On September 29, 2017, Canadians were well served by the judicial system. At a time when Indigenous people are falling through the cracks of our social safety net at a staggering rate, one judge in Yukon took extraordinary steps on that day to not let this happen to one very troubled man.

Michael Nehass, a member of the Tahltan Nation, was charged with assaulting a woman in 2011. It was not his first violent offence. Although he was convicted in 2015, a judge declared a mistrial earlier this year, a highly unusual action. But while he was in custody at the Whitehorse Correctional Centre (WCC), Nehass attacked a guard. Subsequently he spent extended periods in solitary confinement, which further eroded his already fragile mental health. WCC staff raised concerns about his mental condition and requested that he be transferred to a forensic psychiatric facility outside the territory. This did not happen until 2016, when he was sent to a treatment centre in Ontario.

Following the mistrial, the Crown prosecutor at first decided to retry Nehass on the 2011 charges. Let’s be clear: Nehass, who has been diagnosed with a variety of mental illnesses, including schizophrenia, has been a considerable threat to public safety. Citing this danger, many people called on the judicial system to keep him in prison.

Nehass’ defence counsel applied for a judicial stay of proceedings, which would have led to the case being terminated. The judge can issue this stay in cases that relate to violations of the Canadian Charter of Rights and Freedoms, as was being argued by the defence.  The defence also requested that Nehass be transferred under mental health legislation to a treatment centre in British Columbia, which would be closer to support from his family.

In what is considered to be a highly unusual exercise of Crown prerogative, and not reviewable by the court, the Crown prosecutor directed that the proceeding be stayed, which essentially stops the proceedings before the court. However, it also gives the Crown the option of recommencing the proceedings within one year of the stay, leaving the entire question of Nehass’ future up in the air.

Disturbed by the Crown’s actions, Yukon Supreme Court Justice Ron Veale took the unusual step of issuing a memorandum. Normally, the Crown’s move would have meant an end to the debate in the court on the contentious issue of Nehass’ treatment since 2011 while he had been waiting for the conclusion of his trial. Veale’s memorandum describes this treatment in detail and addresses the rights of mentally ill people after a criminal proceeding is terminated.

I would like to focus on two aspects of this judicial story. First, the action of the Crown prosecutor demonstrated an abrogation of responsibility and, in my opinion, was disrespectful of the court. In effect, his action abruptly stopped defence lawyer, Anik Morrow, from arguing that there had been substantial violations of Nehass’ rights since 2011 under the Charter; her application for a judicial stay of proceedings should have been heard and not shut down.

Morrow felt that the Crown’s tactic was intended to avoid embarrassment. She accused the justice system of dumping Nehass “onto the sidewalk in Ontario” without concern for his ongoing mental problems. She described the Crown’s conduct as “shameful.”

Over the protestations of the Crown counsel, Veale allowed Morrow to outline her concerns about the case to the court, which she did in considerable detail. Veale justified this by saying that the Crown’s move in response to the defence application was made at the last minute. The court, therefore, needed to give room to the defence to describe the issues, which were important for society’s understanding of individuals with mental illness and the appropriate way to treat them.

Another important aspect of the case argued by the defence lawyer was that the Canadian justice system has failed in its treatment of Indigenous people and people with mental illnesses. She especially highlighted the use of solitary confinement, which in Nehass’ case had been extensive: he had sometimes been in solitary for up to 23 hours a day at the WCC.

Before the defence lawyer could begin her arguments, the Crown counsel excused himself and left the courtroom. This decision to walk out of the proceedings was surprising, to say the least: the federal government has said that the “honour of the Crown” is a fundamental cornerstone of its commitment to bring about reconciliation with Canada’s Indigenous people. In a statement in July, Justice Minister Jody Wilson-Raybould laid out 10 principles that are to guide all the Crown’s interactions with Canada’s Indigenous peoples. The Minister stated, “The Principles will guide the review of laws, policies and operational practices and form a foundation for transforming how the federal government partners with and supports Indigenous peoples and governments.” The third principle states that “the Government of Canada recognizes that the honour of the Crown guides the conduct of the Crown in all of its dealings with Indigenous peoples.”

Where was the “honour of the Crown” when its representative before a superior court walked out before proceedings were concluded? How does this behaviour align with the Minister’s wish to “[support] Indigenous peoples and governments”?

The second important element of this case is the action taken by Veale. He could have let the Crown’s behaviour pass without comment, but he did not. He expressed disappointment that the Crown had decided not to stay for the remainder of the discussion: “I find it unfortunate that the Crown has bowed out of the proceeding…It makes it difficult for justice to be done.” That was when he announced he would be preparing a memorandum on the matter.

In his memorandum, Veale ordered that Nehass be transferred to competent care in British Columbia, as requested by the defence, instead of being abandoned to an uncertain future in Ontario. He said, “The authority for this Court to have jurisdiction over Mr. Nehass is based on its parens patriae jurisdiction, that is…the care of mentally incompetent persons, founded on necessity, and the need to act for the protection for those who cannot care for themselves.”

The road to reconciliation between Canada’s Indigenous population and the Crown is fraught with challenges. The federal justice minister has declared that the Crown, in its many parts, must step up to meet the objective of reconciliation. Veale’s actions met, and indeed exceeded, this expectation. The same cannot be said of Crown counsel.

Veale’s September 29 memorandum also addressed the shortcomings of the Whitehorse Correctional Centre as a place for inmates with mental illness. Following calls for action by many leaders in the Yukon community (Indigenous and non-Indigenous), the Yukon Minister of Justice has ordered an inspection of the centre by an independent expert. Hopefully this review will bring about further changes to the system, given its inability to deal with people with mental illness. There have also been calls for the federal government to conduct an independent public inquiry into the case. As for Michael Nehass, he will be relocated to a hospital in British Columbia.

Photo: Whitehorse Correctional Centre. © Government of Yukon 2017.

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Kirk Cameron
Kirk Cameron has worked extensively in governance in Canada, including in the creation of Nunavut, in Yukon devolution and in land claims and self-government. As a consultant, he works closely with Indigenous organizations throughout Canada.

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