Nunavut sex offender wins appeal, overturning banishment from his community

A Nunavut man convicted of sexual assault and breaking and entering is no longer going to be banished by the court from his home community. 

'Banishment from an offender’s home community is justified only in exceptional cases,' says appeals court

Banishment is used only in rare cases where it will protect a victim and help to rehabilitate a person convicted of serious crime, the Nunavut Court of Appeal said in a recent decision. (David Gunn/CBC)

A Nunavut man convicted of sexual assault and breaking and entering is no longer going to be banished by the court from his home community. 

That's after the Nunavut Court of Appeal approved his appeal in September where he said banishment was an "unfit" sentence in his case. 

Last September, the man pleaded guilty to sexually assaulting a woman after he broke into her home, and to breaching a previous probation condition not to be in contact with her.  

The man's name and the community are under publication ban to protect the identity of the victim.

Justice Edward Scanlan imposed banishment as a condition of his two-year probation. He first sentenced the man to 15 months in prison for sexual assault, breaking and entering and three more months to be served consecutively for breaching probation. 

The jail sentence fell in line with sentences suggested by both Crown and defence lawyers, but banishment was never talked about. The judge made a mistake by not notifying the lawyers about his plan to impose banishment, the appeals court said. 

An 'extreme measure' rarely used

"Banishment from an offender's home community is justified only in exceptional cases," states the judgment released Oct. 8 by the Nunavut Court of Appeal. "The sentencing judge imposed a sentence beyond the range proposed by both counsel." 

The court called banishment an "extreme measure" that is "serious," "rarely used," and allowed only where necessary to protect a victim of continued violence. The offender should also have somewhere to live. 

"It may have significant consequences on the offender — who may be scratching for a place to live, with no job and few connections to family or friends," the judgment read. And the sentence could impact more than one community. 

At the time of sentencing, the judge said banishment could help rehabilitate the man, and protect the victim. The woman said in a victim impact statement she felt unsafe in her home and would leave the community if the man was free. 

This was the third time he was in court for assaulting her since 2017 — when he returned to his community from a penitentiary sentence for aggravated sexual assault from 2013.  

"Though we are concerned about [the man's] conduct and the impact of his return to the community upon the complainant and her family ... The record does not permit consideration of whether the banishment order amounted to a demonstrably unfit sentence in these circumstances," the appeal panel said.

"The appeal is allowed. The term of the probation order imposing banishment upon [the man] for a period of two years will be deleted from the probation order."