The treatment of Adam Capay — who was kept in segregation in northern Ontario jails for four and a half years — was “outrageous, abhorrent, and inhumane,” a judge said in a decision tossing a first-degree murder charge against the 26-year-old Indigenous man.
Capay was released from custody following the release of Superior Court Justice John Fregeau’s decision on Jan. 28 in Thunder Bay, but the full ruling remained under a publication ban until the appeal period expired this week.
His case drew widespread attention and heavy public scrutiny of the use of segregation in Ontario jails after Ontario Human Rights Commissioner Renu Mandhane made Capay’s story public in 2016 after visiting him at the Thunder Bay jail. He was moved to a standard cell shortly afterward, but was still kept separate from the general population.
The damning 127-page ruling details how jail officials repeatedly violated a litany of Capay’s charter rights after he was placed in segregation, mostly at the Thunder Bay jail, but also the jail in Kenora, following the fatal stabbing of fellow inmate Sherman Quisses in June 2012.
“I accept the accused’s submission that the evidence heard in this application demonstrates a disturbing pattern of disregard for policy, procedure and inmates’ rights within the Ontario correctional system,” Fregeau wrote.
The Ministry of Community Safety and Correctional Services did not return a request for comment.
Staff at the jail and regional levels failed to properly and regularly review Capay’s case in accordance with criteria and timelines established by the provincial government for inmates in segregation, the judge concluded.
The judge also wrote that Yasir Naqvi, former minister of Community Safety and Correctional Services under the previous Liberal government, toured the Thunder Bay jail in January 2016 and, according to a jail guard, interacted with Capay. The guard told Naqvi that Capay had been in segregation for over three years, according to the ruling.
(Naqvi, now the CEO of the Institute for Canadian Citizenship, told the Star in a statement that he did not recall interacting with Capay. He said he did not meet with any individual inmates during his tour, and that when speaking with union leaders, “at no time was Adam Capay, his conditions, or his length of stay in segregation discussed.”)
“Throughout every level of corrections, Adam’s situation was not a secret to anyone, other than the public,” one of his lawyers, Karen Symes, told the Star. “Everybody knew, and yet it didn’t set off any alarm bells for four and a half years. It was known to everyone, and it was deemed acceptable by corrections. Luckily, it was not seen as acceptable to the court.”
The judge described the segregation review process in Capay’s case as “meaningless.” His continuous detention in segregation was also found to be arbitrary and unlawful, as the segregation review policy was not always followed and there was no “proper evidentiary basis” that showed Capay was a continuing risk to the safety of the jail.
For example, Melissa Boban, the health manager responsible for reviewing Capay’s medical file and providing a summary for the purpose of his segregation reviews, did not include in her summaries the fact that Capay had stopped reporting homicidal and suicidal thoughts in the fall of 2013, the judge said.
“For the three years that the accused was held in segregation between 2013 and 2016, segregation review decisions were based on inaccurate and unreliable information as to the accused’s psychological status,” the judge wrote.
Fregeau listed the number of days Capay spent alone in various jail blocks, some of which were areas where the lights always remained on. One example are the 274 days Capay spent in Block 11 at the Thunder Bay jail, “in a cell encased in Plexiglas, without a day area, television or radio, without the ability to flush the toilet from inside the cell, and with the lights on 24 hours a day.”
Jail officials knew Capay already had mental health issues when he was placed in segregation after Quisses’s stabbing, the judge said. (It was conceded before Fregeau that Capay caused the death of Quisses, but the issue to be dealt with at his trial was whether he was not criminally responsible due to a mental disorder.)
Between June 2012 and December 2016 he spent just about 10 hours in total with a psychologist and psychiatrist at the Thunder Bay and Kenora jails, the judge said. “The accused received no substantive mental health treatment or Indigenous programming or support during the four and one-half years that he was in segregation. The treatment of the accused was, in my opinion, outrageous, abhorrent, and inhumane,” Fregeau said.
The judge further found an infringement of Capay’s fair trial rights, saying he would be unable to fully instruct his lawyers at his first-degree murder trial as he had no memory of the events surrounding the fatal stabbing of Quisses.
Psychiatrist John Bradford testified that Capay has suffered permanent memory loss as a direct result of the time he spent in segregation, especially the initial three-month period when he was kept in almost complete isolation.
The judge also found Capay’s right to equality had been violated, as his mental health issues required that he be given “differential treatment to ameliorate the heightened negative impact of segregation on him as a mentally ill inmate.”
Yet “mitigating measures” such as daily yard time, more time out of his cell, more frequent visits by a mental health nurse, social workers and cultural ceremonies were not implemented — or even considered — until after October 2016 when Mandhane, the human rights commissioner, visited Capay in jail.
Noting that staying a first-degree murder charge is a “drastic” remedy for violations to an accused person’s rights, Fregeau concluded that this case is exceptional, one reason being that “egregious state misconduct” has led to Capay’s memory loss and permanently prevented him from receiving a fair trial.
“It’s clearly not an easy position for the court to reach,” said another of Capay’s lawyers, Adriel Weaver. “And so what that underscores is how egregious the treatment of Adam Capay was.”
With files from The Canadian Press
Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant