Court File and Parties

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

D. Emami, for the Crown

— And —

Nashaat Ramzy

M. Henein, S. Walker, for the accused

Heard: December 13, 2013

FELDMAN J.:

Facts

[1] Nashaat Ramzy entered a guilty plea to a charge of Breach of Trust, contrary to Code s. 122. He is a pharmacist who owned and operated St-Cyril Drugs Ltd. in Scarborough. As part of an agreed statement of facts, he admits being aware of billings for medication submitted under his authority, and for which he was responsible, to the Ontario Drug Benefits Program [ODBP] without proof they were dispensed. He acknowledges having received a benefit knowing that the claims could not be substantiated.

[2] Pharmacies may bill the Ontario Ministry of Health and Long-Term Care for medications prescribed to eligible recipients as part of the ODBP, in relation to which Mr. Ramzy occupied a position of public trust, being governed by relevant legislation. He is subject to a professional Code of Ethics and the mandate of the College of Pharmacists to protect the public interest.

[3] The time frame involved for the offence is Sept. 1, 2009 to Sept. 1, 2011, when inspectors from the Ministry conducted an audit of the defendant's pharmacy. They found discrepancies in the quantities of drugs billed to the ODBP and the quantities indicated on purchase invoices and summaries. The top 3 drugs billed had very high billings when compared to other pharmacies in the province. Discrepancies were noted for 13 drug products.

[4] The value of claims that could not be substantiated by purchase invoices totalled $155,466.00. The actual loss recovered by the Ministry from the defendant was $46,506.04. In addition, the Ministry ordered the suspension of Mr. Ramzy's entitlement to receive payment under the Ontario Drug Benefits Act [ODBA] and, as well, terminated his subscription agreement effective Dec. 7, 2011. Mr. Ramzy sold this Pharmacy earlier in October.

[5] The consequences for Mr. Ramzy, not unjustly, have had an adverse ripple effect on the defendant's professional reputation and economic interests. It has accelerated his retirement. Given his otherwise impressive antecedents, this not insignificant impact is of relevance in considering the appropriate sentence.

Positions of the Parties

[6] Mr. Emami, for the prosecution, submits that what occurred here involves a serious breach of public trust, codified in s. 718.2(a)(iii), that requires a sanction giving emphasis to general deterrence, in effect, a signal to other similarly inclined pharmacists that such behaviour warrants a punitive accounting. He says the defendant used a veneer of honesty to mask his greed and that there are no exceptional circumstances that would lift the need for a custodial term.

[7] Mr. Emami acknowledges a number of mitigating factors, including an early guilty plea and expression of remorse, no prior criminal antecedents and the rendering of full restitution, as well as a substantial charitable donation. He concedes there were triable issues not pursued.

[8] Crown counsel submits that a conditional sentence of 12 months, with punitive terms, plus probation, would satisfy the appropriate sentencing principles. He says that the imposition of a suspended sentence would be an insufficient deterrent. To impose a jail term to be served in the community would not, in my view, in these circumstances, reflect an error in principle.

[9] Ms. Henein, for the accused, submits that the offence should be seen in context. Mr. Ramzy was working only 2 days a week at the time and the percentage of impugned billing was only 6% of total and of little financial consequence to an otherwise successful business. In one sense, however, given the relatively moderate loss, it permits the inference the defendant acted in a manner calculated to stay below the radar. And, as well, it tends to highlight a sense of entitlement on his part that does harm to the honour system that undergirds the public trust accorded pharmacists.

[10] Ms. Henein rightly submits that any punitive consequences have already taken effect. Mr. Ramzy can no longer apply for direct billing privileges, in effect, being unable to function in his profession. He will face discipline by his College. It is clear his public humiliation is significant. I would add that it is inevitable he must bear the disappointment of friends and family, perhaps the most troubling consequence for someone considered a role model for so many. These are considerations that bear upon the ultimate disposition.

[11] Ms. Henein suggests that what occurred here would not be seen by informed members of the public to rise to level of a "serious and marked departure" from the standard of responsibility and conduct demanded of professionals described in R. v. Boulanger, 2006 SCC 32. In these particular circumstances, I tend to agree with this submission.

The Offender

[12] Mr. Ramzy is 60 years of age. He is married and has two children, both of whom are pharmacists in his business. He immigrated to Canada from Egypt in 1989. In 1990, he obtained a license to practice pharmacy. In 1995, he started his own business and has achieved success. Given this charge and its consequences, he has begun winding down his ownership status in the business he has built up. He suffers from ulcerated colitis.

[13] Mr. Ramzy is a committed Christian Coptic and has contributed widely in a leadership role to that religious community. Within that community, he has acted as a counsellor for struggling youth. Reference letters highlight a generous nature in a person who is motivated to help others. Over the years, he has worked to lessen the suffering of those in third world countries, given time to seniors in his Church and been a devoted father and mentor to his children and others. He has financially supported his religious community in a significant way. I would agree with Father Ammonius Guirguis, who has ministered to the defendant over many years, that Mr. Ramzy's offence is out of character for him.

[14] In a telling excerpt from his letter to the court, the defendant's son, Ramy, discloses the impact of these proceedings on his father and his family. He said, in part, "The past two years have been the worst two years of his life. As much as my father tried to shelter his family from this experience, I could see right through him. It is not befitting of him to be in this situation. Watching him suffer has made me and my family suffer a tremendous amount. As much as this situation is inexcusable, it did not change my view of my father. He is still the same person who spent his entire life serving and helping those around him and asking nothing in return".

[15] For Mr. Ramzy, perhaps more than the personal cost of a diminished professional reputation is feeling the disappointment and anguish suffered by close family and friends who had formerly held him up as a pillar of integrity.

The Authorities

[16] What is aggravating in this case was the commission of a breach of trust offence in circumstances where the defendant did not need the money but was motivated by a sense of entitlement and greed. While the actual loss is not substantial, it is more than nominal. In such circumstances, the authorities indicate that emphasis be given in sentencing to general deterrence.

[17] In R. v. Bogart, [2002] O.J. No. 3039 (Ont. C.A.), the court dealt with an "egregious breach of trust" by a medical practitioner in both amount and duration, in effect, one of the largest scale frauds ever committed against OHIP. The defendant was an accomplished doctor who had contributed in a significant way to the community. In imposing a sentence on appeal of 18 months, Laskin J.A. gave primacy to the principle of general deterrence.

[18] Justice Laskin went on to consider special circumstances that might justify a lesser sentence, including a conditional sentence. These included a relatively small amount of fraud, full restitution made prior to sentence or exceptional personal circumstances.

[19] In fraud or breach of trust cases involving relatively moderate losses and considerable mitigation, other courts have imposed a non-custodial sentence: see R. v. Taylor-Wright, [2010] O.J. No. 4578 (Ont. C.J.); R. v. Guido, [2007] O.J. No. 434 (Ont. S.C.); R. v. Truelove, [2003] O.J. No. 1295 (Ont. C.J.). In the case at bar, the actual loss of $46,000 was much less than that in the first two cases, both of which resulted in a suspended sentence.

[20] In fact, in R. v. Kalonji, 2010 ONCA 111, [2010] O.J. No. 551 (Ont. C.A.), a case in which an employee defrauded his employer of an amount over $5000, the court considered the appellant's strong record of community service and the expressed support of his family and community in maintaining the conditional discharge imposed at trial. To the same effect, see R. v. Flynn, [1995] O.J. No. 1216 (Ont. C.J., Gen. Div.); R. v. Quek, [1995] O.J. No. 3754 (O.C.J., Prov. Div.); R. v. Snyder, [2011] O.J. No. 4904 (Ont. C.J.); R. v. Elliott, [2005] O.J. No. 6448 (Ont. C.J.).

Conclusion

[21] Mr. Ramzy has exemplary personal antecedents. His contribution to the community is exceptional. His character is otherwise unblemished. He has made full restitution of what may be described as a moderate loss of public funds. I accept his expression of remorse as genuine. I consider what occurred here as aberrant conduct.

[22] As noted earlier, the defendant's public shame, personal anguish and loss of his ability to be meaningfully involved in his own business leading to the demise of an otherwise distinguished career serves to signal to other professionals similarly advantaged that there will be accountability where the public interest is harmed by ethical lapses.

[23] Upon a weighing of all of these factors, I am persuaded that it would not be contrary to sentencing principles to suspend the passing of sentence and place Mr. Ramzy on probation for 12 months on the following terms and conditions:

1. Keep the peace and be of good behaviour;
2. Appear before the court when required to do so by the court;
3. Report within 2 working days in person to a probation officer and thereafter as required by and in the manner directed by the probation officer;
4. Notify the probation officer 48 hours in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation;
5. Abstain from acting as a Designated Manager for any pharmacy;
6. Not to apply to the Ministry of Health and Long-Term Care for billing privileges, pursuant to s. 4.1 of the Ontario Drug Benefit Act;
7. Not to apply to the Ministry of Health and Long-Term Care for a Health Network System subscription agreement for pharmacy operators.

[24] I would express my appreciation to both counsel for their thoughtful submissions and assistance.

Released: January 15, 2014

Signed: "Justice L. Feldman"