Repeat sex offender Bobby Zoe appeared in the Supreme Court of the NWT Wednesday on the issue of who will preside over his dangerous offender designation rehearing.
Zoe was designated a dangerous offender in 2017 following a conviction of his fourth sexual assault. Judge J.R. McIntosh sentenced Zoe to an “indefinite” prison sentence.
After Zoe appealed the decision, the case went to a three-judge panel at the Court of Appeal. The Court of Appeal ordered Zoe to be re-sentenced and sent the case back to the NWT territorial court.
The question now is whether McIntosh will oversee the rehearing of the decision.
Defence lawyer Jennifer Cunningham argued that the same judge should not be tasked to “make identical findings” again.
“This is not a criticism,” she told the court. “It is analyzing whether or not a reasonably informed person would feel and observe justice is being done.”
In Cunningham’s submissions, the “informed and reasonable” person would perceive bias if McIntosh was the decision-maker on Zoe’s dangerous offender status again.
Cunningham noted a number of “red flags,” from McIntosh’s first decision.
In 2017, McIntosh found Zoe to be uncooperative in treatment and to lack remorse and responsibility for his wrongdoings. He said at the time that Zoe’s moral culpability is not lessened by Gladue factors – socio-economic and historical circumstances considered for Indigenous offenders – and that “no possible treatment could exist” for Zoe’s rehabilitation, Cunningham told the court.
Cunningham found Zoe’s treatment as an “Indigenous offender” to be of concern.
She said that Gladue factors “should have been at the forefront” of the sentencing judge’s decision, especially as Zoe faces “the most serious charge in the Canadian Criminal Code.”
“In a case such as this, with so many red flags, it is in everyone’s interest to have a decision-maker who is new,” she said.
Crown prosecutor Blair McPherson acknowledged the scarcity of precedent in cases like this one. As such, he said “there are no hard and fast rules.”
McPherson argued that a new judge is not necessary given the responsibility of a judge is “to hear evidence,” to “hear the positions of the parties” and to “render a decision impartially.”
On the issue of properly considering Gladue factors, “certainly a sentencing judge can acknowledge a mistake,” McPherson said.
He said sentencing hearings should be heard by the same judge presiding over the case’s earlier matters – as McIntosh heard Zoe’s trial. Cunningham argued, however, that dangerous offender hearings are “not treated the same” as sentencing hearings.
McPherson maintained that McIntosh’s approach in his first decision does not disqualify his ability to oversee the matter a second time.
“Is there an apprehension of bias? We would say there is not,” he said.
Justice Shannon Smallwood will render her decision on Nov. 19.