Toronto Mayor Rob Ford speaks at a press conference following a meeting with Premier Dalton McGuinty to discuss the Toronto Anti-Violence Intervention Strategy. The mayor says he is committed to stamping out gun violence in the city.Michelle Siu/The Canadian Press
Lambasted for seeking assistance from the Prime Minister's Office to exile persons convicted of gun crimes from Toronto, Mayor Rob Ford has made it a key priority to reduce the incidence of serious violence on city streets. Immigration Minister Jason Kenney responded to Mr. Ford's comments last Friday to dismiss the idea that offenders could be deported from the country, stating that "if you're a Canadian citizen and you've committed a crime, you spend your time in prison, but once you're released and you're beyond parole you get what's called the mobility rights of the Charter of Rights."
One alternative that has been overlooked is a judicially imposed banishment order as part of a sentence following conviction in certain cases.
Although rare, banishment orders are not unknown in Canadian law. Territorial restrictions may be built by judges into peace bonds, terms of bail and probationary orders as part of a sentence where permitted by the Criminal Code. Such orders require the accused to stay away from a particular geographic area for the safety of victims or for the benefit of the accused's rehabilitation for a limited period of time. Banishment-type orders must balance these objectives with the potentially disruptive effect of the order on the accused and the accused's constitutional rights, such as those to freedom of mobility and protection against cruel and unusual punishment.
The starting point in the case law is Justice Brian Dickson's classic observation in a 1968 decision of the Manitoba Court of Appeal that relations between communities should be based on mutual respect and understanding as opposed to communities ridding themselves of undesirables by "foisting them off on other communities."
Yet in a number of cases, time-limited territorial restrictions have been imposed by Canadian sentencing judges and upheld on appeal. For example, the Northwest Territories Supreme Court upheld a sentence imposed by a justice of the peace in a 1983 case that banished the offender from a community he had lived in for one year as it would not cause him undue hardship, although it limited the duration of the order. The court cautioned that banishment orders must be exceptional and should not be used to "solve a local problem at the expense of other communities."
In 1991, the British Columbia Court of Appeal upheld an order banishing an offender, who had been convicted of uttering threats, from the entire province for two years given that he had initially consented to the order. The geographic restriction was held to be "nicely gauged for the protection of threatened members of society." In 1998, the same court upheld an order banishing an offender from the town where his estranged wife lived. Similarly, in a 1995 case, the Yukon Court of Appeal upheld an order banishing a sexual offender from certain towns and cities in the territory and further confined the offender to a remote wilderness settlement for a period of two years.
Other offenders have been banned from Ottawa in a case of a violent assault of a police officer; the southern portion of Vancouver Island in a case where the offender went on an out-of-control violent rampage across the city of Victoria; and a part of Regina in a case where the Saskatchewan Court of Queen's Bench observed that "banishment is now accepted as being useful and appropriate in certain cases."
In the most recent Ontario Court of Appeal decision to consider banishment, from 2006, the three-judge panel reviewed the sentencing judge's order for the accused to "forthwith or in any event within two weeks of release leave the province of Ontario immediately." The accused had been convicted of criminal harassment of his former common-law partner – the third offence against the same victim. Looking to the case law, the Court of Appeal unanimously held that banishment orders should be the exception rather than the rule given that one goal of probation is to facilitate the reintegration of the offender into the community. While banishment orders may be appropriate in certain cases, exceptional circumstances would be needed to uphold banishment from an area the size of Ontario. In setting aside the order in this case, the Court of Appeal observed that the accused had committed offences over telephone and through the mail and therefore banishing him from the province would not have effectively protected the victim.
On the whole, the sentencing judge in each case must craft an appropriate sentence that takes into account a number of factors and legal principles. The case law indicates that, in some cases, banishment is an instrument in the judicial toolkit. Although there appears a general reluctance to use banishment outside of exceptional circumstances, the shocking violence from the shooting of 31 people in Toronto over a period of six days may warrant fresh consideration of territorial restrictions in situations where it would serve to protect victims and encourage the rehabilitation of offenders.
Lorne Neudorf is a member of the Law Society of Upper Canada and a PhD candidate in law at the University of Cambridge, where his research examines the independence of the judiciary.