Tow truck driver granted “absolute discharge” for his role in staged collision

Ontario’s Court for Appeal has given an “absolute discharge” to a tow truck driver who pleaded guilty to fraud under $5,000 – and served a six-month conditional sentence – for his role in a staged collision that cost two insurers a total of more than $17,000.

The ruling overturned the view of the sentencing judge, who wrote in the original sentencing decision: “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.”

The sentencing judge did not find a discharge appropriate.

The tow truck driver appealed. Essentially, his legal team argued the sentencing judge erred in limiting her discretion to order a discharge on the basis that circumstances had to be “exceptional” to warrant a discharge.

The Appeal Court agreed with the two truck driver, saying the “exceptional” threshold was too high for considering a discharge. “We acknowledge the seriousness of insurance fraud and the active role the appellant played in staging the underlying collision in this case,” the Ontario Court for Appeal ruled. “However, even when prosecuted by indictment, the maximum penalty for committing fraud under $5,000 is two years’ imprisonment….

“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.”

Michael Mills, a tow truck driver, was 31 when he was involved in planning a staged collision of two vehicles on Mar. 23, 2020. He was to help arrange or stage the “accident” with the drivers of the two vehicles; he would tow one of the vehicles from the scene. He made several phone calls to organize the scheme, which was executed successfully and no one was hurt. Mills received a towing fee for his participation.

Both drivers made insurance claims. Police investigating the collision found it had been staged and alerted the insurers. The claims were denied. Still, the insurers suffered losses. The loss to Co-operators General Insurance Company was more than $14,000, while the loss to Assurant Insurance Company was more than $3,000.

Mills’s cut, divided among five co-accused, was $3,540.03.

Mills paid this back in restitution. The court record showed his criminal record significantly impacted his work life. He is now prohibited from tow trucking on major highways (as opposed to city streets), working with the police, and doing jobs for CAA. He had become a tow truck driver in 2017, with no previous criminal record.

The Appeal Court noted the sentencing judge “had the benefit of a Psychological Assessment report, which described several challenges [Mills] has faced. [He] was diagnosed with a learning disability as a child. Cognitive tests reveal a low level of functioning. [Mills] 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.”

Under these circumstances, the Appeal Court found, “the public interest would not be adversely affected by substituting one non-custodial disposition (the discharge) for another (the conditional sentence).”

The court ruled an absolute discharge was warranted based on several factors, including Mills:

• had no previous criminal record
• played a lesser role in the fraud scheme
• pled guilty to the charge
• expressed remorse
• served the conditional sentence, with no complaints about his behaviour during that time
• struggles with unique developmental and psychological vulnerabilities, and
• his conviction had a major impact on his employability

Feature photo courtesy of iStock.com/kozmoat98