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ANCILLARY ORDERS
- I. INTRODUCTORY STATEMENT............................................................................................ Table of Contents
- II. SENTENCING
- Absolute Discharge
- Conditional Discharge
- Suspended Sentence
- Fine
- Conditional Sentence Order
- Jail Sentence Without Pre-Sentence Credit.............................................................................
- Jail Sentence With Pre-Sentence Credit
- Victim Surcharge
- Firearms / Weapons Prohibition.................................................................................................
- DNA
- Driving Prohibition
- Fine Payment Out of Money Seized
- Restitution......................................................................................................................................
- Delayed Parole
- Forfeiture
- Sex Offender Identification Registration Act (SOIRA)
- Section 161 Prohibition
- Intimate Image Distributor - Internet Use Prohibition
- Animal Cruelty.............................................................................................................................
- Fraud – Employment Prohibition
- III. GENERAL PROCEDURAL OR PRELIMINARY MATTERS
- Pre-Sentence Report
- No Communication While in Custody
- Appointment of Counsel
- Publication Bans
- Exclusion of the Public and In Camera
- Sealing Order
- Fitness or NCRMD Assessment
- IV. EVIDENCE AT TRIAL OR PRELIMINARY INQUIRY
- Exclusion of Witnesses
- Statements to Accused at Preliminary Inquiry
- Committal or Discharge at a Preliminary Hearing
I. INTRODUCTORY STATEMENT
This picklist is a revision of one produced in 2017. Developed through a process of wide collaboration within the B.C. justice system, it reflects recent amendments to the Criminal Code as well as feedback from judges and any appellate rulings on the wording of conditions in the original version. However, the headings and numbering scheme will be familiar to users of the previous version as they have not changed.
While notes containing references to legal requirements have been added to this picklist for convenience, they do not bind judges and judicial justices who always have discretion in deciding how the law should be applied. They may or may not choose to use the picklist wording.
s. 737(3) The Court can order a surcharge above the specified amount.
If you require further time to pay the surcharge, you must apply in writing to ask the Court for an extension.
Surcharge Exemption for Undue Hardship^7 Reasons Required Upon application by the offender or the Court’s motion. Imprisonment alone does not constitute undue hardship per s. 738(2.3)
Pursuant to section 737(2.1) of the Criminal Code , I am satisfied: a. because of your precarious financial circumstances (the result of unemployment, homelessness, lack of assets, or significant financial obligations towards dependents) the surcharge would cause an undue hardship to you; or b. the surcharge is disproportionate to the gravity of the offence or the degree of your responsibility; I order you to pay: a. No surcharge(s). b. Reduced surcharge(s) in the amount of $. c. Surcharges in the amount of $ but only on the following Counts ___. There are nor surcharges on the remaining counts.
Fine or Surcharge Paid Out of Money Seized s. 734(6)
Under section 734(6) of the Criminal Code , I am satisfied that you are the owner of the money found in your possession when you were arrested, and I order that the victim surcharge be paid out of that money.
Firearms / Weapons Prohibition
Mandatory Weapons Prohibition s. 109 – 1 st^ Offence
- indictable, max 10 yrs or more and violence used, threatened or attempted
- indictable, violence used, threatened or attempted intimate partner/child/co-resident
- enumerated firearms offences
- enumerated drug offences
- enumerated w eapons offences w hile subject to prohibition already
Pursuant to section 109 of the Criminal Code , you are prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for a period of (1 st^ offence: min 10) years^8 from today (or following your release from prison), and b. any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
Mandatory Weapons Prohibition s. 109 – 2 nd^ Offence 2 nd^ or subsequent offence with s. 727 Notice Life^9
Pursuant to section 109(3) of the Criminal Code, you are prohibited from possessing any firearm, cross-bow, restricted or prohibited weapon, prohibited device, ammunition, and explosive substance for life.
Discretionary Weapons Prohibition^10 s. 110 The maximum is life for offences against an intimate partner or partner’s child or co-resident otherwise maximum is 10 years. Reasons required if not ordered
Pursuant to section 110 of the Criminal Code , you are prohibited from possessing any firearm, cross-bow, restricted or prohibited weapon, prohibited device, ammunition, or explosive substance for ___ years from today (or following your release from prison).
Surrender Firearm s. 114
Pursuant to section 114 of the Criminal Code , you must immediately^11 (by 3:00 PM today; or any other reasonable period) go to the _____ police station and present a copy of this order for the purpose of accompanying a police officer to the place of all firearms, cross-bows, restricted or prohibited weapons, prohibited devices, ammunition or explosive substances, possessed by you or through
another person, and to the location of any related authorizations, licenses or registration certificates, and surrender all such items to that police officer.
Transfer Firearms (^) Within 90 days of the entry of this order, the firearms, cross-bows, restricted weapons, and/or ammunition may be collected by an individual or business who/which possesses the necessary licences, authorizations and registration certificates and who are not otherwise prohibited from possessing the items and to whom you have transferred legal ownership of the firearms, cross-bows, restricted weapons, and ammunition to individuals or businesses. If no one, including any legal transferees of the items, takes possession of the items within 90 days of the entry of this order, the items are forfeited to Her Majesty.
Sustenance Or Employment Exemption s. 113^12
I authorize the Chief Firearms Officer or the Registrar of Firearms to issue an authorization, a licence or a registration certificate to [Name of the Offender] for (sustenance or employment) purposes with the following terms and conditions: a. the firearm or ammunition may only be possessed on the way to and from and in the course of a legal hunt; b. the firearm or ammunition may only be possessed on the way to and from and in the course of your employment; c. you must not possess the firearm or ammunition if you are intoxicated.
DNA
DNA Order^13 s. 487.051^14 Primary: Mandatory^15 and does not require an application by the Crown. Secondary: Discretionary and requires an application by the Crown (reasons must be given^16 ).
Primary: Count _____ on Information __________ is a primary designated offence. Pursuant to section 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. Secondary: Count _____ on Information __________ is a secondary designated offence. After considering the factors set out in section 487.051(3) of the Criminal Code , I am satisfied that it is (is not) in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you.^17 Non-Custody: You must attend at the _____________ police station in _____________, BC on _____________ at ____ 18 and submit to the taking of the samples. This order is valid until executed. Custody: The samples will be taken from you while you are in custody and you must submit to the taking of the samples.
Driving Prohibition
Motor Vehicle Act s. Discretionary
Pursuant to section 98 of the Motor Vehicle Act , you are prohibited from driving any motor vehicle on any highway or industrial road in the Province of British Columbia for ________. The prohibition:
- takes effect immediately,
Other Criminal Driving Offences s. 320.24(5) Discretionary
Offence Max
Indictable: Impaired Driving or Refusal
10 years
Dangerous Driving, Fail to Stop, Flight from Police, and Driving While Disqualified
Summary: 2 yr less one day
Indictable:10 yr
Dangerous, Impaired, Over 80, Refusal, Failing to Stop: and Bodily harm
Summary: 2 yr less one day
Indictable:14 yr Dangerous, Impaired, Over 80, Refusal, Failing to Stop: and Death
Life
Pursuant to sections 320.24(1) of the Criminal Code , you are prohibited from operating any motor vehicle on any street, road, highway or other public place in Canada for a period of ___. (Plus period of imprisonment imposed on that count. a. If liable to life: no max (plus period of imprisonment). b. If liable to 5 years but less than life: 0-10 yrs. (plus period of imprisonment). c. All others: 0-3 yrs. (plus period of imprisonment).
Fine Payment Out of Money Seized
Fine Paid Out Of Money Seized s. 734(6) Discretionary
Pursuant to section 734(6) of the Criminal Code , I am satisfied that you are the owner of the money found in your possession when you were arrested, and I order that the fine be paid out of that money.
Restitution
Restitution-Stand Alone s. 738 Discretionary Must consider and if denied must give reasons s. 737.1(5).
Pursuant to section 738 of the Criminal Code , I order that you pay restitution in the amount of $___ to the Clerk of the Court for the benefit of _____ by [date] (or installments according to the following payment schedule).^21
Restitution Paid Out Of Money Seized s. 741(2) Discretionary
Pursuant to section 741(2) of the Criminal Code , I am satisfied that you are the owner of the money found in your possession when you were arrested, and I order that the restitution pursuant to section 738 be paid out of that money.
Delayed Parole
Delayed Parole s. 743.6(1) Where sentence is tw o years or more for enumerated indictable offences.
Pursuant to section 743.6(1) of the Criminal Code , having regard to the circumstances of the offence and the character and circumstances of the offender, I am satisfied that the expression of (society’s denunciation or the objectives of specific or general deterrence) require that you must serve [1/2 of the sentence of imprisonment or ten years whichever is less] before you may be released on full parole.
Forfeiture^22
Further Detention of Things Seized s. 490(9.1) Discretionary
Pursuant to section 490(9.1) of the Criminal Code, I am satisfied that the continued detention of the thing might reasonably be required for a purpose mentioned in s. 490(1-4) of the Code and that that it is also in the interest of justice to order its continued detention until ________.
Unlawful To Possess Or Owner Unknown s. 490(9) Refer to section to determine if mandatory or discretionary.
Pursuant to section 490(9) of the Criminal Code, I am satisfied that it is unlawful to possess [list property] or that the owner of the property is unknown and I order that the property be forfeited to Her Majesty in right of (The Province of BC or Canada), to be disposed or otherwise dealt with at the direction of the Attorney General.^23
Offence Related Property s. 490. (1) Mandatory (2) Discretionary
Pursuant to section 490.1 of the Criminal Code, I am satisfied:
- on a balance of probabilities that the following offence-related property: [list property is related to the commission of the indictable offence which I have [convicted or discharged you under section 730 ]; Or
- beyond a reasonable doubt that the following property is offence-related property: [list property] other than as described in (1), and I order that it be forfeited to Her Majesty in right of:
- (In the case where the prosecution is conducted by the province) the Province of BC to be disposed of or otherwise dealt with by the Attorney General; Or
- (In any other case) Canada to be disposed of or otherwise dealt with by the designated member of the Queen’s Privy Council for Canada.
Return or Forfeiture of Property Obtained by Crime s. 491. Mandatory
Pursuant to section 491.1 of the Criminal Code, after the trial of this offence, I am satisfied that an offence has been committed and that the following property was obtained by the commission of the offence: [list property]. The property is before the Court and is not required as evidence in any other proceedings. I order: a. the property be returned to [name], the lawful owner or person lawfully entitled to possession of the property; Or b. that because the lawful owner or person lawfully entitled to possession of the property is unknown, that it be forfeited to Her Majesty to be disposed of or otherwise dealt with at the direction of the Attorney General.
Drug Offence Related Property s. 16 CDSA (1) mandatory (2) discretionary
Pursuant to section16 of the Controlled Drugs and Substances Act, I am satisfied:
- on a balance of probabilities, that the following non-chemical offence-related property: [list property] is related to the commission of a designated substance offence of which I have convicted/discharged you; Or
broader range of offences including unexpected things like harassment and B&E
490.013(2.1) you are required to comply with the Sex Offender Information Registration Act for life.^26
Section 161 Prohibition
Section 161 Prohibition 27 Discretionary (Max Life)
Pursuant to section 161 of the Criminal Code , you are prohibited for __ years (life or any shorter duration desirable) commencing: (today or on the date you are released from prison) from: a. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; a1. being within two kilometers (or any other distance specified) of any residence, school or workplace (or other specified place) of [Victim Name]; b. seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer, in a capacity that involves a position of trust or authority towards persons under the age of 16; c. having contact or communicating by any means with a person who is under the age of 16 years; d. using the Internet or other digital network. Except in the following circumstances: 28 i. in the presence of (under the supervision of) a person approved in writing by the Court, your probation officer, (your conditional sentence supervisor), your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you. ii. lawful employment, with the nature of your employment being approved in advance in writing by the Court, your probation officer, (your conditional sentence supervisor), your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you. iii. as approved in advance in writing by the Court, your probation officer, (your conditional sentence supervisor), your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you. iv. you may access the internet but not access any illegal content, communicate with persons under the age of __ other than immediate family members, or access any social media. v. you may access the internet but not:
- any content that violates the law, or
- access directly or indirectly any social media sites, social network, internet discussion
forum or chat room, or maintain a personal profile, on any such service.
Intimate Image Distributor - Internet Use Prohibition
Intimate Image Distributor^29 s.162. Discretionary (Max Life)
Pursuant to section 162.2 of the Criminal Code , you are prohibited for (any appropriate period including any period of imprisonment) from using the internet or any digital network. Except in the following circumstances: i. in the presence of (under the supervision of) a person approved in writing by the Court, the warden of your prison, your probation officer, (your conditional sentence supervisor), your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you. ii. lawful employment, with the nature of your employment being approved in advance in writing by the Court, your probation officer, (your conditional sentence supervisor), your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you. iii. as approved in advance in writing by the Court, your warden, your probation officer, (your conditional sentence supervisor), your parole officer, or the person to whom you are reporting under the Sex Offender Information Registration Act. You must carry a copy of the written permission with you. iv. you may access the internet but not access any illegal content, communicate with persons under the age of __ other than immediate family members, or access any social media. v. you may access the internet but not:
- any content that violates the law, or
- access directly or indirectly any social media sites, social network, internet discussion forum or chat room, or maintain a personal profile, on any such service.
Animal Cruelty
Animal Possession Prohibition 30 s. 447.1(1)(a) 1 st^ offence: Discretionary (Max Life) Second: Mandatory with Notice (Min 5 years)
Pursuant to section 447.1(1)(a) of the Criminal Code , you are prohibited from owning, having custody or control of, or residing in the same premise as an animal or bird for [years].
Restitution for Care of Animals
Pursuant to section 447.1(1)(b) of the Criminal Code you must pay (Name of Organization) $____ for the
s.486.3(2) Presumptive
- it is otherwise in the interest of the proper administration of justice. Therefore, I order that the accused not personally cross- examine the witness, and I appoint counsel to conduct the cross-examination of the witness.
Appointment of Counsel for Fitness s. 672.24 (Mandatory)
Pursuant to section 672.24(1) of the Criminal Code , I have reasonable grounds to believe that the accused is unfit to stand trial and is not represented by counsel, and I appoint counsel to represent the accused.
Publication Bans
Bail Hearing s. 517(1) Mandatory: Accused Discretionary: Crown^39
On application of (accused, prosecutor or court’s own motion) pursuant to section 517(1) of the Criminal Code :
- the evidence taken,
- the information given, or
- the representations made and
- the reasons given or to be given by this Court must not be published, broadcast or transmitted in any way until (a) if a preliminary inquiry is held, the accused is discharged or, (b) if the accused is tried or ordered to stand trial, the trial is ended.
Preliminary Inquiry^40 s. 539 Mandatory: Accused^41 Discretionary: Crown^42
On application of (accused or prosecutor) pursuant to section 539 of the Criminal Code , information relating to the evidence taken at the preliminary inquiry must not be published, broadcast or transmitted in any way until the trial is ended.
Sex Offences and Extortion U-18^43 s. 486.4(2) Mandatory to inform and (if requested) to order
On application of (prosecutor, victim, witness or court’s own motion) pursuant to section 486.4(2) of the Criminal Code , any information that could identify the (witness/victim) [name] in these proceedings must not be published, broadcast, or transmitted in any way. This publication ban applies indefinitely unless otherwise ordered.
Sex Offences O-18^44 and Extortion s. 486.4(1) Discretionary
On application of (prosecutor, victim, witness or court’s own motion) pursuant to section 486.4(1) of the Criminal Code, any information that could identify the (witness / victim) [name] in these proceedings must not be published, broadcast, or transmitted in any way. This publication ban applies indefinitely unless otherwise ordered.
Non-Sex Offences U-18^45 s. 486.4(2.2) Mandatory to inform and (if requested) to order
On application of (prosecutor, victim, witness or court’s own motion) pursuant to section 486.4(2.2) of the Criminal Code, any information that could identify the (witness / victim) [name] in these proceedings must not be published, broadcast or transmitted in any way. This publication ban applies indefinitely unless otherwise ordered.
Any Offence O-
On application of (prosecutor, victim, witness or court’s own motion) pursuant to section 486.5(1) of the Criminal Code , I am of the opinion that it is in the interest of the proper administration of justice to make the following
s. 486.5(1)
Discretionary 46
order, and I order that any information that could identify the (witness/victim) [name] in these proceedings must not be published, broadcast or transmitted in any way. This publication ban applies indefinitely unless otherwise ordered.
Non-Disclosure of Witness Identity (Informant or Under-Cover Operator)
s. 486.31(1)
Discretionary
On application of (prosecutor or witness) pursuant to section 486.31(1) of the Criminal Code , I am of the opinion that it is in the interest of the proper administration of justice to order, and I order that any information that could identify the witness [name] in these proceedings must not be disclosed in the course of these proceedings. This publication ban applies indefinitely unless otherwise ordered.
Sexual History and Record Production Applications
s. 276(2) or 278.
Mandatory unless otherwise ordered:
- for decision under s. 278.93(4): after considering complainant’s privacy/interests of justice
- for s. 278.94(4) determination and reasons, unless determination that evidence is admissible or considering complainant’s privacy/interests of justice
Pursuant to section 278.95 of the Criminal Code :
- the contents of the application made under section 278.93,
- the evidence taken,
- the information given, or
- the representations made at an application made under section 278.93 or at a hearing under section 278.94, and
- the decision, and
- the reasons provided under subsection 278.94(4) by this Court must not be published, broadcast or transmitted in any way until (a) if a preliminary inquiry is held, the accused is discharged or, (b) if the accused is tried or ordered to stand trial, the trial is ended.
Child Pornography
s. 486.4(3)
Mandatory
Pursuant to section 486.4(3) of the Criminal Code, any information that could identify a witness who is under the age of 18 years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of s. 163.1, must not be published, broadcast or transmitted in any way. This publication ban applies indefinitely unless otherwise ordered.
Justice System Participant
s. 486.(5)(2)
Discretionary
On application of (prosecutor or justice system participant) pursuant to section 486.(5)(2) of the Criminal Code , any information that could identify [Name], a justice system participant in these proceedings must not be published in any document, broadcast or transmitted in any way. This publication ban applies indefinitely unless otherwise ordered.
Common Law Ban
Pre-trials or co-accused proceeding separately
Pursuant to the Court’s jurisdiction to manage and protect the integrity of the Court process, the evidence taken, the information given, or the representations made and the reasons given by this Court in this hearing must not be published, broadcast or transmitted in any way before the accused (co-accused’s trial) has ended.^47
or an agent for the Attorney General of Canada.
Fitness or NCRMD Assessment
Fitness or NCRMD Assessment 49 s. 672. Assessment order pre-empts bail s. 50 672.
. If protective conditions are required ensure they are in the assessment order.
I have reasonable grounds to believe that evidence of the mental condition of [name], who has been charged with _____________, may be necessary to determine: Fitness a. whether s/he is unfit to stand trial; Criminal Responsibility b. whether s/he, at the time of the commission of the alleged offence, suffered from a mental disorder so as to exempt them from criminal responsibility by virtue of section 16(1) of the Criminal Code ; Type of Disposition c. (if a verdict of unfit to stand trial or a verdict of not criminally responsible on account of a mental disorder has been rendered in respect of the accused) the appropriate disposition to be made in respect of the accused under the Criminal Code ; OR Appropriateness of a Stay d. (if a verdict of unfit to stand trial has been rendered in respect of the accused) whether the Court should order a stay of proceedings under section 672.851 of the Criminal Code.
I therefore order an assessment of the mental condition of the accused to be conducted: a. in custody by the Forensic Psychiatric Services Commission and I (recommend / order) that it occur at the Forensic Psychiatric Hospital;^51 b. not in custody at the Forensic Psychiatric Services Commission with the following conditions:^52 This order is to be in force for a total of __ days^53 including travelling time, during which time the accused is to remain: a. in custody. (During the travel time, the accused can be held at a correctional centre while awaiting transfer to the location of the assessment and back to court.^54 ); Or b. out of custody on the following conditions:
- You must report in person to the bail supervisor at _________ by 3:00 PM today (date and time), and after that, you must report as directed by the bail supervisor.
- At the direction of the bail supervisor, you must attend at the Forensic Psychiatric Services Commission.
- Other (consider if appropriate to include protective conditions). Adjourn for completion of the report. If the accused is in custody, ensure that the next appearance is by video.
accused into society and any other needs of the accused: a. I discharge [name] subject to the following conditions: _________; Or b. I detain [name] in a hospital, subject to the following conditions: ____________.
NCRMD Court Disposition^61 s. 672.54(1)^62
Pursuant to s. 672. 54(1) of the Criminal Code , I make the following disposition: [name] having been found not criminally responsible on account of a mental disorder and taking into consideration the safety of the public; the mental condition of the accused, the reintegration of the accused into society and any other needs of the accused I find that : a. S/he is not a significant threat to the safety of the public and is discharged absolutely; Or b. S/he is a significant threat to the safety of the public but that threat can be safely managed in the community pursuant to conditions and is discharged on the following conditions: __________; Or c. S/he is a significant threat to the safety of the public and that threat cannot be safely managed in the community and is detained in custody in a hospital, subject to the following conditions: __________.
IV. EVIDENCE AT TRIAL OR PRELIMINARY INQUIRY
Exclusion of Witnesses
Exclusion of Witnesses s. 537 (Prelim) Common law (Trial)
All of the witnesses, in this case (except name) are to be excluded from the courtroom until called. If you are being called as a witness, you must leave the courtroom at this time and remain available to come to the courtroom when required. While waiting to be called, you must not discuss the evidence with any witness who has previously testified (or will be testifying).
Statements to Accused at Preliminary Inquiry
Self-Rep at Preliminary Hearing s. 541(2-4)^63 MANDATORY If the accused says anything in answ er to the charge, the answ er must be taken dow n in w riting and signed by the justice and kept w ith the evidence of the w itnesses and dealt w ith by this part.
Do you wish to say anything in answer to these charges or to any other charges which might have arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you, but if you do make any statement it may be given in evidence against you at your trial, in spite of the promise or threat. Do you wish to call any witnesses?
Committal or Discharge at a Preliminary Hearing
Committal / Discharge s. 548
a. I am satisfied that there is sufficient evidence upon which a reasonable jury properly instructed could convict you of the offence(s) charged (or any other indictable offence in respect of the same transaction), and I order you to stand trial on the counts set out in Information ________ (and/or on the following counts if the test for additional counts in respect of the same transaction is made out). b. I am satisfied that no reasonable jury properly instructed could convict you of the offences charged or any other indictable offence in respect of the same transaction, and I discharge you on Information ______.
Consent Committal^64 s. 549
With the consent of the accused and the prosecutor, I am ordering the accused to stand trial on the count(s) set out in Information ______.
Waiver of Preliminary Hearing s. 536(4.3)
You have chosen not to proceed with a preliminary inquiry. You will appear in courtroom ____ of the Supreme Court of British Columbia at [location] at [date and time] to fix a trial date.
(^1) The failure to pay previous fines can be consideration in determining whether the imposition of another fine can adequately meet the objectives and principles of sentencing. Part of the consideration must include a determination whether the accused was financially able to meet their previous fine obligations. Each court registry has a fine payment clerk who can, usually within a few minutes, obtain a detailed summary of unpaid fines. R v Mellstrom, 1975 CanLII 1270 (ABCA); R v Wells, [2003] OJ No 2025 (CJ); Canada v Stacey, [2012] NJ No 289 (PC); R v Karau, 2015 ONCJ 81; R v Kennedy, 2011 NLTD 96 (^2) In R. v. Louie , 2015 BCCA 109 , the sentencing judge erred in calculating the number of days. The British Columbia Court of Appeal corrected the error but in doing so added, “To be clear, it is the responsibility of counsel, not the sentencing judge, to do the necessary arithmetic.” Despite this, it is always good to double check counsel’s math. A helpful site for doing so is called Time and Date.com. At the site you type in each date and it calculates the days. Siri can also do this calcuation for you. (^3) A sentence of time served is not a sentence that is available in the Criminal Code. If a judge does not intend to impose any additional jail time, the appropriate disposition is one day in jail. s 719(3.3); R. v. Coutu , 1997 CanLII 3879 (BCCA); R. v. Mizen, 2009 BCCA 253; R. v. Lea , 2010 MBCA 37. If you are imposing a federal sentence and there happens to be a leap year, it is important to account for the extra day when stating the sentence in days when imposing a two-year sentence. Failing to do so will result in the sentence being interpreted as two years less one day (provincial sentence). (^4) In BC, the Criminal Code Victim Surcharge Regulation sets out when victim surcharge is due. The victim surcharge is due at the same time that any fine imposed is payable. If no fine is imposed, but the offender is sentenced to a term of continuous custody, the victim surcharge is due within two months after the expiry of the warrant of committal or within two years, whichever is earlier. If no fine is imposed, and no term of continuous custody is imposed, the victim surcharge is payable within two months after the date of sentencing. (^5) In BC, the Criminal Code Victim Surcharge Regulation sets out when victim surcharge is due. The victim surcharge is due at the same time that any fine imposed is payable. If no fine is imposed, but the offender is sentenced to a term of continuous custody, the victim surcharge is due within two months after the expiry of the warrant of committal or within two years, whichever is earlier. If no fine is imposed, and no term of continuous custody is imposed, the victim surcharge is payable within two months after the date of sentencing. An offender can apply to have the time extended. In some cases that will occur when the surcharge is being imposed. (^6) With the consent of the Crown, and application to extend time to pay can be made before the expiration of the 60 days. This means it could happen the same day as the imposition of the surcharge. The extension must be reasonable. Giving the offender five years to pay an order to circumvent the legislation is not appropriate. (^7) Either upon application by the offender or the Court’s own motion, the Court can because of the offender’s precarious financial circumstances, waive the surcharge on some or all counts, but must state reasons for doing so.
