Correctional officer Kay’s fate is now in Justice Griffin’s hands

“Every mistake that I’ve made in my life, I was held accountable for. And I feel like the justice system needs to work both ways: even people that are in authority, that they should be held to account, as well.” These were the words of Christophe Lewis as he began his victim impact statement in the Napanee Superior Court earlier this week.

Justice Geoffrey Griffin heard these words, along with final submissions from the Crown and defence, as part of his deliberations on the sentencing of Donald “Blair” Kay, a correctional officer convicted of assaulting a prisoner with a weapon in 2012.

Kay’s conviction came in May 2023, and the hearing on Monday, Jun. 26, 2023, allowed Justice Griffin to hear sentencing recommendations from both sides.

Christophe Lewis, the victim of the assault that took place in 2012 at Millhaven Institution where he was serving the first year of a life sentence for second-degree murder, “spoke from my heart,” he said. Lewis, who has since completed serving his time inside (but remains on probation), currently works with troubled youth in Montreal.

“There is a reason why I’ve remained on course until justice is served,” Lewis said. “This is much bigger than me. This is for everyone that doesn’t have a voice. I feel like a person of [Kay’s] stature should come into court and say, ‘Hey, I was wrong. I made this mistake, and I apologize.’”

“It wouldn’t make me happy if he went to prison. Prison’s not a nice place. And… he knows it’s not a nice place: not for the people that live inside, not for the people that put people there, and not for the people who keep people in them. Prisons are not nice places, especially [for] people that look like me,” stated Lewis, who has alleged that the assault had racist undertones.

“I just wish him the best,” Lewis said. “I forgive him. I wish him healing. And I hope that he can somehow change his way of thinking and… open up his mind about the things that I was expressing throughout my testimony — open up his heart towards others that he may encounter in this work.”

Tim Kavanagh, on behalf of the Crown, advocated for prison time for Kay, citing the “substantial body of modern case law in this province, holding that custodial sentences are generally required in cases of assaults by police officers and court officers on prisoners in order to… ‘give sufficient weight to the principles of deterrents and denunciation.’”

Kavanagh went on to assert that “correctional officers are given extraordinary power over prisoners so that they can properly carry out their duties. When a correctional officer assaults a prisoner, it is a serious crime, not only against the prisoner, but against the justice system itself. The public expects a high standard of conduct on the part of trained correctional officers, and any abuse of power or excessive use of force must not be tolerated.”

Therefore, he argued, “The punishment of offences by [correctional officers]… should be more severe than that of an ordinary person… because of the position of public trust… and their knowledge of the consequences of its perpetration… It is the law and the justice system which puts the correctional officer in the position of power over their prisoners; therefore it is the law and the justice system which must protect the prisoner from abuse and excessive force.”

Defence counsel Matthew Hodgson began his rebuttal by telling Griffin he was not going to lay out as much for the court because “Your Honour has read the [case] law that we provided and is familiar with it.”

Griffin then interrupted, saying he had been given an undated statement from Kay, as well as various letters of support, including one from Kay’s former common-law spouse, which “points out various positive qualities of Mr. Kay… He is a dedicated father.” Griffin also referred to a letter from a correctional manager who described “Mr.Kay as ‘incredibly hard-working… the kind of man you want by your side’” in difficult circumstances.

“Yes sir,” agreed Hodgson, “and maybe I will change tack and speak a little about that… I’d ask first of all that those be made an exhibit…”

Griffin interjected saying that the documents would be made exhibits anyway and asked what Kay’s intention was with his statement: “Was I just supposed to read it?”

Hodgson replied that he intended to refer to it and read parts of it during his arguments.

The judge continued, with irony in his voice, “Mr. Kay, in his statement, says, ‘I wish to again apologize to the court, to Mr. Lewis.’… [But] I’ve never heard him apologize to Mr. Lewis.”

Kay spoke up, “I could do that… I’m sorry, Your Honour, I wasn’t sure if I could speak.”

Griffin said affably, “Yah, yah, you can speak… What do you want to say?” and gestured toward the witness box.

Kay entered the box and began reading from his statement. “I started my career in 2003 with a high degree of resilience. I maintained this resiliency for about the first five years. In hindsight, the constant physical tension caused me to become quick to react, and it has taken me many years to fully understand what the long-term effects are when you work all day under the influence of adrenaline in a chronic state of ‘fight or flight’…”

He explained that, over time, he became hypervigilant, seeing every potential incident as a threat: “The subculture is not conducive to recognizing the detrimental effects of post-traumatic stress.”

Then he addressed Lewis directly, saying, “I know you have experienced similar mental challenges… and I’m humbled by your response, your integrity, and the way you conduct yourself, and I realize that you were suffering your own demons. As was I, just working there.”

“When I started 20 years ago, there was very little awareness of [the effects of post-traumatic stress]. Most men with enough time just came to work drunk… we were all divorced,” he continued. “It’s very difficult to try and maintain that manly front of ‘we have it all together,’ but really, you’re dying inside.”

Kay said he has now received a diagnosis and has been in treatment for post-traumatic stress (PTS) since 2020. While he remains employed with the Correctional Service of Canada (CSC), he is currently on extended leave due to PTS.

“I’d like to address Mr. Lewis,” Kay said, again turning to Lewis. ”By the time I met Mr. Lewis in 2012, I had already been through a multitude of assaults… I do regret my actions. I made a mistake. I had an overreaction. And I regret and I apologize… I made you a part of my own personal calamity. If I could take that day back, I would, but I can’t.”

“Millhaven taught me to be quick, and when you weren’t quick, you either got assaulted or you watched inmates or other officers suffer,” Kay continued. “So that clouded my judgment, and that was a professional error on my part… Automatically assuming the worst was not a balanced or healthy reaction. I should have taken a step back.” 

“The finding of my guilt is very humbling, and this has been a difficult [experience],” Kay said, detailing again his own mental troubles and the difficult position he held at Millhaven, but emphasizing, “It’s not an excuse. I’m fully responsible.”

Griffin responded, “I appreciate that Mr. Kay is acknowledging [his errors]… and is getting counselling as a result of working in that environment for as long as he did.”

The judge noted that he has “occasion to see inmates and prisoners from Millhaven basically every Thursday and Friday, and I’m amazed at how often they point out that they have apologized to correctional officials [for their] behaviour.”

“These people live together,” he observed,“ so they have to try to work something out. But at one time, [Millhaven] was referred to — and I don’t know if it’s still that way — as ‘The Palace of Hate.’” 

“So, it’s really a difficult environment to go into every day… If you live in that environment, you know the long-term consequences to a man like Mr. Lewis, who served a lot of time…” Griffin asserted. “I think you have two men here today who have seen it from both sides… tough guys, not in a bad sense: two big strong men, but on different sides of the equation.”

Hodgson then seized a chance to return to the issue of sentencing. He introduced some examples of case law, which he and the judge discussed. Hodgson referred to similar cases where courts imposed a conditional discharge or a suspended sentence, and he characterized the present case as “a one-time incident from an individual who doesn’t have a history of this — who, on the contrary, has a history of service.”

Griffin also mentioned cases in which the assailant’s actions were widely posted on social media, creating increased notoriety for the individual. He acknowledged that, in the current case, the media “did do a good job to get [the video footage of the assault on Lewis] out there.”

Hodgson replied that Kay would be known for that “short blast of pepper spray,” and may have to one day explain that video to his own children.

Griffin agreed, “That’s who the guy is for most people.”

After referencing some cases where conditional discharges were pronounced, Hodgson concluded, “I’m asking Your Honour to consider a conditional discharge in this case, as well.”

Judge Griffin will pronounce Kay’s sentence in late July.