THUNDER BAY - The circumstances surrounding Adam Capay, a 26-year-old Lac Seul First Nation man, being kept in segregation for more than 1,600 days was not only a violation of his Charter rights, but a failure on the part of the provincial government for allowing it to continue for so long.
“It is my opinion that the treatment of the accused was outrageous, abhorrent, and inhumane,” said Justice John Fregeau as part of his 126-page decision to stay the first-degree murder charge against Capay during a hearing in Thunder Bay on Jan. 28.
“In my opinion, this is the clearest of cases in which no remedy short of a stay is capable of redressing the prejudice caused to the integrity of the justice system as a result of the multiple and egregious breaches of the accused’s Charter rights.”
Capay made national headlines when it came to light that he had been held in administrative segregation from June 4, 2012 to Dec. 6, 2016, a total of 1,647 days, 1,505 days at the Thunder Bay District Jail and 142 days at the Kenora Jail.
During that time, Capay was held in various cell blocks, which included being in complete isolation, living in a Plexiglas cell with lights on 24-hours a day, no access to television or radio, telephones, and requiring a correctional officer to flush the toilet.
Capay was placed into segregation following the death of 35-year-old Sherman Quisses, which was conceded to be caused by Capay at the Thunder Bay Correctional Centre in June 2012.
Fregeau ordered a stay of the first-degree murder charge, citing numerous examples of violations to Capay’s Charter rights and the unlikelihood of him receiving a fair trial by jury. On Tuesday, the Crown said after thoroughly reviewing Fregeau’s ruling, it would not be filing an appeal to the decision.
Counsel for Capay sought the stay last spring, arguing that his rights under Section 7 (the right to life, liberty and security), Section 9 (the right not to be arbitrarily detained), Section 12 (the right not to be subject to cruel and unusual punishment), and Section 15 (right to be equal before and under the law) of the Charter of Rights and Freedoms were violated as a result of his prolonged detention in segregation.
The Crown conceded that Capay's Charter rights under Section 7 and 12 were violated, but submitted that Section 9 and 15 did not have application in the case.
Expert testimony
In his ruling, Fregeau cited several witness testimonies, which included expert witnesses, as well as Ministry of Correctional Services and correctional staff. Fregeau said he was disturbed in the contrast between the demeanor of the expert witnesses and the Ministry witnesses.
“All experts were demonstrably appalled by the state’s treatment of the accused over the span of four and one half years,” Fregeau said. “By contrast, with the exception of Mr. (Mike) Lundy (correctional officer), I did not observe a single note of contrition or regret during the testimony of the correctional witnesses who were largely responsible for detaining the accused in segregation under abhorrent conditions.”
Several witnesses, including experts in correctional law, international law, criminology, and forensic psychiatry, spoke to the extreme nature of the conditions in segregation and the impact it had on Capay’s physical and mental health.
An expert in criminology and sociological studies, who has toured correctional facilities around the world, called the conditions in the Thunder Bay District Jail as “some of the most egregious conditions that you’ve seen in undeveloped countries or the United States.”
“I don’t think I’ve seen anything this long and this, you know badly documented and managed context in my career,” the witness testified. “As far as I’m concerned, this does get to the level of torture, definitely cruel and unusual, completely unacceptable when you’re talking about pre-trial custody.”
A forensic psychologist, who conducted a psychiatric assessment of Capay in December 2016, testified such prolonged time in segregation had significant physical and mental health effects on Capay, who already displayed signs of post-traumatic stress disorder and depression.
Capay was described as already carrying a heavy trauma load before being placed in segregation. These traumas included repeated childhood sexual and physical abuse, exposure to drugs and alcohol at as early as seven-years-old, and involvement in the criminal justice system at the age of 13.
During the time of the attack on Quisses, witnesses said Capay did not appear to be acting like himself, was emotionless, and appeared to be in a trance. A witness testified this altered state of consciousness could have been the result of abusing opiates while taking anti-depressants.
With a history of mental health issues, time spent in segregation only elevated the risk of self-harm or suicidal behaviour. Between April 2015 and December 2016, Capay engaged in several extreme incidents of self-harm, including stabbing a pencil through his cheek, slashing his forearms with razor blades, and banging his head on the cell door.
Ministry's failure to properly review case
The Ministry of Correctional Services repeatedly failed to conduct proper reviews of Capay’s time in segregation, Fregeau said, which constitutes a violation of both Section 7 and 9 of his Charter rights.
According to Ministry policy, correctional officials are to conduct segregation reviews in relation to the initial placement followed by 24-hour reviews, five-day reviews, 30-day reviews at the institutional level, and 30-day reviews at the regional level.
Between 2012 and 2015, an inconsistent number of reviews were held at the institutional level and few were sent to the regional office.
For example, between September 2012 and February 2013, Capay’s placement in segregation was required to be reviewed 43 times, including 33 five-day reviews at the institutional level and five 30-day reviews at the institutional and regional levels. No reviews were conducted in that five-and-half month period.
“For nine months following the placement of a young, mentally ill, Indigenous man in segregation, his placement in segregation was reviewed at the institutional level only three times,” Fregeau said. “The ongoing decisions to detain the accused in segregation after the fall of 2013 were not based on reliable information and objective criteria as required by Ministry policy. I find that the segregation of the accused during this period of time was therefore contrary to Ministry policy and unlawful.”
Unable to stand trial
According to Capay’s counsel and testimony from witnesses who conducted psychological assessments of Capay, he has no memory of the attack against Quisses.
While it was conceded that Capay was responsible for the death of Quisses, the issue that would have been put before a jury was Capay's mental state at the time of the attack. A forensic psychiatrist testified that there was considerable evidence that Capay was in a seriously altered state or disturbed state of mind during the offence, “which would support a finding that he was not criminally responsible or that would have a 'substantial impact on his culpability short of that finding.’”
“I am persuaded on a balance of probabilities that the accused’s right to make full answer and defense and his right to a fundamentally fair trial have been breached,” Fregeau said. “This breach is a result of his inability to fully and fairly advance a defence of not criminally responsible or alternative defences to the first-degree murder.”
With respect to Section 15, stating that everyone has the right to equal protection and equal benefit under the law without discrimination, Fregeau ruled segregation did not have a disproportionally negative impact on Capay due to his Indigenous background, but it did violate his Section 15 Charter right based on his mental illness.
“I am satisfied that segregation had a disproportionally negative impact on the accused, an inmate with pre-existing mental health issues, relative to inmates without pre-existing mental health issues,” Fregeau said.
Fregeau added that any alternative remedies, such as a reduced sentence or being tried by a judge alone, would violate Capay’s constitutional right to be tried by a jury for the charge of first-degree murder.
“First degree murder is the most serious offence in Canadian criminal Law,” Fregeau said. “It is without question that society – and the family of Mr. Quisses – have a very high interest in seeing a charge of this nature addressed on its merits.”
When reading his ruling, Fregeau addressed members of the Quisses family who were present in the courtroom on Jan. 28.
“I am aware my decision to stay the murder charge may be difficult to understand or accept,” he said. “I recognize that this is a denial of justice to the family of Sherman Quisses.”
