EditorSA国际影视传媒檚 note: This story contains details that may be disturbing to some readers.
Noel AvadlukSA国际影视传媒檚 lawyer has successfully appealed a previous court decision that would have kept the Nunavut-born man in prison for an indeterminate period.
Deemed a SA国际影视传媒渄angerous offenderSA国际影视传媒� 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 SA国际影视传媒渟udden, brutal, and sustained,SA国际影视传媒� 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 SA国际影视传媒渁 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,SA国际影视传媒� with the hope that he could be released into the community at the age of 50, at which point SA国际影视传媒渉is risk of sexual recidivism would be much lower,SA国际影视传媒� according to an expert witness, identified in documents as Dr. Nesca.
However, the sentencing judge determined that the defence counselSA国际影视传媒檚 proposition was SA国际影视传媒渘ot legally available,SA国际影视传媒� and went ahead with the indeterminate sentence.
In the appeal, AvadlukSA国际影视传媒檚 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 SA国际影视传媒渕isapplication of legal standards,SA国际影视传媒� and specifically SA国际影视传媒渨hether the sentencing judge erred in law in her approach to imposing a determinate sentence in dangerous offender proceedings.SA国际影视传媒�
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 SA国际影视传媒� which it noted that the sentencing judge did not have access to. It found that she SA国际影视传媒渆rred in finding that she could not impose the determinate sentence proposed by Mr. Avadluk.SA国际影视传媒�
SA国际影视传媒淚n conclusion,SA国际影视传媒� the Court of AppealSA国际影视传媒檚 memorandum of judgement explained, SA国际影视传媒淏outilier 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.SA国际影视传媒�
SA国际影视传媒淚ndeed, if there is a determine sentence that would adequately protect the public, the sentencing judge must impose it rather than an indeterminate sentence.SA国际影视传媒�
In the appeal, AvadlukSA国际影视传媒檚 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 SA国际影视传媒渄eficiencies in new evidence,SA国际影视传媒� and instead deferred the matter for a new sentencing hearing.
SA国际影视传媒淭he appeal is granted,SA国际影视传媒� the memorandum of judgement stated. SA国际影视传媒淭he question of sentence is remitted to the trial court for a determination.SA国际影视传媒�
SA国际影视传媒淧ending 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.SA国际影视传媒�
