Nancy Bateman pleaded guilty to assault. Bateman had thrown a bowl of hot soup at the victim while the two were residents in “a transitional housing facility in the 200 block of Main Street in Vancouver” [para 4]. The sentencing judge imposed an absolute discharge. In relation to the victim surcharge the appeal court noted that the following transpired:

In relation to the mandatory $100 victim surcharge under s. 737 for this summary conviction offence, Defence counsel said the accused wanted the victim surcharge to be payable forthwith and to be found in default. After consulting with his client, however, he changed this submission and said she wanted to have six months to pay. The trial judge acceded to this request, stating:

THE COURT: Yes. What I will do presently today is I will give Ms. Bateman six months to pay the surcharge.

Another lawyer who happened to be in the courtroom asked if she could “assist the court” and then suggested a “rather unique, relatively creative approach” using the fine option program in s. 736.

Over the objection of the Crown, the trial judge then said that she was going to deem the victim surcharge paid under s. 736(3). When Crown counsel asked by what mechanism, the trial judge stated:

THE COURT: I am just deeming it paid.

Proceedings were then adjourned, and the accused and both counsel left the courtroom.

Later the same day, at the request of the trial judge, both Crown and defence counsel returned to the courtroom. In the absence of the accused, the trial judge announced that she was going to enter a stay of proceedings on the charge. When Crown counsel asked the trial judge to provide reasons, the trial judge said:

THE COURT: Well, if the matter had proceeded to trial, I believe the young woman would have been acquitted. And she was not – she clearly wanted to proceed, most likely because of her mental health issues. And perhaps those should have been taken into account when the charge approval decision was made.

[Paras 9-13].

The Crown appealed. The appeal was allowed in relation to the stay: 2015 BCSC 2071. Bateman conceded that the judge was functus. The appeal court held that the sentencing judge’s reasons did not “provide a proper basis for entering a stay” [para 15].

Turning to address the victim surcharge, the appeal court held:

I agree with counsel for Ms. Bateman that notwithstanding s. 737(4), a sentencing judge retains a discretion to allow no time to pay, pursuant to s. 734.7(2). This is because s. 737(9) provides, inter alia, that s. 734.7 applies, with any modifications that the circumstances require, in respect of a victim surcharge, and that any reference to “fine” in s. 734.7 must be read as if it were a reference to “victim surcharge”. [Para 32].

Notwithstanding this finding, the court imposed the surcharge and granted six months to pay – the initial position advanced by Bateman.

With respect, there are at least two problems with this finding. First, having concluded that the offender lacked the means to pay it is illogical and improper to impose the surcharge and vary the time to pay causing an immediate default. In British Columbia the offender would have been grant 2 months to pay. If he did not pay – because, as the court found on the day of sentencing he was unable to – then no jail would be imposed: see R v Wu, 2003 SCC 73. In effect, the court has imposed an unnecessary jail term.

Second, the point of section 734.3 (which allows for the court to vary time to pay) is to allow an offender more time to pay. Overriding the statutory time to pay – forcing immediate default – is not only inconsistent with the dicta in Wu (that courts should not determine future ability to pay at the time of sentencing) but it also appears to be a means to avoid the imposition of the surcharge.