On October 9, 2016, the Ministry of Correctional Services of Ontario filed a report stating that 24-year-old Adam Capay had spent 50 days in solitary confinement. Four days later, another report, prompted by scrutiny from the Ontario Human Rights Commissioner Renu Mandhane, revealed that the ministry had miscounted Capay’s time in segregation by a whopping 1,541 days. By the time Capay was moved out of segregation, he had spent 1,636 consecutive days in solitary confinement, the longest known placement in Ontario’s history.
On Thursday, Ontario Ombudsman Paul Dubé released a report on his investigation into segregation in Ontario jails. Among his findings he noted that the ministry’s tracking and review of segregation is often—and certainly in Capay’s case—unreasonable, wrong, oppressive, and unlawful under the Ombudsman Act.
Capay’s lawyer Anthony Bryant is calling his client’s treatment unlawful under the Charter, too. Next month, Bryant will argue in court that the murder charges that landed Capay in segregation nearly five years ago should be thrown out due to sweeping rights violations while he was there. Those infractions, Bryant says, range from cruel and unusual treatment to denying him equal protection under the law without discrimination. In addition—and perhaps most importantly—Bryant is arguing that the nearly five-year delay to trial could be grounds for a stay of proceedings, making Capay one of the most compelling defendants affected by R. v Jordan, the controversial Supreme Court decision that sets stringent timelines for a defendant to get to trial.
Capay, who is from Lac Seul First Nation in Ontario, was originally meant to spend just five months in jail for assault and failure to appear in court back in 2012. During those initial months though, Capay allegedly stabbed and killed another inmate, Sheldon Quisses, at the Thunder Bay Correctional Centre, and was charged with first-degree murder. Instead of starting his 20s a free man, he spent the next four and a half years in segregation: 23 hours a day for those 1,636 days in a tiny room with Plexiglass walls and overhead lights that never turned off. He had little access to books or physical activity (he was occasionally let out to roam around an enclosed, covered yard), no means of practising Indigenous spirituality and no access to First Nations elders.
“I would definitely characterize spending more than four years in solitary confinement as unconstitutional,” says Jennifer Metcalfe, executive director of B.C.-based Prisoners’ Legal Services. The group advocates for the abolition of segregation based on the psychological damage it causes, and because it interferes with reintegration when inmates are released from jail. Myriad experts on criminal justice agree. Most notably, the United Nations considers it torture to hold someone in solitary for more than 15 days. One Harvard researcher, Stuart Grassian, who’s interviewed hundreds of prisoners in solitary confinement, found the treatment causes psychosis, including hallucinations and paranoia; hypersensitivity to light and sound; panic attacks; memory impairment and suicidal ideations and attempts. Little wonder, then, that the UN advises against using segregation for any length of time on inmates who have pre-existing mental health conditions, like Capay had. Dubé’s investigation found that in Ontario, however, “many inmates are in segregation because they have mental illnesses or developmental disabilities.”
Lisa Kerr, a Queen’s University law professor, describes Capay’s as “one of the strongest cases for a stay of proceedings” based on how an accused is treated before trial. “The test for a stay of proceedings is concerned with issues like whether the trial would perpetuate the injustice,” explains Kerr, a specialist in sentencing and prison law, “and whether a [solution] other than a stay would remedy the injustice.” Being held in such “unacceptable” conditions for so long, she adds, “is the kind of injustice for which there is little remedy. The time and suffering is simply lost to Adam Capay.”
After Mandhane, the Ontario human rights commissioner, sounded the alarm about Capay’s circumstances in October, numerous critics (including Maclean’s columnist Scott Gilmore) called for the officials who facilitated Capay’s prolonged segregation to be held responsible. One of them, David Orazietti, the Ontario correctional services minister, has since resigned. While Orazietti cited family reasons for leaving his post, the resignation followed heightened pressure on the minister over alarming prison conditions, the province’s use of segregation in general and Capay’s case in particular.
Unlike the UN and the Ontario Human Rights Commissioner, the Ombudsman doesn’t call in his report for an end to segregation but that it be better tracked and each placement be regularly justified. These requirements already exist, but as Dubé points out “[they] are often ignored.” Orazietti and others, evidently, failed to do it.
That’s one reason why Kerr says the Ontario legislation governing segregation is unconstitutional. “It lacks time limits and doesn’t provide for proper reviews,” she says. “In [Capay’s] particular case, it seems that the rules that are in the legislation were also not followed. I don’t think any court is going to deny that this segregation violated the Charter,” she adds. “That is a separate question from whether a stay of proceedings should be granted, but from the facts I am aware of, there is a solid argument for a stay.”
Indeed, it’s hard to contest that spending 1,636 days in solitary confinement constitutes cruel and unusual treatment that no human should endure. But it’s not necessarily the conditions and length of his segregation that could end up staying Capay’s charges, if the court comes to that ruling, but the lengthy delay to trial could be the grounds for a stay of proceedings.
“There have been many cases that have been thrown out as a result of charter violations,” says Bryant, Capay’s lawyer. “The Jordan case is a classic example. That’s as much of a charter violation as anything else.” Bryant is referring to the precedent-setting Supreme Court decision made in July 2016 that places caps how long defendants can wait to go to trial. For cases in provincial court, that’s 18 months, and 30 months for those in Supreme Court. The decision is meant to enforce the constitutional right to be tried within a reasonable time under section 11 of the Charter. Meanwhile, Capay, whose case would be heard by the Supreme Court, has waited nearly double the time deemed reasonable.
Such a ruling based on R. v. Jordan would not only end Capay’s long wait for trial, but a period of his life predominantly spent enduring what the UN defines as torture. If he is granted a stay of proceedings, he’d likely be released some time in 2018. The troubling thought then is how, after years of mistreatment that’s exacerbated mental health and behavioural challenges, Capay will reintegrate into the general public.
“We want people to be rehabilitated and re-enter society with the respect for rule of law,” says Metcalfe, the B.C. prisoners’ legal advocate, “and abusing them in our prison system, they’re going to be released angry and resentful and that’s not promoting public safety and human dignity. More education is needed for correctional staff,” she adds, “and more funding for mental-health resources in prisons. We need diversion programs to keep people like Adam Capay—young people—out of prison in the first place.”