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| John L. Hill |
Myles Sewap was convicted of aggravated assault in 2021 following a judge-alone trial. The Crown subsequently applied to have him declared a dangerous offender under Part XXIV of the Criminal Code. In 2024, the sentencing judge granted the application, designated Sewap a dangerous offender, and imposed an indeterminate sentence. Sewap appealed both the designation and the sentence, arguing that the judge misapplied the legal test, reversed the burden of proof and failed to consider his Indigenous background under Gladue. The appellate court rejected these arguments and dismissed the appeal.
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At the time of the offence, Sewap was 27 years old and had an extensive criminal record of 37 convictions, including nine for violent offences such as multiple aggravated assaults, assaults with weapons and robbery. His history showed escalating violence, frequent use of firearms and repeated group attacks. In 2019, while awaiting trial on the predicate offence, he committed another aggravated assault, again involving a coordinated inmate attack that resulted in serious injuries.
Sewap is of Indigenous ancestry and grew up in northern Saskatchewan in a family affected by intergenerational trauma, alcohol addiction, foster care placements and poverty. He was later diagnosed with fetal alcohol spectrum disorder, resulting in severe cognitive, literacy and learning impairments. His academic functioning was assessed at approximately a Grade 2 level, and his IQ fell within the lowest percentile. He has long struggled with substance abuse, gang involvement and institutional misconduct.
Although Sewap participated in various correctional and Indigenous-specific programs, his engagement and outcomes were inconsistent. Despite accommodations, he made little sustained progress, continued violent behaviour in custody, violated institutional rules and was transferred to maximum security.
Expert evidence was central to the dangerous offender hearing. Dr. Alberto Choy, a forensic psychiatrist appointed by the court, diagnosed Sewap with substance use disorders, antisocial personality disorder and a neurobehavioural disorder associated with prenatal alcohol exposure. Using validated risk assessment tools, Choy concluded that Sewap was among the highest-risk offenders for violent recidivism, had minimal insight into his risk factors, showed limited empathy for victims and was unlikely to be able to manage his risk in the community for decades, even with intensive and culturally adapted programming.
Dr. Terry Nicholaichuk, a forensic psychologist called by the defence, agreed that Sewap posed an extremely high risk of violent reoffending and had profound cognitive impairments that made standard correctional programming ineffective. While he believed Sewap lacked pro-criminal attitudes and might eventually be manageable in the community with highly specialized supports, he acknowledged that this was speculative and untested, and that without successful treatment, Sewap’s risk would not be manageable.
At the dangerous offender hearing, Sewap conceded that he had been convicted of a serious personal injury offence and that the evidence established he posed a threat to the life, safety and physical or mental well-being of others, as well as a pattern of persistent aggressive behaviour under s. 753(1)(a)(i) and (ii) of the Criminal Code. His sole remaining argument was that his violent conduct could not be considered intractable because he had never received treatment properly tailored to his significant intellectual deficits. He maintained that he was an untreated, not untreatable, offender, and therefore the Crown had not met its burden of proving intractability beyond a reasonable doubt. On that basis, he urged the court to dismiss the dangerous offender application and impose a conventional determinate sentence of 10 years, to be served consecutively to his existing sentence.
The judge rejected this submission. He concluded that, despite evidence suggesting the possibility of untried and potentially more suitable programming at the Regional Psychiatric Centre, the totality of the evidence proved beyond a reasonable doubt that Sewap’s violent behaviour was intractable and that he met the statutory criteria for a dangerous offender under both branches of s. 753(1)(a).
At sentencing, the judge found that the evidence did not support a reasonable expectation that specialized treatment, within any predictable timeframe, would sufficiently reduce Sewap’s risk to allow for public protection through a lesser sentence. Given this uncertainty, the judge held that s. 753(4.1) mandated the imposition of an indeterminate sentence to protect the public.
Sewap argued on appeal that the sentencing judge erred at the penalty stage by failing to adequately consider his circumstances as an Indigenous offender, as required by s. 718.2(e) of the Criminal Code and R. v. Gladue. He emphasized that Gladue principles require judges to examine systemic and background factors affecting Indigenous offenders and to meaningfully assess culturally appropriate alternatives to imprisonment, particularly at the penalty stage of a dangerous offender proceeding.
The appellate court reaffirmed that failing to apply Gladue at the penalty stage of a Part XXIV proceeding constitutes an error of law and that Gladue considerations are central to determining whether a sentence short of indeterminate detention can adequately protect the public. However, the court rejected Sewap’s submission that the sentencing judge failed to conduct a proper analysis.
The court held that Gladue does not mandate a formulaic analysis or guarantee a reduced sentence. Section 718.2(e) does not override other sentencing objectives, and its proper application will not necessarily result in a different outcome for an Indigenous offender. Sentencing reasons must be read as a whole and in context.
Applying that approach, the court concluded that the sentencing judge was aware of and engaged with the Gladue principles. The judge explicitly acknowledged that all sentencing principles used at the penalty stage recognized the relevance of Sewap’s Indigenous background and accepted that the Gladue principles were applicable. When read in light of the whole record and the parties’ submissions, the decision demonstrated meaningful consideration of s. 718.2(e) and therefore disclosed no error.
Ultimately, the court accepted that the statutory criteria for a dangerous offender designation were met, that the trial judge correctly applied the legal framework, and that Sewap’s Indigenous background and personal circumstances were considered but did not outweigh the overwhelming evidence of persistent, uncontrollable violence and unmanageable risk. The indeterminate sentence was upheld.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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