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‘Dangerous offender’ successfully appeals indeterminate sentence

In a case before the NWT Court of Appeal, dangerous offender Noel Avadluk’s lawyer argued that 10 years in custody and a 10-year supervision order would adequately protect the public against the possibility of him violently reoffending. NNSL file photo

Editor’s note: This story contains details that may be disturbing to some readers.

Noel Avadluk’s lawyer has successfully appealed a previous court decision that would have kept the Nunavut-born man in prison for an indeterminate period.

Deemed a “dangerous offender” by the court, Avadluk was convicted of sexual assault in 2014, following a 2012 incident that saw him attack and rape a 56-year-old woman. The sentencing judge described the incident as “sudden, brutal, and sustained,” and imposed an indeterminate sentence, which she said was the only verdict that would keep the public safe.

Avadluk was 44 at the time of sentencing, and had already been convicted 43 times dating back to 1985. According to court documents, his lawyer argued that “a custodial sentence sufficiently long enough for Mr. Avadluk to receive high intensity sex offender treatment in prison, combined with a 10-year, long-term supervision order would adequately protect the public,” with the hope that he could be released into the community at the age of 50, at which point “his risk of sexual recidivism would be much lower,” according to an expert witness, identified in documents as Dr. Nesca.

However, the sentencing judge determined that the defence counsel’s proposition was “not legally available,” and went ahead with the indeterminate sentence.

In the appeal, Avadluk’s lawyer argued that the sentencing judge made four errors in imposing an indeterminate sentence. The Northwest Territories Court of Appeal, which made its ruling on Jan. 24, deemed that only one one of those four possible errors was worth addressing: A “misapplication of legal standards,” and specifically “whether the sentencing judge erred in law in her approach to imposing a determinate sentence in dangerous offender proceedings.”

The Court of Appeal examined a Supreme Court of Canada decision in the 2017 case R. versus Boutilier, which interpreted the dangerous offender provisions of the criminal code – which it noted that the sentencing judge did not have access to. It found that she “erred in finding that she could not impose the determinate sentence proposed by Mr. Avadluk.”

“In conclusion,” the Court of Appeal’s memorandum of judgement explained, “Boutilier establishes that a sentencing judge may impose a determinate sentence for the predicate offence that is longer than would be justified by the application of ordinary sentencing principles if it is necessary to protect the public from violent reoffending.”

“Indeed, if there is a determine sentence that would adequately protect the public, the sentencing judge must impose it rather than an indeterminate sentence.”

In the appeal, Avadluk’s lawyer argued that 10 years in custody and a 10-year supervision order would adequately protect the public against the possibility of him violently reoffending.

The Court of Appeal declined to set a new sentence upon the appeal, arguing “deficiencies in new evidence,” and instead deferred the matter for a new sentencing hearing.

“The appeal is granted,” the memorandum of judgement stated. “The question of sentence is remitted to the trial court for a determination.”

“Pending a new sentencing hearing, we direct that the appellant will remain in custody at Bowden Institution [in Innisfail, Alta.] to facilitate his access to rehabilitative programming.”

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