Segregation case shows a ‘disturbing pattern’
Man, 26, kept in isolation in northern Ontario jails for four and a half years
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-yearold Indigenous man.
Capay was released from custody following 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 record on this application fails to establish that any of the correctional officials involved in decision-making or the review of decision-making in regard to the accused’s prolonged segregation have suffered any consequences despite the disturbing lack of compliance with provincial law and policy.”
The provincial government respects Fregeau’s ruling, said Richard Clark, director of communications for Community Safety and Correctional Services Minister Sylvia Jones.
“This situation occurred under the previous Liberal government. We must ensure that everything possible is done to prevent a similar case from happening again,” he said in a statement. “We have created better housing options, redefined segregation and brought in better mental health screening and assessment tools. In addition, we have implemented measures to provide better oversight and to support more effective management of those inmates, who for their own safety or the safety of others, must be housed apart from others.”
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 wrote.
The judge also wrote that Yasir Naqvi, former minister of Community Safety and Correc- tional 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 told the Star in a statement that he did not recall interacting with Capay.
“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 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 jail’s safety.
Psychiatrist John Bradford testified that Capay has suffered permanent memory loss as a direct result of the time he spent in segregation.