HMP riot trial: Defence targets senior staff in negligence claims

Defence lawyers saymanagers at Her Majesty's Penitentiary were criminally negligent last February when they did not act in advance to prevent a notorious riot at the prison's chapel.

Nick Avis, who is defendingJustin Harvey, and Nick Westera, who is defending inmate Calvin Kenny,on Friday filed court documents that allege specific HMPmanagers knew thatsomething wasn't right on and beforeFeb. 9, the day that several inmates jumped convicted killer Kenny Green.

• HMP guards say they sensed something was going to happen
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Avis and Westera alsoentered a statement of facts thatlisted HMP staff who had indications that a confrontation was brewing between inmates in two separate units three and four at the penitentiary.

The lawyers nameAssistant Supt. OwenBrophy, Capt. Frank Lee, Capt. Diane Gibbons and Acting Sgt. Mike Stevenson in their application.

Avis and Westera are asking for a stay of proceedings. The Crown has already state it would oppose this application.

Harvey, Kennyand fellow accused Jody Clarke are on trial for their alleged participation in the riot.

Another man,Justin Wiseman, wasconvicted and sentenced last week,while a fifth man Philip Pynn, who earlier this month was found guilty of manslaughter in the shooting death of Nick Winsor is being tried separately. A sixth man, Paul Connolly, pleaded guilty and was convicted earlier this year.

The riot is alleged to have been a targeted attack on Green, who would later plead guilty to manslaughter in the Tessier Place beating death Joey Whalen.

If the application is granted, there'sno indication how it could impact the other accused in the trial.

The threat was real

In the statement of facts entered on Friday, Avis said management knew there was a real threat against Green, which led them to keeping Green's andPynn's units separate.

• Kenny Green target of prison attack, sources say

He said management was informed of the threat, knew it was real, and should never have allowed inmates from the two units to be in the chapel at the same time.

Avis stated that he does nothold the correctional officers and guards accountable for what happened, and management should have acted on the informationthey had to avoid a situation like the riot.

Two days notice

According to Avis's documents, Capt. Frank Lee testified at trial that he received information from an "unreliable source" that something could happen if Green was brought to chapel.

• HMP riot was a scene of chaos, guard tells trial

He was told by Assistant Supt. Owen Brophy to inform Green of the threat.

Lee was also ordered to inform the captains' and sergeants' offices via email. He had discussion with Capt. Diane Gibbons and an Acting Sgt. Stevenson, and expected the information to be passed on.

According to testimony entered in the statement of facts, the exchange between Lee, Green and other HMP staff happened two days before the incident.

However, some guards statedthe first they heard of something going down was the day of the riot.

Other guards said they were surprised Green and Pynn were allowed in the same room at all, when only two or three weeks before the riot Green had to be escorted around HMP because of threats against him.

Concerns about safety

Capt. Gibbons, who did not testify at trial, said she received an email from Lee on Feb. 7 indicating there would bea threat against Green if he attended chapel service that coming weekend.

Gibbons said later that same day, Lee spoke to her about the matter, and Lee had told her he spoke with Green about it.

• Video |HMP riot: A step-by-step breakdown of the chapel video

She said when she arrived to work at 6 a.m. on Feb. 9, she relieved a Capt. Hillier, with whom she discussed the intelligence and whether it was the best decision to allow Green to attend church service that day.

The two agreed Gibbons should contact Brophy and Lee prior to the Salvation Army service to express their concerns about safety.

Gibbons spoke to Stevenson. She told investigators that Stevenson said he had ample staff working and they should be able to accommodate the service.

Surveillance video entered as evidence shows there was one correctional officer in the chapel when the fight broke out.

The video also shows several inmates beating Green, with Connolly using a broken pew to smash Green's head.

The Crown and defence will argue Friday's application on Dec. 2.