Banishment as a Condition in a Probation Order

Banishment is a rare condition in a probation order, but can be included under section 732.1(3)(h) of the Code which reads that a probation order may include, among other conditions:
(h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.

As long as the condition is reasonable, and is included for the purpose of protecting society, or aiding in the offender’s rehabilitation, then it is acceptable. 

Banishment orders are not to be issued routinely, and a banishment order cannot be intended to be penal such that it promotes deterrence, denunciation or retribution.

R. v. Etifier, 2009 BCCA 292 (CanLII), at paras. 9-17.

Banishment for an improper purpose

A practice whereby one community seeks to rid itself of undesirables by foisting them off on other communities should not be tolerated.

R. v. Fuller (1968), 1968 CanLII 792 (MB CA), [1969] 3 C.C.C. 348 (Man. C.A.) at 351.

[In which the Court considered the legality of the practice of coupling a sentence of imprisonment with a direction that the warrant of committal be held to permit the prisoner to leave town.]

For a community to think in terms of unburdening itself of an undesirable individual by saddling a neighbouring community with him smacks of a lack of civic responsibility and unthinking behaviour, particularly where the individual grew up in, and was a product of, the first community. Broadly speaking, judicial banishment decrees should not be encouraged. However, they are not inappropriate in every case.

See R. v. Malboeuf (1982), 1982 CanLII 2540 (SK CA).

Protection of victims

Orders banishing an offender from a specific community have been made against estranged spouses with a view to protecting the victim or to assisting with the offender's rehabilitation.

See R. v. Stack, [1998] B.C.J. No. 1492 (B.C. C.A.);

R. v. Peyton, [1996] N.J. No. 120 (Nfld. T.D.).

In R. v. Banks (1991), 1991 CanLII 1879 (BC CA) the appeal court concluded that the restriction that the offender not be found in the province--the offender having specifically consented to such a condition at the time it was made--was the best order that could be made to still the justifiable fears of his former family.

In R. v. Rowe, 2006 CanLII 32312 (ON CA), the offender had been convicted of criminal harassment of his former common-law partner.  The Court of Appeal for Ontario held that a probation term banishing the offender from the province far exceeded what would be required to protect the victim.

          R. v. Rowe, at para. 8. 

Rehabilitation

A banishment condition may assist an accused’s rehabilitation by removing him from that which triggers his antisocial behaviour.

See R. v. Adam, 2014 BCSC 1943 (CanLII), at para 44.

R. v. Bishop, 2017 CanLII 45561 (NL SCTD), at para. 32.

Removing an individual from the circumstances which trigger his criminal activities,  in turn facilitates protection of the community.

In R. v. Brooks, [2005] O.J. No. 105 (Ont. C.A.), the appeal court upheld a probation term excluding the appellant from Muskoka, but, at para. 1, the court stated that it did so "given the appellant's avowed intention to leave that area as a step in his rehabilitative process." 

The ambit of the banishment

The larger the ambit of the banishment, the more difficult the order will be to justify.

Banishment from an entire province is an extreme measure that could be justified only in exceptional circumstances, even in cases of domestic violence.

R. v. Rowe, at para. 7.

Courts have imposed banishment from a province as a condition of a probation order, but to my knowledge, only where the offender consented to it at the time it was made.

See for instance R. v. Banks, [1991] B.C.J. No. 424 (B.C. C.A.), where the British Columbia Court of Appeal upheld such an order specifically on the ground that the appellant had proposed and consented to the condition.

Banishment and the Charter

Section 6—mobility rights

Section 6 of the Charter does not extend to provide specific rights of movement which would render unconstitutional a sentence that is carefully gauged for the protection of threatened members of society.

R. v. Banks, 1991 CanLII 1879 (BC CA).

Section 15--equality

           See R. v. Adam, at paras 56-67.

Section 7--overbreadth

The geographic and temporal scope of a banishment order, or even the means itself (banishment) may violate section 7 of the Charter for being overbroad. In short, overbreadth is where, in pursuing a legitimate objective, the means used by the state are broader than is necessary to accomplish its objective.

R. v. Adam, 2014 BCSC 1943 (CanLII), banishment order was upheld under section 7;

See generally R v. Khawaja, 2012 SCC 69 (CanLII), at para. 37.
Stuart O'Connell, O'Connell Law Group, www.leadersinlaw.ca










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