r v. Aram TCHITOUNI, 2018 QCCQ 7129

R. c. Tchitouni 2018 QCCQ 7129 JT1383 COURT OF QUÉBEC CANADA PROVINCEOFE QUÉBEC DISTRICT OF MONTRÉAL Criminal Division N° : 500-01-142251-161 DATE : September 24, 2018 ______________________________________________________________________ PRESIDING : THE HONOURABLE CHRISTIAN M. TREMBLAY, Q.C.J. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

Aram TCHITOUNI Accused ______________________________________________________________________ WRITTEN VERSION OF THE SENTENCE RENDERED VERBALLY ON SEPTEMBER 21, 2018 [1] ______________________________________________________________________ I. GUILTY PLEA [ 1 ] The accused has pleaded guilty to a count of theft against his former employer the Jewish General Hospital of Montreal. In fact, many thefts occurred between September 1 st , 2015 and January 18, 2016 and it concerns medical equipment of the Ophthalmological Department. The value of what was stolen exceeds $5,000.00. II.

CONTEXT [ 2 ] A statement of facts is signed by the accused (exhibit S-1). Here are the facts admitted by the accused: ➢ Mr. Aram Tchitouni was an employee of the Jewish General Hospital for approximately 10 years. ➢ He used to work on week-ends, in the Main Operating Room (O.R.), and he had access to everywhere, including the stockrooms areas, during his work shifts. ➢ He admits that he stole some medical equipment from the Jewish General Hospital, on several occasions, for a period of 5 to 6 months, between September 2015, and the end of January, 2016.

When he had a chance he would take the keys and go to the ophthalmology storeroom, take small items from the medical equipment, put them in his backpack, and go back to work. ➢ He then tried to sell the stolen items on EBay. ➢ The Jewish General Hospital conducted an investigation at the beginning of 2016, following complaints from other employees, who had noticed the disappearance of medical equipment from the storeroom. The investigation led the Hospital Representatives to believe that Mr. Tchitouni was responsible for the situation.

More specifically, one of the employees found out that some of the missing ophthalmological equipment were posted for sale on an EBay account linked to Mr. Tchitouni’s email address. ➢ On February 5, 2016, Mr. Tchitouni was suspended without pay. On February 11, 2016, he was met by representatives of the Jewish General Hospital, and he admitted to having stolen medical equipment from his employer. He was dismissed shortly after this meeting. ➢ The hospital states that Mr.

Tchitouni stole a large quantity of various items, some of them being very expensive medical equipment, and evaluates the total amount of thefts up to $80,188.55. ➢ Although he admitted having stolen equipment from the hospital, Mr. Tchitouni maintains that he was always taking a small quantity of items at a time, since he used to hide them in his backpack, and also because he didn’t want his co-workers to notice that stock was

missing from the storage room (it would have been obvious if, each time, he had taken many boxes and instruments). Therefore, he is perplexed about the Hospital allegations that he would have stolen so many items in a relatively short period of time, and should be held responsible for such a big loss. However, he is ready to accept that he doesn’t know neither the exact quantity of equipment that he stole, nor the value of the specific items. He also states that he had no idea that some of them were so expensive. III.

RESPECTIVE POSITION OF THE PARTIES [ 3 ] Both parties consider imprisonment should be imposed to Mr. Tchitouni. The issue concerns the duration. [ 4 ] The Crown considers a detention of one year with a probation order for an additional two years is justified in this case. [ 5 ] The Defense has a different point of view. An intermittent sentence of imprisonment of 90 days is suggested followed by a probation order for three years including 240 hours of community service to be performed and a partial refund of the loss suffered by the Jewish General Hospital. IV.

THE VALUE OF THE MEDICAL EQUIPMENT STOLEN [ 6 ] Before determining the appropriate sense, there is another issue the Court has to resolve. The accused admits the value of the stolen equipment exceeds $5,000.00 but he has serious doubts about the hospital’s claim who considers the lost is over $96,000. [ 7 ] The Crown asked the head nurse of the Operating Room of the hospital, Mrs. Christina Nagy, to testify about the inventory stolen by the accused. [ 8 ] Mrs. Nagy has more than 26 years of experience at the Jewish General Hospital.

She testified with regards to the hospital’s general administration and more specifically its various inventory practices. [ 9 ] In order to calculate total missing inventory, she relied on two computer inventory programs who compile items purchased, items used, as well as items discarded. These programs are very accurate. They indicate the exact inventory that should be physically present on the shelves. Mrs. Nagy compared these results to the physical inventory on the shelves. Two spreadsheets were filed as exhibit SP- 1. One concerns the items missing. The second one concerns the value of missing items.

The total value of the inventory stolen added up to $96,422 according to her verifications. [ 10 ] Mrs. Nagy also testified that some items, because of their expensive and specialized nature, bear a manufacturer serial code that must be registered when used, which implies that they were not used or discarded, but were stolen. [ 11 ] She confirmed no camera filmed inside the storage room where the inventory was kept. [ 12 ] The witness was also very clear. After the accused was fired, no further inventory irregularities were noted. [ 13 ] Mr. Tchitouni briefly testified.

He insinuated that other employees must have been stealing from inventory as well. Personally, he was looking for small items he put inside his backpack. [ 14 ] The Court considers Mr. Tchitouni has no solid basis for letting understood that other employees have also stolen inventory. It is only speculation coming from him. [ 15 ] Mrs. Nagy’s testimony was credible and reliable. She was clear. She made herself the verification. The two programs she used are accurate. Mr. Tchitouni failed to contradict Mrs.

Nagy’s testimony. [ 16 ] The Court considers the Crown proved beyond reasonable doubt the accused is responsible for a loss who exceeded $96,000.00. V. OBJECTIVE GRAVITY [ 17 ] This offence is punishable by a 14 years jail sentence (s. 334 (

a) Cr.c .). This means it is a very serious offence. VI. RELEVANT LEGAL PRINCIPLES [ 18 ] It is not an easy exercise to impose the appropriate sentence to an individual who had been found guilty of having committed a specific crime. Sentencing is a delicate art [2] . [ 19 ] The legislator has adopted different rules to guide the courts who are responsible to impose a sentence. The fundamental principles of sentencing are codified in sections 718 and following of the Criminal Code .

Section 718 stipulates: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and

(

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 20 ] Justice Wagner wrote in R. v. Lacasse [3] : [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account.

Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.) : It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. [ … ] .

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]. [ 21 ] The proportionality is fundamental (s. 718.2 Cr. c.). Justice Wagner insisted on this fundamental principle in Lacasse : [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. […]. [ 22 ] The Court shall also take into consideration the following principles:

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender (s. 718.2 (

a) Cr. c .);

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2 (

b) Cr. c .). [ 23 ] In the decision Lévesque c. PGQ [4] , the Quebec Appeal Court established the criteria to measure the intrinsic responsibility of the offender in a case where fraud is the offence.

These criteria are also relevant in a case of theft: ➢ nature and extent of fraud (or theft); ➢ degree of premeditation; ➢ offender behavior after the commission of the crime; ➢ criminal history; ➢ the personal benefits taken by the offender; ➢ the authoritative character and the bond of trust preside over the offender’s relationship with the victim; ➢ the underlying motivation; ➢ the appropriation of public funds reserved for the assistance of people in difficulty. [ 24 ] Few years later, these factors were taken in consideration by the Appeal Court in R. c. Juteau [5] . VII.

THE PROFILE OF THE ACCUSED [ 25 ] A presentencing report sets out the background and profile of Mr. Tchitouni (exhibit S-2

a) and b)). This report is mixed. [ 26 ] The accused is 45 years old. He arrived in Canada in 1999 when he was about 27 years old. Before he lived in Soviet Union. He has been a Canadian citizen since 2004. [ 27 ] He lives alone. He has one adult daughter that he no longer supports. [ 28 ] Since September 2017, Mr. Tchitouni has been working full time at the Manoir Fleury as a beneficiary attendant. He receives about $1,590 every month. He has to pay around $835 per month for his residence. [ 29 ] About his health, he has an anxiety problem he tries to control with medication.

This problem started when he was about 20 years old. [ 30 ] Mr. Tchitouni said he grew up in an environment where he was a victim of racism and was socially affected by a context of considerable political change, violence and alcohol consumption. The family ties were little developed, which seems to have caused emotional deficiencies. These social and family circumstances contributed to the development of invasive negative emotions and lax values, leading to a propensity to drink alcohol as a teenager and to surround himself with peers belonging to the underworld.

He came in Canada to escape this negative environment. [ 31 ] After he obtained the refugee status and he took steps in order to find his daughter, he experienced a succession of losses and significant events leading him to sink into a depressed states. Dr. S. Shuldiner confirmed his following Mr. Tchitouni since 15 years for this problem and other health problems (exhibit SD-4).

[ 32 ] His overwhelming feelings of loneliness and anxiety fuelled his problematic use of alcohol as well as behaviour similar to self- mutilation. As he had to deal with persistent depressive and anxious symptoms, although he tried to obtain appropriate medication prescribed by his physician, Mr. Tchitouni accumulated emotions and became reclusive. He also reduced the number of hours he worked at the Jewish General Hospital. [ 33 ] It is in this context of financial insecurity, isolation, accumulation of negative emotions and need for psychological help that Mr.

Tchitouni committed the offence. [ 34 ] During the interview, Mr. Tchitouni acknowledged committing the offence for which he has been charged. Although he expresses regrets for his actions, they seem to be the result of the personal consequences he is facing. In fact, Mr. Tchitouni tried to justify and trivialize, claiming that the theft of medical equipment was common place in the hospital.

He attributed the thefts to the line of profit in a context of a precarious financial situation caused by excessive alcohol drinking and depressive emotions that led him to reduce his working hours. [ 35 ] The probation agent confirms Mr. Tchitouni has shown cooperation and openness, although he has filtered some information. [ 36 ] The Court considers her assessment which reads as follows: Mr. Tchitouni is a man with emotional deficiencies, who claims to be struggling with a constant uneasiness and who tends to blame others for his misfortunes.

Moreover, he has traits of immaturity as well as a need for recognition. Demonstrating difficulties in expressing his needs and limitations, he also tends show non-conformist and even self-destructive behaviours. Also, we feel that Mr. Tchitouni presents opportunistic traits and that his values are more lax than he shows. As for Mr. Tchitouni’s social network, when his criminal actions were exposed, he lost contact with his associates, who were also his co- workers. Having no contact with his ex-wife and having fled his social network in Russia, his current support network is limited and little used.

Although her sister and his daughter, who are also residents of Canada, are present, Mr. Tchitouni seems little interested in the help they offer. After committing the offence, and before the beginning of the judicial process, Mr. Tchitouni claims he stopped drinking alcohol and hasn’t drunk ever since. Nevertheless, our information leads us to doubt this statement. He also claims to continue taking the medication prescribed by his family doctor, whom he sees every six months. In September 2017, he found a job as a beneficiary attendant in a seniors’ residence and seems to be enjoying it.

Being active at work, his financial situation improved, according him. On the other hand, Mr. Tchitouni has made positive changes that appear to be sustainable. This is his first criminal offence and he shows an appropriate level of awareness of his difficulties. On the other hand, we remain puzzled about his transparency and more specifically about its sobriety. Mr. Tchitouni tends to accumulate dissatisfaction, remains isolated and is little equipped to manage his negative emotions, which are likely to generate a ripple effect on the other factors that led to his criminal behaviour.

Thus, we cannot rule out the risk of recidivism at this time. VIII. THE INTRINSIC RESPONSIBILITY OF THE ACCUSED [ 37 ] As mentioned above, the Court must measure the intrinsic responsibility of Mr. Tchitouni [6] . Our Appeal Court established eight criteria:

a) The nature and extent of the loss : In the instant case, the value of equipment stolen is over $96,000 which is an important loss;

b) The degree of premeditation : The thefts were carried out over a long period of time (four months according to the information, but five to six months according to the statement of facts signed by the accused). He went into the storage room at many occasions and stolen many items. He took the time to list and describe the items online (eBay). He also arrange shipment to the purchaser;

c) Post delictual conduct : After thefts have been discovered, Mr. Tchitouni admitted the crime and he returned one item, but he continues to deny the extent of his criminal activities and he trivializes the importance of what he did. He also never attempted or offered to reimburse the hospital (except during the audition concerning the sentence).

d) Prior criminal convictions : Mr. Tchitouni has no criminal record;

e) Personal benefits : He committed these thefts for his own benefit;

f) Abuse of authority and position of trust : Mr. Tchitouni stolen his employer;

g) The underlying motivation : The pre-sentence report confirms the following context: financial insecurity, isolation, accumulation of negative emotions, gradual lack of interest for work, rapid gain, intellectualization of his actions, feeling of impunity and elastic values motivated him to commit the offence.

h) The appropriation of public monies reserved for the assistance of people in difficulty : We have to adapt this criterion to this context because there was no people in difficulty but surgical and ophthalmological equipment was meant to people with health problems. This equipment was stolen from a hospital funded with taxpayer’s money. [ 38 ] Giving due consideration for each of these criteria results in the inescapable conclusion that Mr. Tchitouni’s criminal responsibility is very high. IX. AGGRAVATING CIRCUMSTANCES

[ 39 ] The very circumstances of the commission of this offence are aggravating: ➢ he was a mature adult; ➢ the lost is important; ➢ the abuse of trust of the employer; ➢ the planification of thefts; ➢ he repeated the offence many times; ➢ he stolen equipment bought with the public money; ➢ it was for his personal benefit; ➢ the accused did not fully accept his responsibility; ➢ he does not consider it was a serious offence; ➢ there is a risk of recidivism. X.

MITIGATING CIRCUMSTANCES [ 40 ] Here are some mitigating factors: ➢ he admitted the facts after his suspension by his employer; ➢ he pleaded guilty to the offence, but it was the day of the trial the evidence against him was overwhelming; ➢ he has no prior criminal conviction, but this factor has a relatively low weight here given the importance of the objective of denunciation and deterrence; ➢ he found a new job despite his legal troubles; ➢ he expressed regrets for his actions but it seems to be the result of the personal consequences he is facing; ➢ he had psychological problems when he committed these thefts, but since he was arrested he did try seriously to solve his difficulties; ➢ he offered to reimburse the victim, but at the last minute and in the context of an intermittent sentence with probation order he anticipates to obtain.

XI. CASE LAW [ 41 ] As the Supreme Court says in Lacasse [7] : [53] (…) Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (

a) and (

b) of the Criminal Code . [ 42 ] Now, let’s look at what the jurisprudence teaches us. In their volume concerning the sentence, professors Parent and Desrosiers summarize the case law as follows [8] :

a) If mitigating factors are important (ex. young offender, no prior convictions, guilty plea, cooperation with the justice, reimbursement, no risk of recidivism): unconditional or conditional discharge, (s. 730 Cr. c .) conditional sentence of imprisonment (no more available since November 20, 2012, see s. 742.1 f) (viii) Cr. c .); suspension of the passing of sentence (s. 731 Cr. c. ).

b) If mitigating and aggravating factors are equivalent: six months to two years less one day of custody but also possibility of conditional sentence of imprisonment (before November 20, 2012, see s. 742.1 f) (viii) Cr. c .) and suspension of the passing of sentence (s. 731 Cr. c. ).

c) If aggravating factors are important (ex. breach of trust; premeditated wrong doing; repeated theft over a long period; disastrous consequences for the victim, no remorse and no positive perspective emerges from the presentencing report): custody between 8 months and 60 months. [ 43 ] The Crown invokes few decisions [9] to support their suggestion. It emerges from these decisions it is important to impose a sentence that put forward the principles of denunciation and deterrence.

The offence normally commands a jail sentence. [ 44 ] In order to demonstrate that a sentence may be lenient, the defense invokes four decisions. The Court examined these decisions and has few comments concerning each decision. [ 45 ] In R. c. Tétreault [10] , Justice Beauchemin imposed an intermittent sentence of imprisonment of 90 days to Mrs. Tétreault who pleaded guilty for two offences: a fraud exceeding $5,000 and a breach of trust by public officer. On a period of three years, she defrauded her former employer the municipality of Sainte-Christine.

Justice Beauchemin did not retain the suggestion of the defence to impose a conditional sentence of imprisonment. She considered the intermittent sentence of imprisonment of 90 days for the following reasons:

[56] Cela étant, le Tribunal n’est pas sans savoir qu’une peine d’incarcération ferme continue de l’ordre de celle réclamée par la poursuite (15 mois) aurait des répercussions drastiques sur l’emploi qu’occupe présentement l’accusée, sans compter le fait qu’elle soit le seul soutien de la famille, son mari étant sans travail (au moment de l’audience sur la détermination de la peine). [57] Le fait qu’elle ait la charge de son fils mineur (dont le père s’est désinvesti à la naissance) est un autre élément qui m’amène à favoriser une peine plus clémente que celle qui aurait pu être autrement justifiée, n’eût été l’existence de ces deux facteurs atténuants. [ 46 ] In R. c.

Hellstrom [11] , Justice Chevalier pronounced a conditional discharge for a theft of $80,000. The victim was the former employer of Mr. Hellstrom. What is important to remember here is the importance of mitigating factors. The context of the crime is well described by Justice Chevalier: [14] La mafia asiatique de Calgary qui lui avait prêté l’argent réussit à le retracer, exige le remboursement, le menace et éventuellement, en lui montrant des photos de ses enfants montant et descendant de l’autobus scolaire, menace de s’en prendre à eux s’il ne paie pas.

Ne voyant alors pas d’autre issue, l’accusé, de l’automne 2007 à l’automne 2008, détourne l’argent comptant que lui remettent des clients de son employeur et réussir à rembourser les 80 000,00 (sic). [ 47 ] Mr.

Hellstrom committed the offence not for his personal benefit but to save the life of his children who were threatened by Asian mafia. [ 48 ] The personal interest of the accused came from a job he had in United States and the second job that required a security certificate [12] . [ 49 ] The two other decisions come from Ontario Superior Court of Justice [13] and Territorial Court of Yukon [14] . [ 50 ] In Mason , Justice Broad imposed a sentence of four months in custody for a theft committed by the accused. The former employer suffered a loss of around $22,000.

Justice Broad made the following comments concerning intermittent sentence: [44] I am not satisfied that the period of incarceration of 90 days or less, served intermittently, would satisfy the direction repeatedly given by the Court of Appeal, and by appellate courts across Canada, that in cases involving theft or fraud in a trust situation, the principles of denunciation and deterrence are to be given primary importance with relatively less emphasis to be placed on rehabilitation and the circumstances of the offender. [ 51 ] In R. v. Vandrie , it is an oral decision.

Justice Wyant impose a sentence of 90 days of jail to be served intermittently. With due respect for Justice Wyant, he did not analyse the law or the jurisprudence. The personal interest of the accused had not been exposed by the judge. This decision is unconvincing. [ 52 ] The circumstances of case law relied on in defense are very different of this case. This jurisprudence is not useful. XII. THE APPROPRIATE SENTENCE [ 53 ] The Court does not believe a sentence of 90 days of imprisonment would be appropriate here even if the Court add a partial reimbursement in the probation order.

The presentencing report shows Mr. Tchitouni’s financial obligations do not allow to release enough money to refund a substantial amount. He can put aside around $300 each month. After three years, the reimbursement will be limited to $10,800. The loss is over $96,000. [ 54 ] The crime here is very serious. This offense is punishable by a 14 years jail sentence (s. 334 (

a) Cr. c. ). [ 55 ] The importance of aggravating factors in relation to the mitigating factors makes the Defense suggestion inappropriate. There is also the offender’s degree of responsibility which is high. [ 56 ] The Crown’s suggestion is more appropriate here. This suggestion is not excessive at all. It is at the bottom of the scale of sentences usually imposed for this type of offence. The Court has no difficulty to affirm an imprisonment of one year is an appropriate sentence here. [ 57 ] Also, a probation order for two years will be add. No reimbursement order is claimed by the Crown. Probably because Mr.

Tchitounis’ situation will be uncertain after he served his sentence. But the Defense suggestion to perform community service will be at the advantage of the society. The condition of s. 732.1 (2) (a.1) of Cr. c. is not appropriate to be imposed here. FOR THESE REASONS, THE COURT: IMPOSES a sentence of one year in custody; IMPOSES a probation order for two years, after Mr.

Tchitouni will have served his sentence and comply with the following conditions: • keep the peace and be of good behavior; • notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation; • report to a probation officer within two working days after he will have served his sentence and thereafter, when required by the probation officer and in the manner directed by the probation officer; • remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the probation officer;

• perform 240 hours of community service over a period of eighteen months; • follow any suggestion of the probation officer in order to check and improve his mental health or other problems identified by the probation agent Kim Labrecque in the presentencing report (exhibit S-2a) and b)). ORDERS to pay the victim surcharge. _________________________________ CHRISTIAN M. TREMBLAY, Q.C.J. Me Nicolas Ammerlaan Directeur des poursuites criminelles et pénales Attorney for the Prosecutor Me Delphine Tremblin Aide Juridique de Montréal Attorney for the Accused Date of hearing: January 19, March 19, April 13 and May 9, 2018