Michael Nehass has been sentenced to 21 months for crimes he committed while in the Whitehorse Correctional Centre.
The surprise agreement between Nehass and the prosecutor came yesterday. It was supposed to be day two of a hearing on whether Nehass’s treatment in jail violated his Charter rights.
Nehass has not been part of the jail’s general population since May 2013. Instead, he has bounced back and forth between segregation and the secure living unit.
He was asking the territorial court judge to consider whether that treatment violated his rights, including the protection against cruel and unusual punishment.
Instead, the 31-year-old agreed to not deal with the Charter application right now.
He said he plans to file it as part of other charges he’s facing in Yukon Supreme Court.
Nehass has been in jail since December 2011.
Last year he pleaded guilty to the five charges from his time in jail. That includes assaulting a corrections officer by spitting on him, attempting to break out of the segregation unit and doing more than $35,000 worth of damage.
The 21-month sentence plus two years of probation is basically time-served for those charges.
It covers all the time Nehass was in jail since June 2013 when the first of the crimes he was charged with were committed.
But that doesn’t mean he got to walk out the doors when yesterday’s hearing was over.
He still hasn’t dealt with the Yukon Supreme Court charges that landed him in jail in the first place. A trial for those charges is scheduled for May.
Nehass has been representing himself in court.
To help, the court assigned Vancouver lawyer Bibhas Vaze as amicus curiae, literally “friend of the court.”
Vaze’s role is to ensure that Nehass’s interests are being represented and to help the court.
On Wednesday, Nehass, Vaze and prosecutor Eric Marcoux all began questioning Karen Shannon, manager of integrated offender management at the jail.
She wrote a lengthy report about Nehass’s incarceration, describing the struggles she said the jail was having dealing with his behaviour.
It includes pages of internal charges the jail says Nehass amassed while inside.
Nehass told the court he had never seen the report and wasn’t present when he was sentenced by an internal adjudicators.
Shannon didn’t testify to a lot of the specifics in the report on the first day of the hearing.
She was supposed to continue yesterday. But that changed when the deal was reached after lunch.
Even the last stage of the process was not without conflict.
It was up to judge Donald Luther to approve the sentencing agreement of time served.
He did so, but with “some reluctance.” Luther said the sentence was on the low side.
He disagreed with the amount of credit Nehass was being given for his time behind bars.
Under Canadian law people get credit for the time they serve between being charged and being sentenced.
For Nehass, with these charges, that’s 21 months of straight time.
Credit can be up to one and a half days for every day served in jail.
Under the original agreement Nehass would have been given credit of 1.25:1. That would have given him 26 months credit.
The Crown originally proposed a sentence of 26 months – time served.
Instead Luther lowered the sentence from 26 months to 21 months. Nehass was still given a time-served sentence, but with no extra credit.
Luther said he didn’t want to set the precedent of “prisoners behaving in such an unruly fashion and getting 1.25:1,” he told the court.
Luther said he believed Nehass set out from the start to be difficult at the jail.
He referenced Shannon’s lengthy report, filed with the court.
“Much if not all of the severe deprivation of liberty was brought on himself,” the judge said.
He said he believed the contents of the jail’s report were “reliable and accurate.”
Those comments drew a response from Vaze. The judge, he said, should not be referencing the report in his sentence since none of the claims in it have been tested in court.
That testimony was cut short when the two sides agreed to a deal, he said.
If the Charter application comes back in another court, the comments should not be seen as holding any weight, said Vaze.
Nehass was also upset by the judge’s words.
He didn’t get a chance to challenge the information, but the judge is still making it public, he said.
Nehass asked that the judge’s comments not be published, but Luther said he stands by his word.
Outside the courtroom Vaze repeated his concern over the judge’s decision to speak about Nehass’s conditions.
He said talking about deprivation of liberty and the validity of the jail report was not appropriate in these circumstances since the Charter application was no longer on the table.
“Certain opinions were expressed with respect to that evidence by the court. However, who knows? If the evidence was properly tested, if the court could have come to an opposite conclusion… We simply don’t know.”
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