Man declared a dangerous offender wins appeal of indeterminate sentence

A Kugluktuk man who was declared a dangerous offender more than six years ago has successfully appealed his sentence.

In 2017 Noel Avadluk, then 44, was sentenced to an indeterminate amount of time in prison after a psychiatrist said he was a borderline psychopath and a high risk to harm others if released. That meant he would remain in prison until his risk of re-offending diminished, no matter how long that takes.

But in a decision posted Jan. 25, a panel of Northwest Territories Court of Appeal judges said that sentence was not appropriate. The decision said the judge made an error in 2017 when determining how much time she could sentence Avadluk to if she gave him a sentence for a fixed amount of time.

Declared dangerous

Before Avadluk's sentencing in 2017, the prosecutor successfully applied to have Avadluk declared a dangerous offender after he was convicted of raping a woman in Yellowknife. The judge described the attack as "sudden, brutal, and sustained."

It was Avadluk's second sexual assault conviction and eleventh violent crime. In all, he has a total of 43 criminal convictions.

At his sentencing in 2017, Avadluk's lawyer, Tracy Bock, argued an indeterminate sentence was not necessary to ensure the public was protected. Bock argued a sentence of 10 years in prison plus 10 years of supervision outside of prison — similar to parole or probation  — was more appropriate. 

But in her 2017 decision, NWT Supreme Court Justice Karan Shaner said that sentence wasn't available to her. She said if she did not sentence Avadluk to an open-ended amount of time in prison, she could not sentence him to more time for the sexual assault than she would have had he not been declared a dangerous offfender.

The maximum sentence for sexual assault is 10 years in prison. No additional supervision time is allowed.

'Last resort'

In its decision this week, the Court of Appeal said the Supreme Court of Canada recently decided the opposite. It said judges are open to giving dangerous offenders however long of a fixed sentence they feel is necessary to protect the public. An indeterminate sentence is a last resort.

With the time he served awaiting sentencing on the sexual assault, Avadluk has already served more than 10 years in custody. The Court of Appeal said he should remain in prison at the Bowden Institute in Alberta until a new sentencing hearing can be held. No date for that has been set yet.