ANALYSIS: Michael Nehass case reveals systemic failures in Yukon’s justice system
Joel Krahn/Yukon News
The government tried.
The courts tried.
The psychiatrists and the doctors voiced their concerns.
Everyone said they tried. But in the end, a man gripped by psychosis, convinced he is the victim of a powerful conspiracy linking judges, police forces and secret CIA programs, sat in a Yukon jail for five years waiting for his case to be resolved.
The case of Michael Nehass, 34, raises many questions about gaps and failures in the justice system.
Nehass was arrested in 2011 on charges of assault with a weapon and forcible confinement, stemming from a violent incident with a woman in Watson Lake.
He’s still in custody, now in an Ontario forensic mental health facility, waiting to hear whether his five-year legal odyssey will go back to square one — via the declaration of a mistrial — or whether he’ll be forced to undergo psychiatric treatment, which would allow the case to continue.
The fundamental problem is simple: Nehass is psychotic and has been for some time, according to the testimony of numerous experts over the years. He needs anti-psychotic medication.
A round of treatment as short as 60 days could put him back in touch with reality.
But after five years in custody and similar findings from four different psychiatrists, the question remains: why hasn’t that happened?
Judge Michael Cozens first found Nehass unfit to stand trial in 2014 for the same reasons he was found unfit in late January this year. Nehass is a smart man who understands how the courts work, but the constant intrusion of delusional beliefs in his mind makes it impossible for him to understand what is happening, let alone to conduct a meaningful defence, experts said.
Cozens found him mentally unfit for trial, sending him to the Yukon Review Board. The board’s task was to confirm that Nehass was indeed unfit, and order treatment so the court proceedings could resume.
That’s when things started to derail.
The review board unanimously found Nehass was fit to stand trial because he understood how the courts work. They relied on the same evidence judge Cozens used — a report by psychiatrist Shabreham Lohrasbe that detailed Nehass’s understanding of the court system but also noted his severe delusions.
The board also relied on Nehass’s behaviour during that hearing to find him fit. Since that finding, two more psychiatrists have voiced their concerns and a Supreme Court judge has also found him unfit for trial.
So did the review board err? How can a judge and the board, which is a panel of psychiatrists and psychologists, come to drastically opposite conclusions while relying on similar evidence?
In October 2014, while Nehass faced charges related to violent incidents at the Whitehorse Correctional Centre, the Crown prosecutor told the court that Cozens’ ruling still stood, despite the YRB decision.
But a month later, Nehass was allowed to enter a guilty plea on some of those charges. While judge Donald Luther’s decision mentioned Nehass’s behaviour during the proceedings, it didn’t touch on the fitness issue.
Surprise and second attempt
The board’s decision caught justice officials by surprise, testified Tricia Ratel, the justice department’s director of correctional services, on Jan. 25.
During his time at WCC, Nehass was extremely difficult to manage, and prone to violent outbursts that led to the repeated destruction of his cell in the secure living unit.
By 2013, jail officials were fully aware of Nehass’s needs for treatment and were concerned. A lawyer for the Department of Justice went to court in 2014 hoping to speed up the fitness assessment.
When that effort fell apart, WCC officials turned to a civil procedure to get Nehass out of the jail and into a treatment facility. But that effort failed too, and by Ratel’s own admission, justice officials aren’t sure why.
In court, Ratel was crystal clear: the WCC isn’t the right place for Nehass.
A psychiatrist from Outside confirmed previous reports about Nehass’s mental state. But the doctor became “uncomfortable” with signing papers to have Nehass committed, Ratel said. Later, lawyers for the government told jail officials the assessment was too old to be used in the civil procedure.
By November 2016, Nehass had fired four lawyers in a row, been convicted of assault with a weapon, briefly acted as his own lawyer, filed a 57-page constitutional challenge, and left dozens of messages on the chief prosecutor’s voicemail detailing various conspiracies. The Crown prosecutor seized on the messages as evidence of Nehass’s unfitness. Based on expert testimony, Justice Scott Brooker found Nehass unfit.
But now the court is in a legal void, because the Criminal Code only provides for treatment orders before a verdict is reached. Brooker has to decide whether to create a new precedent by ordering a 60-day treatment program for Nehass after the verdict, or to order a mistrial.
A mistrial would send Nehass back to square one, through the fitness assessment process and the YRB.
On the other hand, that treatment could reduce Nehass’s psychotic symptoms to the point that he could take part in court proceedings.
But what happens if he is brought back to the Yukon to appear in court and held at the WCC without treatment? What if he becomes psychotic again? Will the courts be stuck in a never-ending revolving door of treatments in Ontario and hearings in the Yukon?
“There was a lack of will, resources, and a lack of guidelines,” Nehass’s current lawyer, Anick Morrow, told the court Jan. 26 while arguing for a mistrial. “It’s not about assigning blame but (looking at) the system breakdown across so many issues.”
In the process, people in the justice system became desensitized and simply tried to “make do,” Morrow said.
In 2007, the News reported the story of a pale, 23-year-old inmate in the segregation unit of the old WCC.
The inmate was in “desperate need of treatment” for substance abuse and violent behaviour, said the judge who sentenced him.
That inmate’s name was Michael Nehass.