DATE: 20060921
DOCKET: C45238
COURT OF APPEAL FOR ONTARIO
GOUDGE, SHARPE and BLAIR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Charmaine Wong for the respondent
Respondent
- and -
ROBERT ROWE
Michael Lacy, duty counsel, for the appellant
Appellant
Heard: August 22, 2006
On appeal from the sentence imposed by Justice Stephen J. Hunter of the Ontario Court of Justice, dated March 9, 2006.
SHARPE J.A.:
[1] The appellant was convicted of one count of criminal harassment of his former common-law partner contrary to s. 264(2)(b) of the Criminal Code. This was his third offence involving the same victim. He was sentenced to thirty days concurrent to an existing sentence. He was also sentenced to three years probation, also concurrent with an existing probation order. The sentencing judge imposed the following probation condition: “Forthwith or in any event within two weeks of release leave the province of Ontario immediately.”
[2] The appellant appeals both conviction and sentence. I see no merit in the conviction appeal. In my view, the reasons of the trial judge provide an adequate explanation of the basis for rejecting the appellant’s evidence and for entering a conviction.
[3] The appellant submits that the trial judge erred in law by imposing a term of probation that amounts to banishment. In his reasons for sentence, the sentencing judge stated that he did not consider this “to be an injudicious exile” because the appellant had stated that he wanted to end his relationship with the victim and that upon release he intended to leave the jurisdiction and return to the Maritimes. The sentencing judge added that this was a serious offence and that the appellant’s “continuation within a community such as Napanee/Kingston area, in Ontario, will cause [the victim and her children] to be constantly in fear of his presence.” The sentencing judge added that it would be open to the appellant to apply to vary the condition if he received employment in some other part of Ontario.
[4] The appellant submits that banishment from Ontario cannot be justified as a condition of the probation order under s. 732.1(3)(h):
(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:
(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.
[5] As the Criminal Code specifies that conditions of probation should facilitate “the offender’s successful reintegration into the community”, banishment remains the exception rather than the rule. It has been said on more than one occasion that banishment orders “should not be encouraged”: see R. v. Malboeuf (1982), 1982 2540 (SK CA), 68 C.C.C. (2d) 544 at 547 (Sask. C.A.); R. v. Williams, [1997] B.C.J. No. 2101 at para. 9 (B.C. C.A.). As a member of the Manitoba Court of Appeal, Dickson J.A. frowned on the practice of banishment in R. v. Fuller, 1968 792 (MB CA), [1969] 3 C.C.C. 348 at 351:
In Canada communities are interdependent and relations between them should be marked by mutual respect and understanding. A practice whereby one community seeks to rid itself of undesirables by foisting them off on other communities violates this basic concept of consideration for the rights of others and should not be tolerated.
[6] On the other hand, 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 e.g. R. v. Stack, [1998] B.C.J. No. 1492 (B.C. C.A.); R. v. Peyton, [1996] N.J. No. 120 (Nfld. S.C. T.D.).
[7] Plainly, the larger the ambit of the banishment, the more difficult the order will be to justify. In R. v. Brooks, [2005] O.J. No. 105, this 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.” Banishment from an entire province is an extreme measure that could be justified only in exceptional circumstances, even in cases of domestic violence. The only case I have been able to uncover that upholds banishment from a province is R. v. Banks, [1991] B.C.J. No. 424, 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. On the other hand, in a case similar to the one at bar, R. v. Stulac (1983), 1983 5164 (NS CA), 63 N.S.R. (2d) 357 at para. 5, the Nova Scotia Court of Appeal struck down a condition requiring an offender who had committed an offence against his domestic partner to leave the province for the term of his probation as “unnecessary to accomplish the purpose of keeping the appellant away from the victim”.
[8] In my view, the probation term requiring the appellant to leave Ontario upon his release from prison cannot be justified as a reasonable measure for the protection of society. Moreover, banishment from the province far exceeds what is required to protect the victim. I note that the offence in the present case involved communications by telephone and mail. Banishment to another province will not effectively protect the victim from repetitions of that conduct and less drastic restrictions will protect the victim from other forms of harassment. Banishment from the province would be contrary to the second factor mentioned in s. 732.1(3)(h), “facilitating the offender’s successful reintegration into the community.” As neither of the factors specified in s. 732.1(3)(h) are present, the term cannot be justified as a reasonable condition and must be set aside.
[9] As this issue can be decided on the wording of s. 732.1(3)(h), it is not necessary for me to consider whether the order also constituted a violation of the appellant’s mobility rights under s. 6(2) of the Charter of Rights and Freedoms and I leave that question for another day.
[10] The appellant indicated to this court that upon his release, he hopes to return to his employment in Kingston and that he does not wish to have any further contact with the victim or to live in the same community where she resides, currently Napanee.
[11] Given the appellant’s serious record for domestic violence and harassment, and the consequent need to protect the victim, and in view of the appellant’s stated intention as to his plan for reintegration and rehabilitation upon release, the appropriate terms of probation are that for the term of his probation:
(1) he be prohibited from communicating with the victim;
(2) he be prohibited from knowingly coming within 500 metres of the victim; and
(3) he be prohibited from living in the Town of Napanee so long as the victim lives in that community.
[12] For these reasons, I would grant leave to appeal the sentence, allow the appeal from the term of probation, and substitute the terms specified herein.
“Robert J. Sharpe J.A.”
“I agree S.T. Goudge J.A.”
“I agree R.A. Blair J.A.”