The Ontario Human Rights Commission (OHRC) was sounding the alarm on this inhumane practice well before I met Adam Capay in a segregation cell in the Thunder Bay Jail in October 2016. We had long been calling on the previous government to eliminate the use of segregation. In the interim, we called on the government to “make segregation placement decisions and healthcare assessments subject to external and independent review and oversight, including judicial review.”
The publication ban in R. v Capay was lifted today and reading the 127-page decision is harrowing. Justice Fregeau found that Adam Capay’s isolation for over four years had a “serious, profound” impact on his “psychological integrity” and violated his Charter rights. As a result, Capay will not be tried for first degree murder and the victim’s family has been robbed of the opportunity to seek justice. There are no winners here.
After obtaining segregation statistics from the government, the OHRC wrote again. We cautioned that nearly 1,400 of Ontario’s segregation placements were long enough that they could amount to cruel and inhumane treatment based on United Nations standards. We noted that internal procedural safeguards were “wholly insufficient to address a problem of this magnitude.”
Despite the seriousness of the harm to prisoners in segregation, in R. v Capay the Court found the government’s internal segregation reviews “meaningless.” Many of the reviews never took place and those that did were supported by sloppy and erroneous paperwork. The government’s regional reviewer testified that he had never removed a prisoner from segregation and questioned whether he was authorized to do so. This falls far short of the “robust duty of procedural fairness” that Ontario courts have held should be applied in these types of cases.
While giving evidence in R v. Capay, prison expert Michael Jackson reflected on the Kafkaesque quality of Capay’s segregation reviews: “When you look at these reviews and you see from month to month, from year to year, they’re exactly the same. He was kind of trapped in a place and space that never changed…People are filling out forms. They’re checking boxes, but it’s as if Adam Capay’s disappeared.”
Relying on evidence about the OHRC’s work, Justice Fregeau found that “The state misconduct in this case is not isolated,” and that “the inadequacy and ineffectiveness of the segregation review process in Ontario has been a long standing and ongoing problem.”
Indeed, since Capay’s admission into segregation in 2012, too little has changed. Data from May 2018 shows that there were 778 segregation placements exceeding the accepted limit of 15 days, with eight prisoners being held in segregation for over a year. Based on this data, judges may very well be asked to stay other criminal charges based on rights violations associated with Ontario’s use of solitary confinement.
It is now abundantly clear that Ontario’s continued use of segregation undermines both human rights and the administration of justice.
Earlier this year, in R. v Prystay, the Alberta Court of Queen’s Bench remarked on the evolving societal views of what is acceptable treatment or punishment: “Forced sterilization, residential schools, lobotomies to treat mental disorders, corporal punishment in schools and the death penalty are all examples of treatment once considered acceptable. Segregation ravages the mind. There is growing discomfort over its continued use as a quick solution to complex problems.”
In light of the emerging consensus, Ontario should heed the OHRC’s early warnings about the danger of this inhumane practice and commit to eliminating segregation. At the very least, requiring external and independent oversight, including judicial review of segregation decisions, would assure the public that vulnerable people held in segregation will not “disappear,” swallowed up by a vast and ineffective bureaucracy. After all, what was business as usual for corrections officials, was cruel and unusual treatment to Justice Fregeau.
In the wake of R v Capay, the OHRC has written to the government and offered to work with them to tackle the immediate challenges. The problems are complex but the solutions have been well documented – from the Ashley Smith Inquest to recent reports on corrections reform in Ontario. With leadership and appropriate investment, the Government now has a unique chance to make our prisons more humane, our communities safer and our justice system stronger.
Chief Commissioner, Ontario Human Rights Commission
Originally published by the Globe & Mail | Feb. 2019