Correctional Officer sentenced to probation, community service

In  Napanee’s Ontario Court of Justice, July 28, 2023, Justice Geoffrey Griffin sentenced Donald ‘Blair’ Kay to 12 months probation and 60 hours of community service for his assault with a weapon on a prisoner at Millhaven.

Kay was serving as a correctional officer when the assault occurred while Christophe Lewis, the victim, was an inmate serving time for second-degree murder.

Along with the sentence, the judge ordered Kay to continue counselling for post traumatic stress disorder (PTSD) and banned him from having weapons, except at work, while he serves his time.

The sentence comes a month since Griffin began his deliberations after a hearing on Monday, Jun. 26, 2023, and Kay has been waiting to learn his fate since his conviction on May 2023.

At that June hearing, Crown attorney Tim Kavanagh, 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.’”

At the July 28 sentencing, Justice Griffin summarized the important points he considered in his deliberation, citing the precedent set in a case of a Baffin Correctional Centre officer convicted of assaulting a prisoner. In that case, Justice Paul Bychok wrote that in the sentencing of peace officers who have assaulted prisoners in their care, “the sentence… must act as a forceful and meaningful reminder to all that the Court will do what it can to prevent the abuse and mistreatment of inmates. The defence and preservation of the values of our free and democratic society demand no less.”

“While it is obvious that a conditional discharge would be in the best interest of Mr. Kay, it is equally obvious that a conditional discharge would be contrary to the public interest and it would send the absolute wrong message concerning the requirement that the abuse and mistreatment of an inmate must, of course, be denounced and must be deterred,” stated Justice Griffin.

“There will be no discharge. There will be a conviction. As it is required to have the necessary deterrent effect. And to properly acknowledge the principle of denunciation,” the judge continued.

“On the other hand, I am satisfied, that Mr. Kay need not be imprisoned, as less restrictive actions that are reasonable in the circumstances can satisfy the principles of deterrence, denunciation, and other principles of sentencing.” 

Griffin acknowledged “the perception and wisdom of Mr. Lewis,”  who had stated at the last hearing, “I would not wish prison on anybody. Prison is not a nice place; not for the people who live inside, not for the people who put people there, and not for the people who keep people there.”

He also noted that Kay, too, had shown wisdom in recognizing the effects the job was having on his mental health and seeking treatment, and also that he had apologized to Lewis and owned his mistakes.

“I am impressed by Mr. Lewis, for he is not seeking vengence that is obtaining Mr. Kay’s incarceration,” the Judge went on, “but rather, as he put it, he asked that justice be served.”

The Judge was satisfied that, “in this case” the principles of sentencing “can be satisfied by registering the conviction and imposing a 12-month period of probation” with 60 hours of community service.

Kay’s Lawyer, Matthew Hodgson, spoke on his client’s behalf while Kay underwent mandatory fingerprinting and DNA collection, saying, “We respect the Judge’s decision and my client respects the process, and he said that right from the start.”

Outside the courthouse, some of Lewis’s supporters were visibly upset by the conditions imposed on Kay, but Lewis said, “This is one small step moving forward, and I just hope that this case is able to set precedence for others that are assaulted like me… there needs to be more actions taken against abusive correctional officers and police officers.”

Asked if he had plans to continue pursuing this case, Lewis said, “I will let my lawyers talk about that. I won’t talk about that. I’ll just leave that where it is and leave that within the legal system to deal with it.” 

Lewis continued, “But I still do feel like it’s a one-sided justice system. Because if I was to [assault a man] with 30 of my friends, we would all be in prison and we’d all have gotten long sentences.” The assault against Lewis occurred in front of numerous correctional officers with some estimating anywhere between eight who took part and perhaps 30 watching off camera. 

“So the judge was fair in his ruling, I think,” Lewis continued. “But at the same time, I do believe that there’s a difference and it is a disparity between how people who look like me are treated as opposed to people that work within the system.”

Lewis has been vocal that racism and his appearance – he is a large, physically strong, Black man who was serving a life sentence for second-degree murder at age 28 – were factors in the assault, which occurred even though he was calm and acting in a non-threatening manner when it happened, according to the court’s findings.

Lewis was convicted of the murder charge for an incident that took place when he was 24. At that time, Justice David McCombs said that by finding Lewis guilty of second-degree murder, the jury found he “either aided or abetted the shooter,” or that he helped in the forcible confinement and anticipated that the victim’s murder was a probable outcome. Since that time, Lewis has completed his sentence and is on probation, working and living in Montreal and supporting vulnerable youth.

One of Lewis’s supporters in the Napanee courtroom was Claudette Beals ,the mother of Regis Korchinski-Paquet, a 29-year-old Indigenous-Ukrainian-Black Canadian woman, who died in Toronto on May 27, 2020.

Beals introduced herself as “The mother of Regis, who the police killed in Toronto in 2020… and today is a disaster. We didn’t expect the outcome… this guard is still allowed to walk with a gun, as long as it’s job related, I have a problem with that. He should have been stripped of everything today. You get probation, you get community hours, then you’re stripped, it’s not about your job. You should not even be allowed to go back to work, Because any black person that this would have happened to, would have lost their jobs.”

“I’m just very disappointed. We’re trying to find justice for our kids. How are we gonna have that work out if guards are allowed to get away with this?” Beals demanded.

“So on that note, I’m saying if guards can get away with it, so can the police. The justice system just is not working.”

Another man nearby stated that, but for the video of what happened at Millhaven that day in 2012, which Lewis and his lawyers doggedly pursued, this outcome would have been markedly different: “If it was not for that video, we wouldn’t be here today,” he said.