A judge has fired a final salvo against the Yukon government for its handling of a mentally ill Tahltan man who languished in prison for more than 2,000 days, much of it in solitary confinement, before the Crown abandoned the case earlier this month.
In an unusual ruling, Justice Ronald Veale called the Michael Nehass saga "a sad state of affairs" that deserves a full public airing.
"The purpose of this memorandum is … to highlight the events that took place and bring them to the attention of the public," he writes.
The document, released through Yukon Supreme Court, details Mr. Nehass's arduous trip through the Yukon criminal justice system, starting with an assault with a weapon charge in 2011 and concluding this month with the Crown entering a stay of proceedings.
The case raised troubling questions about the use of solitary confinement and the treatment of an inmate who is both Indigenous and mentally ill – issues that have bedevilled correctional systems across the country of late.
The Crown's abrupt decision to drop the case against Mr. Nehass came after years of referring to him as a grave threat to public safety. Until this year, prosecutors wanted him designated as a dangerous offender.
The stay essentially slammed the books on the criminal proceedings against Mr. Nehass, leaving Justice Veale little opportunity to comment on the case. Before the case could be entirely closed, however, Mr. Nehass's lawyer, Anik Morrow, applied to have her client transferred from a psychiatric hospital in Whitby, Ont., to a similar facility in British Columbia.
Justice Veale took the opportunity to append his memorandum to the transfer order.
"It's unusual," Ms. Morrow said. "But I think it's very helpful."
Justice Veale writes that two years after Mr. Nehass arrived at the Whitehorse Correctional Centre (WCC), doctors recorded a severe deterioration in his mental state.
That decline was reflected in his courtroom behaviour. He went through several lawyers and ranted openly about the involvement of China, Russia, mind control and "neuro nanotube technology" in his plight.
Medical staff warned jail administrators that keeping him behind bars would be "medically inappropriate and inhumane" and recommended a transfer to a psychiatric hospital outside the territory.
Justice Veale writes that the Crown, defence counsel and the court were all aware of Mr. Nehass's mental state and the urgent transfer request, and yet no one acted, deciding, in effect, to hold him in a facility that was incapable of meeting his health needs.
"This memorandum is not a finding of liability on the part of any person, but simply recording the sad state of affairs where a mentally ill inmate remained in custody and segregation while a transfer to a mental health facility was considered as early as December, 2013, but never acted on," the memo reads.
He goes on to dismiss any role Mr. Nehass's various defence lawyers may have played in keeping him at the WCC. Mr. Nehass had always denied any suggestion that was mentally unfit and directed his lawyers accordingly.
Under Yukon law, the Whitehorse Correctional Centre is considered a hospital capable of treating mentally ill inmates. But, Justice Veale writes, the Nehass case shows that this is "manifestly not the case." The territory's own director of corrections testified during one Nehass proceeding that the WCC "is in no way, means, shape or form a hospital."
In the memo, Justice Veale issues clear guidance on the issue: "I strongly recommend that the Yukon government revoke the designation of the WCC as a hospital."
Last week, Yukon Minister of Justice Tracy-Anne McPhee announced an independent review of the way WCC treats mentally ill inmates. On Friday, a government spokesman said Ms. McPhee would be unavailable to comment on the Veale memo until next week.
The memo largely echoes Ms. Morrow's position that a systemic breakdown in the territorial justice system led to Mr. Nehass's mental deterioration behind bars.
For now, Ms. Morrow can't say whether her client is planning any further legal action. "Mr. Nehass has a number of options and we're canvassing those," she said. "I think the interest right now is for him to get well. That's the priority."