Adam Capay

Ontario Ombudsman Calls for New Laws and Strong Oversight of Inmate Segregation 

Written on Behalf of Affleck & Barrison LLP

As we addressed in a previous blog, the Ontario Ombudsman has been investigating the use of solitary confinement in correctional facilities across the province.

This week, the Ombudsman released a 72-page report calling on Ontario to reform its “flawed” system of placing and tracking inmates in solitary confinement. The investigation revealed a number of issues that place vulnerable people at risk.

The Report

The Ombudsman launched his investigation after the treatment of Adam Capay, a 24-year old who had been held in solitary confinement in the Thunder Bay Jail for more than 4 years, made headlines.  Capay had been detained, alone, in a plexiglass cell in a basement where lights were on for 24 hours a day, making it impossible for him to know whether it was night time or day time. While Capay was held in segregation for more than 1,500 days, data from the Ministry of Community Safety and Correctional Services incorrectly stated that he had been segregated for only 50 days.

The Ombudsman noted, about Capay’s treatment, that the young man had been “…out of sight and out of mind”. The report, entitled Out of Oversight, Out of Mind identified a number of serious issues with the solitary confinement system, including how the province defines inmate segregation and the overuse of segregation as a form of inmate punishment.

The report recommends that inmates be held in solitary for no more than 15 days, and only once all other options have been exhausted.

The Ombudsman told CBC News that:

“Solitary confinement is supposed to be an absolute last resort and that’s not what is happening”

The Ombudsman’s Office has received more than 800 complaints about solitary confinement over the last four years.

The Investigation

Over the course of the Ombudsman’s investigation, 10 000 documents were reviewed, 36 interviews were undertaken, and 4 facilities were visited. The investigation’s findings were shared with Howard Sapers, the former Correctional Investigator of Canada, who is responsible for leading a separate review of inmate segregation.

Unfortunately, neither the Ombudsman’s Office nor the province has been able to obtain accurate statistics on segregation. The Ombudsman says that this is due to the fact that Ontario has never clearly or universally defined segregation, and that the methods of tracking solitary confinement (i.e.- measuring how long an inmate spends alone) vary from facility to facility.

The report made 32 recommendations. Specific recommendations for the Ministry of Community Safety and Correctional Services state that the Ministry should:

  • Within the next six months, establish a new definition of “segregation” in relevant legislation, to be applied to all inmates in segregation-like conditions. The definition should be in accordance with international standards;
  • Consult with and train correctional staff on the new definition, and provide adequate tools and resources in order to track placements accurately;
  • Placements should include “continuous” segregation when inmates are transferred between units and institutions;
  • Ensure that the placement tracking system alerts front-line managers when required reviews for inmates should take place (i.e.- every 5 and 30 days, and after 60 days in one year);
  • Create an independent panel to review all segregation placements, and place responsibility on the Ministry to show that each placement is justified;
  • Ensure that segregation is only used as a last resort in every instance;
  • Publicize anonymized segregation data
  • Collect and analyze statistics on the use of segregation, including information about the race, gender, mental health status, and other data about inmates;
  • Report results to the public on an annual basis;
  • Report back to the Ombudsman every six months.

The Ministry has accepted most of the recommendations made in the Report and has stated that it will explore others as part of its ongoing efforts to reform the province’s corrections system.  The province has agreed to provide the Ombudsman’s Office with regular progress reports.

We will continue to 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 those clients’ 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.

Ontario Ombudsman to Investigate Solitary Confinement Practices in the Province

Written on Behalf of Affleck & Barrison LLP

As we have regularly been blogging about , the use of solitary confinement in correctional facilities in Ontario has been in the news since the story of Adam Capay’s plight at the Thunder Bay District Jail came to the public’s attention earlier this year.

Last week, Ontario Ombudsman Paul Dube announced that he has launched an investigation into the way in which the province tracks and reviews the placement of prisoners in solitary confinement. The Ombudsman’s investigation will look into how the system logs prisoners in segregation, how the system counts the amount of time they have spent in isolation, and will examine the effectiveness of the safeguards that are intended to scrutinize segregation placements.

The Ombudsman has stated that this investigation was prompted, in part, by the details that have been emerging about the conditions that Adam Capay was kept in at the Thunder Bay facility. Another factor prompting the investigation was a spike in complaints about solitary confinement.

Since April 1st of this year, the Office of the Ombudsman has received 175 complaints pertaining to segregation, which is on track to surpass the number of complaints made in previous years. Overall, the office received a total of 4,051 complaints about provincial correctional facilities in 2015-2016.

The office has stated:

As a fully independent, impartial office that has been investigating thousands of complaints about Ontario correctional facilities for more than 40 years, we are uniquely placed to investigate and comment on this issue

The investigation will be conducted by the Special Ombudman Response Team (SORT), which is responsible for the office’s major field investigations. The investigators will visit several institutions, and among other things, review statistics, procedures, and other documentation related to segregation. The goal is to complete the investigation as quickly as possible.

The Ontario government recently appointed Howard Sapers, a former federal correctional investigator, to review the province’s segregation practices and the operations of the correctional system overall, beginning in January 2017. The Ombudsman has stated that Mr. Sapers’ investigation “would not conflict” with SORT’s investigation, but rather, would “enhance that effort”.

Previous Actions Taken

Earlier this year, a Globe and Mail investigation uncovered significant disparities in the way Canada’s provincial, territorial, and federal prison systems were tracking the length of time that inmates were spending in solitary confinement. For instance, Ontario was unable to provide detailed information about how many prisoners had spent more than 15 days in solitary over the previous five years. The United Nations considers solitary confinement for more than 15 days to be torture.

In May 2016, the Ombudsman made an official submission and 28 recommendations on the ongoing use of segregation. Among the recommendations was a call for an outright ban on long-term confinement, and a recommendation that the province strictly adhere to the 15 day limit.

The submissions also noted that the Ombudsman’s office had alerted the Ministry of Community Safety and Correctional Services several times in recent years about correctional facilities “not meeting their legal requirements to review and document segregation placements”.

At Affleck & Barrison our firm and its predecessors have been protecting client rights since 1992. Our skilled lawyers have significant experience defending a wide range of criminal charges and protecting our client’s legal interests.  We are available 24 hours a day, and offer a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation.

Second Psych Evaluation Approved for Inmate in Solitary Confinement in Thunder Bay

Written on Behalf of Affleck & Barrison LLP

As originally blogged about several weeks ago, the Ontario Human Rights Commission has called for an end to solitary confinement in Ontario prisons, and has shed light on the plight of Adam Capay, an inmate who has spent almost 4 years detained, alone, in a plexiglass cell in the basement of the Thunder Bay District Jail.

The Globe and Mail is now reporting that Thunder Bay Superior Court Justice Danial Newton has agreed to a request for an in-patient psychiatric assessment made by Mr. Capay’s new team of lawyers. Additional details about the assessment, including the reasons it was ordered, are covered by a publication ban.

Mr. Capay originally underwent a similar assessment last year that determined that was fit to stand trial. However, that was before his circumstances changed. When Renu Mandhane, Ontario’s Chief Human Right’s Commissioner, visited Mr. Capay during her tour of the Thunder Bay facility in October of this year, he informed her that he had been suffering from speech and memory problems brought on by his confinement in the cell, made worse by constant illumination by artificial light.

Other Developments

Several different lawyers have represented Mr. Capay, and three trial dates have been adjourned over the period of Mr. Capay’s pre-trial custody (now numbering more than 1,600 days).

Mr. Capay is represented by a team of four lawyers who, according to a statement they recently released,  are working on “all aspects of his case”. Mr. Capay’s next scheduled court appearance is on January 30th.

Last week, David Orazietti, the province’s Correctional Services Minister, requested funding for new infrastructure in Thunder Bay, and sent a 25-member team to examine conditions in solitary confinement cells around the province.

Employees at the Thunder Bay District Jail have stated that Mr. Capay is considered “too dangerous” to place among other inmates in the general population unit, and that there are few confinement options available other than segregation at the overcrowded facility.

We will continue to follow developments in this matter and provide updates as they become available.

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

 

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.