In the winter of 2011 in the small town of Watson Lake, a popular tourist destination near the B.C. border known as the gateway to the Yukon, an arrest warrant was issued for a 27-year-old Tahltan man. He had previous brushes with the law, mainly assault charges. This time, the man was wanted on eight criminal charges, including forcible confinement and assault with a weapon, related to the attack of a 50-year-old woman by knifepoint. It was alleged that he had punched her in the side of the head, dragged her by her hair up several stairs, and forced her inside an apartment. There, he continued to hit her, holding a pocket knife to her throat and threatening that he would kill her and her family.
On December 29, the man turned himself into the RCMP. He entered custody at the Whitehorse Correctional Centre (WCC), the only jail in the territory, located in the capital city about five hours from Watson Lake, the following day.
The name Michael Nehass rings a bell to few across Canada. But in the Yukon, he is a household name. News articles over the years have detailed his numerous charges for violent offences, bizarre outbursts in court ranting about conspiracy theories, and his mistreatment in the justice system. His mugshot often appears in local media: a striking and intimidating figure with a smirk and dark eyes, a distinguishing scar over his left eyebrow and two teardrop tattoos inked near the outer corner of his left eye. Today, the 33-year-old has visibly aged: He’s lanky with shaggy hair, his years in criminal institutions clearly having taken their toll.
Yukon’s most infamous criminal case highlights the most pressing issues in Canada’s justice system. Yukon Minister of Justice Tracy-Anne McPhee has acknowledged that many of those incarcerated in the territory, like Nehass, struggle with mental health issues. Human rights advocates and the Office of the Correctional Investigator have also criticized the use of solitary confinement or segregation for inmates with mental health issues; the Yukon has yet to have an independent review of its segregation practices. Research has shown a high rate of offenders in the territory, too, have Fetal Alcohol Spectrum Disorders (FASD); preliminary findings from a study released last November showed that 17.5 percent of 80 participating adult offenders were confirmed to have prenatal alcohol exposure. Meanwhile, prisons across Canada have been dubbed by some as the “new residential schools” due to the increasing overrepresentation of Indigenous people. In the Yukon, Indigenous people accounted for 70 percent of adults in custody but only 20 percent of the population in the territory. These issues have been deemed as crises by the federal government. Yet, institutions have continued to work against Nehass, resulting in a six-year battle for justice.
As Nehass languished in prison, activists have begun asking questions: Why has the Yukon justice system failed some of its inmates so badly? More than half a decade since Nehass’s imprisonment, the questions remain unanswered.
Michael Nehass was born January 14, 1984, in Teslin, Yukon, a small village home to the Teslin Inland Tlingit, a self-governing First Nation. Nehass lost his mother at the age of three when she died in a car crash. Over the years he had multiple caregivers and placements. He also lived on the streets of Whitehorse as a teen. His father, Russell, says he is also an intergenerational survivor of the residential school system.
Growing up, Nehass endured physical, mental, and sexual abuse, and witnessed drug and alcohol misuse. He began drinking as a preteen and using drugs in his early teens. Psychologists say Nehass was self-medicating as a way to mentally escape his abusive environment. Prominent forensic psychiatrist Dr. Shabreham Lohrasbe notes that by the age of 15, Nehass was diagnosed with multiple mental disorders—not unusual for adults who later develop major psychiatric disorders. During his younger years, Nehass was diagnosed with FASD, a group of conditions that can include physical, mental, behavioural, and learning effects in individuals whose mothers drank alcohol while pregnant; Attention Deficit/Hyperactivity Disorder, a neurodevelopmental disorder characterized by inattention, hyperactivity, and impulsivity; Post-Traumatic Stress Disorder, an anxiety disorder that can develop after being exposed to a traumatic event; and attachment disorder, sometimes seen in children with a history of abandonment, neglect, or abuse who are impaired in their ability to develop healthy emotional attachments. Nehass also made several suicide attempts; his first was at age 12.
Since 14, Nehass has spent most of his life in and out of various correctional institutions. He has accrued a lengthy criminal record including multiple convictions for breaking and entering, assaults, assaults with a weapon, and uttering threats. This included a 33-month sentence at a B.C. prison in 2003 for aggravated assault. While high on cocaine and heroin, he and another man tortured a cocaine dealer, Frederick “Mad Dog” Martin, in Whitehorse over unpaid drug debts. They slashed his face, cut off one of his fingers with a meat cleaver, stubbed out a cigarette on his shoulder, and beat him with a hammer and a baseball bat. At his sentencing, Yukon Judge John Fulkner noted, “Mr. Nehass is a seriously disturbed youth in desperate need of treatment.”
As Nehass got older, he continued to act out. In October 2009, Nehass assaulted a peace officer and was sentenced the following June to three years at the WCC. Nehass and his three cellmates became drunk on smuggled alcohol. When a female guard checked on them, Nehass reached out and briefly touched her. Later they flooded their cell and Nehass and his cellmate attacked two responding prison guards. Nehass shoved one of the officers, at one point jumping on him and choking him. He punched another guard in the face, breaking his nose and causing a bone to poke through the skin, which required surgery.
It was clear that the WCC had difficulty managing Nehass. According to the Whitehorse Star, he broke the telephone off the wall of the segregation unit using a plastic chair and smashed several glass panes in June 2013. While correctional officers and jail staff were deciding how to respond, Nehass broke into a utility room. When officers threw a flash-bang grenade into the room to stun Nehass, he climbed into the ceiling saying he was scared. In July, he also spat in the face of another correctional officer when he was refused access to personal photos. Nehass was charged with uttering threats, causing about $30,000 in damages to the jail, assaulting a correctional officer, and attempting to escape the facility.
Much of Nehass’s behaviour has been linked to significant concerns with his mental health. During court appearances he would often have outbursts ranting about mind control, conspiracies involving the Yukon government, the Illuminati, and the Bilderberg group, and claims that he endured forced sterilization at the WCC. As of 2016, after five years in custody, he had fired four lawyers and claimed that they, along with judges and the Yukon government, were involved in a conspiracy where they were being controlled by microchips.
But the stipulations of his incarceration only exacerbated Nehass’s mental health challenges. Many of the 2,000-plus days he spent in remand at the WCC were in the facility’s segregation unit for disciplinary reasons or because jail staff were unable to manage him in general population. Nehass’s Toronto-based defence lawyer Anik Morrow says he spent 22 to 23 hours a day inside a nine-by-11-foot cell. When let out of his cell to shower, he was handcuffed and kept in belly chains.
Nehass was held in one of seven identical cells in the Whitehorse segregation unit. They’re similar to those in the general population, but the toilet and sink are stainless steel, not porcelain, and there are no ligature points. Outside of the cells, there is a shower and main area with a plastic bin filled with paperback books. In the corner, there is a small cement “airing court”—the only place inmates like Nehass can get fresh air through a window exposed to the elements.
In most jurisdictions, including the Yukon, prisoners can end up in segregation for administrative or disciplinary reasons. Howard Sapers, Canada’s former correctional investigator and the current independent advisor on corrections reform for Ontario, says many problems occur in administrative cases because systems often rely on segregation to manage medical issues, including mental health, when there is not proper infrastructure. “I have found all too often that people who do have intellectual disabilities or behavioural disorders or mental illness end up in segregation,” Sapers says. “It’s not a healthy, therapeutic, or even safe environment, particularly for people suffering from mental illness.” In jails across Canada, he adds, this is where 50 percent of suicides take place.
The United Nations Standard Minimum Rules for the Treatment of Prisoners, more commonly known as the Nelson Mandela Rules, also prohibits indefinite and prolonged solitary confinement, defined as more than 15 consecutive days. The rules also dictate that solitary confinement should only be used in exceptional cases as a last resort. It further prohibits the practice for prisoners with mental or physical disabilities when confinement would exacerbate these conditions.
The WCC asserts that it doesn’t use solitary confinement like other jurisdictions, instead preferring the terms “segregation” and “separate confinement.” (Experts define solitary confinement as any period when prisoners are kept in cells alone for up to 22 hours with little social interaction.) According to statistics from the Yukon Department of Justice, 70 people were separately confined at the WCC in 120 incidents in 2016 alone. This accounted for 1.6 percent of bed days, or 526 out of 32,155.
But in 2014, there was an inmate who spent over 81 days straight in segregation.
All the while, Nehass was not receiving adequate mental health services, despite a wealth of psychiatric reports and clearly disordered behaviour at the jail and in court. A transfer to a mental health facility was considered as early as December 2013, but it was never acted on.
In January 2014, Nehass was forced to appear before a judge naked. Three guards in riot gear held him naked and shackled to the floor of his cell in the segregation unit for a court appearance via video. During the case management conference, Justice Leigh Gower waited 15 minutes before having Nehass removed. The judge later issued an apology for not acting faster.
After his appearance, Justice Gower ordered a psychiatric assessment to determine Nehass’s fitness to stand trial on the June and August 2013 charges of assault and damage to the WCC. Forensic psychiatrist Dr. Lohrasbe prepared two assessments. Lohrasbe found that the most likely primary diagnosis for Nehass was Bipolar I Disorder. He said that Nehass’s psychosis “manifest[s] through paranoid and grandiose delusions” and that he could not meaningfully participate in the legal process. In May 2014, Judge Michael Cozens ultimately ruled that Nehass was unfit, finding “his delusional thinking and his tendency to be drawn back into this thinking would be a threat to his rational participation in the criminal proceedings.”
But in a surprise decision, the independent Yukon Review Board panel, based upon the same evidence, found the opposite. Fitness under the law is complicated and depends on a three-part test of whether the accused understands the nature of proceedings, the possible consequences, and whether they can communicate with counsel. While Nehass was clearly struggling with mental health issues, he is also highly intelligent and could understand and participate in the court process, the board found.
The Review Board sent the matter back to the territorial court and Judge Cozen’s ruling still stood. But in November 2014, Nehass, who was self-represented, pled guilty to the 2013 charges. Four months later, he was sentenced to 21 months’ imprisonment, which he had already served. “To say that the Whitehorse Correctional Centre had difficulties managing this offender would be a gross understatement,” Judge Donald Luther remarked during the hearing.
Following a two-week trial in May 2015, a 12-member jury found Nehass guilty of all of the 2011 charges save for a charge of uttering threats.
At that point Nehass had already spent more time in jail than any sentence he would have received. Nevertheless, Crown prosecutor Terri Kaur said she intended to seek a longterm or dangerous offender designation for sentencing. Nehass faced an indeterminate sentence of incarceration or a long-term supervision order.
With continued concerns about Nehass’s mental health, Justice Scott Brooker ordered a psychiatric assessment in late 2016 to determine his ability to participate in the dangerous offender hearing. Through court order, Nehass was transferred to the Ontario Shores Centre for Mental Health Sciences in Whitby for assessment and treatment. (There is no forensic psychiatric centre in the Yukon due in large part to limited resources in the territory and the relatively small population. Clinicians do assist inmates at the WCC but for those that require a greater level of care they may be transferred to mental health facilities in the provinces.)
At the facility, Nehass was assessed by two doctors, Dr. Chantal Wong and Dr. Derek Pallandi, who submitted reports about his mental health. “It is likely that Mr. Nehass has been either on the cusp or frankly unfit for a lengthy period of time prior to the present evaluation,” Dr. Pallandi found. Pallandi also diagnosed Nehass with Schizoaffective Disorder.
This left Justice Brooker in a difficult position. There is nothing in the Criminal Code that allows for an offender to be found unfit after they have already been convicted. So, at the fitness hearing, Brooker relied on common law from the 1800s to declare that Nehass was unfit. In R. v. Dyson (1831), the English court stated, among other things, that if after trial a man “becomes of non-sane memory, he shall not receive judgment.” The Ontario Court of Appeal also stated in 1910 that “no person can be rightly tried, sentenced, or executed while insane.” Brooker said to proceed with the dangerous offender hearing “would be fundamentally unfair and would offend the dignity of the judicial process.” It was the first time in Canadian history that a person was found unfit after standing trial. Under the Criminal Code, when a person has been found unfit they are usually required to undergo treatment until they are well enough to face trial. Doctors testified that Nehass could become fit after 60 days of treatment, including the use of antipsychotic medication. Brooker, however, declared a mistrial in the case.
Despite the lengthy case and its many problems, the Crown opted to retry the charges, setting the case back at square one. Defence lawyer Anik Morrow, who is based out of Toronto, said she intended to file a stay of proceedings in the case due to delays and charter rights infringements. Nehass, meanwhile, remained at Ontario Shores receiving treatment, including medication. Justice Brooker noted that his health appeared to have improved. During court appearances Nehass was visibly healthier, engaging with his lawyer and the judge though remaining mostly silent.
With further court proceedings looming, Nehass was freed from the Yukon justice system on September 8, 2017, when Crown prosecutor Eric Marcoux filed a stay of proceedings at a hearing for the defence’s judicial stay application. Marcoux told the court the Crown stay was based on a review of the public interest and safety, finding that Nehass no longer posed a risk. But Morrow seemed less than pleased with the last-minute decision after preparing for the judicial stay application for months. She didn’t mince words when she called the stay a “manoeuvre” by the Crown that effectively put a gag order on the issues of the case.
“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,” she said. Through a variation of the court order that sent Nehass to Ontario, he was transferred to a civil mental health facility in Kamloops, B.C., to continue treatment outside of the criminal system.
Over the years it seemed as though Nehass would waste away at the WCC indefinitely. No one has taken responsibility for the man who grappled with deteriorating mental health and slipped through the cracks of the system. The Crown, courts, review board, jail staff, and government all had a role to play in the case.
Last September, Yukon Supreme Court Justice Ron Veale issued a memorandum in the case—a rare document to come from a judge—to “highlight the events that took place and to bring them to the attention of the public.” He called the case a “sad state of affairs for the Yukon.”
But some recent changes have improved WCC policy when it comes to segregation. A limit of 15 consecutive days has been set to align with best practices. And the amount of time inmates are allowed out of their cells has increased to two hours, up from one hour, daily. The territory is also one of the few jurisdictions in Canada that has an independent adjudication process when it comes to segregation. Plus, there is oversight from the Investigations and Standards Office.
Yukon Minister of Justice Tracy-Anne McPhee has also acknowledged the potential harms of segregation in the legislature. “I think the research is clear that separate confinement should be used in the rarest of cases,” she says. On the other hand, she says she has “no concerns whatsoever” with how it is used at the WCC. “I have full confidence that the segregation unit cells are safe places and that they were used on a minimum basis,” the minister says. McPhee also announced her intention to order an inspection of the WCC under a “never-before-used” section of the Yukon Corrections Act. It will focus on how the facility deals with inmates with mental illness, including a review of the issues in Nehass’s case. Last November, the government appointed David Loukidelis, Queen’s Counsel, to inspect the matters at the WCC.
Not everyone is satisfied that this is adequate—and they say that problems are already clear. The justice system needs to calibrate its response and not criminalize people with mental illness, Howard Sapers says, including earlier assessments, offramps, and not blocking treatment. He notes that segregation is part of a complex correctional environment and is a symptom of other problems in the system.
The Council of Yukon First Nations and Kwanlin Dün First Nation have also spoken out about the need for changes in the Yukon Justice system. They have pointed out the need for better cultural and reintegration programming as well as a formal system for Gladue reports, outlining an Indigenous offender’s personal history with colonial oppression.
But the Yukon Party, which was in power between 2002 and 2016 for much of Nehass’s time spent in jail, has been deafeningly silent on the issue. “The Official Opposition supports a justice system that protects the rights of inmates while ensuring the safety of our community as a whole,” wrote Yukon Party justice critic Brad Cathers in a statement. “We have confidence in the dedicated staff at the Department of Justice, including staff at the Whitehorse Correctional Centre.”
While Nehass was seemingly free from the criminal justice system, he was arrested on a peace bond application by the Crown in Lower Post, B.C., on October 20, 2017. The Crown is seeking that he is placed on 22 bail conditions despite not facing any criminal charges, based on an informant’s statement that there is fear Nehass will commit a serious personal injury offence.
Nehass was released following a bail hearing on November 3. Anik Morrow, who is currently assisting Nehass pro bono, said she was told the peace bond hearing won’t be for another year due to limited resources in the small northern town.
Many who hold tough-on-crime attitudes don’t understand why people are so interested in and outraged by the case. They feel that Nehass is a violent, dangerous offender who should be locked up and have the key thrown away. But what they don’t understand is that incarceration is not rehabilitative and mistreating offenders doesn’t assist in public safety. While offender’s rights may be limited in terms of movement, they still have human rights protected under the law.
Sapers puts it best in the preface for the Independent Review of Ontario Corrections, released in March 2017. While victims’ rights are important, he writes, it’s also important to concern ourselves with offenders: “After nearly 40 years of working in the system I have come to realize there is often only a thin and blurry line between victim and offender…. Meeting the needs of offenders often amounts to meeting the needs of victims,” he writes. “‘Offender bashing’ conditions of confinement does nothing to assist victims of crime or make our communities safer.”