R v Serafino, 2021 SKCA 29

Court of Appeal for Saskatchewan Docket: CACR3391 Citation: R v Serafino , 2021 SKCA 29 Date: 2021-02-26 Between: Nikki Sixx Serafino Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Schwann and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Schwann On appeal from: Provincial Court, Fort Qu'Appelle Appeal heard: February 4, 2021 Counsel: Bruce K. Campbell for the Appellant Kelly L. Kaip for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] Nikki Serafino pled guilty, in Provincial Court, to a charge of criminal harassment. He was sentenced to imprisonment for one year, less 71 days credit for pre-sentence custody, and placed on probation for 18 months. The terms of his probation order included, among other things, a condition that prohibits him from attending the village of Abernethy, Saskatchewan, “unless he has the prior written permission of his probation officer or designate or the Court”. [ 2 ] Mr. Serafino appeals against only that particular term of his probation order.

He says the condition effectively banishes him from his home and the sentencing judge erred by imposing it because (

i) the Crown had not requested that condition, and (ii) he was not given an opportunity to make submissions in relation to whether it should be imposed. [ 3 ] For the reasons that follow, I would allow the appeal. II. BACKGROUND [ 4 ] Mr. Serafino and his partner moved to Abernethy, from British Columbia, in May of 2019. One of the motivating factors for their move was financial; it had become too expensive for them to live in British Columbia and the cost of living in small town Saskatchewan was, therefore, attractive. Mr. Serafino purchased a house on a lot that was approximately 1.5 acres in size.

His nearest neighbours, Shawn and Megan Bennett, had a similarly-sized property. [ 5 ] Initially, Mr. Serafino’s relationship with the Bennetts was amicable. That changed in December of 2019. Mr. Serafino, who used propane to heat his residence, had moved some propane tanks onto his property. The village council determined that the propane tanks did not comply with the village bylaws. Mr. Bennett, who was on the village council, was tasked with informing Mr. Serafino of the non-compliance. Mr. Bennett attempted to deliver the village council’s letter to Mr. Serafino in person. Mr. Serafino was not home when Mr.

Bennett attended, so Mr. Bennett opened the door to the residence and placed the letter inside. Mr. Serafino viewed this as an unlawful entry of his home and let Mr. Bennett know of his displeasure. Things went downhill from there. [ 6 ] Over the course of the next six months, Mr. Serafino engaged in a campaign of harassing and intimidating conduct aimed at the Bennetts and their 7-year-old daughter. This included starting a petition to have Mr.

Bennett removed from the village council, regularly directing obscene and crude comments and insults in the direction of the Bennetts, engaging in behaviour that was unsettling to them, and using his property in a way that was designed to annoy and frighten them. As part of this course of action, Mr. Serafino would often let it be known – sometimes subtly, sometimes blatantly - that he was capable of violence. In particular, Mr.

Serafino made reference, on more than one occasion, to the fact that he had killed someone in the past (he had been convicted of manslaughter in 2012) and suggested that he may have to “come out of retirement”. [ 7 ] When Mr. Serafino spoke to other residents of Abernethy about signing the petition, he also did so in a manner that was as aggressive and hostile. Village residents observed that Mr. Serafino would lose his temper when they did not agree with him. Mr.

Serafino attended a village meeting, at which he had a loud and profane outburst directed at the Bennetts, threatened lawsuits against them, and indicated that he wanted to settle things in a fist fight with Mr. Bennett. [ 8 ] On June 8, 2020, at around 10:45 p.m., Mr. Bennett went into his backyard to have a cigarette. He heard Mr. Serafino talking on his phone in a loud voice, saying to the person on the other end that he was “planning on getting a gun” and that when did so, he would not hesitate to walk into the house of “that fucktard” and “gun them down”. Mr. Bennett, hearing this, called the police.

Officers arrived on scene a short time later and arrested Mr. Serafino, who was highly intoxicated. He was charged with criminal harassment, contrary to s.

264(3) of the Criminal Code . III. THE SENTENCING DECISION [ 9 ] Mr. Serafino spent 47 days in custody, following his arrest, before being released on bail. Then, on September 14, 2020, he pled guilty to the charge. Highlighting the repeated nature of Mr. Serafino’s harassing conduct, the Crown sought a sentence of 18 months imprisonment, followed by 24 months probation. In addition to the mandatory probation terms, the Crown requested that the sentencing judge impose conditions that Mr.

Serafino live at a residence approved by his probation officer, engage in personal counselling and anger management counselling, have no contact with the Bennetts and not attend within 10 metres of their residence. The Crown did not seek a condition prohibiting Mr. Serafino from being in the village of Abernethy. [ 10 ] At the sentencing hearing, Mr. Serafino’s counsel spoke of his personal circumstances. He noted that, while out on bail, Mr. Serafino was subject to a condition that required him to live outside of Abernethy. Counsel advised the sentencing judge that Mr.

Serafino had obeyed that condition even though it meant, for that period of time, he had to return to British Columbia while his partner – who was employed in Regina – remained in Abernethy. This had been onerous for them, both personally and financially. Mr. Serafino also read letters of apology that he had written to the Bennetts and to other members of Abernethy village council. In the end, Mr. Serafino’s counsel suggested that a sentence of “time served”, followed by a period of probation, would be appropriate. He noted that Mr.

Serafino was amenable to a condition requiring him to participate in counselling. [ 11 ] In his decision, the sentencing judge reviewed the circumstances of the offences. He described Mr. Serafino’s conduct toward the Bennetts and their daughter as “intimidating, confrontational, aggressive, threatening, frightening and at times even terrifying”. He also reviewed Mr.

Serafino’s criminal record, noting that he had a prior conviction for criminal harassment in 2002, convictions for uttering threats in 2007 and 2010, and the aforementioned conviction for manslaughter in 2012. [ 12 ] The sentencing judge also considered the aggravating factors of Mr. Serafino’s offence, which he described in this way: The conduct of Mr. Serafino towards the Bennetts lasted for a prolonged period of time between December 2019 and June 2020 and constituted many episodes involving the Bennetts as detailed by the Crown and accepted by the Court.

The victim also included the Bennetts 7-year-old daughter which I found aggravating. Mr. Serafino's actions have caused the Bennetts to live in fear and to continue to live in fear. In conclusion, I note that Mr. Serafino has had the benefit of probation on six previous occasions. No doubt he has had opportunities to address his personal issues without success, it appears.

It is also especially aggravating that he had served his manslaughter sentence and supposedly moved to Saskatchewan for a fresh start in a more affordable setting when shortly there after he continued his offending ways. [ 13 ] While the sentencing judge indicated that he viewed Mr. Serafino as needing “help”, he concluded that “deterrence and denunciation must be paramount to any sentence that I impose”. He determined that a jail term of one year would be appropriate, and reduced that term by 71 days to account for the time Mr. Serafino had spent in custody prior to being released on bail.

The sentencing judge also determined that, “on the rehabilitation front”, a probation order should follow, for a period of 18 months. He imposed the conditions the Crown had requested, with one exception. Instead of a term that Mr. Serafino not be within 10 metres of the Bennett’s residence, the sentencing judge imposed a condition that he not be at their residence or any of their respective workplaces or places of education. The sentencing judge also added a condition that Mr. Serafino not be in the village of Abernethy. That sparked the following exchange: MR.

CAMPBELL: Your Honour, the Crown didn't ask for that. You know that. They -- they just asked that he be 10 metres from -- from - - THE COURT: Right. I didn't follow the Crown's sentence… -- the reason I don't want him attending Abernethy is until he has a chance to fully rehabilitate himself.

If he ever goes back, he goes back under different circumstances and hopefully as a different person. [ 14 ] Prior to imposing this condition, the sentencing judge had not advised counsel that he was contemplating it and did not invite, or permit, counsel to make submissions or lead evidence pertinent to whether or not it should be imposed. IV. THE ARGUMENTS [ 15 ] Mr. Serafino argues that it was an error in principle for the sentencing judge to impose a condition that effectively banishes him from his home community, for two reasons: (

i) the Crown had not asked for it, and (ii) the parties were not afforded an opportunity to make submissions as to whether such a condition was appropriate. [ 16 ] The Crown contends that the sentence should be upheld. It submits that, in light of all the circumstances, there was a proper basis for the sentencing judge to conclude that a condition prohibiting Mr. Serafino from being in Abernethy was reasonable and necessary for the purposes of protecting society or facilitating his successful reintegration into the community.

The Crown points out that the condition is not an absolute prohibition but rather one that lawfully delegates authority to the probation officer to determine whether Mr. Serafino should receive permission to be in Abernethy. The Crown also observes that Mr. Serafino can apply under s. 732.2(3) of the Criminal Code , to amend the probation order, if circumstances change. V. ANALYSIS [ 17 ] The parties’ arguments must be considered in light of the governing standard of review, which is deferential in nature.

An appellate court can intervene to change a sentence only if the sentence is demonstrably unfit or the sentencing judge made an error in

principle that had an impact on the sentence (R v Friesen, 2020 SCC 9 at paras 25–26, 391 CCC (3d) 309 [Friesen]; R v Lacasse, 2015SCC 64 at paras 41–48, [2015] 3 SCR 1089 [Lacasse]; R v Suter, 2018 SCC 34 at para 24, [2018] 2 SCR 496). Errors in principle thatmay justify appellate intervention include errors of law, the failure to consider a relevant factor, or the erroneous consideration ofaggravating or mitigating factors. If an error in principle was made, but it had no impact on the sentence, appellate intervention will bejustified only if the sentence is demonstrably unfit (Friesen at para 26). [18]

Section 732.1(3)(

h) of the Criminal Code provides sentencing judges with a residual power, when making a probation order, tocraft optional conditions tailored to the circumstances of the offender and the offence for which the sentence is being imposed. It reads: 732.1(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following: … (

h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection738(2), for protecting society and for facilitating the offender’s successful reintegration into the community. [19] As the plain language of this provision instructs, “before a probation condition can be imposed, it must be “reasonable” in thecircumstances and must be ordered for the purpose of protecting society and facilitating the particular offender’s successful reintegrationinto the community” (R v Shoker, 2006 SCC 44 at para 13, [2006] 2 SCR 399 [Shoker]).

This requires a nexus between the offender, theprotection of the community and the offender’s reintegration into the community (see also R v Singh, 2016 MBCA 38 at para 27, 334CCC (3d) 423 [Singh]; and R v Deering, 2019 NLCA 31 at para 18 [Deering]). Conditions of probation imposed primarily to punish ratherthan rehabilitate the offender are not permitted (Shoker at para 13; R v Proulx, 2000 SCC 5 at para 32, [2000] 1 SCR 61; R v Duguay,2019 BCCA 53 at para 61, 372 CCC (3d) 175). [20] The residual power in s. 732.1(3)(

h) permits a sentencing court to impose a probation term banishing an offender from hishome community, but such a condition must be crafted carefully and with restraint (Deering at paras 17–18).

When considering whether toimpose a condition of that nature, a sentencing judge must take into account all of the circumstances bearing on the determinationincluding, among others, the impact the order may have on both the victim and the offender, the nature of the offence, the presence orabsence of violence, and whether there is some logical connection between the offending conduct and the geographical area in question (Rv Klein, 2011 SKQB 94 at para 25, 369 Sask R 273). [21] Notwithstanding the discretion conferred on sentencing judges by s. 732.1(3)(h), banishment conditions are not routinely made.This is understandable.

In R v G.N., 2019 NUCA 5 at para 17 [G.N.], the Nunavut Court of Appeal observed that banishment from anoffender’s home community will be justified “only in exceptional cases”, including, for example, where the offender has consented tobeing banished, or where banishment is “necessary to protect a victim of a campaign of violence”.

Given its exceptional nature, abanishment condition should not be included as a feature of a probation order unless a proper evidentiary foundation has been establishedto show that the condition serves a valid purpose, such as protection of society, rehabilitation of the offender, or reintegration of theoffender into the community (R v Kehijekonaham, 2008 SKCA 105 at paras 10–12, 311 Sask R 212; Singh at paras 20–21; see also R vStack (1998), (BC CA), 110 BCAC 193). [22] Because banishment conditions are exceptional, procedural fairness principles must be strictly observed if a sentencing court isconsidering imposing such a term in a probation order.

In G.N., the sentencing judge imposed a banishment condition that neither partyhad requested and without having given the offender’s counsel a chance to make submissions on the issue. The Nunavut Court of Appealdetermined that the sentencing judge had erred in principle and struck the banishment condition, reasoning as follows: [15] It was an error for the sentencing judge to impose a term of probation – banishment from the community – that was not part of thesubmissions by counsel and not the subject of an invitation for counsel to make further submissions. The Crown submits that the error canbe cured: Mr.

N can make submissions on appeal as to whether or not an order of banishment as part of the probation order is a fitsentence in all the circumstances. We disagree. … [18] The need for a full and fair hearing of whether banishment amounts to a fit and proper sentence is clear because banishment is anextreme measure. It may have significant consequences on the offender – who may be scratching for a place to live, with no job and fewconnections to family or friends – as well as significant consequences on the communities affected.

Where banishment as a term ofsentence is considered, the accused is entitled to make submissions or lead evidence if he chooses. [19] Given its exceptional nature, “banishment should not be included as a feature of a probation order unless a proper evidentiaryfoundation has been established for it”: R v Kehijekonaham, 2008 SKCA 105 at para 12. Appellate courts are not the appropriate forums tohear evidence for the first time, particularly oral evidence.

As a result, the sentencing judge’s error in this case is not the type of error insentencing that is amenable to correction on appeal. [20] Though we are concerned about Mr. N’s conduct and the impact of his return to the community upon the complainant and herfamily, the Crown might have been well advised to make its submissions as to banishment before the sentencing judge, rather than attemptto resile from its original position on appeal.

To accede to the Crown’s submission to consider banishment submission on appeal, a forumthat is ill-suited to hearing viva voce evidence, would only serve to deepen the procedural unfairness that has provoked this appeal in thefirst place. [21] Mr. N argues that the banishment order was demonstrably unfit in the circumstances of this case, and was not supported by theevidence. Given our conclusion that Mr.

N was not afforded procedural fairness in the sentencing process, and this cannot be cured uponappeal, the record does not permit consideration of whether the banishment order amounted to a demonstrably unfit sentence in thesecircumstances. [23] I adopt this reasoning. In my view, it applies squarely to the circumstances of this case. Although the condition imposed on Mr.

Serafino was not an outright banishment order, given that it allowed him to seek the permission of the probation officer or the Court to attend Abernethy, it was still a term that presumptively prohibited him from attending the community in which his home was located. In short, it was an exceptional order that required careful attention to the same procedural fairness considerations that drove the result in G.N . [ 24 ] Those procedural fairness considerations are rooted in s. 723 of the Criminal Code , which reads, in relevant part, as follows: 723

(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.

(2) The court shall hear any relevant evidence presented by the prosecutor or the offender. [ 25 ] As noted, at the sentencing hearing, the Crown did not seek a term prohibiting Mr. Serafino from attending the village of Abernethy. Nor did defence counsel. 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. [ 26 ] 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. [ 27 ] 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 ). [ 28 ] In the result, Mr. Serafino’s appeal must be allowed. The condition that he “not attend to Abernethy unless he has the prior written permission of his probation officer or designate or the Court” shall be deleted from the probation order. “Kalmakoff J.A.” Kalmakoff J.A.

I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A.