Court File and Parties
Court File No.: Halton 11-3136 and 11-3579 Date: 2013-02-15 Ontario Court of Justice
Between: Her Majesty the Queen — and — Harvey Aitchison and Cyril Julius Marques
Before: Justice Lesley M. Baldwin
Heard on: April 23, July 27 and November 23, 2012
Reasons for Sentence released on: February 15, 2013
Counsel:
- M. McGuigan and T. MacKinnon for the Crown
- E. Graham for the offender Harvey Aitchison
- P. Dhaliwal for the offender Cyril Julius Marques
BALDWIN, J.:
Guilty Pleas
[1] On April 23, 2012 Harvey Aitchison pled guilty to a charge of accepting a Secret Commission (accepting a bribe) as follows:
"that between the 1st day of January in the year 2011 and the 11th day of August in the year 2011 at the Town of Oakville and/or elsewhere in the Province of Ontario, did corruptly being an agent for Serco Des DriveTest Centre accept a reward to wit: money as consideration for doing an act relating to the business affairs of DriveTest to wit, ensuring the students of Cyril Marques' driving school passed their driving test contrary to section 426(1)(a) of the Criminal Code."
[2] On April 23, 2012, Cyril Julius Marques pled guilty to a charge of offering/paying a Secret Commission (offering/paying a bribe) as follows:
"that between the 1st day of January 2011 and the 11th day of August 2011, at the Town of Oakville, corruptly did offer to Harvey Aitchison an agent of DriveTest a reward to wit: money as consideration for doing an act relating to the business affairs of DriveTest to wit, ensuring the students of Cyril Marques' driving school passed their driving test contrary to section 426(1)(a) of the Criminal Code."
[3] Section 426(1)(a) are straight indictable offences with a maximum sentence of 5 years.
Summary of the Offences
[4] The DriveTest Centre is the agency that tests Ontario drivers. This is done on behalf of the Ministry of Transportation of Ontario. The events here pertain to the 2035 Cornwall Road in Oakville location.
[5] Aitchison was a driving examiner with the Centre up until the end of August 2011.
[6] Marques was the owner and a driver instructor with respect to CJ's Driving School. Marques had operated this driving school since 2008, and from that time until the investigation was over, he had developed a relationship with Aitchison.
[7] Marques would pay Aitchison to ensure his driving students passed their Ministry of Transportation road examination.
[8] This arrangement did not mean that none of Marques' clients would have succeeded, but the money was paid to guarantee the pass.
[9] On August 11, 2011, Marques went to the Oakville DriveTest Centre with one of his students, Adnan Bashir.
[10] Marques attempted to give Shannon Cote, one of the DriveTest coordinators who scheduled the driving tests, a package of cigarettes in exchange for assigning Aitchison to test his student.
[11] Ms. Cote refused to accept the package of cigarettes and she purposively scheduled a different test evaluator and informed her supervisor of the actions of Marques.
[12] An investigation was commenced, and it was learned that after Ms. Cote took this step, Mr. Aitchison in fact switched the scheduling documents, to which he had access, and he assigned himself and did conduct Mr. Bashir's test.
[13] Several days later, an investigator in the business integrity branch of the corporation, Jim Allen, began to interview Marques about the allegation made by Ms. Cote.
[14] During the course of the interview, it was disclosed to the investigator that the arrangement with Aitchison was that Marques would charge a $450.00 payment to the driver students. Aitchison would be given $300.00 and Marques would keep $150.00, all of this to ensure that the students were guaranteed a pass on the test.
[15] On August 11, 2011, Marques had collected the money for Mr. Bashir and, after the road test, gave the agreed upon money to Aitchison.
[16] Aitchison and Marques admit to five prior successful Secret Commissions or bribes in relation to their guilty pleas.
[17] Aitchison resigned after being confronted by the integrity investigator and he no longer conducts driving tests for the corporation.
[18] Both Aitchison and Marques made admissions to the police during the course of this investigation.
Exhibits Filed on Sentence
[19] #1 – PSR Harvey Aitchison; #2 – PSR Cyril Marques; #3 – Victim Impact Statement; #4 - ESP Report Aitchison; #5 – ESP Report Marques; #6 – Transcript of the guilty pleas; #7 – Counselling Report Aitchison; #8 & #9 – Community Service work Aitchison; #10 – pay stubs Marques.
[20] Victim Impact Statement – Jim Allen, Business Integrity Manager – Serco Des Inc. Operating as DriveTest:
As the Business Integrity Manager, I see the direct impact of cheating within the driver licensing program. Unqualified drivers are circumventing the licensing process and are using the public roadways only to become a constant threat to the health and safety of the community.
The credibility of the driving license system potentially affects every man, woman and child within the Province. A driver examiner within the licensing system that allows individuals not qualified to operate a motor vehicle on our city streets, roads and highways harms everyone and threatens our safety, threatens the system's reputation and threatens the integrity of a system that was put in place to protect our society.
For cheating to occur, a driving examiner has to be willing to look the other way in order to receive a benefit that they are not entitled to receive. Cheating allows an applicant who is willing to offer a bribe, to obtain an Ontario driver's license without meeting the regulatory specifications mandated by the Province. That benefit for the driver examiner frequently comes in the form of illicit cards, debit cards or other valuable commodity.
Bribery starts with an unethical driving school instructor willing to influence the outcome of the licensing program. An example must be made to reinforce that cheating is not acceptable.
Cheating will not be tolerated.
Our driver licensing system is based on honesty, fairness and integrity. It does not serve the community when the system can be manipulated for personal gain at the expense of the public.
All DriveTest employees are emotionally affected by the cheating process. They identify and report suspected cheaters time and time again. Some individuals are caught but most are not.
One is stopped but others take their place. The stress created affects us long after the news of the arrest has been forgotten. Our staff are ethical employees who only want to do their jobs effectively and efficiently. Front line bribery affects everyone in the company. The damage is done.
Incidents involving reported bribery are on the increase and result in greater financial strain and reduced profits. Cheating is a blight on our society. The actions of a few affect so many.
Circumstances of Harvey Aitchison
Pre-Sentence Report Assessment
[21] Harvey Aitchison is a sixty-four year old first time offender.
[22] His employment history has been successful and stable until his involvement in this offence. He is currently in retirement.
[23] He acknowledges his wrongdoing and expressed remorse for his actions.
[24] He attributed his participation in the offence to frustration towards the employer and is motivated to identify and address specific reasons for his actions.
[25] He was diagnosed with depression as an adult and is actively addressing his mental health needs through counselling and is reportedly taking antidepressant medication.
[26] He has a strong support system in the community. He remains involved in a very stable relationship with his common-law wife and supportive extended family.
[27] He uses his time productively in the community by performing volunteer work.
[28] There are no known substance abuse issues.
[29] In the body of the PSR, it is noted that Mr. Aitchison has been involved with his common-law wife for 35 years. They have no children. She owns her own law firm and the couple is reported to be "extremely stable financially".
[30] His brother is a retired OPP Officer and he states that the offence is out of character and that "the subject compromised his principles".
[31] After his involvement in the offence, the Offender obtained a referral from his family physician to a therapist/counsellor. He began seeing the therapist in March and attends biweekly.
Counselling/Therapist Letter dated October 10, 2012
[32] Susan McKean confirmed her sessions with Mr. Aitchison.
[33] She states that he has demonstrated responsibility, accountability, and remorse for his offence to her.
[34] She does not view him as a repeat offender or a danger to society in any regard.
[35] She states that he has been living a self-imposed sentence since the day he was criminally charged as the thoughts of his actions are always present and he beats himself up over them.
Community Service Work
[36] Ron Ziegel is the Director of the Fareshare Foodbank in Oakville and is the volunteer coordinator.
[37] He has known Mr. Aitchison for the past ten years as a volunteer.
[38] As of November 22, 2012, Mr. Aitchison had performed 243.5 hours of volunteer work at this charity.
[39] Mr. Aitchison is described as cheerful, enthusiastic and a sincere pleasure to work with.
Circumstances of Cyril Julius Marques
Pre-Sentence Report Assessment
[40] Mr. Marques is fifty eight years old and has no criminal record.
[41] He was born in Bombay India and immigrated to Canada with his wife and three children in 1999 when he was 46 years of age. (Defence counsel advised that the Offender has been a Canadian citizen since 2003.)
[42] He secured employment with Loblaws Retail Support Centre in Mississauga where he worked as a warehouseman for approximately 6 months.
[43] He completed a course as a driving instructor and worked at the ABLE driving school for the next eight years.
[44] In 2008, he started his own driving school from his home in Mississauga known as CJ driving school, earning an average of $20,000.00 per year. He would supplement his income with occasional work in warehousing.
[45] In 2010, his wife was involved in a motor vehicle accident which left her with significant back injuries and unable to work. She currently receives approximately $2,600.00 a month in disability payments. The Offender has to help her with lifting tasks and driving her to scheduled appointments.
[46] Recently the Offender secured full-time employment with Pro Form Products Ltd. in Milton as a Forklift Operator.
[47] The Offender's wife stated that she has always known her husband to be a kind and honest man and suggested that his employment instability, combined with her recent disability, clouded his judgment in committing this offence.
[48] The Offender's daughter was shocked when she learned of this criminal conduct. She stated that she has never known her father to be dishonest.
[49] The Offender stated that his actions were caused by the financial problems he was experiencing with his driving school in addition to his wife's health problems.
[50] He has expressed shame and remorse for his actions.
[51] There are no substance abuse issues.
Positions of Counsel
Crown Attorney
[52] The Crown seeks a custodial sentence of 4 to 6 months for Mr. Aitchison, followed by a period of probation.
[53] The Crown seeks a custodial sentence of 4 months for Mr. Marques, followed by a period of probation.
[54] The Crown submits that the sentences to be imposed must reflect the significant breach of the public trust. The sentences must reflect general deterrents, specific deterrents and denunciation.
[55] The Crown echoed much of what was contained in the Victim Impact Statement and submits that a Conditional Sentence, even with strict ESP monitoring, would not send a strong enough deterrent message to like-minded persons in the community.
[56] The Crown states that it is an aggravating factor that the two offenders engaged in 5 prior corrupt financial transactions before their crimes were uncovered by the investigator.
[57] The Crown submits that these two offenders deliberately manipulated the driving license regime set up by the Province of Ontario and that they knowingly put the public at risk.
[58] The Crown relies upon the following authorities in support of their position:
R. v. Watkinson 2001 ABCA 83, [2001] A.J. No. 394 (Alberta Court of Appeal); R. v. Garcia [2002] A.J. No. 1262 (Alberta Prov. Ct.); R. v. Watts [2005] A.J. No. 568 (Alberta Court of Queen's Bench);
R. v. Deng [2009] B.C.J. No. 1590 (B.C. Prov. Ct.); R. v. Yellow Old Woman 2003 ABCA 342, [2003] A.J. No. 1479 (Alberta Court of Appeal).
Counsel for Aitchison
[59] Mr. Graham submits that a 9 month Conditional Sentence, subject to ESP monitoring, and Probation with significant community service, would address all the sentencing factors in this case.
[60] Mr. Graham submits that the ESP monitoring component of a Conditional Sentence results in a significant deprivation of a person's liberty.
[61] Mr. Graham relies on the following authorities in support of his position: R. v. Saundercook-Menard [2008] O.J. No. 2440 (Ont. C.A.); R. v. Kuhne [2002] B.C.J. No. 133 (Prov. Ct. J.).
Counsel for Marques
[62] Mr. Dhaliwal also submits that a Conditional Sentence with ESP monitoring followed by Probation would address all the relevant sentencing principles in this case.
[63] Mr. Dhaliwal stressed the importance of Mr. Marques' job and his wife's need for his assistance given her medical disability.
[64] Mr. Dhaliwal relies upon the following authorities in support of his position: in addition to Saundercook-Menard (supra) and Kuhne (supra); R. v. Bordeleau [2001] A.J. No. 1262 (Prov. Ct. J.); R. v. Peterson [2000] A.J. No. 164 (Alberta Court of Queen's Bench).
[65] In the alternative, Mr. Dhaliwal asks the Court to impose an intermittent sentence in the 60 to 90 day range, from Friday evenings until Monday mornings.
Review of the Case Law
[66] I have thoroughly reviewed the cases provided by counsel and only need to speak briefly to them in these reasons.
[67] R. v. Watkinson (supra) dealt with the sentencing of an offender who was involved in Secret Commissions relating to fraudulent insurance company claims. She was originally sentenced to 12 months of imprisonment, which was varied on appeal to a Conditional Sentence, with a strong dissent.
[68] R. v. Garcia and R. v. Watts (supra) are related decisions dealing with an immigration inspector who was corrupting the Canadian immigration system for financial gain. He was sentenced to 6 months of imprisonment. The circumstances in this case are closest to the matters before this Court.
[69] R. v. Deng (supra) involved a recent Chinese immigrant offering a financial bribe to a road test examiner for a pass on his test. The bribe was not accepted and the police arrested and charged the offender. After pleading guilty, and having no record, the 63 year old offender was fined $4,000.00. The Crown in that case was not seeking jail.
[70] R. v. Yellow Old Woman (supra) involved a First Nation Chief accepting public funds in her capacity as Chief and using some of those funds for her private benefit. This Appellant decision deals with whether the Kienapple principle applied to offences of Breach of Trust in violation of s. 122 of the CCC and accepting a Secret Commission under s. 426(1) of the CCC in the circumstances of the particular offender. It has little application to the sentencing in this case.
[71] R. v. Kuhne (supra) involved an offender who corruptly paid Secret Commissions to an employee of the British Columbia Building Corporation. This involved a 'kickback' scheme with respect to building construction. There was no danger to the public safety as in this case. A nine month Conditional Sentence on a guilty plea with restitution was ordered.
[72] R. v. Bordeleau (supra) involved an offender who breached the trust of her employer who was a private company. An 18 month Conditional Sentence with onerous conditions was imposed. This was not a breach of the public trust offence, unlike the case before this Court.
[73] R. v. Peterson (supra) deals with the sentencing on a breach of trust fraud in an employee/employer context. A Conditional Sentence was imposed. This case also does not involve a breach of trust that affects public safety, unlike the case before this Court.
[74] R. v. Saundercook-Menard (supra) involved an offender who committed a breach of trust fraud on a School Board with respect to public funds. A Conditional Sentence was imposed. This offender did not put the community at physical risk of harm, unlike the case before this Court.
Mitigating Factors on Sentence
[75] Both Offenders pled guilty and have no prior criminal record.
[76] Both Offenders have led pro-social lives up to the discovery of this ongoing offence.
Aggravating Factors on Sentence
[77] This corrupt scheme was a breach of trust offence that put the public at real risk of harm.
[78] Licensing drivers who are not capable of passing the road driving tests set up by the Province of Ontario to ensure safety on the roadways, is a predictable disaster in-waiting.
[79] Mr. Aitchison's actions in accepting bribes to provide driving licenses were a blatant abuse of his authority as a driving examiner.
[80] These offences are increasing as set out in the Victim Impact Statement filed at this hearing.
[81] Public corruption is of significant concern to the citizens of Canada and general deterrents and denunciation must be the dominant sentencing factors.
Decision
[82] I have considered all the sentencing principles set out in section 718 of the CCC.
[83] Although Conditional Sentences are available options to consider in this case, I have determined that they would not sufficiently denounce such activity or deter others in similar positions from attempting the same thing. As stated in R. v. Garcia (supra), Courts have to take a strong position against the abuse of power and privilege. I find this particularly so when the public is put at real risk.
[84] Mr. Harvey Aitchison is therefore sentenced to a jail term of 4 months, to be followed by 2 years of probation.
[85] Mr. Cyril Marques is therefore sentenced to a jail term of 90 days, which I will permit him to serve intermittently given his employment status and because he is required to assist his wife with her medical needs.
[86] The intermittent sentence will be served from Friday nights at 8 pm through to Monday mornings at 5 am. While serving this sentence Mr. Marques will be bound by a Probation Order requiring him to show up on time and sober to the institution. Mr. Marques will also be bound by a 2 year probation order.
[87] The terms of the Probation Orders will be the same for each Offender as follows:
[88] Report as directed;
[89] Not engage in any employment as a driving instructor or government licensing authority;
[90] Take counselling as recommended and sign consents for monitoring of same;
[91] Not to associate directly or indirectly with each other;
[92] Keep the Peace and be of Good Behaviour.
[93] The Victim Fine Surcharges are waived given the guilty pleas.
Released: February 15, 2013
Signed: Justice Lesley M. Baldwin