Statement by Ontario Ombudsman Paul Dubé on segregation of inmates and Adam Capay case

(TORONTO – February 28, 2019) Ontario Ombudsman Paul Dubé today released the following statement in light of the release of Justice John Fregau’s decision to stay proceedings against Adam Capay, the 26-year-old man who spent more than four years in solitary confinement (segregation) awaiting trial in Thunder Bay and Kenora:

“Justice Fregau’s decision and the release of Adam Capay have renewed discussions about the segregation of inmates in Ontario correctional facilities. For the past several years, my office has alerted the Ministry of Community Safety and Correctional Services to hundreds of complaints about the use of segregation. An increase in such complaints as well as Mr. Capay’s case led me to launch a systemic investigation in December of 2016.

“My report on that investigation, Out of Oversight, Out of Mind, released in April 2017, not only revealed for the first time that Mr. Capay had been in segregation for more than four years without the required monitoring or reviews, it prompted several improvements to the way the ministry tracks inmates in segregation, after the Ministry accepted all of my recommendations.

“Among other things, the technology for tracking inmates and staff training on how to use it have improved, and reports on how many inmates are in segregation at each institution across the province are shared and reviewed daily. However, some key matters have yet to be addressed.

“As our investigation documented, the Ministry did not operate under a clear definition of segregation – it varied from facility to facility, and did not consistently meet the international standard of being confined for no more than 22 hours at a time. A new definition, as well as a cap on the length of segregation placements and independent reviewers to scrutinize them, was included in legislation passed by the previous government in May 2018, which has yet to be proclaimed in force.

“Mr. Capay’s story made the news because four years in segregation is shocking in itself – almost unimaginable. But his case, while extreme, was not unique. Many inmates are in segregation because they have mental illnesses or developmental disabilities, and correctional staff feel they have no other way to house them. Management and staff in correctional facilities have told us for years that they require more training and additional housing options for dealing with these challenges. I agree.

“Solitary confinement is a severe form of punishment that can have grave and lasting effects on a person’s mental state. This is why the United Nations considers prolonged solitary confinement to be cruel and inhumane, and recommends placements never exceed 15 days. In Ontario, it is meant to be used as an absolute last resort, and even then, it is supposed to be justified, reviewed, and reported to the most senior levels of the Ministry.

“As part of our normal process in the wake of an investigation, the Ministry continues to report to my office on its progress in implementing my recommendations, which I publish in my Annual Report. The progress made thus far has benefited inmates and correctional staff, but it will not be complete if a clear definition of segregation and strict limits to its use is not set out in legislation. I remain hopeful that, as part of its commitment to improving correctional services, the government will bring such legislation into effect.”