Michael Nehass’ five-year-long ordeal with the Yukon justice system, one that raised concerns about the treatment of First Nations inmates, inmates with mental health issues and the use of solitary confinement, is finally drawing to an end.
The Crown prosecutor for the case, Eric Marcoux, entered a Crown stay in a Whitehorse courtroom Friday, effectively ending court proceedings on the matter without determining Nehass’ innocence or guilt. The Crown has the option of reviving the charges within a year before they’re stayed forever.
The stay came after three days of closed-door discussions where Marcoux, Nehass’ defence lawyer Anik Morrow and Justice Ronald Veale attempted to reach a mutually-agreeable resolution.
The discussions were unsuccessful.
Morrow had filed an application for a judicial stay, which would have to have been granted by a judge and would have ended the proceedings without a chance of the charges being brought back to court. Typically, judicial stays are only granted in cases where there’s been a serious abuse of process or a violation of the Canadian Charter of Rights and Freedoms.
The Crown stay stated that the Crown disagreed with the allegations Morrow had presented in her application.
“Quite clearly, I took issue with the way this case has been managed from the beginning,” Morrow said in her nearly half-hour address to the court after Marcoux filed the Crown stay.
“I think there were very important issues here to be heard, to be considered, to be thought about for the future, and I think that everybody has (a) stake in that conversation.”
Morrow said the Crown’s “manoeuvre” in filing the stay, which cannot be challenged or changed by a judge or the defence, cost the court a “tremendous opportunity” to properly examine what happened to Nehass and, more importantly, why it happened.
Nehass was originally arrested and put into custody in 2011 in relation to an alleged knifepoint assault of a woman in Watson Lake.
Held at the Whitehorse Correctional Centre awaiting trial, he racked up more charges and spent years in solitary confinement where his mental health severely deteriorated. His trial ended in February of this year, after he was convicted of assault with a weapon and forcible confinement but Justice Scott Brooker declared a mistrial because he found Nehass unfit to take part in his own sentencing. Nehass has since been sent to Ontario Shores Centre for Mental Health Sciences in Whitby, Ont.
“The evidence heard on the record was that when Mr. Nehass was taken out of his cell (at WCC), he was in cuffs, shackles and belly chains. Protocols were placed on him … at one point, he was showering with cuffs, shackles and belly chains, notwithstanding … he was able to have one hand free,” Morrow said Friday. She also alluded to other disturbing treatment Nehass received while at WCC, including one incident where he appeared naked and shackled during a video appearance in court in 2014.
“He was not a person serving a sentence. That is the treatment of an individual who is presumed innocent before the court of law…. The issue is why this occurred, and that would have been the substance of the application,” Morrow said.
Morrow said “by not allowing the court to hear this matter through, unfortunately, the maneuver came at Mr. Nehass’ expense.… Ultimately, by staying the case and doing it by way of a Crown stay and therefore not providing us with the tools and powers of the court, Mr. Nehass is cut free from the justice system umbilical cord but he is, if I can say, unceremoniously dumped on the sidewalk in Ontario and clearly the Crown feels no responsibility in that regard. And I think that is shameful.”
At that point, Marcoux objected.
“I’m not going to sit here and listen to this blaming game from my friend. I think it’s inappropriate…. I think I’ve been tolerant enough, sitting here and listening,” he said.
Veale said that while he appreciated Marcoux’s submission, “it’s the Crown’s action that has left the court in this situation…. Something needs to be done in a situation where we’ve made an order where Mr. Nehass is out in a place called Ontario Shores.”
Marcoux then asked permission to be excused. Veale granted it and the prosecutor stood up and quietly left the courtroom.
After Marcoux left, Morrow addressed Veale again, saying that the next step is to figure out exactly where Nehass will be going following his release from Ontario Shores and how to get him there. Marrow said British Columbia is the preferred destination, and that she is in contact with members of Nehass’ family.
The matter will return to court Tuesday to finalize details.
Shortly before Friday’s proceedings came to a close, Nehass, who appeared via video call and had mostly been sitting quietly, spoke up.
“I’ve been away from my family for about five years…. I would like to go home now,” he said, mentioning that his grandmother and several other relatives have passed away in his absence.
“I need to go back home.”
Contact Jackie Hong at firstname.lastname@example.org