How does society handle an offender with low cognitive functioning and an alcohol use disorder who has committed multiple random sexual assaults?
That question was posed by the Court of Appeal of the Northwest Territories in a decision that saw the panel uphold Bobby Zoe’s fourth sexual assault conviction, but deny the Crown’s effort to have the 38-year old serve an indeterminate prison sentence as a dangerous offender.
In a written decision dated January 31, the appeal court ordered a new sentencing hearing for Zoe on his conviction for three February 2015 offences: breaking and entering into a dwelling and committing sexual assault inside; breaking and entering into a dwelling and committing theft inside; and breach of probation order (failure to keep the peace and be of good behaviour).
The three-judge appeal court – justices Paul Bychok (Nunavut), Ritu Khullar (Alberta), and Dawn Pentelechuk (Alberta) – zeroed in on Zoe’s prospects for rehabilitation after receiving an updated Gladue report for Zoe, which “reveals a much more nuanced and complex history.”
“Part of the difficulty in the pre-sentence report was Mr Zoe’s failure to cooperate in the writing of the report,” stated the panel. “Some of that resistance was due to his substance abuse illness and limited cognitive ability.
“Having reviewed the ‘better’ Gladue report and having had the benefit of significantly more information than the sentencing judge, combined with the effect of the legal errors, we have determined that, in the unusual circumstances of this case, it is appropriate to grant the sentence appeal.”
The longstanding Gladue principle, named after Cree woman Jamie Tanis Gladue, saw the Supreme Court rule sentencing judges must consider the unique systemic or background factors which may have played a part in bringing an Indigenous offender before the courts – and the types of sentencing procedures and sanctions which may be appropriate in the circumstances.
The information before the sentencing judge was that Zoe was adopted as a baby into a stable, loving family. He was raised in the community of Gamètì, living a traditional life moving between camps and traplines. When he was 16, he left the community to attend school in Behchokǫ̀, formerly known as Rae-Edzo.
“There he became exposed to alcohol and cannabis. He dropped out of school and began the transient life with no real employment or education prospects, supported by social assistance and odd jobs,” stated the decision.
“His substance use, gambling and lack of supportive social network resulted in him amassing a criminal record which kept him in custody for the majority of his adult life.”
On noting no history of residential schools in his adoptive family, the sentencing judge held that there was nothing in his background that should lower his “blameworthiness with respect to the predicate offence.”
However, the updated Gladue report from last fall provided “fresh evidence” that Zoe’s birth parents were young and unmarried and both had residential school experience.
“He connected with them at age 16 in Rae-Edzo when he started attending school,” stated the decision. “Unfortunately, while he never developed a meaningful relationship with his biological mother, he did develop a relationship with his biological father.
“He was exposed to drinking and cannabis with his biological father and uncle.”
Zoe has been in denial about his conduct and alcohol problems and often fails to cooperate in treatment and counselling, stated the decision, noting “he is a difficult inmate to manage.”
“For most of his adult life he has been in custody, and when not in custody, he lives a transient lifestyle of shelters or couch surfing, sustained by social assistance and occasional support from an adoptive sister, the only pro-social relationship in his life,” stated the judges, admitting Zoe is at a high risk of reoffending.
“At what point does he fall into the category of the ‘small group of persistent criminals with a propensity for committing violent crimes against the person,’ a dangerous offender designation and warranting indeterminate preventative detention?”
Zoe was sentenced in December 2017.
In the early morning hours of February 15, 2015, Zoe entered the apartment of a man and woman. The woman “woke up to someone rubbing her vagina over her clothes and blanket,” stated the decision.
When she opened her eyes, the decision continued, she saw a man standing next to the bed with a finger over his lips saying ‘Ssssh.’ She screamed and her partner woke up. Only wearing underwear, he chased Zoe out of the building. The man recovered a backpack containing his stolen wallet.
Zoe has three previous convictions:
- Sexual assault — In the middle of the afternoon on August 7, 2004, Zoe approached a woman whom he did not know from behind and grabbed her on the buttocks. He was given a suspended sentence of six months.
- Sexual Interference — On June 24 and 25, 2008, Zoe was drinking with a 13-year old female and two other people. The victim passed out and awoke to the find a man touching her breasts, waist, buttocks, and vagina over her clothing. He was sentenced to 15 months in jail.
- Sexual Assault — On January 2, 2011, while intoxicated, Zoe approached a woman from behind, placed one arm around her neck and covered her mouth with his other hand. He demanded money and placed one hand down her pants, penetrating her vagina with his fingers for approximately 30 seconds. He was sentenced to 39 months in prison.
At Zoe’s dangerous offender hearing, trial an expert witness told the court that Correction Services Canada is rolling out a new generation of treatment programs for federal inmates, known as the Integrated Correctional Program Models, that would focus on cognitively impaired inmates.
Dr Marc Nesca, associate professor in the Criminal Justice Program at Athabasca University, also noted apecialized services for Indigenous offenders were in the works.
“Dr Nesca thought Mr Zoe would benefit from access to some of this programming,” stated the appeal court’s decision.
“Dr Nesca was realistic about treatment options, saying that it would be challenging and that there would likely be several setbacks.”
Nesca and another expert agreed Zoe was a high risk to reoffend. The date for Zoe’s new sentencing hearing has yet to be set.