Last Updated: January 9, 2009
Recent headlines about a Manitoba youth being "banished" to Yorkton may have people wondering about the idea of banishing people as part of a sentence for a crime. It is important to note that despite the headlines, it is unclear whether the unreported case actually dealt with the notion of banishment or simply involved a standard residency clause. Nonetheless, the media coverage does provide us with an opportunity to look at banishment in the context of criminal law.
The idea of banishment may seem archaic to people today and indeed the concept has its roots in ancient times. In those times banishment from a community usually meant the person was forced to live outside of any community, often in the wilderness where their very survival was in danger.
The concept of banishment to a remote area does exist in Saskatchewan case law. More then a decade ago the Saskatchewan Court of Appeal considered a sentence that included banishment to a remote island in northern Saskatchewan for one year. The Court concluded that such a sentence could legally be part of a probation order. In this case the offender was of Aboriginal descent. The Court noted that First Nations peoples had for centuries used banishment in different forms as a way of dealing with wrongdoers in the community.
Having found that banishment could be ordered, the Court had to consider if it was an appropriate sentence under the circumstances. The sentence was being challenged by the Crown on the grounds that it was not a sufficient consequence because the offender had committed a number of violent offences against his estranged partner, including sexual assault.
The Court noted that this type of banishment had a "strong element of deprivation" because of the isolation and the sparse conditions the offender would be living under. However, the Court found the central purpose was not to punish the offender through deprivation but to influence the offender's future behaviour by providing an opportunity for self-discipline, self-treatment and introspection. In this case the court found that the banishment combined with the year the offender had already spent in custody was a sufficient sentence.
More recently the Saskatchewan Court of Appeal had the opportunity to consider another banishment sentence. In this case the offender was in a dispute with his brother over some property that was part of their father's estate. The offender had caused damage to his brother's house and car. He had not complied with a court order requiring him to have no contact with his brother. On the charge of having contact with his brother, in breach of the court order, he was put on probation and a condition of his probation was that he was not allowed back in his community for one year, except for court appearances.
In this case the Court noted that banishment should be considered the exception, not the rule. The Court found that a banishment order was not justified in this situation where the offender had not physically harmed his brother and where there was no evidence that the brother now feared for his safety, even though the offender had not obeyed the no-contact order. The Court considered the fact that the offender was 22 years old and would be required to leave the only home he knew and that he had no other apparent place to live.
Banishment then, although a legally allowed sentence, can be a controversial sentence. While these two Saskatchewan cases highlight the potential for disputes over whether banishment is a sufficient consequence or too severe of a consequence, the Manitoba case brings up another controversial aspect of banishment orders in a modern world. In past times a banished person would often live outside any community. In the world today banishment most often means a person leaves one community to go live in another community.
On this note, the more recent Saskatchewan Court of Appeal case stated that "a practice whereby one community seeks to rid itself of undesirables by foisting them off on other communities violates the basic concept of consideration for the rights of others." Indeed a number of people's main objection to the youth being 'banished' to Yorkton was not simply the fact that people may be left with the impression that Yorkton is such an undesirable place to live that it is considered a punishment. Their main objection was that their community would now have to deal with a known and repeated offender. Whether or not the Manitoba case was actually intended to deal with banishment, these are factors that may need to be considered in modern times.ISBN/ISSN number: 1918-1728