A serial sex offender appealing his indeterminate prison sentence as a dangerous offender won’t have to face the same judge who ruled against him in 2017.
Bobby Zoe was granted the chance to appeal his sentence earlier this year but balked at the Territorial Court judge who was chosen to hear his case again, alleging potential bias.
That judge used an “impoverished approach,” stated the appeal court, in considering the Indigenous man’s background factors when deciding to jail him indefinitely.
On Thursday, NWT Supreme Court Justice Shannon Smallwood sided with Zoe’s recusal appeal, stating he should have a different judge hear his case in the lower court.
“A reasonable, fully informed person, viewing this matter realistically and practically, would conclude that there is a real possibility of bias if the same sentencing judge were to preside over the second dangerous offender hearing – notwithstanding that there may be no suggestion of actual bias,” said Smallwood.
“The sentencing judge ultimately concluded that Mr Zoe is an untreated sexual offender who is unwilling or unable to accept treatment. The sentencing judge made findings of fact and expressed a clear opinion regarding Mr Zoe’s treatment history and prospects.”
Smallwood issued an order prohibiting Deputy Judge J Richard McIntosh from presiding over Zoe’s new dangerous offender hearing.
McIntosh is an Alberta Provincial Court judge based in Peace River who was appointed to the bench in 1989. He was selected this summer to hear Zoe’s dangerous offender case for a second time and refused to recuse himself when asked by the defence.
In arguing his recusal application, Zoe’s Whitehorse-based lawyer, Jennifer Cunningham, stated Gladue factors would play a “significant factor” in the second dangerous offender hearing. Cunningham said “playing Gladue in a robust manner” would be required.
The longstanding Gladue principle, named after Cree woman Jamie Tanis Gladue, orders judges to consider systemic or background factors that may bring an Indigenous offender before the courts and adjust sentences accordingly.
On February 23, 2016, Zoe was convicted of breaking into a house in Old Town a year earlier and sexually assaulting a sleeping woman. He was also convicted of burglary and breaching probation conditions.
The Crown then successfully sought to have Zoe designated a dangerous offender. Zoe had two previous convictions for sexual assault and one for sexual interference in Yellowknife.
Gladue report at heart of case
In its January 2020 decision to call for a new dangerous offender sentencing hearing, the NWT Court of Appeal noted Zoe, 38, has been in denial about his sex crimes and alcohol problems – and his low cognitive functioning might have contributed to his failure to cooperate with treatment and counselling.
“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 appeal panel, noting Zoe is at a high risk of reoffending.
However, 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 the offender.
That new report revealed “a much more nuanced and complex history” of Zoe’s upbringing.
“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 court ruled.
The original pre-sentence report contained no history of residential schools in Zoe’s adoptive family, leading the Territorial Court sentencing judge to conclude there was nothing in his background that should lower his “blameworthiness with respect to the predicate offence.”
The information before the sentencing judge was that Zoe was adopted as a baby into a stable, loving family in the community of Gamètì, living a traditional life moving between camps and traplines.
In the NWT, the standard practice is to include an Indigenous offender’s Gladue factors in a pre-sentence report. In some other Canadian jurisdictions, a separate report dedicated solely to outlining Gladue factors is prepared.
The lack of separate Gladue reports in the NWT is also to form part of Kevin Mantla’s ongoing appeal, with a Toronto-based lawyer, of his life sentence for the murder of Elvis Lafferty and an attempt to kill his former girlfriend.
Zoe’s lawyer Cunningham noted she could not find anyone to complete a Gladue report in the NWT and had to look in southern Canada.
The updated Gladue report from the fall of 2019 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 when he started attending school. It was with his biological father and uncle that he was exposed to drinking and cannabis.
Why ‘dangerous offender’ matters
Cunningham has argued that a long-term offender designation would a better solution for Zoe so he can access culturally appropriate treatment.
That classification is for criminals who are likely to reoffend but who can be managed with a custodial sentence followed by supervision outside prison.
A dangerous offender, on the other hand, is one with a pattern of repetitive behaviour that “constitutes a threat to the life, safety, or physical or mental well-being of other persons.” Those offenders can be sentenced to a penitentiary for an indeterminate period.
Prisoners with indefinite sentences are often not considered a priority for counselling and treatment in prison, noted the lawyer.
A new Territorial Court judge will now be assigned to hear the Crown’s application for an indefinite sentence for Zoe.
“Our judicial system is premised on the concept that judges make decisions without bias or prejudice,” said Justice Smallwood on Thursday, noting there is a test a judge must apply when considering whether to recuse themselves.
“What would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude?
“All judges owe a fundamental duty to the community to make impartial decisions and to appear impartial.”
As Smallwood closed court and walked out of the room, Zoe could be heard asking the guard with him in the prison video room: “Do you know what happened?” Cunningham said she would contact him.