A mistrial has been declared in the landmark Nehass case.

Yukon Supreme Court Judge Scott Brooker made the decision this morning, appearing in the Whitehorse court by video.

Michael Nehass, 32, also appeared by video from a forensic mental health facility in Ontario with defence lawyer Anik Morrow.

The case is unique because it is the first time in Canada that a person has been declared unfit for trial after he or she has already been convicted.

In May 2015, Nehass was found guilty on several charges, including assault with a weapon and forcible confinement, by a judge and jury. But he has never been sentenced.

The charges stem from the violent assault of a woman by knifepoint in Watson Lake in 2011.

Nehass has been in custody since that time.

As part of sentencing, the Crown, represented by Eric Marcoux, was seeking to have him designated as a dangerous offender.

However, concerns were raised about Nehass’s mental health, due to his “psychotic behaviour” and “paranoid delusions.”

Justice Brooker ordered a psychiatric assessment in late 2016 to determine Nehass’s ability to participate in the hearing.

Nehass was sent to the Ontario Shores Centre for Mental Health Sciences in Ontario for the assessment.

There is no forensic mental health hospital in the Yukon.

Two doctors from the facility, Dr. Chantal Wong and Dr. Derek Pallandi, submitted reports stating that Nehass is unfit to stand trial. They also made several diagnoses, including schizophrenia.

“It is likely that Mr. Nehass fails to meet the standard of fitness to proceed with his sentencing,” wrote Pallandi.

“It is likely that Mr. Nehass has been either on the cusp or frankly unfit for a lengthy period of time prior to the present evaluation.”

But there is nothing in the Criminal Code of Canada that addresses fitness after someone has already been convicted.

So at the fitness hearing on Jan. 24, Justice Brooker relied on common law from the 1800s to rule that Nehass was unfit.

“To proceed with the dangerous offender hearing while Mr. Nehass is in this mental state would be fundamentally unfair and would offend the dignity of the judicial process,” said Brooker at the time.

Marcoux told the Star Tuesday that “To our knowledge, the assessment order that was made by the judge under common law is the first reported case in Canada.”

That led to today’s decision on how to proceed with the case.

The Crown argued that Nehass should be ordered to undergo treatment in Ontario, then face sentencing. This is what would happen under the Criminal Code in cases where a person has been declared unfit before he or she has been convicted.

At the fitness hearing, doctors testified that Nehass could become fit after 60 days of treatment, including antipsychotic medication.

However, the defence argued that a mistrial should be declared, alleging that Nehass was unfit when he was charged.

Both sides agreed that Nehass has spent more time in custody than he would have received had he been sentenced.

Justice Brooker disagreed with the defence’s argument that Nehass was unfit before he stood trial, noting that his mental health has deteriorated over time.

But he decided on a mistrial, as he found that judges do not have the jurisdiction to make treatment orders under the common law, and the Criminal code does not apply in this case.

Now the question remains as to what happens next.

The mistrial means that Nehass will likely have to undergo the entire trial process again.

For now, he will remain at the treatment facility in Ontario.

“It seems in everyone’s best interest to keep him at Ontario Shores,” said Brooker, noting that Nehass appeared healthier than other times he has appeared in court.

Time has been given to allow the defence and Crown to discuss how to move forward.

The next court appearance is scheduled for Feb. 28.

Questions remain over how the case reached this point.

Nehass was first declared unfit to stand trial in 2014 by Judge Michael Cozens.

But in a surprising decision, the Yukon Review Board overturned this decision, finding him fit.

They relied on the same evidence as Judge Cozens, but found that despite Nehass’s mental illness, he was able to understand the court process.

The determination on whether someone is fit to stand trial is based on a test of “limited cognitive capacity”.

This includes three factors: whether the accused understands the nature and object of the proceedings, the possible consequences of the proceedings, and whether he or she can communicate with counsel.

Despite the fact that Nehass has been in custody since 2011, no judge has ruled on whether the delays in sentencing have been unfound.

Some of these delays are a result of Nehass changing counsel; he fired four lawyers between 2011 and 2016.

He was also charged and pleaded guilty to several charges that occurred while he was in custody at the Whitehorse Correctional Centre (WCC).

These include assaulting a corrections officer, causing more than $35,000 in damage to the jail, and threatening guards.

Nehass has also filed challenges under the Canadian Charter of Rights and Freedoms alleging that procedural delays and poor detention conditions at WCC have violated his rights.

The case gained national attention after a January 2014 video court appearance where Nehass was dragged naked and shackled, and pinned to the floor by guards in full riot gear.

Yukon Supreme Court Justice Leigh Gower later apologized for not having ended the hearing sooner.

This prompted a human rights complaint in 2014 by his father, Russell Nehass, with the Yukon Human Rights Commission. The complaint alleges discrimination and inhumane treatment by the jail, including the overuse of segregation.