Ontario Human Rights Commissioner Calls for End to Solitary Confinement in Ontario Prisons

Written on Behalf of Affleck & Barrison LLP

We’ve previously blogged about prison conditions in Ontario. The issue is now back in the news following the visit of the Chief Commissioner of the Ontario Human Rights Commission (OHRC) to the Thunder Bay District Jail and her subsequent calls for an end to segregation in the province’s correctional facilities.

The Chief Commissioner, Renu Mandhane, visited the jail in early October where she met Adam Capay, a 23-year old inmate Aboriginal inmate from the Lac Seul First Nation in Northwestern Ontario, who had been held in solitary confinement for more than 1,500 days (or 4 years). Mr. Capay had been detained in a basement, alone, in a plexiglass cell, where the lights were on for 24 hours a day. Mr. Capay had no conception of whether it was day or night.

After meeting Mr. Capay, the Chief Commissioner reported that Mr. Capay appeared to be suffering from memory and speech problems as a result of the conditions in which he was being held, and that he showed signs of self-harm.

Mr. Capay’s confinement began in 2012, when, while serving time at the Thunder Bay Correctional Centre, he was involved with a violent confrontation with another inmate, resulting in that inmate’s death. Mr. Capay was subsequently charged with first degree murder, and sent to solitary confinement. He was 19 years old at the time. To date, Mr. Capay has never had a trial, has never been convicted of anything, and has not been sentenced for a crime. Yet, he has been locked in solitary confinement for 52 months.

The Ontario Human Rights Commission on Solitary Confinement in Correctional Facilities

In January 2016, the OHRC provided the Ministry of Community Safety and Correctional Services with written submissions on the use of segregation (i.e.- solitary confinement) in correctional facilities in Ontario.

Following the Chief Commissioner’s visit to the Thunder Bay Correctional Centre, the OHRC made supplementary submissions with additional commentary. The new report indicates that there is a “gross reliance on and overuse of segregation” in Ontario’s correctional facilities and that these issues are “systemic”. Statistics indicate that between October and December of 2015, more than 4,100 Ontario inmates spent at least one day in segregation. More than 1,500 of these inmates, or almost 40% of them had a “mental heath alert” on file.  Almost 25% of segregations exceeded two weeks (15 days being the UN recognized threshold for torture).

Public Outrage about the Conditions Mr. Capay was Held In

Since Mr. Capay’s circumstances were brought to light, there has been significant public outrage. The Globe and Mail’s editorial board wrote a scathing editorial criticizing the “inhuman treatment” of Mr. Capay, and asking “those who allowed this to happen” to be held accountable. The editorial board pointed out, among other things, that

The only thing Ontario prison officials haven’t done to this poor man is shackle him upside down on a dungeon wall. But they may as well have. Mr. Capay is arguably being tortured by the state. The sensory deprivation caused by constant light is an acknowledged torture technique, and the United Nations says that holding a person for more than 15 days in solitary is in itself a form of torture.

Indeed, as the board points out, the Supreme Court of Canada has previously acknowledges that any delay longer than 30 months between the laying of a criminal charge/charges and the completion of trial is a violation of the accused person’s fundamental Charter right to trial within a reasonable period of time. Mr. Capay’s 1,500 day incarceration is approximately 100 times longer than the 15 day window that the UN considers solitary confinement constituting torture.

The Response

Premier Wynne has stated that she is “very troubled” by the circumstances, and that “it is very disturbing and shouldn’t happen”, but would not comment on whether anyone would be held accountable for what happened to Mr. Capay, saying only that the Liberal government would conduct an additional review of solitary confinement in the province.

David Orazietti, the province’s Correctional Services Minister has since committed to ensuring no other Ontario inmate is held in conditions with 24-hour per day light, and that all inmates have daily access to medical care.

It remains to be seen what the final outcome of this shocking mistreatment of an inmate will be. Since the Chief Commissioner shed light on Capay’s mistreatment, he has been moved to a different cell with lights that can be dimmed, and access to a day room and a television.

We will follow developments in this matter and blog about updates as they become available.

At Affleck & Barrison our firm and its predecessors have been representing clients charged with criminal offences and protecting their rights since 1992.  Our lawyers are extremely knowledgeable and are experienced at defending a wide range of charges.  Call us at 905-404-1947 or contact us online for a free consultation. We offer 24-hour phone service for your convenience, and a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help.