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Canada Judge issues stay in case of Adam Capay, who spent years in solitary confinement

Adam Capay smiles outside the Thunder Bay Courthouse as members of his family greet him.

David Jackson

A Thunder Bay judge has issued a stay of proceedings in the case of Adam Capay, releasing the 26-year-old Lac Seul First Nation man who spent 4½ years in solitary confinement – much of that time in cells illuminated around the clock and covered with sheets of Plexiglas.

In issuing his decision, Justice John Fregeau upheld a publication ban on all decisions and evidence in the case until the window for appeals closes on Feb. 27. The limited portion of the decision that can be published states the stay was granted as a remedy for multiple breaches of Mr. Capay’s Charter rights.

That narrow glimpse of the full judgment suggests a rare finding that the harm caused by the state’s treatment of Mr. Capay in prison outweighs the seriousness of his alleged crime – first-degree murder.

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The decision brought many members of Mr. Capay’s family to tears as they watched him walk free of the criminal justice system for the first time in 6½ years – since he was a teenager.

“We’re very relieved both as both counsel and as citizens," said Karen Symes, who argued for Mr. Capay’s stay with co-counsel Adriel Weaver. "The treatment that Mr. Capay endured has no place in our society.”

The decision proved difficult for family members of Mr. Capay’s alleged victim, Sherman Quisses, one of whom stormed out of court loudly denouncing the judgment. Mr. Capay is alleged to have stabbed and killed Mr. Quisses, a fellow inmate at Thunder Bay Correctional Centre.

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Mr. Capay’s legal team acknowledged that the entire case has been tragic for everyone involved. “The state has not only deprived Adam Capay of his rights but also deprived the Quisses family of an opportunity for justice,” said Ms. Weaver. “I’m hopeful this will result in real systemic change, that this will not happen to anyone ever again.”

His lawyers argued that Mr. Capay’s lengthy and harsh stay in solitary during pretrial custody violated sections 7, 9, 12 and 15 of the Charter of Rights and Freedoms, which guarantee life, liberty and security of the person and protect against arbitrary detention, cruel and unusual punishment and discrimination.

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Justice Fregeau agreed Mr. Capay’s rights had been breached under all four sections, according to the limited portion of his decision not covered by the publication ban.

The few details of the case that emerged publicly suggested a precedent had been set.

“I think I’m safe in saying it’s never happened – unprecedented,” said Edmonton criminal defence lawyer Tom Engel, of the issuance of a stay in a murder case based on conditions of pretrial custody.

“I’m just elated to hear that a judge has finally had the guts to do what is obviously right," added Mr. Engel, who was not involved in the case.

Normally, judges grant a stay only if it’s no longer possible to give the accused person a fair trial.

There’s also a category of cases where society’s interest in prosecuting is balanced against the damage done to public confidence in the justice system by a denial of rights. But society’s interest in prosecuting murder is “about as strong as it can be,” said Stephen Coughlan, who specializes in criminal law at Dalhousie University’s Schulich School of Law.

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“It’s not impossible but it would be a pretty rare case," he said. "I can’t think of another one.”

In a case this month in Alberta, a judge gave credit of 3.75 days for each day in pretrial custody, citing the use of prolonged solitary confinement. In that case, the man had been accused of assaulting another inmate, and had served more than 400 consecutive days in segregation.

From the day of Mr. Quisses’s death on June 3, 2012, until December, 2016, prison officials held Mr. Capay in administrative segregation, a form of solitary confinement that limited him to one hour a day outside his cell.

Lawyers for Mr. Capay pegged his total time in continuous solitary confinement at 1,636 days. During most of that stretch, he had minimal access to showers, reading materials, writing tools, cell radio, Indigenous services or canteen food. He spent long stretches in cells that were illuminated 24/7 and covered with Plexiglas sheets.

Mr. Capay’s name came to public attention in October, 2016, when a correctional officer who’d witnessed his precipitous mental decline in solitary confinement notified Ontario’s chief human rights commissioner, Renu Mandhane, who, in turn, alerted the media.

Ms. Mandhane interviewed Mr. Capay and what she heard from the young man shocked her. He had difficulty speaking because of a lack of human contact, and the continuous artificial lighting made it hard for him to discern night from day.

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When Ms. Mandhane told reporters about her encounter, then-premier Kathleen Wynne called the situation “unacceptable,” and then-corrections minister David Orazietti hired outgoing federal correctional ombudsman Howard Sapers to review segregation practices.

In December, 2016, Mr. Capay was moved from Thunder Bay to the maximum-security Waypoint Centre for Mental Health Care in Penetanguishene, Ont.

Mr. Sapers’s work eventually fed into new prison legislation that would place a cap of 15 days on segregation placements. Though the legislation was passed just before the provincial election that saw the Liberal government replaced with Doug Ford’s Progressive Conservatives, it has yet to be proclaimed by the Lieutenant-Governor.

As they left the courthouse on Monday afternoon, Mr. Capay and his family declined to talk to reporters about the decision or the broader ramifications of his time solitary. They were bound for a lunch spot of Mr. Capay’s choosing: Swiss Chalet.

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