Ontario human rights watchdog renews calls for end to segregation after Adam Capay decision

Ontario's chief human rights commissioner is again calling on the province to phase out segregation for inmates in jail and is urging the current government to act where previous ones have failed.

Renu Mandhane pushed the issue while visiting Thunder Bay and adjacent Fort William First Nation in February.  Her calls follow the public release of a judge's decision, made in January, which stayed a first degree murder charge against a Lac Seul First Nation man, after his rights under the Charter of Rights and Freedoms were found to have been violated due to his time in solitary confinement.

"I think we've had many reviews and reforms and attempts at reforms later and so I think, in some ways I'm surprised that it's taken us up to this point to even start to figure out how to reform the real systemic problems," Mandhane said.

Ontario Superior Court Justice John Fregeau ruled that 26-year-old Adam Capay's four and a half years in solitary confinement and the failure of corrections officials to properly review that segregation breached four sections of the Charter of Rights and Freedoms. Fregeau called those breaches, among other things, "abhorrent" and "egregious."

Mandhane also sent a letter to Sylvia Jones, the provincial minister responsible for corrections in the wake of the Capay decision, again calling for the phasing out of segregation in Ontario's jails and correctional facilities, saying that Jones has "a unique chance to make our prisons more humane, our communities safer and our justice system more fair."

Mandhane's letter also outlined other objectives she'd like to see in the meantime, including strictly prohibiting segregating prisoners who have mental health issues, including those who self-harm or are suicidal, and prohibiting segregating inmates indefinitely by putting a 15-day cap on how long they can be held in isolation.

"When this form of confinement is available, it tends to be overused," Mandhane said, adding that data from the Ministry of Community Safety and Corrections shows no tangible decrease in the number of times prisoners have been placed in solitary confinement.

"Five years later, we see that the numbers haven't changed all that much and that people are still being kept in long-term placements," she said. "At this point, it just seems that this is not a safe practice."

Mandhane said that the Thunder Bay jail, in particular, needs more resources to better provide Indigenous-focussed programming and supports.

Call for public inquiry

The Capay case highlighted a problem in many correctional facilities, said Jean-Claude Bernheim, a criminologist and lecturer at the Université de Saint-Boniface in Winnipeg.

"People are put in prison because they don't respect the rules but the [people] in charge of the [correctional] institutions don't respect the rules," he said. "It's incredible, it's not acceptable; we have now an extreme example of what is going on everyday inside the institutions."

Bernheim said there should be a public inquiry into Capay's time in segregation because "this case is just an illustration of what is going on." He added that such a step would show the public what happened during Capay's time in the Thunder Bay jail and allow for conversation around what procedures could be implemented.

In her letter to Jones, Mandhane said it warned the previous Liberal government that it "was not placing sufficient emphasis on protecting the human rights of prisoners," and that Capay's case is a stark example of that.

Victim's family says justice system failed 'miserably on all accounts'

Meanwhile the family and home community of the man that Capay acknowledges killing at the Thunder Bay Correctional Centre said they're disappointed in the Crown's decision not to appeal Fregeau's ruling.

Sherman Quisses was in his mid-30s when he was allegedly stabbed to death in 2012.

"Neskantaga First Nation supports the Quisses family and is deeply disappointed with the outcome of this case — the justice system has failed the late Sherman, his surviving son, family and community miserably on all accounts," Neskantaga Chief Wayne Moonias stated in a written release.

The justice system has failed the late Sherman, his surviving son, family and community miserably on all accounts- Neskantaga Chief Wayne Moonias

"A son has lost his father and it has been an enormous tragedy. Now, it will never be resolved and they will continue to live in agony for their loved one."

The community's statement said that Quisses's son, Tristan, who was 13 when his father was killed remains frustrated over what the statement called the "lack of justice."

"The injustice upon Adam Capay was the focus of this case," Moonias's statement said. "There is more work to do in ensuring the Quisses family receives the healing and support they need as a result of these harms placed on them."

"There are no winners in this case," Mandhane said.

The Crown has applied to have Capay subject to a peace bond with restrictions. That application is scheduled to be heard in May.

Evidence submitted as part of those proceedings is subject to a publication ban.