nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 225 Date: 2007 06 29 Docket: QB 107/07 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and KEVIN YAREMKO Counsel: Darren Grindle for the appellant No one appearing for the respondent JUDGMENT PRITCHARD J. June 29, 2007 [1] On January 15, 2007 the Respondent pled guilty to the offence of failing or refusing, without reasonable excuse, to attend and complete an anger management program as required by probation order made September 14, 2005. Sentencing was adjourned to March 5, 2007 to allow pre-sentence report to be prepared. On March 5, 2007, the Respondent was sentenced to fine of $200.00 and again placed on probation for period of one year. Among other things, the probation terms once again require Mr. Yaremko to partake in anger management programming. As he concluded the sentencing, and without any discussion or explanation, the sentencing judge waived the victim surcharge. The surcharge was waived notwithstanding that the Respondent had not requested an exemption pursuant to s. 737(5) of the Criminal Code (the “Code”). [2] The Crown appeals the sentence to the extent that the victim surcharge was waived. The appeal is made on the basis that the trial judge did not comply with the mandatory provisions of s. 737 of the Code. Section 737 states: 737. (1) Subject to subsection (5), an offender who is convicted or discharged under section 730 of an offence under this Act or the Controlled Drugs and Substances Act shall pay victim surcharge, in addition to any other punishment imposed on the offender. (2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is (a) 15 per cent of any fine that is imposed on the offender for the offence; or (b) if no fine is imposed on the offender for the offence, (i) $50 in the case of an offence punishable by summary conviction, and (ii) $100 in the case of an offence punishable by indictment. (3) The court may order an offender to pay victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount. (4) The victim surcharge imposed in respect of an offence is payable at the time at which the fine imposed for the offence is payable and, when no fine is imposed, within the time established by the lieutenant governor in council of the province in which the surcharge is imposed for payment of any such surcharge. (5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender from the application of subsection (1). (6) When the court makes an order under subsection (5), the court shall state its reasons in the record of the proceedings. [Emphasis added] [3] The imposition of a victim fine surcharge under s. 737 of the Code is mandatory subject only to an application under s. 737(5) relating to undue hardship. (See R. v. Jimmy (B.C.S.C.), [1994] B.C.J. No. 727 and R. v. Tellier, 2000 ABCA 219 (CanLII), [2000] A.J. No. 903). If an offender is exempted from payment of the victim surcharge, it is also mandatory that the court give reasons. [4] The sentencing judge failed to comply with the explicit provisions of s. 737(1) of the Code or, alternatively, the explicit provisions of ss. 737(5) and (6) of the Code. Pursuant to s. 687(1)(a) of the Code, this court may vary sentence passed by the trial court. The record establishes that the Respondent was employed at the time of sentencing and has been consistently employed his entire adult life. Although the Respondent has financial challenges, there is no evidence that they amount to undue hardship particularly given that the maximum victim surcharge payable in these circumstances is only $30.00. This represents 15 per cent of the fine assessed by the sentencing judge. As stated by the Crown, the funds raised through victim surcharges play an important and vital part in the criminal justice system and it is important that sentencing judges pay serious attention to their obligations under s. 737 of the Code. All amounts paid by way of victim surcharges are used in accordance with s. 21 of the Victims of Crime Act, 1995, S.S. 1995, c. V-6.011. [5] In the result, the sentence is varied to include an order requiring the Respondent to pay a victim surcharge in the amount of $30.00. The Respondent shall have 30 days to pay the victim surcharge calculated from the day he is served with copy of this decision. J. J.L.G. Pritchard
The Crown appeals the sentence to the extent that the victim surcharge was waived. The appeal is made on the basis that the trial judge did not comply with the mandatory provisions of s. 737 of the Criminal Code. HELD: The imposition of a victim fine surcharge under s. 737 of the code is mandatory subject only to an application under s. 737(5) relating to undue hardship. If an offender is exempted from payment of the victim surcharge, it is also mandatory that the Court give reasons. The sentence is varied to include an order requiring the respondent to pay a victim surcharge in the amount of $30.