Nearly six and a half years after a Northwest Territories Supreme Court judge designated a man from Nunavut as a dangerous offender and sentenced him to an indefinite term of imprisonment, he has won an appeal of the sentence.
Justice Karan Shaner sentenced Noel Avadluk, then 44, to a period of imprisonment with no end date in August 2017.
A jury had convicted Avadluk of a 2012 sexual assault in Yellowknife, which Shaner described as “sudden, brutal and sustained.” His lengthy criminal record included a total of eight convictions for violent crimes and two experts testified he was at high risk to reoffend violently and high to medium risk to reoffend sexually.
In Canadian criminal law, a dangerous offender order aims to protect the public from high-risk violent offenders.
Judges may sentence a dangerous offender to an indefinite term of imprisonment to ensure they are not released until their risk of reoffending is significantly reduced. After seven years, the Parole Board of Canada must review an offender’s case, and if they do not grant parole, every two years after that.
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During sentencing, Avadluk’s defence lawyer had argued that a 10-year sentence followed by a 10-year period of supervision was sufficient to protect the public as it would allow Avadluk to complete high-intensity sex offender treatment in prison. A forensic psychologist had also testified that by that point, Avadluk would reach an age where his risk of reoffending sexually would be significantly lower.
The Crown, however, argued Shaner could not legally sentence Avadluk to 10 years and that he should be sentenced indefinitely. The prosecution said the court could not give Avadluk a sentence with an end date longer than he would have been sentenced for the 2012 sexual assault had he not been designated a dangerous offender.
Shaner agreed with the Crown.
In a ruling on Wednesday, a panel of three NWT court of appeal judges overturned that decision.
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They referenced a December 2017 decision by the Supreme Court of Canada – made after Avadluk was sentenced – which concluded that when sentencing dangerous offenders, judges must impose the “least restrictive” sentence that will adequately protect the public. The NWT appeal judges also pointed to a 2018 decision by the Ontario Court of Appeal which found judges can impose a fixed sentence for dangerous offenders that is longer than they would ordinarily be jailed without the designation.
Avadluk argued that he should now be sentenced to 10 years imprisonment with no credit for pre-sentence custody for the sexual assault charge, followed by a 10-year supervision order. That would mean he would be released from prison in August 2027 at the age of 54 and then under supervision until he is 64.
The appeal court declined to give Avadluk a new sentence, however, as they said evidence he provided of his progress since 2017 did not address his risk of reoffending. Instead, they ordered that a new sentencing hearing be held.
Avadluk will remain in custody at the Bowden Institution in Innisfail, Alberta, until that hearing takes place.
