Ontario Court of Appeal overturns threshold of exceptionality in sentencing for insurance fraud

Court determined absolute discharge was appropriate after fresh analysis of mitigating factors

Ontario Court of Appeal overturns threshold of exceptionality in sentencing for insurance fraud
Criminal record can severely impact one’s work

The Ontario Court of Appeal has ruled that several mitigating factors in a case of insurance fraud made the imposition of a threshold of exceptionality too heavy-handed in the sentencing analysis on whether a discharge was appropriate.

In R. v. Mills, 2022 ONCA 404, Michael Mills pleaded guilty to committing insurance fraud and sought conditional discharge. Despite having repaid his share in restitution, he was given a six-month conditional sentence.

The sentencing judge did not consider discharge as appropriate in the circumstances. She ruled that there was nothing exceptional in Mills’ case “when viewed through the lens of his particular vulnerabilities and challenges” that warranted discharge despite the seriousness of insurance fraud.

On appeal, Mills argued that the sentencing judge erred by imposing a threshold for exceptionality.

The appellate court agreed.

The Criminal Code, RSC 1985, c C-46 provides that the criteria of imposing a discharge is whether the court considers it to be in the best interest of the accused and not contrary to public interest. Despite engaging in a balancing of these two criteria, the appellate court ruled that the requirement of exceptionality ultimately distorted the sentencing judge’s analysis.

The records revealed that Mills had no prior criminal record. Further, based on a psychological assessment, he was diagnosed with a learning disability as a child, cognitive tests revealed a low level of functioning, and Mills had suffered several head traumas that required hospitalization. Fresh evidence on file also demonstrated that Mills’ criminal record had significantly impacted his work life, since it prohibited him from certain employment opportunities.

After a fresh analysis, the appellate court concluded that discharge was appropriate. While acknowledging the seriousness of insurance fraud and general deterrence, there were other important considerations – such as Mills’ admirable rehabilitation prospects and that he had already served his conditional sentence – that justified a more constrained approach in sentencing, said the court.

Thus, the appellate court imposed an absolute discharge.

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