Whitehorse Daily Star

‘I’ve been very overzealous,’ Nehass tells court

Michael Nehass was sentenced to 21 months – time served – and two years of probation Thursday for threatening and spitting on correctional officers, climbing into the jail’s ceiling and causing about $30,000 in damage to the segregation unit.

By Rhiannon Russell on March 27, 2015

Michael Nehass was sentenced to 21 months – time served – and two years of probation Thursday for threatening and spitting on correctional officers, climbing into the jail’s ceiling and causing about $30,000 in damage to the segregation unit.

Somewhat unexpectedly, Nehass and Crown prosecutor Eric Marcoux came up with a joint submission on sentencing during the lunch break in yesterday’s proceedings.

A sentence was expected to be handed down in late April.

Thursday was just day two of what would have been a three-day hearing on an application Nehass filed in court that alleges cruel and unusual punishment and violations of the Canadian Charter of Rights and Freedoms during his incarceration at the Whitehorse jail.

As part of his agreement with the Crown, Nehass will shelve that application on these charges. His allegations pertain, in part, to a January 2014 incident in which he was brought naked before a judge by guards in riot gear via video from the jail.

Despite the time-served sentence, Nehass remains in custody due to an upcoming judge-and-jury trial in May on unrelated charges from 2011. He has not said whether he will seek bail before then.

Marcoux said there was a “window of opportunity” Thursday on the lunch break to come to an agreement on sentencing.

“We had discussions with Mr. Nehass before about resolving his matters, and those discussions did not prove fruitful and we started litigating a lot of his issues,” he told reporters outside the courthouse after the hearing.

“Today, there were some comments made in court that made us renew those discussions, and you heard the result of that today.... Both parties decided today to end the litigation and reach an agreement.”

Marcoux and Nehass, who is self-represented, suggested a 26-month sentence for the five offences, committed in the summer of 2013 while the inmate was in pre-trial custody on other charges.

They recommended Nehass be given enhanced credit for time served, at a rate of 1 1/4 days for every day spent in pre-trial custody.

Judge Donald Luther accepted their submission that Nehass had served his time.

But, citing the inmate’s behaviour as detailed in jail documents that were not examined in court, Luther said he didn’t think it was appropriate to give Nehass enhanced credit.

He adjusted the sentence to 21 months, with one day of credit for each day spent in custody.

“To say that the Whitehorse Correctional Centre had difficulty managing Mr. Nehass would be a gross understatement,” Luther said, referring to fights, threats and what he called “abusive behaviour” documented in the jail reports.

Because of his unmanageability, jail staff have testified, Nehass was kept in either segregation or the secure living unit since May 2013.

Luther said Nehass can be very difficult or very reasonable, depending on how he wants to be.

“Much if not all of his deprivation of liberties was brought on by himself,” the judge said.

After Luther handed down his decision, lawyer Bibhas Vaze, who was appointed amicus curiae to assist in the proceedings while representing neither Nehass or the Crown, said that “with great respect,” he had reservations about some of the judge’s comments.

Luther referred to details in the jail reports though they were never fully examined in court, Vaze said.

Had Nehass not agreed to the joint submission, that evidence would have been fully explored in the Charter application, likely leading to prolonged proceedings including further testimony from jail staff.

But Nehass did agree, and as part of that agreement, the Charter application was put on hold, Vaze said.

So, he told reporters after the hearing, he doesn’t believe it was “proper methodology” for the judge to consider that unexamined evidence in his sentencing decision.

“What happened in this case was we were able to come to an agreement before, really, any testing of that evidence had taken place,” he said.

“The concern I had, which I expressed in court, was any potential prejudice to Mr. Nehass should he make other Charter applications on the same basis.”

Vaze told the judge he expected his comments would not have “any binding weight on any finding another court might make.”

Nehass appeared calm in court Thursday afternoon as Marcoux explained the joint submission.

“I am working with everybody here,” the 31-year-old said. “From this point on, if we can get along and go by the book....

“I thank the court for being patient with me. I’ve been very overzealous ... I ask that everyone have some understanding of where I’m coming from. Thank you.”

The five offences date back to the summer of 2013, when Nehass was in pre-trial custody for other charges laid in December 2011 in Watson Lake.

During the first stage of the sentencing hearing in February, the court heard testimony from jail staff about the circumstances of those offences – though Nehass pleaded guilty, he disputed the Crown’s version of events.

Correctional officer Clayton Poberezny testified that in June 2013, Nehass used a plastic chair to bust the telephone system off the wall in the segregation unit and smashed several glass panes.

Poberezny called a code yellow, seeking assistance. For about 45 minutes, management and correctional officers discussed what to do, he said. In the meantime, Nehass broke into a utility room.

Guards decided to throw a flash-bang grenade into the room to stun him, and when they did, Nehass climbed into a hole in the ceiling, Poberezny testified.

About 30 minutes later, as guards and RCMP officers searched the facility, Poberezny said he heard Nehass’ voice through the ceiling. Nehass said he was scared and wanted to come down. He was charged with attempting to escape.

Poberezny also testified that he heard Nehass threaten to harm correctional officers.

Regarding the assault charge, correctional officer Christopher St-George testified that Nehass spat in his face after he refused to let the inmate have access to some photos stored in his bin of personal belongings.

In August 2013, Poberezny testified, Nehass again pried the phone off the wall in the segregation unit and began swinging it around by its cord, damaging several panes of glass.

When the guard called a code yellow, Nehass retreated to his cell.

Luther’s 21-month global sentence for these offences breaks down like so:

• attempted escape – eight months;

• damaging the segregation unit in June 2013 – eight months, concurrent;

• spitting on a guard – five months, consecutive;

• uttering threats – three months, concurrent;

• damaging the segregation unit in August 2013 – eight months, consecutive.

Comments (6)

Up 5 Down 3

FCO on Apr 2, 2015 at 11:21 am

He was playing the system so he can get "Time Served' upon sentencing. So, I guess he's not insane after all.

Up 17 Down 5

Josey Wales on Mar 31, 2015 at 4:41 pm

This absolute PARIAH needs not a facebook account.
As he has two "opinion outlets" a.k.a. newspapers, a drum beating socialist national broadcaster perpetuating the "woe is me" syndrome and giving this waste of skin a forum.
The poster boy for Gladue gibberish, coming to a community near you...to re-offend.
Cuz didn't you know, everything with he and his ilk...is the fault of others.
So wails the grievance industry at least?

Up 27 Down 4

Just Say'in on Mar 30, 2015 at 11:56 pm

Pay attention Justice System. Whoops I meant Legal System. Notice the Thumbs up in these comments. I have never seen such consensus.

Up 53 Down 5

nope on Mar 30, 2015 at 3:27 pm

And both newspapers gave him a platform to spew his BS. Everyday there is something new about this clown. Its over. I don't want to read about this garbage anymore.

Up 53 Down 4

Rorex1983 on Mar 30, 2015 at 12:05 pm

Finally the truth comes out. Nehass has been purposely dragging his feet and creating problems to prevent his real trial from being held.

So far he has gone out of his way to make a Judge think he wasn't fit to stand trail. Then dragged out a Yukon Review board hearing to extend his trial. Then refused to go to court, behaved so poorly so that he couldn't attend court, then refused to get dressed so he couldn't appear by videoconferencing. Then got his father to file misconduct against the judge, then got the Human rights board involved.

This is a guy that is clearing playing the system in an attempt not to get sentenced to a federal prison.

I also agree with the judge under no circumstance should he be getting enhanced credit for time served. I realize the prosecutor is just trying to save time and money but the idea that Nehass might get paroled while we wait for his next trail is downright scary.

Up 81 Down 4

Honesty on Mar 28, 2015 at 9:37 pm

Well holy s!#t... the govt wasn't lying about him all along. Nehass admits he's purposely been difficult.

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