If our provincial and federal governments won’t whip the prison industry into line, then the courts will.

“JUDGE ISSUES STAY IN CASE OF ADAM CAPAY, WHO SPENT 1,636 DAYS IN SOLITARY.”

So read the headline on the front page of the Tuesday, January 29 Globe and Mail. The ‘deck’ below went further, “Justice John Fregeau finds multiple Charter rights of 26-year-old were violated as he waited to stand trial for a first-degree murder charge.”

Adam Capay, a Lac Seul First Nation man, was sent to Thunder Bay Correctional Centre at age 19 on minor charges. In this decrepit jail long overdue for replacement, he got into a fight and another man died. He then spent 4 ½ years in solitary confinement awaiting trial for murder, much of that time in a small cell covered with Plexiglas and lit 24 hours a day.

Mr. Capay came to the public’s attention in 2016 when Renu Mandhane, Ontario’s chief human rights commissioner, brought in the media after a guard at the jail notified her of Mr. Capay’s declining mental state in solitary confinement. The superintendent of the Thunder Bay facility, senior civil servants and even government members were or should have been aware of his lengthy segregation, but did nothing to correct what was patently wrong and illegal.

There’s a publication ban on evidence in the case pending a possible appeal of the stay by the province. Scant information not covered by the ban says the stay was granted as recourse for a breach of four Charter sections….multiple violations of Adam Capay’s rights. The harm caused by the state outweighed the seriousness of the alleged crime – first degree murder.

As things stand, we won’t know if Mr. Capay is guilty of killing 35-year-old Sherman Quisses, another indigenous inmate. “The state has not only deprived Adam Capay of his rights but also deprived the Quisses family of an opportunity for justice,” said one of his lawyers.

“If this happened in a country that is notorious for violating human rights, like Saudi Arabia, we would be outraged. Discovering this is occurring in Canada is so shocking it is difficult to process,” wrote Scott Gilmore in MacLean’s in October of 2016. Then too, Canada is today condemning China for the arbitrary detention of two Canadian citizens.

Adam Capay is not the first or only victim of government sanctioned mistreatment. Canada’s provincial and federal prison industries have a long history of rights’ violations. Even today, other Adam’s are under wraps in every part of this country.

…..for now, a few words.

Canada’s provincial/federal prison industry uses various labels to define separating an inmate from population. For clarity, when anyone is put in close confinement for up to 22 to 24 hours per day with little or no human contact, that is solitary confinement. Conditions are worsened when that person is deprived of personal property, or put on a restricted diet, or denied access to resources.

For a time, our federal government even denied Correctional Service of Canada used solitary confinement, preferring less severe terminology, and pointing to policy that safeguarded inmate welfare. But, CSC also consistently rejects that a conflict between policy and practice exists, in spite of overwhelming contrarian evidence.

Media coverage of solitary confinement has been extensive over the last few years, two major law suits against the federal government have played out, there’s a class action protesting its use pending in Ontario, and legal actions proliferate elsewhere in the country.

We’ve hesitated to join the ‘solitary confinement discussion’ in the belief that the exposure, controversy, and criticism would move the goal posts to a place where we could applaud positive outcomes in a more enlightened environment.

Sadly, if that is ever to be, it will take more than the efforts we’ve seen so far.

For all the talk, for all the coverage, for all the adverse court judgments, for all the science, provincial and federal governments are wriggling to find ways through the noise and around the legal condemnations to end up back at square one but with new labeling and tweaked policies. Let’s call it solitary confinement refigured.

Ontario passed legislation last year in an attempt to satisfy critics, but it didn’t receive Royal Assent before the latest election. It sits in limbo. The new government is looking to put forward its own version, and in the meantime, we’ve learned the use of solitary confinement in Ontario’s provincial jails has actually increased.

The Liberal federal government promised a different perspective on the Conservative tough-on-crime agenda, and the present scrutiny of solitary confinement policy prompted prioritizing a look-see in that direction. But, the government stalled and delayed, and two major segregation law suits, one in B.C. and the other in Ontario, went against it.

Our government appealed the court decisions on the one hand, and put forward Bill C-83 as a ‘solution’ on the other. As a compromise, the courts in Ontario and B.C. gave Ottawa a few more months to get its act together. C-83 passed first reading and is in committee, but its intent is to mollify all stakeholders by yielding a little to everyone. That spells failure.

Our prison industries are working industriously on apparent changes to solitary confinement which in truth will have little or no impact on improving sentencing goals. Yes, there has to be recourse for circumstances where difficult and dangerous incidents arise, but the proposed federal legislation is vague and subjective where security and control is important.

Federal or provincial, our governments are determined to exclude at-arms-length third party oversight or hard limitations on how long and to what degree it segregates prisoners. It is dead set against any push to “light up the darkness” or make our prison agencies accountable and transparent.

This is one more item getting deserved attention, and we’ll return to it down the road. In the meantime, one wonders…….

……exactly why are our politicians and civil servants afraid to do the right thing?