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 SA国际影视传媒渋ndefiniteSA国际影视传媒� 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 SA国际影视传媒渕ake identical findingsSA国际影视传媒� again.
SA国际影视传媒淭his is not a criticism,SA国际影视传媒� she told the court. SA国际影视传媒淚t is analyzing whether or not a reasonably informed person would feel and observe justice is being done.SA国际影视传媒�
In Cunningham's submissions, the SA国际影视传媒渋nformed and reasonableSA国际影视传媒� person would perceive bias if McIntosh was the decision-maker on ZoeSA国际影视传媒檚 dangerous offender status again.
Cunningham noted a number of SA国际影视传媒渞ed flags,SA国际影视传媒� from McIntoshSA国际影视传媒檚 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 ZoeSA国际影视传媒檚 moral culpability is not lessened by Gladue factors SA国际影视传媒� socio-economic and historical circumstances considered for Indigenous offenders SA国际影视传媒� and that SA国际影视传媒渘o possible treatment could existSA国际影视传媒� for ZoeSA国际影视传媒檚 rehabilitation, Cunningham told the court.
Cunningham found ZoeSA国际影视传媒檚 treatment as an SA国际影视传媒淚ndigenous offenderSA国际影视传媒� to be of concern.
She said that Gladue factors SA国际影视传媒渟hould have been at the forefrontSA国际影视传媒� of the sentencing judgeSA国际影视传媒檚 decision, especially as Zoe faces SA国际影视传媒渢he most serious charge in the Canadian Criminal Code.SA国际影视传媒�
SA国际影视传媒淚n a case such as this, with so many red flags, it is in everyoneSA国际影视传媒檚 interest to have a decision-maker who is new,SA国际影视传媒� she said.
Crown prosecutor Blair McPherson acknowledged the scarcity of precedent in cases like this one. As such, he said SA国际影视传媒渢here are no hard and fast rules.SA国际影视传媒�
McPherson argued that a new judge is not necessary given the responsibility of a judge is SA国际影视传媒渢o hear evidence,SA国际影视传媒� to SA国际影视传媒渉ear the positions of the partiesSA国际影视传媒� and to SA国际影视传媒渞ender a decision impartially.SA国际影视传媒�
On the issue of properly considering Gladue factors, SA国际影视传媒渃ertainly a sentencing judge can acknowledge a mistake,SA国际影视传媒� McPherson said.
He said sentencing hearings should be heard by the same judge presiding over the case's earlier matters SA国际影视传媒� as McIntosh heard Zoe's trial. Cunningham argued, however, that dangerous offender hearings are "not treated the same" as sentencing hearings.
McPherson maintained that McIntoshSA国际影视传媒檚 approach in his first decision does not disqualify his ability to oversee the matter a second time.
SA国际影视传媒淚s there an apprehension of bias? We would say there is not,SA国际影视传媒� he said.
Justice Shannon Smallwood will render her decision on Nov. 19.
