After three years of proceedings, Yukon Supreme Court has ordered a mistrial in the Michael Nehass case.
Justice Scott Brooker made the order Feb. 15.
The court was stuck in a “legal void,” he said, and had no other choice than to declare a mistrial.
That means the case goes back to the trial stage.
Nehass was convicted in 2015 of assault with a weapon and unlawful confinement. He was awaiting sentencing because the Crown was seeking to have him declared a dangerous offender. But on Jan. 24, Brooker found him unfit to take part in legal proceedings because of mental disorders.
The Crown asked the court to make a treatment order so Nehass could become mentally fit again and the proceedings could resume.
But defence lawyer Anick Morrow argued that the court didn’t have the power to make such an order.
She asked the court to declare a mistrial, arguing Nehass was unfit to stand trial when his jury trial took place.
Brooker rejected that argument, noting that while there were suspicions Nehass wasn’t fit back in 2015, there wasn’t a “robust basis” to think so. Neither the Crown prosecutor at the time nor his lawyer raised the issue, he said.
But that leaves the court in a “quandary,” Brooker said.
The court had found him unfit, meaning the dangerous offender application couldn’t proceed. But the court also didn’t have the jurisdiction to make a treatment order, he said.
The Criminal Code sets out provisions for unfit accused, including the possibility to make a treatment order, but only up to the point a verdict is reached.
Because Nehass has already been convicted, there is no procedure to order treatment.
“To leave him in a (legal) void would be a miscarriage of justice,” Brooker said.
While he acknowledged it was “regrettable,” Brooker said the mistrial order will allow Nehass to have a new fitness hearing.
At that stage the court would be able to order Nehass to undergo treatment under the Criminal Code provisions.
For now Nehass will remain detained at the Ontario Shores Centre for Mental Health Sciences in Whitby, Ontario, outside Toronto.
Contact Pierre Chauvin at firstname.lastname@example.org