Legally 'in a void,' inmate ruled unfit to stand trial could be sent back to jail

A Yukon inmate recently diagnosed with mental illness could be sent back to jail, despite the Yukon Supreme Court granting that jail is not suited to care for him.

Today Justice Scott Brooker declared a mistrial in the conviction of Michael Nehass, meaning Nehass will again face a number of charges which include unlawful confinement and assault for which he was convicted in May 2015.

Nehass had represented himself during the trial in Whitehorse. However, the Yukon Supreme Court justice recently ruled Nehass was not mentally fit to stand trial.

Today Brooker said it would have been a "miscarriage of justice" to let the previous conviction stand.

The mistrial ruling nevertheless creates a problem. It means Nehass is once again considered an inmate on remand and no longer qualifies to stay in the forensic ward of an Ontario mental health care facility called Ontario Shores. He could be sent back to the Whitehorse Correctional Centre.

This despite the fact that on previous court dates, the same judge repeatedly agreed the jail is unsuitable to care for Nehass and agreed that jail time has been a significant factor in making Nehass' mental state worse.

In limbo

Today Brooker called the situation "unprecedented" and said he was bound by Canada's laws. He nevertheless described the situation as "parochial"which means narrow-minded.

At various times he described Nehass as stuck "in limbo," in "a grey zone" and "in a void." Nehass listened to these words via videoconference from Ontario.

Until being moved to Ontario Shores late last year for an assessment, he had beenin custody at Whitehorse Correctional Centre since his arrest in 2011.

The judge said Nehass "has already served a longer sentence than a fit person would have served for these crimes."

Both sides in court have agreed Whitehorse Correctional Centre isn't suited to take care of people with psychosis. One reason is that the jail cannot legally force a person to take medicine.

Nehass in the past has refused medicine at Whitehorse Correctional, and the jail says it's been forced to keep him segregated to protect other inmates.

"Bringing him back to WCC is not helpful," said defence lawyerAnik Morrow.

"He needs to come back to WCC unfortunately until we sort this out," said Crown Prosecutor Eric Marcoux.

Even the judge agreed that "Whitehorse Correctional is not a hospital and does not have sufficient facilities" to care for Nehass' mental illness.

Inmate wants to stay at Ontario hospital

Yukon's Director of Corrections Patricia Ratel was in court today and declined comment.

However in January when called as a witness, she said Whitehorse Correctional is "not adequate" for someone who is mentally ill. Space for forensic psychiatric wards is limited in Canada and Ratel told the court last month that Yukon staff had been calling across Canada trying to find an available bed for Nehass in a psychiatric hospital since 2015.

"It's a systemic issue," she had told the court."Nobody wants to take a remanded-status inmate from another jurisdiction."

Nehass told the court today he'd prefer to stay in Ontario. The case reconvenes Feb.28.