In R. v. Serafino, 2021 SKCA 29, February 26, 2021, the accused was sentenced to a period of imprisonment followed by a period of probation. The probation order contained a condition prohibiting the accused from attending the village of Abernethy, Saskatchewan, “unless he has the prior written permission of his probation officer or designate or the Court”. The Crown had not requested such a condition and the sentencing judge imposed it without providing the accused with an opportunity to be heard.
The accused appealed from the imposition of this condition. The appeal was allowed and the condition deleted.
The Saskatchewan Court of Appeal noted that the “residual power in s. 732.1(3)(h) permits a sentencing court to impose a probation term banishing an offender from his home community, but such a condition must be crafted carefully and with restraint (Deering at paras 17–18). When considering whether to impose a condition of that nature, a sentencing judge must take into account all of the circumstances bearing on the determination including, among others, the impact the order may have on both the victim and the offender, the nature of the offence, the presence or absence of violence, and whether there is some logical connection between the offending conduct and the geographical area in question…Notwithstanding the discretion conferred on sentencing judges by s. 732.1(3)(h), banishment conditions are not routinely made…Given its exceptional nature, a banishment condition should not be included as a feature of a probation order unless a proper evidentiary foundation has been established to show that the condition serves a valid purpose, such as protection of society, rehabilitation of the offender, or reintegration of the offender into the community…Because banishment conditions are exceptional, procedural fairness principles must be strictly observed if a sentencing court is considering imposing such a term in a probation order. In G.N., the sentencing judge imposed a banishment condition that neither party had requested and without having given the offender’s counsel a chance to make submissions on the issue. The Nunavut Court of Appeal determined that the sentencing judge had erred in principle and struck the banishment condition” (at paragraphs 20 to 22).
In setting aside the banishment condition in this case, the Court of Appeal concluded that the sentencing judge erred in imposing the condition “without having heard evidence or submissions about whether such a condition should be imposed” (at paragraphs 25 to 27):
The prospect of the imposition of that condition was raised by sentencing judge, for the first time, when he was delivering his reasons and passing sentence. As soon as the sentencing judge mentioned that he was going to impose the condition, counsel for Mr. Serafino interjected and reminded him that the Crown had not requested it. Rather than reopening the sentencing hearing, as he should have done, and inviting counsel to lead evidence or make submissions relevant to that point, the sentencing judge simply proceeded to impose sentence. In the absence of evidence or submissions relevant to the question of whether Mr. Serafino should be prohibited from being in his home community, the sentencing judge was left without crucial information regarding the impact that such a condition would have on Mr. Serafino’s prospects for rehabilitation and successful reintegration, including such things as his financial state, his personal life, his prospects for continuing employment and his long-term living arrangements.
In my view, the sentencing judge’s decision to impose an exceptional condition of that nature without it having been requested by counsel, and without having heard evidence or submissions about whether such a condition should be imposed was an error of law. That is to say, the sentencing judge failed to comply with the requirements of ss. 723(1) and (2) of the Criminal Code. In doing so, he deprived Mr. Serafino of procedural fairness in the sentencing process. This error had a clear impact on the sentence that was imposed and, as such, it is appropriate for this Court to intervene.
Like the Court in G.N., I am also of the view that appellate courts are “not the appropriate forums to hear evidence for the first time, particularly oral evidence” (at para 19) and that it would only deepen the denial of procedural fairness Mr. Serafino suffered at the original sentencing if we were to permit the Crown to resile from its original position and uphold the term prohibiting him from attending the village of Abernethy. In short, the sentencing judge’s error here is not of a type that is amenable to correction on appeal (see G.N. at paras 19–21).