A Yukon Supreme Court justice has issued a damning memorandum on the treatment of a mentally ill Indigenous man in the territory’s criminal justice system.

Justice Ron Veale says that Michael Nehass’ “odyssey of incarceration” is a “sad state of affairs” for the Yukon.

Nehass, a 33-year-old Tahltan First Nation man who has been diagnosed with schizophrenia, remained in pre-trial custody and segregation while presumed innocent for nearly five years at the Whitehorse Correctional Centre (WCC).

His criminal case concluded on Sept. 8 when the Crown filed a stay of proceedings at a hearing for a judicial stay application by the defence.

An unusual document to come from a judge, Veale says the memorandum is meant to “highlight the events that took place and to bring them to the attention of the public” rather than a finding of fact or liability.

In it, Veale writes that a “significant and outstanding concern” in Nehass’ case is that he was never connected with the necessary mental health services while he was incarcerated in Whitehorse.

Veale notes that this was despite several doctors finding Nehass to be “psychotic and delusional” and WCC staff, the Crown, defence counsel and the court being “well aware of his deteriorating mental health condition.”

He adds that while a transfer to a mental health facility was considered as early as December 2013, it was never acted on.

It wasn’t until November 2016 that Nehass was transferred to a forensic mental health facility in Whitby, Ont. by court order. Through a variation of that court order, Nehass was recently transferred to a civil mental health facility in Kamloops, B.C. following the conclusion of his criminal proceedings.

Veale says the court was able to authorize Nehass’ move based on its responsibility to protect those who cannot care for themselves.

He also highlights that while the WCC is designated as a hospital, this “is manifestly not the case.”

“Calling a prison a hospital does not change the nature of the WCC from a penal environment to a therapeutic environment,” he writes.

He notes that a Yukon government lawyer, medical professionals and the territory’s director of corrections have told the court that WCC is not a hospital appropriate for individuals with mental health concerns like Nehass.

Veale strongly recommends that the Yukon government revoke WCC’s designation as a hospital.

Nehass’ case raised concerns about the overuse of segregation and treatment of Indigenous and mentally ill inmates, issues being grappled with across Canada.

His nearly six-year legal saga began in 2011 when he was charged with assault, threatening to use a knife, uttering a death threat and forcible confinement related to an alleged incident in Watson Lake.

He turned himself into RCMP on Dec. 29, 2011 and entered custody at WCC the following day.

Over the years, his mental health deteriorated, and there were concerns about his fitness to stand trial.

But prior to a dangerous offender hearing, Nehass had denied that he was mentally unfit.

While the Supreme Court matter was working its way through the system, Nehass was charged with a number of offences against WCC staff. He pled guilty and was sentenced for many of the charges.

In 2014, he was found unfit to stand trial by Judge Michael Cozens. But he was sent back to the court when the Yukon Review Board determined that he was fit.

Following a jury trial in May 2015, Nehass was found guilty of several charges.

The following month, the Crown applied to have Nehass declared as a dangerous offender and he was again sent for a fitness assessment.

Based on the findings of the assessment, Justice Scott Brooker ruled under common law that Nehass was unfit for trial.

This was the first and only time in Canadian history that a person has been found unfit following a trial decision. In February 2017, Brooker declared a mistrial in the landmark case.

The Crown then opted to retry the charges but ultimately filed a stay in the case.

Defence lawyer Anik Morrow said the stay was a “maneouvre” by the Crown that effectively placed a gag order on the issues in the case, calling the action “shameful.”