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solitary confinement

The Crown prosecutors’ office in Whitehorse has stayed all criminal charges against a First Nations inmate who, after spending extensive periods of time in solitary confinement, was sent to a psychiatric hospital in Ontario last year.D-Cst. D. Buckley/The Canadian Press

The Crown prosecutors' office in Whitehorse has stayed all criminal charges against a First Nations inmate who, after spending extensive periods of time in solitary confinement, was sent to a psychiatric hospital in Ontario last year.

Michael Nehass, 33, faced five charges, including assault with a weapon and forcible confinement, stemming from an alleged incident in 2011 in Watson Lake, Yukon. He was convicted in 2015, but in February, the judge declared a mistrial after finding Mr. Nehass was unfit to participate in his own sentencing.

Mr. Nehass's lawyer, Anik Morrow, filed an application in Yukon Supreme Court seeking a judicial stay of the charges. She alleged her client's Charter rights were violated during his nearly six-year incarceration at the Whitehorse Correctional Centre (WCC) as a result of long periods in solitary confinement that caused his mental health to deteriorate.

A Crown stay gives the prosecutor the option of reopening the proceedings within a year, while a judicial stay is final. Had the Crown not stayed the charges, Ms. Morrow could have presented her arguments and evidence to the court.

The stay, which prosecutor Eric Marcoux entered on Friday morning, states: "… the Crown is not in agreement with the allegations contained in the application filed," but added that it believes it is not in the public interest to proceed with the case. Mr. Marcoux did not comment further outside the courtroom.

The move was unexpected. Ms. Morrow, Mr. Marcoux and Yukon Supreme Court Justice Ron Veale had spent the past three days discussing a possible resolution. On Thursday, Justice Veale said talks were "proceeding well."

The stay puts an end to the criminal proceedings against Mr. Nehass.

Ms. Morrow called the Crown stay a "manoeuvre" to avoid having to address the allegations. A hearing on the application "could have provided an example that others could have followed," she said, calling the case a "debacle."

In the application, she said medical staff at WCC raised concerns about Mr. Nehass's mental health multiple times in the years after his arrest in 2011, and requested that he be transferred to a forensic-psychiatric hospital outside the territory because Yukon does not have one. This did not occur until last year.

During court appearances throughout 2014 and 2015, Mr. Nehass was often agitated, talking about how his food was being poisoned at the jail and "neuro-nano chips" were being implanted into people's brains.

"We have an added responsibility to look at how we treat First Nations and Indigenous people," Ms. Morrow told the court on Friday, adding that the federal government has identified as priorities the country's mentally ill population, Indigenous people and the use of solitary confinement.

"The case of Mr. Nehass presents all three," she said.

She criticized the Crown's action, saying Mr. Nehass is now stranded in Ontario.

"Mr. Nehass is cut free from what we would call the umbilical cord of the justice system, but he is unceremoniously dumped on the sidewalk in Ontario and clearly the Crown feels no responsibility in that regard," she said. "That is shameful."

Mr. Marcoux stood up to object. Given that the criminal case has now concluded, he said he did not think it was appropriate for Ms. Morrow to comment further in court.

But Justice Veale noted that serious issues were raised about Mr. Nehass's treatment, especially pertaining to his mental health.

"All of a sudden, those concerns go by the boards because of the stay," he said. "Something needs to be done."

With the charges stayed and the Crown's office no longer involved in the case, Mr. Marcoux asked to be excused from the courtroom and left.

"I have to say that I find it unfortunate that the Crown has bowed out," Justice Veale said a the end of the proceeding. "It's difficult for justice to be done."

Afterward, Ms. Morrow said: "I don't know of any Crown office that would do that, knowing that they were simply abandoning an individual that they had put in a certain place. Most Crowns would come to me and say, 'Well, as a minister of justice, I have responsibilities.'"

Mr. Nehass will now be transferred into the civil mental health system, which exists in provinces and territories under their respective mental health legislation, and offers treatment and eventual reintegration into the community.

"In Ontario, he qualifies under the Ontario Mental Health Act for treatment at a facility, and as a result of that, we are able to transfer him to another facility in another location," Ms. Morrow said.

She proposed to Justice Veale that the order that allows Mr. Nehass to be kept at the Ontario Shores Centre for Mental Health Sciences in Whitby be amended to permit a transfer to a facility in British Columbia.

Mr. Nehass, who is a member of the Tahltan First Nation based in Dease Lake, B.C., has some family in the province. Ms. Morrow has approached a hospital in the Kamloops area and is waiting to hear whether it will be able to admit him. Court will reconvene on Tuesday to firm up the details of the transfer.

Mr. Nehass, who appeared in court via video from Ontario Shores, remained quiet through most of the proceedings. At one point, he interjected: "I need to go back to Whitehorse, Yukon, where I was born and raised. … You shipped me here. I would like to go home now."