Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 09 27 COURT FILE No.: Newmarket20-09950

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TEANNA MAY YOUNG

Before: Justice David S. Rose

Heard on: July 2, September 2, 24 2021 Reasons for Judgment released on: September 27, 2021

Counsel: Ms. C. Pakosh..................................................................................... counsel for the Crown Mr. H. Mattson..................................................... counsel for the accused Teanna Young

ROSE J.:

Endorsement

[1] Ms. Young pleaded guilty before me to the charge of Fraud Over $5000. She asks that a Suspended Sentence be imposed. The Crown asks for a 12 month Conditional Sentence.

[2] Ms. Young was arrested as part of the Project Platinum investigation, which targeted corrupt tow truck operators and their various extensions into the car repair, rental and physiotherapy service providers.

[3] Indeed, on March 20, 2020 Filippo Genova, who was a principal target of Project Platinum, was heard on the wiretaps calling other co-accused to see whether a car crash could be organized. The agreed statement of facts on this case includes Mr. Genova saying, “Cause we…no, we loaned her the money, you know what I’m saying… [L]ike we loaned her money to put her car back on the road …[I]t’s been insured, everything. She was just like she had to pay for a payment, you know what I mean?” The car was described as a 2014 Ford Fiesta with “full coverage”.

[4] Genova continued on , “Make her take the fault and give her fuck all Joe (ph).”

[5] All of these comments were made in reference to Ms. Young. Ms. Young’s bank records were put into evidence in this sentence which confirm that she received a $1000 cash deposit into her account on March 18, 2020. Her bank account had only $9.50 before then. Later that day a debit for her car lease was paid in the amount of $818.02.

[6] Mr. Genova was later heard on the wiretaps saying, in reference to Ms. Young,“[R]emember how I told you about the girl’s finance? She owed a thousand bucks or they’d repo the car?... [N]ow she wants to like get rid of the car… [S]o we gave her a thousand bucks and like”.

[7] On March 23 in the early evening Mr. Genova was again captured on the wires arranging the time for the staged collision, with Mr. Mills asking Mr. Genova if 8pm was okay. Genova replies, “ [W]e’re not trying to chill with this bitch for fuckin’ two hours .” Mills replied, “ [B]ro, you, it sounds like you’re gonna have to chill with this bitch for two hours .” Mills explained the collision could not happen at 6:30pm, “ [B]ecause ah his sister’s not around until fucking later”

[8] At 6:42 pm Mr. Genova spoke with Mr. Mills and the driver was also to be involved in the staged crash, Amirhoseein Samiezadeh. Genova gave them instructions on how to communicate so that there were no phone records.

[9] On March 23 at 8:10 pm York Regional Police attended at Steeles Avenue West and Hilda Avenue to investigate a motor vehicle collision which had reportedly occurred at 7:38pm. It involved Ms. Young’s 2015 Ford Fiesta and a 2018 Mercedes Benz, drive by Amirhoseein Samiezadeh’s sister Homa. Ms. Young told the police that she was exiting a driveway and hit the Mercedes. That wasn’t true. Whatever happened, there was nothing accidental about the two motor vehicles colliding that evening. While the damage to the Fiesta was easy to document, the damage to the Mercedes was unclear. The car had been partially dismantled by the time the insurance investigator could examine it, so its initial condition was impossible to determine, and the reason why it was so dismantled equally unclear.

[10] Ms. Young made an insurance claim for her Fiesta, which was a write off. The lessor was paid out in the amount of $10,625.59. There were other claims borne by the insurer: $3,424.07 for the engineer’s report, and an appraisal fee of $265.99. The Fiesta ended up with a negative salvage value, meaning that the insurance company had to pay a firm to take the car. The Mercedes suffered damages of unknown origin. A claim for $64,605.69 was made on that car but the claim was denied.

[11] Mr. Mills was the tow truck driver involved with the collision who was tasked with finding the driver to be involved with a fake collision. He made some restitution when he pleaded guilty.

[12] I was told that the net restitution owing by Ms. Young is now $10,900 and that she has paid none of it back.

[13] The Agreed Statement of Facts from this guilty plea permit me to find that Ms. Young borrowed money from Mr. Genova’s group to get her car on the road. They then arranged for her to be involved in a staged collision so that they would profit from the crash. Ms. Young would then be freed from her obligation to carry the lease on the Fiesta. The bank records, and PSR show her to have limited to no financial means, and no present ability to elevate herself.

[14] The Pre-Sentence prepared for Ms. Young reveals that she is 27 years old with two children. She does not have custody of either of her children. One is with her father, and one is with her ex-partner. As Mr. Mattson explained to me, Ms. Young cannot afford to both work as a Personal Support Worker and also have her children. Ms. Young has had a transient life since her teen yeas when she left home. She has spent time both at her parents house during her adult years, and also in a shelter. Ms. Young’s mother described her teenage years as tumultuous, getting mixed up with the wrong crowd. She has a grade 11 education, and $50,000 in debt to the Canada Revenue Agency, which apparently disqualifies her for student loans to upgrade her education. She currently works full time as a home care assistant.

[15] When Ms. Young was arrested in June of last year she tried to commit suicide by overdose. She was placed on a Form 1 because of her history of suicide and self-harm. The Pre-Sentence Report documents her treatment by a physician for depression, anxiety and panic attacks and suicidal ideations. She asked her physician for a mental health assessment in August of 2021 but could not complete that consultation because of her work obligation. The pre-sentence report also documents her genuine remorse. She has supportive parents. Her father told the Pre-Sentence Report writer that her daughter needs to be accountable for this but he still wants the best for her and keep her moving her life in a positive direction. The Pre-Sentence Report also documents Ms. Young’s relative isolation. She has few friends in the community.

[16] I would identify the following aggravating factors which must be reflected in Ms. Young’s sentence: She played an important part in the fake accident scheme. She was in no way an executive in the ranks of the overall conspiracy, but she stood to benefit by being relieved of car payments that she could not afford. This appears to be what happened. The car crash itself involved some form of collision. That itself involves some form of public risk of injury, although there is no evidence that emergency personnel intervened in the same way as destruction of a car by arson. What exactly happened is unclear. A fake car crash like this is a form of public fraud. Insurance losses are passed on to the broader insured public in the form of higher premiums. It is not victimless. It is also aggravating that there was some planning on the part of Ms. Young. She showed up early, and discussed how to stage the accident so as not to engage the GPS which was installed in her car.

[17] There are many mitigating factors. Ms. Young is youthful, has no criminal record, pleaded guilty and is genuinely remorseful. Her role in the incident, while important as the car owner, is somewhat mitigating insofar as Mr. Genova spoke of her on the interceptions in disparaging terms. It is mitigating that she had to borrow $1000 from the organizers in order to participate. That, the Pre-Sentence Report, and Mr. Mattson’s submission that Ms. Young is saving up enough money to get custody of her children back, lead me to conclude that Ms. Young is financially vulnerable. She works, but she has considerable debt, and no real way to get out of the working poverty trap. It is also mitigating that Ms. Young has documented mental health challenges. She is also vulnerable in that sense.

[18] Based on the material presented to me I find that Ms. Young has good prospects for rehabilitation. She works hard, has family support, and I do not believe she has the slightest interest in a criminal lifestyle. Indeed, I think she genuinely wants to get back on her feet, re-establish her custody with her children and move on.

Sentencing Principles

[19] Ms. Young actively participated in a fraud which resulted in thousands of dollars of loss. It is a public fraud. No restitution has been paid. Denunciation and deterrence are principle factors in an appropriate sentence. Rehabilitation, while not the principle factor here is still important. Sentencing is an individualized process which must take into account the offender’s level of responsibility and prospects for rehabilitation. A fit sentence must also take into account parity as between those offenders who are similarly situated in the same case, and against other offenders similarly situated in other cases.

[20] In this very case Mr. Mills received a 6 month conditional sentence. He was the tow truck driver who was more involved as an organizer of the staged collision. His intercepts show him to be quite familiar with Mr. Genova’s business.

[21] In another staged accident, Inderjot Singh received a 9 month Conditional Sentence. He too was a car owner who had his car destroyed because he could not afford the payments, but his car was destroyed by an arson arranged by Mr. Genova, requiring emergency intervention at the roadside. Mr. Singh’s Mercedes-Benz C 300 was destroyed by fire one month after Ms. Young’s fake car crash.

[22] I find that there is some parity between Mr. Mills, Mr. Singh and Ms. Young. Mr. Mills was part of the organizers of the crash. Mr. Singh’s car was destroyed by the same people for the same reason, but the immolation of his car posed a greater public danger than Ms. Young’s crash. Ms. Young’s moral responsibility is therefore different than Mr. Mills or Mr. Singh.

[23] Based on the foregoing a fit sentence for Ms. Young is a 6 month Conditional Sentence. She will be subject to a house arrest condition for the first two months, and a curfew for the second two months. I intend to impose exceptions for the purpose of going to and from, and while at work, while at counselling and for the purposes of pre-arranged custody visits with her child who is in the custody of her ex partner. I would appreciate submissions from counsel on other appropriate terms.

Restitution Order

Is a stand-alone restitution order appropriate or will it perpetuate the cycle of poverty to the extent that it would make the sentence disproportionate ?

[24] Defence and Crown both joined on the appropriateness of a Restitution Order in the amount of $10,900 to compensate the insurance company for its loss. I invited submissions on the appropriateness of that, because I had concerns about whether that was in the public interest. Mr. Mattson was candid that he does not, as counsel, resile from a joint submission, but that he did not otherwise think that a restitution order was appropriate. Ms. Pakosh, was equally candid that she was not holding Mr. Mattson to his agreement on the restitution order component of the sentence.

[25] Ms. Pakosh maintains that a stand alone restitution order is appropriate. She argues parity, insofar as both Mr. Mills and Mr. Singh both paid restitution, which was taken into consideration in sentencing.

[26] A joint submission is only to be rejected if it is not in the public interest, namely if it would bring the administration of justice into disrepute or is otherwise contrary to the public interest. A joint submission should not be rejected lightly, particularly where it has been arrived at by experienced counsel who have spent considerable time coming to such an agreement, see R. v. Anthony-Cook 2016 SCC 43. When a joint submission includes an ancillary order which is overly restrictive the sentencing judge has a discretion to vary the ancillary order to the benefit of the offender, see R. v. M.C. 2020 ONCA 510.

[27] Restitution orders are applied under s. 738(1) of the Criminal Code. The factors which determine the appropriateness of their imposition are referred to in R. v. Devgan (1999), 136 C.C.C. (3) 238 (C.A.).

[28] Notably, a restitution order is part of a sentence and therefore subject to general sentencing principles, see R. v. Castro 2010 ONCA 718 at par. 21 where Justice Weiler said,

21 Section 738(1)(a) governs the making of restitution orders when money has been taken. It gives the court discretion to order the offender to make restitution by paying the victim "an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned ... where the amount is readily ascertainable".

22 A restitution order forms part of a sentence. In accordance with general sentencing principles, a restitution order is entitled to deference and an appellate court will only interfere with the sentencing judge's exercise of discretion on the basis of error in principle or if the order is excessive or inadequate: see R. v. Devgan (1999) , 136 C.C.C. (3d) 238 (Ont. C.A.), at para. 28.

23 A restitution order should not be made as a mechanical afterthought to a sentence of imprisonment: R. v. Siemens (1999) , 136 C.C.C. (3d) 353 (Man. C.A.) , at para. 10. Care must be taken not to simply add a restitution order to a sentence of imprisonment which, in itself, is a fit punishment for the crime, as this can amount to excessive punishment and offend the totality principle.

Emphasis added

[29] This must be balanced by Parliament’s clear direction that the offender’s ability to pay a restitution order is not a bar to its imposition, see s. 739.2 of the Code. The question may then be framed as whether the impecuniosity of the offender should exclude an order under s. 738 as part of the sentence? Justice Weiler’s direction that imposition of an Restitution Order not be made as a mechanical afterthought is quite clear.

[30] My concern about a stand alone restitution order is that it will perpetuate the cycle of poverty which Ms. Young finds herself in. I am faced with an offender who has a job as a personal support worker, two children which she cannot afford to take custody of, and no independent living circumstances. She has considerable debt. Based on these facts I find that Ms. Young is a working person of extremely limited means. The phrase ‘working poor’ is appropriate. Short of winning the lottery, a stand alone restitution order will simply be one more reason why debts stand in the way of rehabilitation.

[31] This case is one of public fraud. The insurance loss will be passed on to the public. That is the reason the case cries out for a custodial sentence, albeit a conditional sentence.

[32] Joint submissions are entitled to deference. But with that said, I find that a stand alone restitution order in this case would not be in the public interest and, insofar as this portion of the sentence is a joint submission I reject it. In order to be a fit sentence, and reflect the rehabilitation principle which is important, a restitution order would perpetuate the cycle of poverty which now has Ms. Young. The combination of mental health challenges, difficult home conditions, and vulnerability makes the poverty cycle “...exceedingly difficult to escape for even the most capable members of this demo­graphic”. See Overlooking the (Not So) Obvious: The State and Ramifications of Regulatory Mandatory Penalties on the Low Income and Impecunious Demographic (Part 1) by Jaime Mor RegQuest 07-02-02 February 2014.

[33] When rehabilitation is a factor in sentencing it is particularly important to look beyond the obvious. No sentence can provide Ms. Young with the financial means to get on her feet. That is not the purpose of sentencing. But equally true is that it must avoid imposing orders which are not mandatory but discretionary and seek only to ensure continued impoverishment. It may well be argued that failure to impose a restitution order means that crime does pay. I reject that argument. In this case the victims are the broader public. No individual or vulnerable victim is affected. The insurance company will not have the ability to hold a restitution order to potentially get their losses back so as to in turn pass along the restitution to the insured public. But at the same time the fraud is punished by a Conditional Sentence of Imprisonment. The public interest in denunciation and deterrence is answered by Ms. Young serving that sentence.

[34] For these reasons I will not impose the restitution order. To do so would offend the totality principle.

Conclusion and Probation Order

[35] In submissions I was told that Ms. Young requests a Probation Order to assist her with her rehabilitation. I tend to agree that the rehabilitative component of this sentencing cries out for a Probation Order. Therefore, once Ms. Young has completed her Conditional Sentence she will report to a Probation Officer by telephone within 48 hours, and thereafter as required. She will take counselling as directed by the Probation Office and complete such necessary forms to enable the Probation Officer to confirm that she has registered for, attended, and completed such counseling to the satisfaction of the Probation Office. Her Probation Period will last 12 months.

Released: September 27, 2021 Justice D.S. Rose