Justice delayed, once again
The ordeal of Adam Capay, held for more than four years in solitary confinement in a Thunder Bay jail, has shone a bright light on the shameful treatment of too many prisoners in Ontario.
Capay has now been moved out of the windowless basement cell in which he languished for so many months and the pressure is on governments to finally come to grips with the overuse of solitary confinement. They have been dragging their heels for far too long.
But the focus on one particularly punitive form of incarceration obscures the fact that Capay has been denied one of the most fundamental rights accorded to everyone under our system — the right to be judged in a timely manner.
Capay, a 23-year-old indigenous man, was charged in 2012 with the murder of a fellow inmate at the Thunder Bay District Jail. Fifty-two months later he is still waiting to be tried.
By any measure, this is far too long. The Supreme Court of Canada made that crystal clear in July when it set new guidelines for how long an accused person should be expected to wait for a criminal trial.
A majority of five justices condemned what it called a “culture of complacency and delay” in the court system. It proclaimed that “timely justice is one of the hallmarks of a free and democratic society.” And it said it should not take longer than 18 months from the time a charge is laid until the trial is completed in a provincial court, and 30 months in superior courts. Anything longer than that, it said, would normally be presumed to violate an accused person’s rights.
By that standard, Adam Capay’s constitutional right to be tried within a reasonable period of time has already been well and truly trampled upon — quite aside from the appalling conditions in which he’s been held. On the face of it, he has a powerful case to be released immediately.
Courts have released inmates before because of excessive delays, even in cases involving serious charges.
Three weeks ago, an Alberta judge threw out a charge of firstdegree murder against a prisoner accused of killing a fellow inmate because the case went all the way back to 2011. In its July decision, the Supreme Court itself overturned the drug conviction of a B.C. man because his trial took more than four years.
The court system is clearly overloaded and the Supreme Court’s new guidelines mean many more cases are likely to be thrown out — simply because they’ve dragged on too long. This is unacceptable both for the administration of justice and for its impact on victims of crime, who may see perpetrators walk free.
The solutions are well-known, but governments have been slow to move on them.
They need to make sure courts are properly staffed, and that vacant judicial positions are filled quickly. The federal government made a good start on that this month by appointing or promoting 24 new judges, but many vacancies remain.
The court system itself is a relic of the pre-technology world, and is badly in need of modernization. Ontario’s attorney general is looking at long overdue ways to speed things up — including more use of electronic filing and video conferencing. He should press ahead with that.
More broadly, the court system is clogged with cases involving offenders whose real issues are addiction and mental illness. These are public-health matters, not criminal ones, and should be treated as such.
Until governments come to grips with these problems, there will be many other Adam Capays languishing in the system.
Adam Capay’s constitutional right to be tried within a reasonable period of time has already been well and truly trampled upon