R. v. Ruvinskiy Date:, 2014 BCPC 265

Citation: R. v. Ruvinskiy Date: 20141104 2014 BCPC 0265 File No: 59083-3C Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. YURIY RUVINSKIY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: G. Nelson Counsel for the Accused: W.M. Cuthbertson Place of Hearing: Richmond , B.C.

Date of Hearing: November 4, 2014 Date of Sentence: November 4, 2014 [1] THE COURT: Mr. Ruvinskiy is charged with eight counts, each count alleging a theft, essentially a theft under, wecolloquially refer to it, each count referring to s. 334(

b) of the Criminal Code, some of them having more complainants than others, asfar as the victims of the theft. The eight counts span some 28 instances of theft. [2] Thankfully, this is an unusual case. Thankfully, it is relatively unique in not only our jurisprudence, but the jurisprudence ofour neighbours to the south, although one of the articles that I did look at that was proffered to me by the Crown was an

article on thiskind of theft and how it was becoming at least more apparent in some cases; in Canada, not so much. [3] Mr. Ruvinskiy was a screener (the common term for it). He was hired by a contractor, and in this case, he was hired to performone of the most important and sensitive jobs there is in relation to travel by air. The regulatory body that oversees airport security is theCanadian Air Transport Security Authority, otherwise known as CATSA, and they contract out the task of pre-board screening to acompany called G4S Secure Solutions in the Pacific Region. Mr.

Ruvinskiy worked for G4S Secure Solutions. [4] CATSA's standard operating procedures manual includes the following responsibilities for a screening agent, and I am takingthis from a case that was provided to me by the Crown, which is a labour arbitration case involving an airport screener, but does havesome helpful information in there about the duties and responsibilities of the personnel involved in screening operations.

One of thethings the operating procedures manual says is that the screening agent must be dependable, conscientious, they must be honest andaccountable, they have to inspire confidence, respect and trust in their job, and perform it in a trustworthy manner. Without that trust ofthe persons who are tasked with ensuring the safety of air travellers, the current peace of mind that air travellers enjoy in this country isseriously undermined.

Security officers obviously must, and it cannot be stated highly enough or with any more strength, be held to avery high standard in their workplace. [5] The facts here are that on various days spanning a couple of weeks in March and February of 2014, Mr. Ruvinskiy was caughton security camera assisting air travellers to put their items into the plastic bins before they get inserted into the x-ray machine at the pre-boarding screening area. In fact, one of the instructions that I recall from my many air travels is to empty your pockets and place thecontents in the bin. So travellers were doing that.

You could see on the video that is what they were doing. Many travellers wereemptying their pockets completely, including their wallets and money and change, and obviously other valuables, and they were placingthem into the plastic bins for the x-ray machine to scan them. [6] Mr. Ruvinskiy was one of those individuals assisting passengers doing that. However, through what looked like a very skilfulsleight of hand, he would scoop up the change from those bins.

In one case he is seen moving a wallet close to his hand while he isguiding the plastic bin through the screening machine, with his fingers deftly removing a bill or bills from those wallets, and then placingthat money into his pocket in a very clandestine fashion. It seemed apparent that nobody noticed this, including the other employees thathe was working in direct company with. [7] The first offence was alleged to have been committed on February 16th, 2014, and the last one going on March 8th of 2014. Atthat time, Mr.

Ruvinskiy's theft was detected and the authorities went over previous videotapes to determine that there had been priorthefts. They matched those up with the timestamp on the video to the processing of people's travel documents and were able to identifythe complainants. However, many people were unaware of just what had been taken from them, so it is impossible to determine with anydegree of certainty how much money was actually taken. [8] The issue is the appropriate sentence, the issue is how to deal with such a massive breach of trust situation.

Section 718.2 ofthe Criminal Code treats a breach of trust as an aggravating circumstance. It cannot be said otherwise, but that deterrent sentencesshould generally be imposed where an accused breaches a position of trust for his own personal gain. [9] I have looked at a number of different cases and there are very few cases that are directly on point because it is such a rare andunique circumstance. There are cases involving peace officers, however, and other breaches of trust involving employer theft withrespect to those kind of offences. R. v. Burkart

(2006) BCCA 446 and R. v. Dickson

(2007) BCCA 561 are examples of cases whereconditional sentences were made available to offenders convicted of serious breach of trust offences. [10] In this case, the Crown's position is quite simply that although a conditional sentence would not endanger the communitynecessarily, denunciation of these kind of theft offences where such a massive breach of trust did occur would not be satisfied by theimposition of a conditional sentence.

The defence says I should consider conditional sentence order provisions. [11] Burkart and Dickson, where the court substituted conditional sentences for sentences of imprisonment imposed at trial forserious breach of trust offences against employers by their employee, are cases that stand for the proposition that a conditional sentenceorder can be properly considered.

Those cases seem to, in my mind, have reversed a previous view that in cases of fraud and breaches oftrust, incarceration was almost always the sentence that would have been appropriate to demonstrate societal denunciation of such crimesand deter others from committing them, and that is evident. [12] The past practice is evident in the cases throughout our jurisprudence and including cases like The Queen v. Cusack, (NS CA), [1978] NSJ 538, a 1978 case of the Nova Scotia Court of Appeal, where a police officer took $425 from adriver's wallet.

The Crown seemed to have not opposed a one-day jail sentence, and one issue at the appeal was whether the sentenceshould be varied, given that the trial Crown seemed to have approved of the original sentencing, but the Court of Appeal there said thesentence should be varied to a nine-month jail sentence. The sentence imposed simply was not found to be adequate for the nature of thecrime. And cases like Hunt, from our Court of Appeal, which dealt with a police officer in similar circumstances, same year.

[ 13 ] The 1996 provisions of the Code came in and in Burkart , Justice Thackray, for the court, concluded that the sentencing judge there had erred in concluding that unusual circumstances were required to be present before a judge imposes a conditional sentence order when an accused has been convicted of fraud-type offences in that case. There are obviously different ranges of sentencing in fraud-type causes, and it was the opinion of the B.C.

Court of Appeal, though, that a conditional sentence order was one of the sentences that could be considered. [ 14 ] At the outset of this matter, I can say that it is very difficult, hearing the circumstances of this case, and judges are just human, to dispassionately remove the innocent traveller bias that no doubt people, when they hear that this type of offence has been committed, automatically feel, because judges are travellers, too. However, I am obligated to dispassionately fashion an appropriate sentence, and s. 742.1 of the Criminal Code is the law, and it is the law for a very good reason. A

section conditional sentence is a sentence of imprisonment, the Supreme Court of Canada says, and it is the highest court in the land. They do say that it is a term of incarceration. That is the case of Proulx . [ 15 ]

Section 742.1 should be considered if a sentence is less than two years. Here, the maximum sentence for theft in this case is six months, although there are eight counts to deal with. The court must also be satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing, and that last

part is the one that is disputed. However, the Supreme Court of Canada does say that it is a jail sentence, and just because it is served in the community, it is not accurate to characterize it in any other way. It is a punitive sanction capable of achieving the objectives of deterrence and denunciation. [ 16 ] Our Court of Appeal, in a case called R. v. Gan , [2007] BCJ 172 dealt with an older man who had been found convicted of running a marihuana grow operation. He was sentenced to a 90-day intermittent sentence by the trial judge, a short jail sentence.

He appealed that sentence, and at paragraph 14, the Court of Appeal says: I would also note that in Proulx, it was said that both denunciation and deterrence can be satisfied with a conditional sentence. In my opinion, a sentence of 90 days incarceration served on weekends cannot be said to send a message of any greater effect on those issues ... that is, denunciation and deterrence, … than a conditional sentence of one year. [ 17 ] I am of the opinion that I could very well sentence Mr.

Ruvinskiy to a period of incarceration and certainly be within the lawful range of sentencing options for this type of activity, a terrible and very troubling breach of trust.

However, I am obliged also by legislation to consider the provisions of the Criminal Code that direct me to consider a sentence that will meet the principles of sentencing with the least restriction on liberty, and with full consideration of the principles of restraint, full consideration that a conditional sentence order does, and can, if crafted appropriately, provide a significant degree of denunciation and deterrence and express society's condemnation of such atrocious and disgusting breaches of trust such as Mr.

Ruvinskiy had engaged in in committing these thefts. [ 18 ] I am satisfied that a conditional sentence order is the appropriate sentence in this case, and it will be for a period of 12 months. [ 19 ] It will be broken up in this fashion; 360 days, to be specific, is the aggregate. Count 1, in association with Count 8, is a 60-day sentence. They will run concurrent with each other. [ 20 ] Count 2, a 60-day sentence, given the number of individuals involved there. Count 3 is a 30-day sentence, Count 4, 45 days, Count 5 is 45 days, Count 6 is 60 days, and Count 7 is 60 days.

Those are consecutive to each other. [ 21 ] So Count 1 and 8 are concurrent with each other, and all of the other sentences are consecutive to that. By my calculation, that is 360 days, and that is the length of the conditional sentence order. [ 22 ] Statutory provisions will apply; report to a conditional sentence supervisor no later than four o'clock tomorrow, and then thereafter as directed by the conditional sentence supervisor.

He is to reside where directed by the conditional sentence supervisor and not change that address without the written permission of the supervisor. [ 23 ] He is going to be subject to house arrest. You are to remain within your residence, Mr.

Ruvinskiy, for that period of time of the conditional sentence order, except for the following exceptions; with the written permission of the supervisor, unless you are travelling directly to, while at, or travelling home from your lawful place of employment, for any medical emergency involving yourself or your father, and for six hours a week, to be predetermined by your conditional sentence supervisor, to attend to personal matters such as shopping and other matters. [ 24 ] I think you need to consolidate some kind of insight into this thing, Mr.

Ruvinskiy, and there will be an order that you attend and complete and accept any counselling or other programs as directed by your conditional sentence supervisor. [ 25 ] You are not to go to any property owned by the Vancouver Airport Authority unless you have the prior written permission of your conditional sentence supervisor, which permission you must carry on your person. [ 26 ] Within the first 330 days of this order, you are to perform 100 hours of community work service to the satisfaction of your conditional sentence supervisor. [ 27 ] The period of probation that will follow is one year, and the conditions are just simply to provide your residential address, not change it without advising the probation officer, and this is reporting within 72 hours of the expiration of your conditional sentence order, and thereafter as directed, to a probation officer.

The condition about not going on the property of Vancouver Airport, same wording, and the counselling provision will be the same as well.

[ 28 ] Ms. Nelson, is there anything I have forgotten? (SUBMISSIONS BY COUNSEL) [ 29 ] THE COURT: Fair enough. The 100 hours of community work service will be part of the probation order, to be completed within the first 11 months of the probation order, and the conditions for the conditional sentence orders will be the same for those sentences. [ 30 ] MS. NELSON: And if the reporting on probation could be report within 72 hours of the expiry of your final conditional sentence order? [ 31 ] THE COURT: Yes, thank you. And then the victim fine surcharge will be paid.

How much time does your client need to pay the victim fine surcharge, Mr. Cuthbertson? It is a total of, I think, $800. [ 32 ] MR. CUTHBERTSON: Six months, Your Honour. [ 33 ] THE COURT: Okay, May 30th then, 2015, to pay the victim fine surcharge. [ 34 ] Mr.

Ruvinskiy, lots of people ask for these type of sentences and lots of them regret it later on, and they regret it for a number of different reasons, because it is a lot longer than a regular jail sentence you would have received, but it is also very difficult because you are out in the community and you have to resist temptation to breach it, because if you do, you could come back before me and the Crown would have a very strong argument to say look, he was given a break and he did not take it. Whatever is left on your conditional sentence order, you could be required to do that in a real jailhouse.

So I will leave it to your counsel to explain to you the dire consequences of breaching a conditional sentence order. [ 35 ] Good luck to you, sir. You have got a lot of making up to do. (REASONS FOR SENTENCE CONCLUDED)