Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Ayman Mikhael

Before: Justice Maria Speyer

Reasons for Sentence: Delivered orally on August 21, 2015 Written Reasons for Sentence: Released September 17, 2015

Counsel:

• D. King, for the Crown
• V. Christie, for Ayman Mikhael

Reasons for Sentence

M. SPEYER J.:

[1] Mr. Ayman Mikhael pled guilty to defrauding the Ontario Drug Benefit Plan of money exceeding $5,000. The offence took place over the course of 3 years between November 1, 2009 and October 31, 2011. Mr. Mikhael pled guilty at the conclusion of the preliminary hearing.

[2] Mr. Mikhael was a pharmacist. During the relevant period, he owned and operated Wilson Medical Centre Pharmacy in Hamilton. The pharmacy was authorized by the province to bill the Ontario Public Drugs Program, which includes a publically funded drug plan that provides coverage to seniors and recipients of Ontario Works and Ontario Disability Support Payments. Under the plan, the pharmacy would bill the program for pharmaceuticals dispensed to eligible clients.

[3] In 2011, the province conducted an audit of Wilson Medical Centre Pharmacy and discovered that between November 1, 2009 and October 31, 2011, the pharmacy overbilled the program by about $3 million. The auditors conducted a "purchase versus sales" analysis and concluded that the pharmacy had overbilled the program about $3 million. In the agreed statement of facts, the Crown and defence agree that $2.5 million of this overbilling was fraudulent, in that the accused knowingly billed the province for products his pharmacy did not purchase or dispense. During the material time, the accused was the manager of the pharmacy and the money was paid into an account controlled by him.

[4] Mr. Mikhael is 61 years old with no prior criminal record. He is married with two grown sons. He is currently being supported by his wife, who is also a pharmacist. Prior to being charged with this offence in 2014, Mr. Mikhael owned his own pharmacy. Since then, he has sold his business and has not worked as a pharmacist or in any other capacity. In 2014, he signed an undertaking with the College of Pharmacists to not work as a pharmacist again and he does not intend to return to that profession.

[5] Mr. Mikhael has repaid the province $2 million in restitution from the sale of his business. The balance of $500,000 remains unpaid and the Crown is seeking a restitution order for this amount.

[6] In March of 2015, the defendant underwent a psychiatric assessment by a psychiatrist, Dr. J. Rootenberg. Dr. Rootenberg's report was filed as an exhibit in this sentence hearing. The report reveals that Mr. Mikhael has had a long-standing addiction to opioids, likely due to a previously undiagnosed major depressive illness. The accused has admitted that he has been abusing drugs since at least the early 1990's. In 1999 the College of Pharmacists became aware of the problem and forced him to take treatment. Since then, he had periods of abstinence, but usually relapsed.

[7] Mr. Mikhael advised Dr. Rootenberg that when he was on drugs, he did not care about his business and did not pay attention to the billings. He admits to this court, however, that the fraud was a result of his purposely overbilling the Ontario Drug Benefit Program for products he did not dispense and was not the result of drug-induced negligence. In submissions, Crown counsel advised that there is no evidence that the accused was living a lavish lifestyle. Rather, the motive for the fraud was to cover bad investments, a fact not disputed by defence counsel.

[8] In 2012, while under investigation, but not yet charged, Mr. Mikhael came into the care of Dr. Howard Schneider, a family doctor practicing in psychotherapy. Dr. Schneider diagnosed the accused with a major depressive disorder, likely one that he has had for much of his adult life. Dr. Schneider reports that he has been treating Mr. Mikhael with a combination of psychotherapy and medications. Mr. Mikhael has responded well to treatment and has stopped taking illicit drugs. Dr. Schneider fears that if treatment is stopped, there is a significant risk of relapse. Dr. Rootenberg echoes this concern in his report. He is also of the opinion that given the current treatment plan, Mr. Mikhael is a low risk to reoffend.

[9] Mr. Mikhael's family is very supportive of him and describe him as a loving father and a good man. He is well regarded in his community. In his statement to the court, Mr. Mikhael expressed his deep regret and remorse for his behaviour. He is deeply ashamed of his conduct. He also expressed his fear of relapsing into drug use if he is not permitted to continue his treatment with Dr. Schneider.

[10] The Crown is seeking a sentence of two to three years in the penitentiary. Crown counsel points to the large scale of the fraud on the public purse, committed over a long period of time and the breach of Mr. Mikhael's position of trust. Defence counsel concedes that in cases of large scale fraud, a jail sentence is normally required, but argues that there are exceptional circumstances in this case that would justify a conditional sentence of two years less one day. At the time these offences were committed, a conditional sentence was still available under s. 742.1 of the Criminal Code.

Legal Principles and Analysis

[11] Counsel have provided me with a number of cases in support of their respective positions. I found the cases of R. v. Bogart, [2002] O.J. No. 3039 (C.A), leave to appeal to SCC refused [2002] S.C.C.A. No. 398; and R. v. Dobis, [2002] O.J. No. 646 (C.A.), to be particularly instructive. Our Court of Appeal has made it clear that absent exceptional circumstances, in cases involving large scale frauds a significant jail sentence is warranted to reflect the seriousness of the offence, the moral blameworthiness of the perpetrator and the need for general deterrence. I am not satisfied that there are exceptional circumstances in this case that would justify the imposition of a conditional sentence.

[12] Dealing first with the seriousness of the offence, it cannot be forgotten that the accused defrauded taxpayers of $2.5 million dollars. I give him credit for repaying a significant portion, but unfortunately there is still a considerable shortfall of half a million dollars. The Ontario Drug Benefits plan is intended to benefit the neediest and most vulnerable in our society. Mr. Mikhael abused his position of trust as a pharmacist authorized to bill that plan to perpetuate a massive fraud on the public. Moreover, his conduct was not caused by a momentary lapse of judgement. Rather the accused's actions were well-planned, deliberate and were perpetrated over the course of three years. He was only discovered because the province audited his billings, no doubt at further considerable cost to the public.

[13] Dealing next with Mr. Mikhael's moral blameworthiness, I take into account the fact that he was likely suffering from depression and was abusing drugs when he committed this offence. I also take into account that he may not have been exercising good judgement during this time. However, it is also apparent that his conduct was at least partly motivated by greed as he used the money to shore up failing investments. There is nothing in the evidence to satisfy me that the accused's mental illness or his drug abuse was a significant contributing cause of the offence. Moreover, as a medical professional authorized to bill the public, Mr. Mikhail had an obligation to seek out and stay in treatment for what he recognized was a serious drug addiction.

[14] Our Court of Appeal has instructed trial judges that general deterrence is the most important principle in cases of major frauds. As was noted by Justice Laskin in R. v. Bogart, supra, at paragraph 30:

This court has affirmed that in cases of large-scale fraud committed by a person in a position of trust, the most important sentencing principle is general deterrence. Mitigating factors and even rehabilitation become secondary. In R. v. Bertram and Wood (1990), 40 O.A.C. 317, this court observed that most major frauds are committed -- as this one was -- by well-educated persons of previous good character. Thus the court held at p. 319 O.A.C.,

The sentences in such cases are not really concerned with rehabilitation. Instead, they are concerned with general deterrence and with warning such persons that substantial penitentiary sentences will follow this type of crime, to say nothing of the serious disgrace to them and everyone connected with them and their probable financial ruin.

[15] The courts have recognized that a conditional sentence in the community can have a deterrent effect, but when the need for general deterrence is particularly pressing, as in the case before me, then an institutional jail sentence is warranted. In R. v. Wismayer (1997), 115 C.C.C. (3d) 18 (Ont. C.A.), Justice Rosenberg wrote:

General deterrence, as the principal objective animating the refusal to impose a conditional sentence, should be reserved for those offences that are likely to be affected by a general deterrent effect. Large scale well-planned fraud by persons in positions of trust, such as the accused in R. v. Pierce, would seem to be one of those offences.

[16] Mr. Mikhael has been assessed by Dr. Rootenberg as a low risk to reoffend. He and Dr. Schneider are concerned that if incarcerated, there is a good likelihood that Mr. Mikhael will relapse into drug use. However, I am also mindful that in cases of large-scale frauds, the risk of reoffending is usually low and rehabilitation is not the primary objective of the sentence. I agree with Mr. King's submission that Mr. Mikhael has had many years to deal with his issues and seek treatment. He cannot now use that treatment as the reason to avoid a jail sentence.

[17] The range of sentences for most large scale frauds is in the range of three to five years. Again quoting from R. v. Bogart at paragraph 36:

Both before and after Parliament's introduction of conditional sentences, cases of large-scale fraud by persons in a position of trust have typically resulted in substantial jail sentences. In his recent judgment in R. v. Dobis (2002), 58 O.R. (3d) 536, 163 C.C.C. (3d) 259 (C.A.), my colleague MacPherson J.A. has thoroughly reviewed these cases. His review shows that ordinarily these frauds merit a penitentiary sentence in the range of three to five years. Even where mitigating considerations have reduced the sentence to the reformatory range, a jail term, not a sentence served in the community, has usually been imposed.

[18] In this case, Mr. Mikhael has defrauded the public of a significant amount of money. Over the course of three years he deliberately abused his position of trust as a pharmacist authorized to bill the Ontario Drug Benefit Plan. The message to him and others who are entrusted to deal with public funds is that if they abuse that trust, they can expect a substantial jail sentence to follow.

Sentence

[19] Having considered all of the facts of this case, including Mr. Mikhael's guilty plea, his expression of remorse, his repayment of a significant portion of the funds stolen, his prospects for rehabilitation, and his mental illness at the time of the offence, I am of the view that an appropriate and fit sentence is two years less one day in jail. I will endorse the Information with a strong recommendation that Mr. Mikhael serve his sentence at an institution that will provide him with mental health and drug addiction counselling. In addition, there will be a restitution order for $500,000 in favour of the Province of Ontario.

Released: September 17, 2015

Signed: "Justice M. Speyer"