What happened that summer night was clear. Max Hayes stabbed and killed Thomus Donaghy on July 27, 2020, in a fight outside an overdose prevention site at St. Paul’s Hospital in downtown Vancouver.
But Donaghy and his killer both had “heartbreaking” life stories, Provincial Court Judge Ellen Gordon found in sentencing Hayes, 24, to 18 months in jail for manslaughter on top of the 597 days he had already served, plus two years of probation.
Gordon pointed to a connection between the killing and Hayes’ “hazing” assault in a Victoria high school football program that triggered his fatal response.
That experience eight years earlier, she found, played a critical role in the tragic events outside the overdose prevention site.
Gordon’s judgment detailed what happened and why she felt compassion for Hayes was appropriate.
The judgment makes it clear Hayes and Donaghy knew each other. Hayes was a client of the overdose prevention site and, when he arrived that summer evening, Donaghy went outside to talk with him while on a break.
“The discussion mentioned both money and methamphetamine,” Gordon found. “Apparently, Mr. Donaghy owed the accused some money for some drugs.”
Donaghy was hearing impaired and was repeating himself, and Hayes was getting frustrated. Hayes pushed Donaghy in the chest with a bottle of Gatorade, Donaghy responded by swinging a fist, and a fight broke out with both men throwing punches.
As the fight continued, Donaghy gained the upper hand, landing blows while Hayes’ blows were described by witnesses as ineffectual. Hayes was taking a beating.
“At one point, Mr. Hayes was running away from Mr. Donaghy when Mr. Donaghy grabbed Mr. Hayes’ shirt and ripped it off,” Gordon’s judgment said. “What is significant is in the process of doing that, he lifted it over Mr. Hayes’ head. That triggered something which I will get into later for Mr. Hayes.”
At that point, Hayes pulled out a knife he’d been carrying and stabbed Donaghy once in the chest, making a 14-centimetre deep wound that entered his heart. “Mr. Donaghy would succumb to this injury and would be pronounced dead upon his arrival at St. Paul’s emergency. The cause of death was blood loss due to the injury to his heart.”
A Saanich school football ‘hazing’
Gordon found Hayes was “triggered” by something that had happened eight years earlier when he was a student entering the football program at Mount Douglas Secondary School in Saanich.
“In what is, I do not know, euphemistically called hazing, that essentially is rape, the coach of the football team permitted this young man to be sexually assaulted by older teammates,” said Gordon.
“In the course of that, I guess so that he could not identify who his assailants were, his shirt was pulled over his head, which is why it is not surprising that when the deceased pulled Mr. Hayes’ shirt over his head, Mr. Hayes had the incredible reaction that he did.”
Gordon had received a presentence report, usually prepared by a probation officer, a psychological assessment and a Gladue report, which assists the court in understanding Indigenous offenders’ backgrounds. The judgment does not say where the information on the assault comes from.
Reached by phone, the coach of that team said he remembers Hayes, but declined to answer further questions. In text exchanges, he referred all questions to the school administration.
Representatives of the school and the school board confirmed that they are aware of the allegations made in court and an investigation is underway.
Saanich police cited privacy concerns in refusing to say whether they are investigating.
The sexual assault allegations cited in the court judgment have not been tested in court.
The court record is clear that Hayes had many challenges in life, starting at a very young age.
But it also suggests the experience at Mount Douglas was a turning point.
Hayes was born in 1997 to a woman who was 15 or 16 at the time of his birth. His birth mother didn’t identify his biological father on the birth certificate, but an aunt said she believed his father’s roots were Jamaican and Indigenous Canadian.
“Apparently, his biological mother tried to raise him, but at the age of 13 weeks, he was apprehended from her care,” Gordon said. “There was an attempted adoption which failed, and he was ‘returned’ and placed into foster care.”
“I guess it was the belief of child and family services that any foster placement is better than no foster placement,” Gordon found, “because he suffered incredible neglect in that home to the point that he must have had so little human interaction that at the age of three he could still barely speak.”
He was adopted by Me-Kon Hayes who has raised him since. She later married, and she and her husband brought Max up in a family with other children, both adopted and biological.
“They did everything for Mr. Hayes,” according to the judge, including encouraging his participation in all kinds of sports. He had a particular affinity for football, so “to further his chances” they enrolled him in an out-of-catchment school with a good football team.
That school was Mount Douglas. According to the team’s website, the football program’s philosophy is “To instil pride, toughness and respect for football through an extraordinary work ethic and competitive spirit, while making football fun within a positive team culture.”
Alumni of the team include many who’ve gone on to play university football, and half a dozen who have played professionally in the Canadian Football League.
Instead of the promised positive experience and the possibility of playing at a higher level, Hayes was assaulted during a hazing that would have a profound negative impact and reverberate for years.
At the time, Hayes was 15. “He could not go home and tell his mom what happened, or felt he could not,” the judge said.
“The tragedy is that he stopped playing football, he stopped going to school, and he started hanging out in the streets of Downtown Victoria and began to use drugs,” she said, adding he began injecting heroin hoping to take the pain away.
“Most 15-year-olds are still living the life that his mother tried to give him, which is in a loving and welcoming cocoon, but because of his victimization, he could not accept that, and he began to live on the streets,” she said.
“Quite frankly, the entire case for both the deceased and the accused are heartbreaking.”
Complaints of bullying and abuse
The head coach of the Mount Douglas Rams football team at the time was Mark Townsend, and he remains the head coach and program co-ordinator today.
Under Townsend’s leadership, the team has had a winning record on the field.
In 2015, after the Rams had won three Triple-A senior boys championships in a row, Townsend received recognition at the BC Lions Orange Helmet Awards as scholastic coach of the year. Since 2009, Rams teams have won nine provincial championships and in 2013 was named the top high school football team in Canada.
But there have also been reports of hazing, bullying and abuse off the field.
In 2017 Mount Douglas briefly suspended the team’s spring season after a hazing incident where two players, including the then-captain, doused another player’s equipment from a water bottle filled with urine. Reporting by Travis Paterson of the Saanich News said there had been racial abuse, bullying and a “code of silence” that went back years at the team.
Reached by phone in December and asked if he remembered Hayes, Townsend said, “I do, but I will say, and I appreciate you reaching me out, I’m actually on vacation right now and I’m actually dealing with a car issue.”
Townsend said that he was expecting another call and wouldn’t be available until he returned in two weeks. He hung up without taking further questions.
He did not respond to phone messages left at the end of January and in text messages referred questions to the school administration.
Donna Thompson, who has been the principal at Mount Douglas Secondary School since September 2019, said she was surprised when she learned about the allegation from a media report on Hayes’ sentencing.
“I wasn’t at the school when any of this happened, and I know there’s an active investigation on right now, so I have nothing to contribute or offer right now until that’s done,” she said. “It’s at the board level, not my level.”
Thompson said she’d never met Hayes or any of his family. She said she’d spoken with the coach, but any details would have to come from School District 61, which is handling the investigation.
“Every time we get any kind of allegations of bullying in the school, we address it immediately,” she said, adding the school does not condone hazing.
“It’s not part of the culture as you see in a lot of American institutions, but I don’t know back then, I can’t comment on anything that happened back then,” she said. “It’s not currently part of our culture, in fact they work really hard to build a positive culture and reputation within the school and community.”
The communications and community engagement manager for the school district, Lisa McPhail, said in an email, “There is currently an active investigation into these allegations. At this time, we cannot provide further comment.”
She did not respond to questions about how the investigation is being conducted, if there will be a public report when it’s completed, and whether the coach will remain in his position while the investigation is active.
Me-Kon Hayes said that she can’t speak about the details of what happened to her son Max at Mount Douglas, but that it clearly had a large impact and was a significant turning point in his life.
“What I can say is he did not share the information at the time,” she said. “The only indication we had that something had gone on was the trajectory of his behaviour and how significantly it changed. It wasn’t until a few years later that it was revealed, that he disclosed.”
Early intervention services unavailable
There were many failures and missed opportunities, both individual and systemic, in Max Hayes’ life.
As a parent, Me-Kon Hayes said, she felt like she was fighting a war not against her son and his addiction but against the broader society, whether it was her son spending time in homes where rules were more permissive or the lack of help when they sought it.
“I think the incident and the death of Thomus is a tragedy for both men and another symptom of systems in play that just don’t work for where society is right now, especially when it comes to mental health, drug use and addictions,” she said.
The summer before her son stabbed Donaghy, she had wanted to get him into treatment, and it was “wall after wall after wall,” she said, and there had been unsuccessful efforts to get help long before that.
“At 14, when I saw the potential for things to go off the rails for him and I called one of the services here... I was told that the program is only for youth that have already been involved in the youth justice system,” she said.
She offered to pay privately for the service so the government wouldn’t have to and was told it didn’t work that way.
She sought help through the child and youth mental health system and was told her son didn’t fit their mandate.
The lack of mental health and addictions treatment services has only gotten worse, said Hayes, who is also executive director of Binkadi Community Services, an agency that runs group homes for youth at risk.
“We talk about early intervention for so many different presentations of people and illnesses and what not, why wouldn’t we talk about early intervention for mental health and trauma?”
Later, when Max was trying to get into detox facilities, there were waiting lists and a need to check back every seven to 10 days to see if a bed had become available, a period during which the desire for treatment could drop.
“I think it’s because people are competing for services and beds, so it becomes a bit of a crab-in-the-bucket scenario instead of a healing scenario,” his mother said.
“That’s not to say that individuals [don’t] also have responsibility and accountability, a hundred per cent they do,” she said. “But like I said, he was wanting to access those services or those opportunities and they weren’t always available. Wait lists are not the way to support persons with the kinds of challenges that Max was facing.”
There were days that Max was begging for help with his addiction, to the point where he wanted to be restrained from seeking and using drugs. “There was a day he spent time handcuffed to me because there weren’t other things for him to be able to access,” she said.
“I know there’s a lot of debate about forced treatment, or secure treatment, but he and I would both agree that some people need that,” she said. “It doesn’t need to be everybody’s solution, but on a case-by-case scenario, I think that those things need to be looked at.”
Even when Max did get into a detox centre, the treatment wasn’t trauma-informed, she said. “It was very clinical and isolating. Every time there was a presentation at treatment there was a missed opportunity.”
‘I know the damage I have done’
Judge Gordon’s sentencing of Max Hayes took into account that he pleaded guilty at the earliest opportunity.
There was also a Gladue report, a document prepared when someone who identifies as Indigenous is accused of a crime so that the judge can consider the individual’s circumstances, including the ongoing challenges of colonization.
The Gladue report quoted Hayes pledging to remain sober in memory of Donaghy. “I want to change my life around, so his life wasn’t lost for nothing,” it quoted him saying. “I know the damage I have done. I can’t believe I hurt people the way I did.”
He recognized that he had also emotionally hurt several people who had tried to help him before the night he killed Donaghy.
Gordon found that section of the report showed remarkable insight for a 24-year-old man. “It shows empathy not only for the deceased,” she said, “but for everyone who knew and loved the deceased, but also for all of the people who know and love Mr. Hayes who he feels he has broken their hearts.”
The judge recommended the prison sentence be served at Guthrie House, a facility in Victoria that she believed to be “the best program in the province of British Columbia to treat young people with drug addiction issues and to help them with appropriate skills to rehabilitate themselves upon their release.”
In the probation terms, Gordon said there should be continued counselling and treatment, including for substance use and sexual assault victimization.
“I would say the sentencing was very well balanced,” said Me-Kon Hayes. “I’m grateful there are judges like Judge Gordon that take the whole scenario, get the whole story into account.”
It’s positive that the judge considered how well Hayes was doing in custody and the genuineness of his remorse, she said.
“He was legit when he said he doesn’t want Thomus’s death to be in vain,” she said. “He’s horrified about what transpired that night. Of course, the guilt is there daily, so he wants that to be a deterrent for not going back to that lifestyle and a motivation as well.”
For Max Hayes, however, the barriers to getting help continue. In jail during the COVID-19 pandemic, many of the normal services have been unavailable so he’s had to do much of his recovery work on his own, his mother said.
The referral to Guthrie House has been blocked. “Because of his security level, he doesn’t qualify for that program,” she said. “Even though the judge can make a recommendation, it’s not part of the sentence really. It’s the corrections centres that decide.”
He likely won’t get the opportunity until after he’s discharged to do the real in-depth work he needs to do, she said, adding there needs to be more rehabilitative opportunities for people serving shorter sentences in provincial prisons.
Still, there are reasons for hope for him, she said, starting with the fact treatment and recovery are Hayes’ primary goals for when he leaves the corrections system. “It’s the most determined he’s been, almost from the moment he landed in custody, it’s the most determined he’s been to turn his life around, so I’m hopeful.”
The Tyee’s attempts to speak with Hayes were unsuccessful.
But his mother said that Hayes also wants to make a difference in other people’s lives. “He wants to some way be preventing others, especially youth, from going down and experiencing what he’s experienced.”
As a society, she said, we need to see people with addictions as true human beings and recognize that there are many opportunities for interventions, if those supports are made available.
“I think it’s important, if there’s going to be any kind of movement or change or awareness, that people have to be able to speak about it too, whether it’s hard or not,” she said. “That’s something I feel strongly about.”