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LEGAL PROCESS CONTINUES – Michael Nehass’ prolonged periods in solitary confinement in the Whitehorse Correctional Centre have attracted national media attention over the past couple of years. Photo courtesy RCMP

Nehass case believed to have carved legal history

A mistrial has been declared in the landmark Nehass case.

By Emily Blake on February 15, 2017

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.

Comments (18)

Up 1 Down 4

Justice4Justice on Feb 21, 2017 at 4:19 pm

There was 160 community meetings prior to this new jail being built. And how many recommendations mentioned providing a Yukon solution for the new jail? No fresh air yard, no gym, poor training, and an Auditor General's report that was scathing. Nice job With those 160 Meetings, the communities have been heard from and all of its citizens are included in how this place runs.

Up 10 Down 2

Roy on Feb 20, 2017 at 9:52 pm

I like how people thumbs-down my comment... It's easy to read into what people might mean, but... lemme put it this way: Are *you* opening your home to house this monster once he is let out of jail/therapy?? (Are you, Liz Hanson?) Are you happy, as a community, welcoming this person back as a functional member of your society, now that you know the "cause" of his problems.....? Really?
It's also sad that people thumbs-down the comment asking about the welfare of the victim. WTF is wrong with you, to thumbs-down the concerns of a victim??!?

Up 5 Down 2

Jail Or Healing Lodge on Feb 20, 2017 at 7:35 pm

What happened to the Healing Lodge discussion?
With vast majority of the population having some kind of mental health, cognitive impairment, addiction and/or FASD...why did the government of the day think this type of facility would work?
When the blueprints were being drawn up, why couldn't the new jail have a unit that deals with high risk, high need folks?
Why do taxpayers have to hear five years after the new jail opened that its ill-equipped to deal with Mr. Nehass?
Why wait five years after the fact to tell the courts, newspapers and the public that the staff aren't adequately trained? Now if staff aren't adequately trained who else isn't getting help?

Heck it took Five years to announce a sex offender program, nice to see the fourth generation prison working so successfully. Where are the people that were involved in all those discussions?
So the question begs to be asked do we have a prison or do we have a healing lodge?

Up 7 Down 0

Dr. Dave on Feb 20, 2017 at 5:03 pm

It is virtually impossible to treat a psychopath. As well, they are very manipulative.

Up 15 Down 0

Rorex on Feb 20, 2017 at 3:18 pm

@Gordon Leschyson
Our system is not broken. It seems it is quite obvious that the review board is responsible for this. The review board members are appointed by the cabinet.
So the justice system is not broken but appointments by politicians are often not based on merit.

Up 22 Down 0

Sparky on Feb 20, 2017 at 6:36 am

@random guy.
Not sure where to start...yes wcc can be stressful, I've seen the inside too...but 99% of people there seem to manage 99% of the time to not cause thousands of dollars worth of damage, assaults, threats etc. Don't like it? Don't hack people's fingers off...
Hurt people? Haha. Not even gonna go there. Yeah, he has.
As far as the system protecting him...not sure if you have heard of Mr. Lee from Manitoba. A few years back he "hurt" someone on a greyhound bus. Then ate pieces of that person he hurt....Mr. Lee, or now Mr. Barker has the same liberties and freedom you and I both share..you may be sitting next to him in a cafe somewhere...no supervision at all. Meanwhile someone lost their son, brother friend, countless people live with what they seen that day, more than a few committed suicide and the pattern of loss continues. That ok with you?
The point is...if the man has such serious issues...that is fine, that doesn't make him a nice person, misunderstood, or a victim...society has to be protected from him...we just have to do it in a politically correct and fair manner.

Up 11 Down 0

Politico on Feb 19, 2017 at 10:18 pm

@Just A Guess... It's amazing that we are willing to spend the money on locking people up but not on preventive cures to keep them out of jail. That way jails (in the states at least), lawyers, police and judges can make a lot of money. Oh, and we can't forget the politicians that pass the laws which create this mess which give them fodder to complain about. Gotta love self perpetuation.

Up 16 Down 0

Andy Chen on Feb 19, 2017 at 4:22 pm

He has the psychotic disorder of schizophrenia. Schizophrenia is characterized by hallucinations, delusions, disordered thoughts and loss of motivation and emotion, among other symptoms. He should be in the mental hospital or institution long ago.

Up 6 Down 24

Random guy on Feb 18, 2017 at 11:15 pm

If we had proper doctors he would have the help he needs. I know him and thought no worse of him. When I had a conversation with him he told me a lot. There's two sides to a story and you gotta remember that news will add what ever they can on every little bit of info they got. Yes he's hurt people n so on. There something going on in his brain that nobody can seem to figure out. He's been in you jail and graded to adult. He is used to the structure n jail is home. Can't release someone that's used to that life style n not getting the help he needs. Needs to be in a home where is similar that has that structure. I'm just stating what I think cause I know him and he's honestly a great person. The wcc stuff. Have any one been there ? I have once when I was 18. Staff test u threaten u push u around n belittle u and u can't do anything. Got 30 locked up in a dorm . U build stress. Whatever has happened remember criminals have rights too. Guys want something to complain about. Why do they give peds less time! They should be the ones locked away! The jail here released them right outside a school. A children school. How about that ? Michael's a violent guy yes. But he's helped me and I seen him beat up child preds. It's a hard world out there and specially when there's people who have nothing to do besides be judgemental towards others. I feel that people should have an understanding. Don't believe everything you read.

Up 7 Down 13

Gordon Leschyson on Feb 18, 2017 at 8:03 pm

Michael has been locked away for things he was not capable of controlling. That is why the legal system protects people like Michael by providing provisions for being mentally ill. Shame on our system for not providing him with the medical treatment he needs and deserves so that he can also live a happy life. Of course, I'm not saying the victims of his aggression should tolerate it. They also need to feel safe and protected in our system. Maybe it's time to overhaul our broken system so that people like Michael are also provided with the same dignity.

Up 18 Down 5

Robert Ellis on Feb 18, 2017 at 3:01 pm

He belongs in Jail

Up 25 Down 6

Mr M on Feb 18, 2017 at 9:56 am

A mistrial? Let's go through the Courts again and this time he will get out and probably or most likely hurt or worse kill someone and then it will start all over again. Way to go Justice system. Makes me sick how they waste so much money on a person that will not be rehabilitated and there are so many homeless people and under fed children right here in the Yukon. LOCK HIM UP AND LEAVE HIM THERE.

Up 23 Down 5

Roy on Feb 17, 2017 at 6:46 pm

...and now that his fancy Outside lawyer has gotten him off, she'll go back to her cushy life in Ontario and not give a s*** about what damage this guy will cause next or what he will do to our community. She gets her name in the legal history books and he goes on to (probably) kill someone. She must have a pretty comfortable bed to sleep at night.

Up 14 Down 5

Just A Guess... on Feb 17, 2017 at 6:34 pm

@Sparky I read somewhere that it costs about $250/day/inmate at the jail. So if he's been in jail for most of his adult life and he's now 32... that means 5110 days at $250 = roughly $1,277,500.

Up 26 Down 2

Who's rights? on Feb 17, 2017 at 5:19 pm

Did anyone check on the victim to see how she has survived through this debacle of justice?

Up 15 Down 3

Bill on Feb 17, 2017 at 3:46 pm

Guilty is guilty! How much money and time do we have to spend to come to the same conclusion. This sounds like a make work project for lawyers and judges. Get with the damn program and for once do your job - of course that is if you know how to.

Up 51 Down 10

Sparky on Feb 16, 2017 at 4:31 am

Awesome....and how much has his adult life cost us thus far?

Up 46 Down 12

jc on Feb 15, 2017 at 6:01 pm

"Offend the dignity of the judicial process" What the h--- kind of process is it? Time to get a new process. Anyway, we all know that he'll be back soon and on the street.

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