Capay’s stay is one more unacceptable consequence of solitary confinement

Lisa Kerr is an assistant law professor at Queen’s University

The stay of proceedings that halted the murder prosecution of Adam Capay this week is an extremely rare outcome.

The Supreme Court of Canada has called it “the most drastic remedy a criminal court can order.” Stays can only be granted in the “clearest of cases” where a fair trial is no longer possible or where continuing with the prosecution would undermine the integrity of the judicial process. It means the only way to address a wrong that has occurred is to stop the proceedings entirely.

A stay deprives the public of the opportunity to see criminal cases come to a proper end. Here, the stay means that the June, 2012, stabbing death of Sherman Quisses, which happened inside a provincial jail, will not be adjudicated. Mr. Quisses’s home community of Neskantaga First Nation has, understandably, expressed its opposition to this decision.

The distressing irony of this case is that the mistreatment of Mr. Capay, who spent more than four years in solitary confinement, means no justice for another inmate, Mr. Quisses. The practice of solitary confinement is now interfering with the ability of the criminal justice system to perform its basic function of deciding guilt and innocence.

At the heart of this state failure is a story familiar to Canadian ears: the dysfunctional consequences of a lack of rigorous controls and limits on how prison officials can make use of solitary confinement.

A publication ban applies to the court’s decision until Feb. 27, when the time for the Crown to file an appeal expires. But we know the judge granted a stay as a remedy for multiple breaches of Mr. Capay’s constitutional rights.

We know Mr. Capay was held in a severe form of solitary in the Thunder Bay Jail for more than four years. We know the lights were kept on 24 hours a day – a practice that is not authorized by any law.

Ontario’s chief human-rights commissioner, Renu Mandhane, only discovered Mr. Capay’s situation when a correctional officer expressed his worry about the situation to her. Ms. Mandhane was shocked by Mr. Capay’s story, and she said he appeared to have memory and speech problems resulting from his 1,636 consecutive days in isolation. We will learn more about the conditions Mr. Capay endured, and the effects the experience had on him, in the weeks to come. The court’s decision is a clear indication the details will be disturbing.

A stay of a murder prosecution in relation to the conduct of prison officials is new territory. Severe treatment for pretrial detainees is a sadly common experience in provincial jails, but the standard remedy is to factor that experience into the calculation of extra sentencing credit for time spent there.

An Edmonton trial court recently denied a stay in R v. Blanchard, even though it found multiple Charter breaches. In that case, the accused was locked in a 90-foot cell for 23 hours a day, with little access to physical exercise, health care and adequate nutrition. The court denied the request for a stay, noting the serious charges brought against the accused and the possibility of dealing with what it called “egregious” state conduct in another way.

Mr. Capay’s case has lent considerable energy to the vigorous social movement that aims to end solitary confinement. But there are still crucial steps to take. In the wake of Ms. Mandhane’s public disclosure of Mr. Capay’s situation, former federal ombudsman Howard Sapers was hired to review Ontario’s segregation practices. Mr. Sapers compiled new prison legislation, which includes a 15-day cap on segregation. That bill was passed by the former provincial Liberal government, but the Progressive Conservative government has yet to take the final step of implementing the new law.

The new approach is urgently needed, not least so that future criminal prosecutions don’t fall apart in this way again.

Change is coming at the federal level, too. The deficiencies of the long-standing law on administrative segregation have been pointed out in every review, inquest and court case that has ever considered the topic. The new Bill C-83 expresses an aim to end segregation. The Liberal bill includes important new rules that specify, for the first time in Canadian law, a right for segregated inmates to be outside their cells for a minimum of four hours each day, with two hours of social programming.

Some critics remain skeptical the new legal rules will bring real change. Many are pressing for amendments that would ensure independent external or judicial oversight as a guarantee of meaningful enforcement of the new standards.

We have come a long way, but the Capay stay of proceedings adds a new layer to the story of why we must finish this work. The integrity of the criminal trial process is now at stake.