Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2022-05-17 Docket: C69747

Judges: Lauwers, Roberts and Trotter JJ.A.

Between: Her Majesty the Queen, Respondent And: Michael Mills, Appellant

Counsel: Chris Rudnicki and Theresa Donkor, for the appellant Peter Scrutton, for the respondent

Heard: May 13, 2022

On appeal from the sentence imposed on July 27, 2021 by Justice Mary E. Misener of the Ontario Court of Justice.

Reasons for Decision

[1] At the conclusion of the hearing of the appeal, we allowed the appeal with reasons to follow. These are our reasons.

[2] Michael Mills, a tow truck driver, pled guilty to committing fraud under $5,000 (Criminal Code, R.S.C. 1985, c. C-46, s. 380(1)(b)) for his part in an insurance fraud involving a staged collision. The appellant sought a conditional discharge; the Crown submitted that a conviction was required and a nine-month conditional sentence should be imposed. [1] The trial judge imposed a six-month conditional sentence.

[3] The appellant was involved in planning and participating in a staged collision of two vehicles on March 23, 2020. His role was to help arrange or stage an “accident” with the drivers of the two vehicles. He was to tow one of the vehicles. The appellant made several phone calls in furtherance of this scheme. The plan was executed and no one was hurt. The appellant was paid a towing fee for his participation.

[4] Both of the drivers made claims of their insurers. The police investigated the collision and determined that it had been staged. They alerted the insurers. The claims were denied. Still, the insurers suffered losses. The loss to Co-operators General Insurance Company was $14,314.65, while the loss to Assurant Insurance Company was $3,385.48. The appellant’s share of the loss (divided among five co-accused) was $3,540.03. The appellant has repaid this amount in restitution.

[5] The appellant was 31 years old at the time of the offence. He is now 33. He dropped out of grade 12 without completing his high school diploma. He began working as a tow truck driver in 2017. He has no prior criminal record.

[6] The sentencing judge had the benefit of a Psychological Assessment report which described several challenges the appellant has faced. The appellant was diagnosed with a learning disability as a child. Cognitive tests reveal a low level of functioning. The appellant suffered a number of head traumas that required hospitalization. He has also experienced serious episodes of anxiety and depression. He has engaged in self-harm.

[7] Fresh evidence filed on this appeal demonstrates that having a criminal record has significantly impacted on the appellant’s work life. He is now prohibited from certain employment opportunities, including tow trucking on major highways (as opposed to city streets), working with the police, and doing jobs for the CAA.

[8] As noted above, the sentencing judge did not accept the submission that a discharge was appropriate in the circumstances. The appellant takes issue with the following passage from her reasons:

The issue here is whether the limited nature of his involvement, when viewed through the lens of his particular vulnerabilities and challenges, makes his case so exceptional that a discharge is appropriate despite the seriousness of insurance frauds in general and this one in particular. [Emphasis added.]

[9] The appellant submits that the sentencing judge erred in limiting her discretion by imposing a threshold of exceptionality. The respondent submits that the sentencing judge made no error and that the disposition was fit.

[10] We agree that the sentencing judge erred by setting the bar too high for the availability of a discharge. Section 730 of the Criminal Code establishes the criteria for the imposition of a discharge:

730(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [Emphasis added.]

[11] Beyond threshold issues (i.e., minimum punishments and offences carrying maximum sentences of 14 years or life imprisonment) the determination involves a balancing of the best interests of the accused person and the public interest.

[12] The sentencing judge concluded that a discharge – and the avoidance of a conviction – was in the appellant’s best interests. She also observed that it was in the public interest in terms of the appellant’s future employability, but that “denunciation and deterrence are also applicable principles and the societal interest in deterrence is particularly strong.” Although the sentencing judge did ultimately engage in the balancing under the section, with respect, we are satisfied that the requirement of exceptionality distorted her analysis.

[13] Undertaking the analysis afresh, we conclude that a discharge is appropriate. We acknowledge the seriousness of insurance fraud and the active role the appellant played in staging the underlying collision in this case. However, even when prosecuted by indictment, the maximum penalty for committing fraud under $5,000 is two years’ imprisonment: s. 380(1)(b)(i). The sentencing judge was right to consider general deterrence in her analysis. However, there were other important considerations, such as the appellant’s admirable rehabilitation prospects, that justified a more restrained approach, one that would have generated a more proportionate sentence: R. v. Chowdhury, 2019 ABCA 205, 89 Alta. L.R. (6th) 80, at paras. 12-14.

[14] We are satisfied that a discharge would be appropriate for the following reasons:

• The appellant has no prior criminal record;
• The appellant entered a plea of guilty;
• The appellant expressed remorse for his wrongdoing;
• No one was hurt during the staging of the collision;
• The appellant’s financial benefit from his part in the scheme was negligible;
• The appellant paid his share of the restitution prior to being sentenced;
• The appellant struggles with unique developmental and psychological vulnerabilities; and
• The appellant’s conviction has had a major impact on his employability. This impact is likely to continue for many years until he is eligible to apply for a record suspension.

Further, the appellant has already served his conditional sentence, without incident.

[15] In the circumstances of this case, the public interest would not be adversely affected by substituting one non-custodial disposition (the discharge) for another (the conditional sentence). Given that the appellant has served his conditional sentence, we see no need for further supervision in the community. Indeed, at the sentencing hearing, the Crown said it was not seeking a probation order to follow the conditional sentence.

[16] Leave to appeal is granted and the appeal is allowed. We impose an absolute discharge.

“Gary Trotter J.A.”

“P. Lauwers J.A.”

“L.B. Roberts J.A.”

Footnote

[1] We note that, even though the Crown sought a conditional sentence, it proceeded by indictment. This election and the ensuing conviction prevents the appellant from applying for a record suspension (i.e., a pardon) for 10 years: Criminal Records Act, R.S.C. 1985, c. C-47, s. 4(1)(a).