Inmate who spent four years in solitary subject to 'abhorrent' treatment: judge

Adam Capay is seen in this photo posted to ask.fm on Oct. 4, 2015. (Source: Allison Jane Capay/ask.fm)

A mentally ill Indigenous man kept in isolation in an Ontario jail for more than four years endured treatment so "abhorrent and "inhumane" it affected his ability to stand trial for murder, a judge ruled while staying the charge.

Superior Court Justice John Fregeau ruled that Adam Capay, whose case sparked a public debate on solitary confinement in correctional facilities, endured permanent memory loss and had his pre-existing psychiatric disorders greatly exacerbated after spending four and a half years in segregation, often without proper sleep or access to mental health services.

Fregeau's late January decision, which resulted in Capay's release, was subject to a publication ban that only lifted once prosecutors indicated this week they did not plan to appeal the stay of the first-degree murder charge in the case.

Capay, 26, was accused of stabbing Sherman Quisses twice in the neck while both were at a correctional facility in Thunder Bay, Ont. While the judge acknowledged that Capay was responsible for Quisses' death, he said the man's subsequent years of isolation amounted to cruel and unusual punishment that violated his charter rights and left him unable to proceed to trial.

"The treatment of the accused was, in my opinion, outrageous, abhorrent, and inhumane," Fregeau wrote in his Jan. 28 decision. "There would be ongoing prejudice to the accused if forced to proceed to trial."

Fregeau's ruling outlined a litany of difficult circumstances Capay faced beginning during his turbulent childhood on the Lac Seul First Nation in northwestern Ontario.

Capay grew up in a family dominated by substance abuse and violence, the judge said. Capay was repeatedly sexually abused as a child, exposed to alcohol at age seven and had inhaled solvents by age eight, Fregeau wrote. Capay's father once tried to force his son to kill him when he was 10, the judge added.

Fregeau's ruling said Capay was placed in segregation at the Thunder Bay Correctional Centre immediately after his 2012 attack on Quisses.

Between June 4, 2012 and Dec. 6, 2016, Capay was largely kept in isolation for 23 hours a day.

For much of that time, Capay languished in cells where the lights were kept on 24 hours a day. For long stretches, the detention blocks he was held in did not allow him to flush the toilet from inside the cell.

Over his four and a half years in segregation, Fregeau found Capay received less than 11 hours of mental health support from jail staff.

Capay's long-standing isolation was known to correctional officials, who repeatedly signed off on extending his time in segregation even as the total number of days climbed up over the 1,600 mark.

Fregeau noted Capay's plight only came to light in 2016 after a guard tipped off Ontario's human rights commissioner while she was visiting the facility.

Calling the segregation review process "meaningless" in Capay's case, Fregeau cited the testimony of an expert witness who described the system in dehumanizing terms.

"People are filling out forms. They're checking boxes, but it's as if Adam Capay's disappeared," Michael Jackson, a British Columbia-based professor with expertise on the Indigenous people within the justice system, told court.

Fregeau accepted testimony from other experts who said Capay suffered permanent memory loss and considerable deterioration in his mental state as a result of his long time in isolation.

Crown lawyers had conceded his treatment while incarcerated amounted to cruel and unusual punishment, but said there were steps the court could take to ensure Capay still stood a fair trial. Defence lawyers contended the impacts of his segregation compromised his ability to stand trial or mount a credible defence.

Capay's lawyers said the decision to stay the first-degree murder charge is an indictment of the treatment their client endured.

"A stay of proceedings was the only appropriate remedy," Karen Symes and Adriel Weaver said. "The Crown's decision not to appeal affirms that conclusion."

The lawyers acknowledged, however, that the decision is "a painful one" for Quisses' family and community, saying they too suffered "profound harm" due to the actions of corrections officials.

Capay's case prompted the provincial Liberal government of the day to order a review of the use of segregation in jails. It also announced a 15-consecutive-day limit on inmates being held in disciplinary segregation, down from 30.

The review, released in 2017, called for an end to indefinite segregation of inmates in the province's jails, but stopped short of urging an outright ban on the practice.

The province's ombudsman has also urged the government to end indefinite segregation and said no inmate should be kept in isolation for more than 60 days in a year.

Correctional Services Minister Sylvia Jones said the Progressive Conservative government respected Fregeau's decision. Her thoughts were with the Quisses family, she said, noting the government has taken steps to manage inmates more effectively.

"We must prevent a similar case from happening again," she said.