ST. JOHN'S, N.L. — Convicted serial rapist Sofyan Boalag’s crimes were horrific and there’s no denying it, his lawyer Jon Noonan acknowledged in court Wednesday.
Noonan went on to argue before a panel of judges that when it comes to assessing Boalag’s level of risk, however, there’s no evidence to suggest he belongs on the dangerous offender list.
“I would suggest that these offences, while horrific, are fairly minor on the scale of dangerous offender predicate offences,” Noonan told three justices of the province’s Court of Appeal, comparing the case to previous unrelated sexual assault convictions. “These are horrific offences, however dangerous offender (status) is the most severe designation in Canada, and it’s reserved for the worst of the worst.”
Boalag sexually assaulted two women and a child in separate attacks as they walked home from the downtown St. John’s area in 2012. He also robbed the girl and one of the women, and choked the other woman until she was rendered unconscious. He was armed with a stick in the first attack, and a knife in the other two.
Boalag was convicted and deemed by a provincial court judge to be a dangerous offender, and sent to Atlantic Institution in Renous, N.B., to serve an indeterminate jail sentence. He’s appealing that sentence and his dangerous offender status.
At Boalag’s appeal hearing Wednesday, Noonan pointed out most offenders who are deemed dangerous offenders have long criminal histories beginning at a young age.
Boalag’s offences are horrible, Noonan reiterated, but he has no criminal history to suggest he was deviant or violent before 2012.
“When I compare to some of the case law, Mr. Boalag falls below the end of the spectrum of a dangerous offender profile,” Noonan argued.
Justice Gale Welsh didn’t appear to accept that argument.
“Yes, but Mr. Noonan, if you look what happened, on Sept. 1 he attacked a young girl from behind, unprovoked, while she was out walking her dog, in a vicious violent attack,” Welsh said. “Then three months later (he) does the same thing to another woman who’s out walking along a trail in, again, a vicious violent attack within a fairly short period of time. Then, a week later, (he attacks) someone who actually can identify him, which led to, I presume, the ending of this kind of behaviour. The fact that he wasn’t caught or didn’t do it before, how does that impact the fact that you have these three really violent and very disturbing attacks in such a short period of time?”
"The fact that he wasn’t caught or didn’t do it before, how does that impact the fact that you have these three really violent and very disturbing attacks in such a short period of time?” — Justice Gale Welsh
Noonan submitted that Boalag’s dangerous offender status should be overturned and a new hearing ordered for him, on the grounds that the original judge had misperceived evidence presented by witnesses, particularly forensic psychiatrist Dr. Jasbir Gill.
Gill had presented evidence in person in the courtroom as well as through a written report compiled after she conducted a lengthy assessment of Boalag at the Waterford Hospital while he was in custody.
In deeming Boalag a dangerous offender, the original judge had relied mostly on Gill’s written report, which differed from her testimony on the stand, Noonan said.
He noted Gill had told the court she believed Boalag’s risk to the community could eventually be managed with the right resources.
The trial judge ruled there was no evidence to suggest Boalag could be rehabilitated within a definite period of time, no indication he would participate willingly in treatment and no expression of his remorse. In delivering her decision, she pointed out Boalag had told Gill he would participate in sex offender counselling “because they will make me.”
“While he appeared to care more about himself, I didn’t feel he was being in any way glib,” said Noonan, who did not represent Boalag at trial or at the dangerous offender hearing, arguing the original judge chose to accept the parts of Gill’s report that were unfavourable to Boalag and disregarded her testimony, which he said was “more valuable.”
Gill said she believed Boalag met the criteria for a long-term offender – which would see him abide by strict conditions for a period of 10 years – but not the criteria for a dangerous offender, Noonan said.
Serious offences
Prosecutor Dana Sullivan began her submissions by taking issue with Noonan’s descriptions of Boalag’s crimes.
“My friend seems to take no issue with sexual assault with a weapon, robbery and choking being serious personal injury offences,” Sullivan said, adding the offences formed a pattern of aggressive behaviour.
“I think these were very serious sexual assaults on grown women and a 15-year-old girl, with a high degree of violence, and weapons being used. They were grabbed while they were out in public and brought to a more secluded location where they were violently sexually assaulted.”
Sullivan argued the sentencing judge had not made any mistake in determining Boalag was a dangerous offender given the evidence presented and noted the judge had determined Boalag met all four dangerous offender criteria, though only one would have sufficed for the designation.
"Here we have an offender who has been designated dangerous, who denies sexual deviancy, who will participate in treatment because they’ll make him, who was callous towards his victims, who has shown no remorse or empathy." — Prosecutor Dana Sullivan
Gill’s opinion that Boalag might eventually be treated if he meaningfully participated in programming was guarded and without a necessary timeline, Sullivan said, and Gill’s evidence that his risk to the community might eventually be managed was contingent on a list of resources.
Those resources included weekly counselling, electronic monitoring, drug testing, no contact with anti-social people or drug users, other social programming and more.
“Dr. Gill’s report lists those conditions as needed for perpetuity. That means forever,” Sullivan said. “Here we have an offender who has been designated dangerous, who denies sexual deviancy, who will participate in treatment because they’ll make him, who was callous towards his victims, who has shown no remorse or empathy.
“It’s our position that the treatment plan put forward was nothing more than an expression of hope, since there is no evidence he would comply and no evidence the conditions could be implemented.”
When asked by the appeal judges whether she found it problematic that the original judge seemed to rely mainly on Gill’s report rather than her testimony, Sullivan said no.
“The report and her testimony are all Dr. Gill’s evidence,” she said. “It’s not one or the other. The trial judge was free to accept whatever she chose.”
Sullivan submitted that Boalag’s dangerous offender status and indeterminate prison sentence should remain in effect.
Sullivan argued that, should the appeal judges decide to overturn the prison sentence, a term of 20 years would be appropriate.
Noonan argued for a jail term in that case of between 10 and 12 years.
Justices Welsh, William Goodridge and Francis O’Brien are expected to deliver their appeal decision in the coming months.
Twitter: @tara_bradbury
