Justice system failed mentally ill Indigenous inmate, lawyer argues

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In 2016, Michael Nehass swallowed razor blades. To his delusional mind, it was a reasonable act built upon solid logic.

Mr. Nehass, a 33-year-old Indigenous inmate, believed that a technological device of some unspecified kind had been implanted in his stomach during his lengthy incarceration. Consuming the blades, he thought, would force hospital surgeons to open up his torso, whereupon they would see the implant and remove it.

The scheme can be seen as the nadir of a nearly six-year period of incarceration in Yukon's only adult prison – much of it in solitary confinement – during which Mr. Nehass lost his grip on reality while the justice system failed to intervene. The allegation is contained in a scathing Yukon Supreme Court filing from Mr. Nehass's lawyer, Anik Morrow, that argues for a stay of the prosecution against Mr. Nehass, who turned himself in to police in 2011.

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Charged with aggravated assault and other counts related to an alleged knife-point assault in Watson Lake, Mr. Nehass was convicted in 2015. But concerns about his mental fitness during sentencing prompted a judge to declare a mistrial in February, 2017, quashing the conviction.

Mr. Nehass's plight isn't well known beyond Yukon, but his case is emblematic of issues that plague justice systems across the country. He is an Indigenous, mentally ill inmate in a country where those groups are overrepresented in courts and prison cells. Testimony suggests he is both too sick to imprison and too dangerous to set free. For bureaucrats in Yukon, concern about his violent history took precedence over his mental well-being or Indigenous heritage, the application states, and he was locked away.

The 30-page stay application relies on years of testimony and other evidence entered in the protracted case and concludes that the territorial government violated Mr. Nehass's Charter rights to life, liberty and security and protection against cruel and unusual punishment. Ms. Morrow will begin arguing for the stay in court on Tuesday.

On at least six occasions, health workers urged prison officials to get Mr. Nehass out of isolation and into a secure psychiatric facility somewhere outside the territory, since the only suitable institutions lay thousands of kilometres away in the southern provinces. Those demands were ignored for years until he was eventually sent to a psychiatric facility in Ontario in late 2016.

"The state created the circumstances for his deterioration that were entirely foreseeable and avoidable," reads the stay application, whose key allegations have yet to be tested in court.

In the meantime, Mr. Nehass's case will plod ahead. Yukon Justice spokesman Dan Cable declined to comment on the case while it is before the courts. The Crown prosecutor pursuing the case against Mr. Nehass, Eric Marcoux, did not respond to a request for comment on Friday. He previously told The Globe and Mail that the Crown intended to retry Mr. Nehass and have him labelled a dangerous offender.

In December, 2011, Mr. Nehass allegedly held a knife to a woman's throat in Watson Lake while threatening her and her family. He already had an "unenviable criminal record" that included numerous violent offences and at least three assaults against peace officers, according to a judge's sentencing decision from a previous case.

He turned himself in for the alleged knife-point assault and went into custody at the Whitehorse Correctional Centre (WCC), a brand-new prison at the time with a capacity of 190 inmates.

The first red flag concerning his mental health went up almost a year and a half later, according to the stay application, when a prison doctor noted "an acute decompensation of Mr. Nehass's mental state."

It would be the first of many breakdowns to come. A few months later, the institution's psychiatrist, Armando Heredia, labelled Mr. Nehass "severely ill" and recommended his transfer to a forensic psychiatric facility. No transfer took place.

Fully two years into Mr. Nehass's time at the WCC, his case was in shambles. He'd fired a number of lawyers and become convinced that China, Russia, Stephen Harper, mind-control devices and "neuro nanotube technology" played some role in his case.

His delusional state alarmed the prison doctor, who wrote in January, 2014: "I feel it is medically inappropriate and inhumane to continue holding him at the Whitehorse Correctional Centre in segregation as he is suffering from significant mental illness which needs treatment. I therefore request that … Whitehorse Correctional Centre and the justice system expedite a transfer urgently to a forensic psychiatric facility for assessment and treatment."

Again, there was no transfer.

At least four similar pleas would come from medical staff over the next two years with the same result.

There was a problem with the recommendation: Yukon has no secure psychiatric facility.

During a 2017 hearing to determine Mr. Nehass's mental fitness, the territory's director of corrections, Tricia Râtel, admitted that the prison came close to transferring him on at least two occasions. One attempt was aborted because of concerns about how it might interrupt his court proceedings.

"It was the belief of the day that this matter would not be continuing much longer, that his sentencing was imminent and that once he was sentenced he would be out to receive treatment," she said, according to transcripts obtained by The Globe.

At another point, the WCC secured a bed at a psychiatric hospital in Brockville, Ont. Staff even drafted flight orders. On the stand, Ms. Râtel was asked why the Brockville transfer never came to pass. "I can't really remember," she said. "Too much time had passed and the [psychiatric] assessment wasn't current enough to proceed."

The territorial Department of Justice was aware of Mr. Nehass's conditions. During a 2014 court appearance, a lawyer representing the prison, Cindy Freeman, stated that the WCC "could not provide [Mr. Nehass] with proper medical care and his mental state had been and was deteriorating," according to the stay application.

His mental deterioration was mirrored in his physical appearance. From 2014 to 2016, his weight fell from 165 pounds to 135 pounds. He was described as "gaunt" and "cachexic," the application states.

In December, 2015, he told staff he'd eaten a copper wire and complained that an "implant" was damaging his insides. The next month, he swallowed the razor blades in a belief that doctors would have to cut him open and remove the "technology implanted in his stomach."

Languishing behind bars, Mr. Nehass acted out, abusing staff, destroying televisions and damaging other property. Instead of therapy, Mr. Nehass received numerous institutional charges, the application states, resulting in lengthy periods of punitive segregation.

During one encounter with staff, he was stripped and "subjected to inappropriate and unprofessional comments about his race and genitalia." Several officers were disciplined.

His case briefly made national headlines. On Jan. 22, 2014, a team of correctional officers was summoned to extract Mr. Nehass from his cell for a video-court appearance before Justice Leigh Gower.

Wearing riot gear, they "entered his cell, apprehended him while he was naked, hog tied him with cuffs and shackles – and carried him through the WCC halls," the application states. The team propped him before a court camera while Mr. Nehass yelled at them to cover his genitals. A subsequent Canadian Judicial Council inquiry prompted Justice Gower to apologize.

The stay application is especially critical of Crown attorneys for ignoring numerous reports of Mr. Nehass's deterioration and pushing ahead with prosecution rather than seeking treatment.

In the application, Ms. Morrow states the Crown "failed to fulfill its role as a Minister of Justice and in so doing undermined fundamental tenets of the judicial system."

She goes further, arguing that the Nehass case demonstrates a "complete breakdown of the justice system – with all parties, Crown, court and counsel intent on securing guilty pleas from Mr. Nehass to resolve matters before the court."