A Washington, D.C. judge ordered a man to stay out of the District of Columbia as a condition of his release from jail.  Rives Miller Grogan was arrested for climbing a tree near the Capitol as part of a protest during President Obama’s inauguration. Can you be banished from a state?

Probably not. Sixteen states have constitutional provisions prohibiting banishment, and appeals courts in many others have outlawed the practice. Although it remains on the books in a handful of states—the Tennessee Constitution, Article I, Section 8, permits exile, and Maryland’s Constitution, XXXIX, specifically prescribes banishment as a punishment for corruption—appeals courts usually overturn sentences of exile. There has been only one recent case of banishment from a state: In 2000, a Kentucky judge banished a domestic abuser from the state for one year. (The case never reached the state’s high court.) The District of Columbia has no constitution, and its statutes don’t mention banishment, so the legality of Grogan’s exile is unclear. Judges typically get wider discretion in prescribing conditions of bail than in sentencing, but there is a strong trend toward invalidating interstate banishment under any circumstances.

And now thanks to Judge Wayne Gorman we have insight into banishment from Canada. In R. v. Deering, 2019 NLCA 31, May 17, 2019, the accused was convicted of the offences of breach of probation and breach of recognizance.  He was sentenced to a period of imprisonment followed by a period of probation.  The probation order contained a condition prohibiting the accused from being present on “any part of the Burin Peninsula south of the Piper’s Hole River Bridge”.

The accused appealed from sentence, arguing that this condition was unreasonable.

The appeal was dismissed.

The Court of Appeal indicated that a banishment condition “must be justified in each individual circumstance…a banishment condition cannot be used simply to punish the offender in the abstract. Where, however, it is used to protect the victim from further interaction with the offender or to facilitate the offender’s rehabilitation, it can be justified if appropriate in scope, given the area and locality involved” (at paragraph 18).

The Court of Appeal concluded that the sentencing judge “did not err in imposing a no-go area on the appellant as a condition of his probation” (at paragraphs 22 and 23):

In this case, the appellant’s criminal history demonstrates an unwillingness or inability to abide by court orders in general and no-contact orders in particular. There is no reason to believe that another no-contact order, without more, would have any greater chance of being effective. The use of a no-go area in this case is justifiable as a potentially more effective alternative – indeed, the only realistic alternative – means of minimizing and hopefully eliminating contact between the appellant and the complainant. As such, it has potential of contributing to the protection of the community, something that has not been achieved by imposition of simple no-contact orders in the past. Furthermore, the separation of the appellant from the complainant in this way should have the incidental effect of reducing the potential for future breaches of the no-contact provision and may incidentally contribute to the appellant’s rehabilitation and reintegration into the community when the probation order expires. It will involve a “cooling off” period that may enable him to reflect on the futility of trying to maintain a one-sided relationship with someone who does not want to continue it.

A no-go order can thus be regarded as a reasonable condition that would contribute to protection of the community and the reintegration of the offender into the community. The appropriate nexus between the offender and these goals therefore exists, as required by s. 732.1(3)(h) of the Code and as explained in Shoker. It can equally be said there is a nexus between the offence and the contemplated banishment, as alluded to in Reeves. From the record and the way the judge approached the matter, it is evident that he thought the same way. It was therefore not inappropriate to employ the tool of imposing a no-go area on the appellant as a condition of his probation.

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