R. v. Zevallos Date:, 2011 BCPC 313

Citation: R. v. Zevallos Date: 20110919 2011 BCPC 0313 File No: 84557-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDUARDO ZEVALLOS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S.WOODS Counsel for the Crown: R. Fox Appearing on their own behalf: The Accused, E. Zevallos Place of Hearing: Port Coquitlam , B.C. Date of Hearing: September 19, 2011 Date of Judgment: September 19, 2011 [ 1 ] THE COURT : Before the Court is Eduardo Zevallos. He was before the Court earlier this month in the course of a two-day trial of charges against him under s. 42.1 of the Insurance (Vehicle) Act . [ 2 ] I convicted Mr. Zevallos under that

section of having provided misleading information to the Insurance Corporation of British Columbia that was material to a claim that Mr. Zevallos advanced in respect of a motor vehicle accident which occurred on the 29th of March, 2009. [ 3 ] All of the essential elements of the offence were made out against Mr. Zevallos in the prosecution of him by recourse to admissible evidence going to the essential elements of that offence. [ 4 ] Mr. Zevallos, with respect to his claim, claimed for reimbursement and insurance coverage having to do with the damages caused by a motor vehicle accident.

He made three separate false statements. I am simply reviewing this aspect of things to set the stage for giving my reasons for sentence. [ 5 ] Mr. Zevallos falsely and knowingly informed the Insurance Corporation that an independent witness was present at the time of the motor vehicle accident and could speak to the dynamics of the accident in a manner that was favourable to Mr. Zevallos with respect to the issue of fault. That statement was false. Mr. Zevallos knew it was false. The individual, one Kelvin Kwan, was not an

independent witness but rather was a person known to Mr. Zevallos, indeed was a workmate of Mr. Zevallos, and as Mr. Fox has emphasized in his submissions, and as he emphasized in the submissions he made at the conclusion of the hearing on liability, independence in witnesses is important to the Insurance Corporation in dealing with what are often "he said, she said" fact scenarios. In those scenarios, there is often little in the way of independent evidence to assist the Court in determining which of the two accounts of the same facts is true. So Mr.

Zevallos gave false information that was markedly material to the disposition of the claim. [ 6 ] Mr. Zevallos made another statement in the course of dealing with his claim that was false. That was that he was not employed at the time of this motor vehicle accident at issue. That also was false. Mr. Zevallos was a pizza delivery person and had been making his living at that occupation for some considerable time. [ 7 ] Not being employed creates different parameters for disposition of insurance claims and different parameters for insurance coverage and premium setting and so on. [ 8 ] Mr.

Zevallos had his motor vehicle accident on the 29th of March at a time when he was employed. He was not covered for the use of his vehicle during the course of employment and by giving the false statement that he was not employed, he sought to acquire the benefit of indemnity in circumstances where he had not paid the premium associated with the type of risk that his use of his vehicle in the course of employment required. [ 9 ] Mr. Zevallos made a third false statement. He advised representatives of the Insurance Corporation that he was en route to pick up his wife.

He did not get the story quite the same way on two separate tellings; in one case it was to pick up his wife from work and in another telling it was to pick up his wife from a restaurant. Neither of those statements was truthful because the evidence at trial established that he told his employer when he called in to say he was going to be late for his shift that he had had a motor vehicle accident on his way to work . [ 10 ] So there are three false statements presented by Mr.

Zevallos to representatives of his insurer, the Insurance Corporation of British Columbia, during the course of the administration of his claim. [ 11 ] Mr. Fox places emphasis on the fact that, throughout, Mr. Zevallos clung desperately to his false representations about this claim despite being faced with near to incontrovertible evidence that directly contradicted his statements. The investigation of his claim led ultimately to an interview between Mr. Zevallos and Special Investigation Unit representatives in which Mr.

Zevallos was queried about his actions and circumstances on the night of the motor vehicle accident. Opportunities arose for him then to make a truthful acknowledgement of the true facts. Mr. Zevallos held firm to his false statements, even when faced with evidence that plainly established the falsity of his statements. [ 12 ] Mr. Fox submits on behalf of the Crown that this is an aggravating factor that the Court should take into account in imposing sentence. [ 13 ] This is a sentencing that comes on the heels of the conviction of Mr. Zevallos in a quasi-criminal prosecution.

It is not a sentencing brought under the Criminal Code of Canada , but the provisions of the Insurance (Vehicle) Act coupled with the Offence Act create an environment not unlike that prevails in a sentencing under the Criminal Code . [ 14 ] I must sentence Mr. Zevallos in a manner that serves the objectives of sentencing as they are broadly understood. [ 15 ] Deterrence, both general and specific: these two forms of deterrence are important elements in the sentencing equation.

Deterrence of the specific kind is understood to be a feature of sentencing that is intended to visit consequences on the offender that are going to make it less likely that the individual offender will repeat his unlawful conduct in the future. I must sentence in a way that will produce that outcome here if that outcome can be produced. [ 16 ] General deterrence is about sending messages to the public as a whole, that conduct that is unlawful and comes to the attention of law enforcement and ultimately the courts will be treated seriously.

It will be treated in a manner that affirms the value that underlies the charging provisions of the statute that is the source of the charges. [ 17 ] The value that underlies the charging provisions here is that which Mr. Fox for the Crown referred to when making reference to the Eurosport decision. Eurosport is a very well known and well established authority.

As citizens, all members of British Columbia society who operates motor vehicles share in the cost of the provision of a universal scheme of motor vehicle insurance and when false claims are advanced and benefits are conferred upon those who are not deserving of those benefits, all citizens share in the added expense. [ 18 ] It is much the same as the shrinkage that we see in retail sales environments. When people steal things from stores, everybody else pays more for the objects that they buy honestly. By involving oneself as Mr.

Zevallos did in a deception that would, if successful, have conferred upon him indemnity benefits that he was not entitled to receive, all insured motorists in the Province would end up enduring additional cost and expense that they ought not to endure. [ 19 ] The integrity of individual claims is therefore of paramount importance. Insurance adjusters are not witnesses to motor vehicle accidents. They are frequently faced with "he said, she said" accounts of how motor vehicle accidents came to pass (as they were in this case).

They place great reliance on, for example, the existence of independent evidence that will assist in choosing between the two accounts, and when an individual like Mr. Zevallos furnishes false information about the status of a witness, he acts in a manner that is utterly and completely contrary to the expectations of our society as reflected in our scheme of universal motor vehicle insurance. [ 20 ] Denunciation is another part of the sentencing equation. Denunciation, Mr. Zevallos, refers to the objective in sentencing of expressing condemnation of unlawful conduct.

I must sentence you in a way that emphatically expresses society's disapproval, and the Court's disapproval, of your unlawful conduct. So the sentence must denounce unlawful conduct just as it must seek to deter future instances of unlawful conduct, both on your

part individually and on the part of individuals as a whole.

[ 21 ] There are various other objectives of sentencing that all figure in one way or another in sentencing decision making, but those are the two features of the menu of sentencing objectives that in my mind loom the largest here: deterrence and denunciation. [ 22 ] The legislature of this Province has provided for a range of sentencing options in cases of this kind. I am permitted under the relevant Insurance (Vehicle) Act sections to impose a sentence up to two years in prison and a fine of up to $25,000 or both. [ 23 ] The Crown has not alleged a record.

I understand this to be your first offence and I am entitled to take account of that fact. I am entitled to take account of all that you said to me in the course of your submissions. In a somewhat generic way, you expressed your regret and your remorse for your unlawful conduct. [ 24 ] Mr.

Fox wishes me to attach some significance to the fact that you did not give precise detail as to what it is that you regret and that you feel remorseful about. [ 25 ] I accept your generic references to your remorse and your regret as implicitly telling me that you regret making false statements to the Insurance Corporation for the purpose of securing a benefit for yourself to which you were not entitled. So I am not going to place any significance particularly on the fact that you expressed yourself in a generic way.

I understand your expressions of remorse to be properly focused upon the conduct that has resulted in your conviction. [ 26 ] Mr. Fox also was at pains to emphasize the fact that you had many opportunities all the way along from the time of the motor vehicle accident occurring up to the time of trial to step off the pathway that you have taken and acknowledge your unlawful conduct. He stresses that that is an aggravating factor and I view it as aggravating. [ 27 ] If you had entered a plea of guilty, you would have spared the Crown the expense and inconvenience of advancing its case before the Court in a trial.

If you had entered a plea of guilty you would have spared the witnesses the inconvenience that they had to endure. [ 28 ] I hasten to say that you have a right to defend a claim and nothing should be seen to take that away or qualify it but when you were found guilty in circumstances such as these you are not entitled to the benefit of an argument that a sentence should be mitigated by reason of the entry of a guilty plea that has the effect of limiting the expense and inconvenience to others.

So there is no mitigating argument available to you that might be available to a person who pleads as opposed to one who has charges tried. [ 29 ] Mr. Fox for the Crown invites the Court to impose sentence consisting of two elements: one day in conventional custody coupled with a $2,000 fine. [ 30 ] Taking all of the material that has been placed before me, including the authorities that have been handed up by Mr.

Fox, the Eurosport , supra , decision and the Mustafa decision that bears in some respects a close resemblance to this case, my determination in this individual case (which must be approached individually) is that the appropriate sentence to impose upon you Mr. Zevallos is a one day period in custody, and a $1,000 fine. [ 31 ] I am not imposing the fine at the level that Mr.

Fox suggested I impose, but rather at 50 percent of the $2,000 suggested quantum in recognition of the fact that there have already been some financial consequences, extra-judicial financial consequences to you, that ought to have some of the same deterring effect that a $2,000 fine might have had. [ 32 ] My purpose in imposing the fine is not to cripple you financially, but to visit upon you a consequence that is meaningful and is going to serve the objectives I have referred to. [ 33 ] There is something known as the victim fine surcharge which amounts to 15 percent of any fine. That would be another $150.00.

You are going to have to pay that as well because I have no jurisdiction to waive it. That victim fine surcharge funds programs for victims of crime that are very valuable and important. That money goes to a very worthwhile use in terms of assisting those who are the victims of crime in coping with and dealing with the aftermath of crime. [ 34 ] You are in somewhat challenged financial circumstances, Mr. Zevallos, and I want to be mindful of those circumstances in imposing a timeframe within which you must pay your fine.

Knowing that it is a $1,000 fine plus a $150.00 for the victim fine surcharge, sir, tell me what you would say realistically is a time horizon within which you could pay that in full. [ 35 ] THE ACCUSED: Right now, realistically if I could ask for one year. [ 36 ] THE COURT: I will give you a year, then, Mr. Zevallos, to pay that fine. [ 37 ] I will not put any conditions on it in terms of instalment payments and so forth. It will be to you to decide how to structure your affairs such that you can ensure that that fine is paid in full within a period of a year.

As to how you go about paying it, that is within your discretion. This is not part of the sentence, but just a piece of gratuitous advice. It might be very sensible for you to start setting some money aside each month and making instalment payments so that you do not find yourself closing in on a deadline with a large amount outstanding and some difficulties determining where you are going to find the money. But that is entirely up to you.

It would be open to you in this situation to reserve payment of any amount of the fine until the last day if that is what you choose to do, but understand there are risks in proceeding in that fashion and that there are corresponding benefits in chipping away at it a bit at a time. [ 38 ] Mr. Zevallos, the deadline for paying your fine in full, coupled with the victim fine surcharge, so $1,150 altogether, is Friday, September 28th, 2012. (ORAL REASONS FOR SENTENCE CONCLUDED)