The Ontario Court of Appeal has granted an ‘absolute discharge’ to a tow truck driver who pleaded guilty to fraud under $5,000 – and served a six-month suspended sentence – for his role in a staged collision that cost two insurers more than $17,000. .
The ruling reversed the view of the sentencing judge, who wrote in the original sentencing decision: “The question here is whether the limited nature of his involvement, viewed through the prism of his vulnerabilities and special challenges, makes his case so exceptional that a discharge is appropriate despite the seriousness of insurance fraud in general and this one in particular.
The sentencing judge did not consider a discharge appropriate.
The tow truck driver called. Essentially, his legal team argued that the sentencing judge erred in limiting his discretion to order a discharge on the basis that the circumstances had to be “exceptional” to warrant a discharge.
The Court of Appeal agreed with the two truck drivers, saying the “exceptional” threshold was too high to consider dismissal. “We recognize the seriousness of the insurance fraud and the active role the appellant played in staging the underlying collision in this case,” the Ontario Court of Appeal ruled. “However, even if prosecuted by indictment, the maximum penalty for committing fraud under $5,000 is two years imprisonment….
“The sentencing judge was correct to consider general deterrence in her analysis. However, there were other important considerations, such as the appellant’s admirable prospects for rehabilitation, which justified a more restrained approach, which would have generated a more proportionate sentence.
Michael Mills, a tow truck driver, was 31 when he was involved in planning a staged two-vehicle collision on March 23, 2020. He was to help plan or arrange the ‘accident’ with the drivers of the two vehicles ; it would tow one of the stage vehicles. He made several phone calls to organize the scheme, which was carried out successfully and no one was injured. Mills received towing fees for his participation.
Both drivers made insurance claims. Police investigating the collision discovered it had been staged and alerted insurers. The requests were rejected. Yet insurers suffered losses. The loss for Co-operators General Insurance Company was over $14,000, while the loss for Assurant Insurance Company was over $3,000.
Mills’ cut, split among five co-defendants, was $3,540.03.
Mills repaid this as restitution. The court record showed that his criminal record had a significant impact on his professional life. He is now prohibited from troubleshooting on major highways (as opposed to city streets), working with the police, and working for the CAA. He became a tow truck driver in 2017, with no criminal record.
The Court of Appeal noted that the sentencing judge “had the benefit of a psychological assessment report, which outlined several challenges [Mills] faced. [He] was diagnosed with a learning disability as a child. Cognitive tests reveal a low level of functioning. [Mills] suffered several head injuries that required hospitalization. He also experienced severe bouts of anxiety and depression. He indulged in self-harm. »
In these circumstances, the Court of Appeal concluded that “the public interest would not be harmed by the substitution of one non-custodial provision (absolution) for another (conditional sentence)”.
The court ruled that an absolute discharge was warranted based on several factors, including Mills:
- had no criminal record
- played a lesser role in the fraudulent scheme
- pleaded guilty to the charge
- expressed remorse
- served the suspended sentence, without complaining about his behavior during this period
- struggles with unique developmental and psychological vulnerabilities, and
- his conviction had a major impact on his employability
Photo courtesy of iStock.com/kozmoat98