Defence seeks mistrial in Nehass case

The lawyer for Michael Nehass is seeking a mistrial, arguing the 32-year-old man couldn’t meaningfully participate in his trial because of his mental illness.

The lawyer for Michael Nehass is seeking a mistrial, arguing the 32-year-old man couldn’t meaningfully participate in his trial because of his mental illness.

Defence lawyer Anick Morrow made the application in front of Justice Scott Brooker on Jan. 26.

The day before, Brooker found Nehass unfit to take part in the proceedings because of psychotic symptoms. Nehass believes he’s the victim of a wide-ranging conspiracy to have him locked up over information he says he has about the trafficking of Indigenous women.

Nehass was convicted of assault with a weapon and forcible confinement in 2015, but the mental fitness issue was only raised in November 2016.

Crown prosecutor Eric Marcoux was getting ready to argue the court should impose a treatment order when Morrow surprised him with the mistrial application.

Marcoux opposed the application. He said Nehass had several experienced defence lawyers and none of them raised the fitness issue at trial except for Morrow.

The Criminal Code only allows a court to make a 60-day treatment order for an unfit accused before a verdict is reached. That leaves the court in the Nehass case in a legal grey zone, because there is no provision regarding fitness after a verdict has been reached.

Marcoux argued the court could impose a treatment order anyway. He said the judge should be able to order treatment because he had already declared Nehass unfit.

But Marcoux also left the door open for a mistrial as a last resort, if the judge is not satisfied with his ability to order treatment.

“If (the court) is confident it is in a dead end legally, it may consider a mistrial,” Marcoux said.

That would restart the trial process and allow the court to use the Criminal Code provisions to have Nehass treated.

For Morrow, there’s no question the court is at a dead end.

A mistrial would allow Nehass to “properly re-enter the process” set out by the Criminal Code for mentally unfit individuals, Morrow said.

Morrow said the Crown’s proposition to order treatment even after a conviction is “fraught with risks and uncertainty.” She said she is uncomfortable with the idea of “copy-pasting” Criminal Code provisions for this situation.

Behind the scenes at WCC

The fitness hearing also provided an opportunity for Whitehorse Correctional Centre officials to shed light on behind-the-scenes work they’ve done to get Nehass to a treatment facility.

Nehass has been detained at the jail for five years. His case has been fraught with delays in part because he kept firing his lawyers and interrupting court proceedings to talk about conspiracies he believes in.

Jail officials have made no secret about the fact the WCC is not equipped to deal with an inmate like Nehass who needs psychiatric care, especially because they can’t force him to undergo treatment.

In April 2014 they urged the court to speed up the proceedings as they grew increasingly concerned about Nehass’s state. But they struggled to find a way to place him in a proper facility.

Tricia Ratel, director of correctional services at the justice department, testified Jan. 25 that officials looked into using a civil procedure under the Mental Health Act to commit Nehass to a mental health facility.

“WCC offered Mr. Nehass every resource available,” Ratel said.

A psychiatrist brought from outside the territory to evaluate Nehass believed he could be committed under the civil procedure.

But then the process fell apart — two psychiatrists who examined Nehass weren’t “comfortable” signing off on the civil order. After a delay, counsel for the WCC believed the assessments were not current enough to go through with the procedure.

There was also the question of which facility would be best equipped to look after Nehass. The territory had to find a place equipped to deal with inmates.

Justice Brooker will set a date today for his decision over whether to order treatment or a mistrial.

Contact Pierre Chauvin at pierre.chauvin@yukon-news.com

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