Adam Capay's lawyer plans 'habeas corpus' application to review solitary confinement

The lawyer for a 24-year-old First Nations man who had been in solitary confinement in Ontario for more than four years says he will ask the court to formally review his client's detention.

Anthony Bryant is representing Adam Capay on the charge of first degree murder.

Capay was charged in 2012 with the death of another inmate at the Thunder Bay Correctional Centre. Since then he has been held in segregation, most recently at the Thunder Bay District Jail, where his situation came to the attention of the Chief Commissioner of the Ontario Human Rights Commission during a tour last month.

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Bryant said he is planning to file a habeas corpus application "to have the nature of [Capay's] pre-trial detention reviewed and to see if that can be properly ameliorated."

Habeas corpus is a legal concept — a test of the validity of a prisoner's detention — dating back to the Common Law of England. 

After a public outcry about Capay's case in October, the government announced he had been moved to a different cell but he remains isolated from other inmates in the same facility.

"The interest in Mr. Capay's pre-trial detention is warranted and if it's a systemic issue then it's something that needs to be addressed across the province," Bryant said.

He has asked Legal Aid Ontario to back the habeas corpus application and asked government to release to him all the documents pertaining to Capay's time in solitary confinement.

"You can't make bald allegations without having support for them and we'll be guided by the contents of those documents and discuss them with our client," Bryant said.

Capay's next scheduled court appearance is Nov. 28 to set a date for future proceedings.

A trial is not expected until the new year, extending Capay's pre-trial custody to nearly five years. The Supreme Court considers a "reasonable delay" in getting to trial to be no more than 30 months. 

"There may be some inter-linking with the way the defence is prepared because of the [pre-trial custody] conditions being so harsh, but that needs to be explored and we're not at that stage yet," Bryant said.

The Toronto-based lawyer has specialized in criminal law for more than 40 years, including his work as co-counsel in the homicide trial of serial killer Paul Bernardo, and one of the men charged in the Bandidos homicide case in London, one of the worse mass murders in Ontario history.

"As a criminal defence lawyer, one does not get to pick and choose one's clients," Bryant said. "I had no hesitation in telling Mr. Capay I would be pleased to offer my assistance."