Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Evalik, 2021 NUCJ 26

Date: 20210330
Docket: 21-18-36
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Jay Victor Evalik

________________________________________________________________________

Before: Madam Justice Charlesworth

Counsel (Crown): G. Magee

Counsel (Accused): S. Siebert

Location Heard: Cambridge Bay, Nunavut

Date Heard: March 30, 2021
Matters: Dangerous offender application pursuant to Criminal Code
of Canada, RSC 1985, c C-46, ss. 753.1

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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Restriction on Publication:

By court order made under section 486.4 of the Criminal Code, “any
information that could identify the complainant or a witness shall
not be published in any document or broadcast or transmitted in
any way.”

Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with

legislative requirements or at the discretion of the
authoring Justice to protect vulnerable parties. Letters
have been assigned at random.
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[1] I sentenced Jay Victor Evalik on March 30, 2021 in Cambridge Bay.
At that time, I read part of this decision, which has been edited for
clarity.

I. INTRODUCTION

[2] Mr. Evalik entered a guilty plea before me in Cambridge Bay on

January 8, 2019, to a sexual assault on A.A. between January 1,
2004, and December 31, 2004. This will be referred to as the
predicate offence. A.A. was 13 or 14 years old at the time of the
sexual assault. Mr. Evalik was in his early 20s.

[3] Mr. Evalik and A.A. are related. Prior to the sexual assault, Mr. Evalik
encouraged A.A to drink with him. A.A. became intoxicated and was
then sexually assaulted in her bedroom. The assault included full
intercourse. While Mr. Evalik was on top of her, A.A was not able to
get him off her. The charge was laid fourteen years later, in February
2018.

[4] At the time of the guilty plea, the Crown advised that it intended to
bring an application to have Mr. Evalik found to be a dangerous
offender. The nature of the predicate offence, combined with Mr.
Evalik’s serious criminal record, which will be reviewed below,
motivated this application.

[5] A dangerous offender designation results in an indeterminate

penitentiary sentence: a sentence that does not have a specified end
date. It is a very serious matter.

[6] The first step in a dangerous offender application is an application to

the court to order an assessment of the person to be sentenced
pursuant to s. 752.1 of the Criminal Code. That application was filed
by the Crown on March 28, 2019. On June 7, 2019, after hearing from
counsel, I ordered that Mr. Evalik be so assessed.

[7] The assessment report of Dr. Philip Klassen was filed on September
16, 2019. Dr. Klassen had requested, and been granted, an extension
of time to complete the report.

[8] The Crown provided two volumes of documents, marked as Exhibit 1,

dealing with Mr. Evalik’s prior criminal record, and reports about his
periods of custody and probation that resulted. I also heard evidence
by video conference from Dr. Klassen and Mr. Al-Baghdadi,
 4

representing Correctional Services Canada, on August 7, 2020. Dr.

Klassen’s evidence was completed by video on August 28. I then
received submissions and caselaw from counsel and heard oral
arguments on December 15.

[9] Counsel are in agreement that, because the predicate offence

occurred in 2004, the relevant Dangerous Offender provisions of the
Criminal Code at that time are the ones that must be used. I agree
with their position because the Dangerous Offender provisions today
are more harsh towards the offender than the provisions in effect in
2004. Mr. Evalik has the right to the provisions in force at the time of
his offence.

II. CRIMINAL RECORD

[10] Mr. Evalik has a lengthy and serious criminal record:

Date of Offence(s) Offence(s) Date of Sentence(s)

Sentence(s)
December 6, 1995 Sexual Assault January 31, 1996 No Disposition
(YOA)
August 15, 1997 Break, enter and December 3, 1997 18 mo. secure
sexual assault (YOA) custody, 2 mo.
open custody
September 2000 – Various break and Various Some jail and
January 2004 enter offences; some probation
breaches of
probation
April 24, 2004 Sexual Assault November 3, 2004 Two years
April 30, 2004 Sexual Assault November 3, 2004 penitentiary
+ one year
penitentiary
Sometime in 2004 Sexual Assault Guilty plea TBD (Predicate
January 8, 2019 offence)
November 17, Break and enter, April 1, 2008 23 months total
2007 obstruct police, fail
to comply
recognizance x 2,
fail to attend Court
February 6, 2011 Assault with a April 1, 2011 Two years less a
Weapon day + 1 year prob.
 5

May 1 – Exposure for January 8, 2019 Six months

September 30, sexual purpose
2013 to person under
16
November 25, Sexual Assault January 21, 2014 4 years
2013 penitentiary

February 3, 2018 Sexual Assault, January 8, 2019 12 months

breach s. 811 consecutive to six-
recognizance month sentence
for 2013 offence
above

[11] Mr. Evalik has been in custody since February 3, 2018. After
considering the 18-month sentence given on January 8, 2019, for the
offences of exposure in 2013 and sexual assault in 2018, noted
above, his remand time for the predicate offence starts about
February 1, 2019.

III. DANGEROUS OFFENDER AND LONG-TERM OFFENDER

LEGISLATION

[12] In 2004 paragraph 753(1)(a) of the Criminal Code read as follows:

753. (1) The court may, on application made under this Part following the filing
of an assessment report under subsection 752.1(2), find the offender to be a
dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious
personal injury offence described in paragraph (a) of the definition of that
expression in section 752 and the offender constitutes a threat to the life, safety or
physical or mental well-being of other persons on the basis of evidence
establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence

for which he or she has been convicted forms a part, showing a failure to
restrain his or her behaviour and a likelihood of causing death or injury
to other persons, or inflicting severe psychological damage on other
persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which

the offence for which he or she has been convicted forms a part, showing a
substantial degree of indifference on the part of the offender respecting
 6

the reasonably foreseeable consequences to other persons of his or her

behaviour, or

(iii) any behaviour by the offender, associated with the offence for which
he or she has been convicted, that is of such a brutal nature as to compel
the conclusion that the offender’s behaviour in the future is unlikely to be
inhibited by normal standards of behavioural restraint

[13] To find Mr. Evalik to be a dangerous offender, I must be satisfied that

he fits any one of several definitions, including those set out in
paragraph (a) above.

[14] The Supreme Court of Canada, in R. v. Boutilier, 2017 SCC 64,

summarized the four-part test to satisfy a dangerous offender
application. At paragraph 26 of Boutilier the SCC states:

[26] In Lyons, Justice La Forest read the objective element of the designation -
the requirement that the predicate offence be a “serious personal injury offence” -
together with the subjective element - the “threat” assessment - and concluded
that four criteria were “explicit” from the language of s. 753(1): (1) the offender
has been convicted of, and has to be sentenced for, a “serious personal injury
offence”; (2) this predicate offence is part of a broader pattern of violence; (3)
there is a high likelihood of harmful recidivism; and (4) the violent conduct is
intractable (p. 338). The last three criteria are part of the assessment of the
“threat” posed by the offender. The last two of these are future-oriented, and
Justice La Forest explained them as follows:

Thirdly, it must be established that the pattern of conduct is very likely to

continue and to result in the kind of suffering against which the section seeks
to protect, namely, conduct endangering the life, safety or physical well-
being of others or, in the case of sexual offences, conduct causing injury,
pain or other evil to other persons. Also explicit in one form or another in
each subparagraph of s. [688, now 753] is the requirement that the court must
be satisfied that the pattern of conduct is substantially or pathologically
intractable. [Emphasis added; p. 338.]

[15] Under s. 753.1 as it was in 2004, even if the test is met for a
dangerous offender designation to be given, the Court may instead
find Mr. Evalik to be a long-term offender. This is a less onerous
designation and the reason why the 2004 provision is available to Mr.
Evalik. Parliament revoked this option in 2012.
 7

[16] Pursuant to s. 753.1 in 2004, a long-term offender designation may be

made on the following three-part test:

a) it would be appropriate to impose a sentence of imprisonment of

two years or more for the predicate offence;
b) there is a substantial risk that the offender will reoffend; and
c) there is a reasonable possibility of eventual control of the risk in the
community.

IV. POSITIONS OF THE PARTIES

[17] The Crown argues that Mr. Evalik satisfies the definition of a
dangerous offender. The offence Mr. Evalik pleaded guilty to is sexual
assault, by definition a serious personal injury offence. Mr. Evalik’s
past behaviour could lead to a finding that he is a dangerous offender:
he is likely to reoffend in a way that will cause injury to other persons.

[18] The Crown argues further that it is clear from Mr. Evalik’s record that
his violent behaviour is intractable. The Crown submitted Mr. Evalik
did not benefit from any treatment he received in the past. During his
most recent penitentiary sentence, he refused treatment which is why
he was held to warrant expiry in 2018. This intractability means his
risk to the community cannot be controlled and I should designate him
as a dangerous offender.

[19] The Defence advises that Mr. Evalik is willing to comply with a release
order requiring him to take sex-drive reducing medication, as well as
alcohol-deterrent medication. Defence Counsel argues that I should
find Mr. Evalik to be a long-term offender, rather than a dangerous
offender. Counsel submits the 2004 provisions do not require a
dangerous offender designation even if Mr. Evalik does meet the test.
Counsel argued that I should consider the Criminal Code sentencing
provisions, particularly the principle of restraint, because Mr. Evalik is
an Indigenous offender, in deciding he should be found to be a long-
term offender.

[20] In this case, defence agrees that the only issue is found in
s. 753.1(1)(c): whether “there is a reasonable possibility of eventual
control of the risk in the community." This is where the report and
evidence of Dr. Klassen are relevant and important.
 8

V. PSYCHIATRIC EVIDENCE

[21] Dr. Klassen was qualified as an expert in Forensic Psychiatry; he is a

well-known expert in this Court. Part of his expertise is in risk
assessment and risk management of offenders. Dr. Klassen does
assessments under the Dangerous Offender provisions and has done
over 200 assessments over the past 25 years throughout Canada. Mr.
Evalik declined to be interviewed or tested by Dr. Klassen on advice
of counsel. Dr. Klassen had access to extensive records, mostly from
police and corrections authorities, on which to base his opinion.

[22] Dr. Klassen’s report, dated September 16, 2019, was filed as Exhibit
4 in this hearing, and gives the opinion that Mr. Evalik meets the
criteria for conduct disorder and antisocial personality disorder, likely
alcohol use disorder, and possibly cannabis use disorder as
well. Based on his sexual offending, Dr. Klassen stated that the
possibility that Mr. Evalik has an underlying sexual behaviour disorder
should be evaluated.

[23] Regarding risk assessment, Dr. Klassen used a tool called the Static-
99R to assess Mr. Evalik’s risk of sex offender recidivism as an
extremely high level 9. Essentially, he is a one-in-a-thousand sexual
offender in terms of likelihood to reoffend. However, he will soon be
over 40 and drop one point, to 8, which will put him in a category
where, “[s]imilar-scoring individuals recidivated violently or sexually at
rates of 62% to 67% over 10 years opportunity in the community.”
Obviously, this is still a significant risk to the community.

[24] In his testimony, Dr. Klassen explained that the risk that a rapist will
re-offend is “very low” after age 50, and there is basically zero risk of
re-offence after age 60. However, if Mr. Evalik is mainly interested in
child abuse, there is a more-than-very-low-risk to re-offend after age
50 and still some risk after 60. Dr. Klassen was not able to determine
to what extent Mr. Evalik is interested in children, because three of his
sexual offence victims were children.

[25] Mr. Evalik’s refusal to be interviewed by Dr. Klassen complicated the

Court’s ability to determine the appropriate offender designation. I am
troubled that, from the documents alone, Dr. Klassen found Mr. Evalik
to be a 1 in a 1000 sexual offender and that Dr. Klassen was unable
to determine whether Mr. Evalik has a criminal predilection towards
children. These concerns militate towards a finding that a dangerous
offender designation is suitable for Mr. Evalik.
 9

[26] However, Dr. Klassen’s evidence on the availability of medical

treatments and their possible risk-dampening effect on Mr. Evalik,
was significant to my analysis. Dr. Klassen testified that
pharmacotherapy is a “powerful tool” and would “absolutely” reduce
Mr. Evalik’s dangerousness in the community in two ways:

- Injectable sex-drive reducing medication would last from one

to three months and would make Mr. Evalik “much safer”;
- Similarly, an alcohol deterrent which is an oral medication that
must be taken daily would be effective, as it makes someone
very ill if they take alcohol while on it.

[27] Dr. Klassen’s evidence was that Dialectical Behavioural Therapy

(DBT) would likely be helpful to Mr. Evalik as Mr. Evalik seems to be
“prone to self-defeating emotional storms.” This kind of therapy is not
generally available in male penitentiaries but is “ubiquitous” in Ontario
(for instance) and Mr. Evalik could have access to it while on the long-
term offender (LTO) part of a sentence. Such therapy would also help
manage the risk Mr. Evalik poses.

[28] Dr. Klassen also talked about Circles of Support and Accountability,
which are available in southern Canada. These are groups of
volunteer citizens who provide support to offenders. These circles
work to surround the offender out in the community and provide an
“external ego”. The members of the circle know the offender well
enough to know when that person’s risk is high, or low, and help
provide control of his behaviours.

[29] Dr. Klassen commented that sometimes, offenders from Nunavut can
do better in the south, not only because of increased services (which
there clearly are) but also because the offenders are in a different
milieu, without familiar triggers for bad behaviour.

VI. CORRECTIONAL INFORMATION

[30] Mr. Evalik did not take programming during his penitentiary
sentences. It appears from the correctional documents provided to
me, and Defence Counsel confirmed, that on his most recent
penitentiary sentence Mr. Evalik had agreed to take sex-offender
programming but none was available until after the Parole Board met
concerning his possible release on parole. The Board decided that
 10

Mr. Evalik should be held until sentence expiry, and so he decided not
to take the sex-offender program.

[31] On the other hand, the documents do not reveal serious discipline
issues in the penitentiary, or criminal offending while on parole during
his first penitentiary sentence.

[32] Mr. Hamza Al-Baghdadi gave evidence about the programs available
for inmates through Correctional Services Canada (CSC). He did not
have specific information about Mr. Evalik.

[33] Mr. Al-Baghdadi advised that CSC has modified its programming
recently (since Mr. Evalik was last in the penitentiary), so that inmates
can start taking programs very soon upon admission, even while still
in the intake process.

[34] All offenders take the Integrated Correctional Program Model, with a
multi-target program to deal with the criminogenic factors that are
relevant to the specific offender. There is an indigenous-specific multi-
target program and a sex offender program. Each of those programs
include “maintenance”, to reinforce the learning after the program is
over.

[35] The Indigenous-specific program includes an Inuit stream which

involves Elders and also takes into consideration cultural sensitivities
and realities.

[36] Each stream starts with a “primer” - a preparatory program with a goal
of assisting the offender to identify their factors that led to the criminal
activity and provides motivation for the programs. The offender is
shown the benefits of participating in the programs and is taught basic
self-management skills to cope in the institution.

[37] An important benefit of the new programming at CSC is that an

inmate can join at any point; they do not have to wait for a program to
“start”. As noted above, this was a problem during Mr. Evalik’s most
recent incarceration in a penitentiary.

[38] There are also education and vocational training programs available
in the penitentiaries.

[39] A long-term offender can apply for day parole and/or full parole. Upon
warrant expiry on the determinate sentence, the LTO part of the
 11

sentence starts. The Parole Board of Canada, with input from the
community parole office, will determine the conditions of the LTO
sentence.

VII. CASELAW

[40] R. v. Johnson, [2003] 2 S.C.R. 357 provides the guidance I must

follow in determining whether Mr. Evalik is to be designated as a
dangerous or long-term offender:

28 Like all discretion exercised in the sentencing context, a judge’s

discretion whether to declare an offender dangerous must be guided by
the relevant principles of sentencing contained in ss. 718 to 718.2 of
the Criminal Code. As mentioned above, these include the
fundamental principle of proportionality contained in s. 718.1 and,
most relevant to the central issue in the present appeal, the principle of
restraint enunciated in paras. (d) and (e) of s. 718.2, which provide as
follows:

718.2 A court that imposes a sentence shall also take into

consideration the following principles:
...

(d) an offender should not be deprived of liberty, if less

restrictive sanctions may be appropriate in the
circumstances; and

(e) all available sanctions other than imprisonment that

are reasonable in the circumstances should be considered
for all offenders, with particular attention to the
circumstances of aboriginal offenders.

[41] The joint effect of these principles is that a sentencing judge must
consider the possibility that a less restrictive sanction would attain the
same sentencing objectives that a more restrictive sanction seeks to
attain.

[42] According to Dr. Klassen’s evidence, Mr. Evalik’s risk to the

community would be appropriately managed if he could be required to
take sex-drive reducing and alcohol-deterrent medications. The issue
of mandatory treatment orders was considered by Mr. Justice Trotter
in the case of R. v. Lawson, 2015 ONSC 5315 at paragraph 82:
 12

[82] In approaching the ultimate question of whether Mr.

Lawson’s risk can eventually be controlled in the community, it is
important to appreciate that the LTSO [long term supervision order]
regime is a strict one, one that is administered by the PBC [Parole
Board of Canada] and enforced through the criminal sanction and
the Corrections and Conditional Release Act, R.S.C. 1985, c. C-
20 (“CCRA”). Section 753.3(1) of the Criminal Code provides for an
indictable offence for breaching a LTSO, with a maximum sentence of
10 years’ imprisonment. The failure to abide by any condition in an
LTSO, including one requiring treatment, may result in suspension and
apprehension pursuant to s. 135.1 of the CCRA. As Hill J. said in R. v.
Payne (2001), 2001 CanLII 28422 (ON SC), 41 C.R. (5th) 156 (Ont.
Sup. Ct.) at p. 194: “The entire object of the long-term offender regime
would be undermined by providing the offender with the ability to
defeat risk management.” See also Deacon v. Canada (Attorney
General), 2006 FCA 265 (CanLII), [2007] 2 F.C.R. 607 (C.A.), R. v.
Badger, supra, at paras. 60-63, R. v. Lemaigre (2004), 2004 SKCA
125 (CanLII), 189 C.C.C. (3d) 492 (Sask. C.A.), at p. 504 and R. v.
V.M., [2003] O.J. No. 436 (Sup. Ct.), at paras. 120 to 136. However,
while treatment conditions, including the requirement that the offender
take sex-drive reducing medication, may be included in LTSO’s,
medication cannot be forced on an offender. As Feldman J.A. held
in R. v. Ramgadoo (2012), 2012 ONCA 921 (CanLII), 293 C.C.C. (3d)
157 (Ont. C.A.) at pp. 171-172:

In R. v. R.B., 2011 ONCA 328, at para. 12, this court

acknowledged that a Parole Board has the power to make taking
medication a condition of a long-term supervision order, but on
the understanding that such an order does not mean that the
person would or could be physically forced to take medication.
Rather, if the person does not consent to take the medication
when required to do so under the terms of the order, that could
then amount to a breach of the condition under s. 753.3(1) unless
the person "had a reasonable excuse for refusing to take the
prescribed medication" (at para. 13).

[43] Mr. Evalik has stated through counsel that he would comply with sex-
offender pharmacotherapy and would be willing to take alcohol
deterrent medication.

VIII. ANALYSIS

[44] Of the statutory criteria for a finding that Mr. Evalik is a dangerous
offender, the only one in issue is whether Mr. Evalik’s violent conduct
is intractable. Of the three statutory criteria for finding that Mr. Evalik
 13

is a long-term offender, the only one in issue is reasonable possibility

of eventual control of his risk to the community.

[45] In my view Dr. Klassen set out a plan for Mr. Evalik that has a
possibility of eventual control of his risk to the community. Mr. Evalik
says he wants to control his behaviour and there are programs and
treatments that will help him do so. If workable, this would be a less
restrictive sanction, that would attain the same sentencing objective of
safety for the public as would an indeterminate sentence.

[46] As mandated by Parliament via section 718.2(e) of the Criminal Code

and the Supreme Court of Canada in R v Gladue [1999] 1 S.C.R. 688
and R v Ipeelee 2012 SCC 13, I am required to consider all available
sanctions other than imprisonment that are reasonable in the
circumstances, with particular attention to the circumstances of
Indigenous offenders. Application of the Gladue principles is required
in every case involving an Indigenous offender (Ipeelee at para 87).

[47] The first part of this analysis involves a consideration of the unique
systemic or background factors which may have played a part in
bringing this Indigenous offender before the courts. Mr. Evalik is Inuk
and was born and raised in a remote Northern community with few
services. He grew up in a home with alcoholic parents and was
removed from (and then returned to) that home by Family Services,
along with his younger siblings, on several occasions. I am required to
be cognizant of the history of colonization in Canada which in
Nunavut includes, among many other issues, the introduction of
alcohol, forced relocations from a seminomadic lifestyle to fixed
settlements, and removals for residential school and/or medical
treatment in the south. In this case, it is also relevant to consider the
paucity of mental health treatment and services in Nunavut. Mr. Evalik
has had trouble in his life because of some or all of these factors.

[48] An offender is not required to establish a causal link between these

background factors and the commission of the offence for which they
are being sentenced (Ipeelee at para 81). Instead, I am to consider
the types of sentencing procedures and sanctions which may be
appropriate in the circumstances for the offender because of his or
her Indigenous heritage or connection.

[49] The plan suggested by Dr. Klassen requires Mr. Evalik to be

motivated to follow through by being involved in the programs
available to him and by taking the medications recommended. In all
 14

the circumstances, I am satisfied that, with a meaningful period of

incarceration to start, there is a reasonable possibility that Mr. Evalik’s
risk can eventually be controlled in the community. This conclusion is
based on the following factors:

1. The predicate offence occurred in 2004, the year he

committed two other sexual assaults that resulted in his first
penitentiary sentence. It was not disclosed until 2018. The
criminal record does not demonstrate a recent escalation in
his behaviour: the offences charged in 2018 occurred in 2004,
2013 and 2018.

2. Mr. Evalik pleaded guilty in 2019, knowing it would result in

this application. He avoided a difficult trial for a young person
by taking responsibility for the offence.

3. Dr. Klassen said that Mr. Evalik’s sexual urges are

“absolutely” amenable to control and management through a
combination of treatment measures. Mr. Evalik has agreed to
take sex-drive reducing medication as well as alcohol-
deterrent medication. If Mr. Evalik does not consent to take
the medication when required to do so under the terms of the
order it could amount to a breach of conditions under 753.3(1)
unless Mr. Evalik “had a reasonable excuse for refusing to
take the prescribed medication.”

4. Intensive sex offender treatment is available on an ongoing

basis in the penitentiary as is Inuit-specific therapy. Other
forms of treatment and support – for example Dialectical
Behavioural Therapy and Circles of Safety and Accountability
– are available in the community as part of the long-term
offender sentence.

5. A lengthy period with suitable controls in a community has not

been available for Mr. Evalik. Most recently, he was held to
warrant expiry on the four-year sentence he was given in
2014 and sent back to his small northern community with very
limited resources.

6. Mr. Evalik’s offences all occurred in small, northern

communities; his difficulties on limited releases in the south
were breaches of specific terms of those releases. He has
never been charged with substantive criminal offences there.
 15

As well, file material from his prior stays in the penitentiary

suggest uncooperativeness, but not overt acting-out
behaviour.

IX. CONCLUSION

[50] The Supreme Court recognized in Gladue and Ipeelee that

Indigenous offenders are severely overrepresented in Canada’s
prisons. The Court found that such over representation is intimately
tied to the legacy of colonialism. Through these seminal decisions,
and in recognition of the trial judge’s role on the front lines of the
criminal justice system, the SCC has affirmed the statutory duty,
imposed on the trial judge by s. 718(2)(e) of the Criminal Code, to
consider the unique circumstances of Indigenous offenders in every
case in aid of addressing this inequitable over representation. Failure
to apply Gladue principles in the sentencing of an Indigenous
offender, regardless of the seriousness or heinousness of the crime,
constitutes an error justifying appellate intervention.

[51] Section 753.1 in 2004 allowed for the finding of LTO status in place of
a dangerous offender designation, even when an offender was found
to have met the test for such a designation. A dangerous offender
order would incarcerate Mr. Evalik indefinitely and, consequently,
indefinitely contribute to the count of indigenous offenders
incarcerated in Canada. However, an LTO finding would combine a
lengthy custodial sentence with a long-term period of supervision. In
doing so, the sentence would recognize the seriousness of the
offence for which Mr. Evalik has been convicted and the need to keep
the public safe. If successful, the LTO status would avoid the
indefinite detention of an Indigenous man where alternatives to
incarceration exist.

[52] An imposition of an LTO sentence, rather than a dangerous offender

designation, is appropriate for Mr. Evalik as I find the therapeutics
available leave open the possibility of Mr. Evalik’s safe reintegration
into society. I will impose a significant prison sentence due to the
severity of the predicate offence and at the conclusion of that time, to
manage his risk to the community with measures that are less severe
than imprisonment, I am imposing the maximum LTO order.

[53] I recommend that sex-drive reducing medication and alcohol-

deterrent medication should be conditions of Mr. Evalik’s LTO
supervision order. This will enable Mr. Evalik to participate in
 16

community life at a reduced level of risk. If Mr. Evalik breaches any

conditions of the LTO supervision order, including those requiring him
to take medication (without reasonable excuse), he would be in
breach of his release and could be returned to custody during which
the LTO order is suspended. Of course, as the sentence is served,
and Mr. Evalik settles into his new life, the Parole Board - with
medical and other advice - can make changes to those conditions.
During his incarceration and after while on the LTO supervision order,
Mr. Evalik will also have access to programs and services that will
reduce his risk.

[54] For the determinate part of the sentence, I take into consideration that
Mr. Evalik has served slightly over two years of custody on this
offence, since February 2019. Mr. Evalik is entitled to enhanced
credit for his remand custody at the rate of 1.5:1. I sentence Mr.
Evalik to a further three years in custody, starting today (for a total
sentence of six years’ incarceration), to be followed by a ten-year
supervision order. I recommend that the supervision order should
include a requirement to take sex-drive reducing medication as well
as alcohol-deterrent medication.

[55] There are mandatory orders that I must make because of these
convictions and this sentence:

1. An order under s. 760 of the Criminal Code that a copy of all

reports and testimony given by psychiatrists and other experts,
and any observations of the court with respect to the reasons
for the finding together wit the transcript of the trial of the
offender by forwarded to Correctional Services of Canada for
information;
2. A firearms prohibition order under s. 109 of the Criminal Code
for a period of 10 years after his release. I do not object to an
order under s. 113 authorizing the use of a firearm for
sustenance hunting, if a competent authority believes it is
appropriate;
3. A DNA order;
4. An order under the Sex Offenders Identification and
Registration Act for 20 years.

[56] Mr. Evalik: I hope that you are able to use the resources available
during this long-term offender sentence to heal yourself and to
prevent ongoing suffering to yourself and those around you.
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Dated at the City of Iqaluit this 30th day of March, 2021

___________________
Justice S. Charlesworth
Nunavut Court of Justice