer Noon-Ward was exaggerating what had happened and that he had had both his hands by the side of his body and had not cocked his fist. He acknowledged throwing his underwear but said he had no intention of striking the officer; he was angry at being made to strip for no good reason. Mr. McKay concluded by saying that given the way the officers subsequently jumped on him, he should charge them with assault.

Mr. Routley expressed concern that the evidence of the two officers did not quite reconcile. And while he would have no difficulty convicting Mr. McKay of a charge of being disrespectful or abusive, he said, he had a reasonable doubt on the charge which had been laid, and he was therefore finding Mr. McKay not guilty of the charge of assault.

Later in the morning Officer Noon-Ward came back into the courtroom and asked Mr. Routley why Mr. McKay had been acquitted. Mr. Routley said Mr. McKay had been charged under the wrong section. Officer Noon-Ward questioned how Mr. McKay could be not guilty of assault when he had thrown his underwear in an officer’s face. Mr. Routley responded that he was not satisfied Mr. McKay had the necessary intent to commit an assault. Officer Noon-Ward then turned to the institutional advisor and said, "I’m never going to charge another inmate at Kent Institution." (To the chagrin of many prisoners, Officer Noon-Ward later reconsidered his position.)

Mr. Routley’s comment about the "necessary intent to commit an assault" was a reference to a basic legal principle in the interpretation of criminal or penal offences. As a general rule, in order to be guilty of an offence, an accused person must not only commit the prohibited act -- which lawyers call the actus reus, the guilty act -- but must also have the necessary intent, reflected in the legal language of mens rea, which translated from the Latin means a guilty mind. Such a guilty mind requires that the accused meant to cause the prohibited harm, or, while not meaning to cause it, was sufficiently aware of the risk that such harm would be caused but proceeded to act disregarding that risk. Mr. Routley had judged that while Mr. McKay’s flinging of his underwear did involve the application of force to the officer, he had not meant to strike the officer but was throwing his clothes as an expression of frustration at being made to submit to a strip search, and in the circumstances, he was not reckless.

Mr. McKay had already been kept in segregation for three weeks pending his court hearing. He was seen by the Segregation Review Board the next day and told he would be released to the living unit when there was bed space. He was released one week later, having served twenty-nine days in segregation -- only one day less than the maximum sentence he could have received had he been found guilty of the charge.

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