Ontario Superior Court of Justice
Date: 2018-07-27
Parties
BETWEEN: HER MAJESTY THE QUEEN – and – ALINE ZEITOUNE
Counsel
Kathy Nedelkopoulos for the Crown Glenn Sandberg for Aline Zeitoune
Reasons for Sentence
MacDonnell, J.
[1] On February 20, 2018 the defendant Aline Zeitoune appeared before this court for trial on five counts alleging offences under the Criminal Code: (i) breach of trust by an official, contrary to s. 122; (ii) procuring Canadian passports that purport to relate to other persons, contrary to s. 56.1(1); (iii) forgery, contrary to s. 57(1); (iv) making false statements for the purpose of procuring passports, contrary to s. 57(2); and (v) making forged passports available, contrary to s. 368(1)(c).
[2] The gravamen of all of the misconduct alleged against Ms Zeitoune is captured in the count of breach of trust. The remaining counts amount to specific examples of the manner in which the breach of trust occurred. All of the offences occurred between June 6, 2012 and January 31, 2013.
[3] Ms Zeitoune re-elected to be tried by a Superior Court judge sitting without a jury and pleaded not guilty to all five counts. On May 28, 2018, she was found guilty as charged. She is before the court today for sentencing.
A. The Circumstances of the Offences
[4] The charges against Ms Zeitoune arose from her participation in a scheme to enable imposters to obtain genuine Canadian passports. In the reasons for judgment delivered on May 28 I set out my findings of fact in relation to the nature of the scheme and the role that Ms Zeitoune played in it. [1] A brief summary of those findings will suffice for present purposes.
[5] Throughout the time period covered by the indictment Ms Zeitoune was employed as a Passport Officer in the department of the Government of Canada formerly known as Passport Canada. As a Passport Officer, Ms Zeitoune was an “official” within the meaning of ss. 118 and 122 of the Criminal Code. Passport Officers are the front-line officials to whom persons applying for passports present their applications and supporting documents. It is the responsibility of Passport Officers to determine, on behalf of Passport Canada, whether an applicant is entitled to receive a passport. As that determination is ordinarily made at the time the application is presented, Passport Officers play a significant role in protecting the integrity of the Canadian passport system.
[6] Ms Zeitoune carried out her duties at counter 4 in the North York Issuing Office of Passport Canada. A person attending at that Office to apply for a passport in the material time period would first be directed to an area where the application would be pre-screened to ensure that it was complete and that the applicant had brought the necessary supporting documentation. If the application was in order, the applicant would obtain a number from the queuing system, proceed to the waiting area in the main part of the Office, and, when his or her number was reached on an electronic display board, proceed to the counter indicated to have the application processed by a Passport Officer. As there were 17 counters in the North York Office, which Passport Officer would receive any particular application was a matter of chance.
[7] The guarantee of identity provided by possession of a passport is fundamental to any passport system. Accordingly, authentication of identity – confirming that applicants are who they say they are – is at the core of the Passport Officer’s responsibility in making entitlement determinations. To prove identity, applicants must present at least one piece of government-issued identification. Because “no passport shall be issued to a person who is not a Canadian citizen” [2], applicants must also provide proof of Canadian citizenship. In addition, they must provide the names and contact information of a guarantor and two references, each of whom must have known the applicant for at least two years.
[8] The charges before the court concern 24 passport applications that were processed through the North York Issuing Office between June 6, 2012 and January 23, 2013. Each application purported to be from a first-time applicant. All but three purported to be from persons who were born outside of Canada but who had subsequently acquired Canadian citizenship. In every case, including the three in which the applicant claimed to have been born in Canada, the proof of citizenship provided was a certificate of citizenship.
[9] None of those certificates was genuine. Each was a forgery that had been obtained ‘on the street’ with the assistance of a man named Moshe Gur. Further, the identities under which the 24 applicants applied were not their true identities. That is, each of the 24 applicants was an imposter and each of the 24 applications was fraudulent. All 24 applications came before Ms Zeitoune at counter 4 and in each case she made the decision on behalf of Passport Canada that the applicant was entitled to receive a passport. In 22 of the cases, a genuine Canadian passport was in fact issued to the imposter applicant.
[10] There is no doubt that Moshe Gur was both the architect and the director of the scheme to enable imposters to obtain Canadian passports. Among other things, he assisted the imposters in obtaining counterfeit citizenship certificates and Ontario Health Cards and he provided advice in relation to the naming of guarantors and references. He charged each of the imposters as much as $15,000 for his help,
[11] The success of Gur’s scheme depended on whether Passport Canada would accept at face value the identification and citizenship documents that the imposters presented and the information with respect to guarantors and references that the imposters provided. To ensure that this would occur, Gur enlisted the assistance of Ms Zeitoune. At his request, she agreed to permit the persons he was assisting to bypass the pre-screening and queuing system and to come directly to her counter so that she, and no other Passport Officer, would process their applications.
[12] For the reasons set out in the judgment I delivered on May 28, I am satisfied that Ms Zeitoune was not Moshe Gur’s innocent agent. The only reasonable inference is that she was a knowing participant in the scheme. When she made the decisions on behalf of Passport Canada that the persons referred to her by Gur were entitled to passports she knew that those persons were not who they claimed to be. She knew that they were imposters.
[13] What motivated Ms Zeitoune’s involvement in the scheme is unclear. Gur testified that he gave her money at her request on two occasions. On one of those occasions she had called him from a casino and on the other she said she needed money for her daughter’s education. Gur said that on both occasions he gave her a ‘couple of thousand’ but that in his mind the money was not a quid pro quo for her services. Gur was less than a credible witness in relation to both his and Ms Zeitoune’s involvement in the scheme and I do not accept his evidence that the money was not payment for her assistance, but that does not amount to evidence that it was payment. I would note, however, that the author of the Pre-Sentence Report states that in the years immediately preceding Ms Zeitoune’s involvement in the scheme she had encountered financial difficulties that ultimately led her to bankruptcy.
[14] Ms Zeitoune’s knowing participation in the scheme to enable imposters to receive genuine Canadian passports was a serious and marked breach of the duties imposed upon her by the terms of her office as a Passport Officer. As I have said, the remaining four charges are specific examples of the manner in which she breached the trust reposed in her.
B. The Circumstances of the Offender
[15] Ms Zeitoune was born in Lebanon in 1964 and she is now 54 years of age. In 1975, when she was 12, her family was forced to flee from Lebanon because of the civil war. She came to Canada with her parents and her two brothers in 1976.
[16] The adjustment to a new country, a new language and a new educational system was difficult for Ms Zeitoune. However, she overcame those difficulties, graduated from high school and was accepted into university. She decided instead to enter the work force. She obtained a certificate in Computer Operations and worked in that field for about three years. In 1988, when she was 24 years of age, she obtained a position with Passport Canada. At the time of the offences in the case at bar, she had been a Passport Officer for 24 years.
[17] Ms Zeitoune married in 1993. The marriage ended in divorce in 2000. Ms Zeitoune’s daughter was born of that union. Ms Zeitoune maintains a good relationship with her former husband. Subsequent to the divorce, Ms Zeitoune was in a common law relationship for eleven years. That relationship ended, without acrimony, at the instance of Ms Zeitoune.
[18] Once the offences in the case at bar were discovered Ms Zeitoune lost her job with Passport Canada. She has maintained gainful employment since that time, and is currently working as a driver for a courier company. She also started a small house cleaning business with a friend.
[19] At the conclusion of the sentencing hearing, Ms Zeitoune declined the opportunity to address the court. In the interval between then and today she prepared a letter in which she explained that she had not taken the opportunity to speak because of a fear that it would bring on one of the panic attacks that can arise from the anxiety from which she suffers. In the letter, she put in writing what she had wanted to say in court. With the consent of the Crown, Mr. Sandberg forwarded that letter to my assistant. I have read the letter and I have taken it into account in deciding on the appropriate sentence for Ms Zeitoune.
[20] It is clear from both the letter and from the Pre-sentence Report that Ms Zeitoune’s family is the most important thing in her life. She appreciates the struggles that her parents endured in relocating the family to Canada and rebuilding a life here. She is grateful for the efforts they made to instill values in her. She and her daughter are living with them at present. The entire family continues to gather each Friday for Shabbat dinner. Every member of the family has been supportive of her throughout the time she has been dealing with the matters before the court.
[21] Ms Zeitoune’s parents are now quite elderly, and they have become dependent on her for assistance. It is obvious that she is greatly concerned about what will happen to them if she is not there to help.
[22] The Pre-Sentence Report concludes with the following assessment:
Ms. Aline Zeitoune…is appearing before the court with no prior criminal record and facing sentencing on the charges of breach of trust, procure forged document, forge passport, false statement to procure passport, and utter forged document. She was cooperative with this writer in providing information for the purposes of this report.
Information compiled for this report indicated that the subject is a product of a supportive and pro-social family unit where traditional family values were taught and maintained. It is to be noted that at a young age the subject had to leave her home country due to the civil war. No abuse was reported within the family home. She appears to share a close relationship with her daughter, who has expressed a commitment to continue supporting the subject.
It can be noted that the subject experienced symptoms of anxiety and panic attacks due to her past divorce. She reports experiencing panic attacks within the last few year, however, [she] has not attended any counselling to address any potential mental health concerns. Therefore, this writer believes she would benefit from support in the area of mental health. No concerns around substance use or gambling have been noted. She reports to be employed as a driver for a Courier company.
The subject appears to have positive family relationships, employment and could benefit from counselling should a period of community service result. The above notwithstanding, the subject has not accepted responsibility for her behaviour. Further, this writer is unable to gauge the subject’s level of remorse as she denies any involvement in these offences.
[23] In relation to the issue of responsibility, Ms Zeitoune stated, in her letter to the court: “I’ve always done my job and my regret is not doing it the proper way”, and “I messed up really bad at my work and for that I will be forever sorry.”
C. The Positions of the Parties
[24] On behalf of the Crown, Ms Nedelkopoulos fairly acknowledges that the essence of Ms Zeitoune’s culpability is captured in the count of breach of trust, which carries a maximum period of imprisonment of five years. Ms Nedelkopoulos concedes that sentencing should be approached on the basis of that maximum. However, she submits that the gravity of the defendant’s breach of trust and the pressing need for denunciation and deterrence call for a sentence approaching the maximum, in the range of four to five years.
[25] On behalf of Ms Zeitoune, Mr. Sandberg agrees that the offences of which the defendant has been found guilty are serious and that the objectives of denunciation and deterrence are of paramount importance. He acknowledges that a term of imprisonment is called for. However, he reminds the court that Moshe Gur, the “quarterback” of the scheme, received an effective sentence of 2½ years, and he submits that Ms Zeitoune should not receive a greater penalty for her lesser role. He submits that the fit and appropriate sentence would be one of two years imprisonment to be followed by probation.
D. Discussion
[26] Section 718 of the Criminal Code provides, in part, that the fundamental purpose of sentencing “is to contribute… 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 [six] objectives.” Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. The objectives set forth in s. 718 sometimes pull in different directions. Which objectives will ultimately prevail will be a case-specific determination. In the case at bar, it is common ground that the objectives of denunciation and general deterrence are of paramount concern.
[27] Section 718.1 provides that whatever sanction is selected “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” There is no dispute with respect to the gravity of Ms Zeitoune’s breach of trust, nor is there any suggestion, based on the findings I have made, that her degree of responsibility can be characterized as anything other than high. In selecting a proportionate sentence a court must also bear in mind s. 718.2(a), which provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…”
[28] Further, pursuant to s. 718.2(b), the court must take into consideration the principle of parity, i.e., that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. This requires a court to consider sentences imposed in unrelated but analogous cases. In that regard, Crown counsel has referred to the reasons for sentence of Aitken J. in R. v. Serre, 2013 ONSC 1732 and Mr. Sandberg has referred to the reasons for sentence of Kenkel, J. in R. v. Granger, 2014 ONCJ 408. Both of those cases were concerned with serious breaches of trust by government officials, and both are helpful in relation to the general principles to be applied in sentencing for such breaches. As is almost always true in relation to sentencing precedents, however, the facts of those cases are quite different from the facts of the case at bar.
[29] The parity principle requires a consideration not only of sentences imposed in unrelated but analogous cases but also of the sentences imposed on any other persons involved in the offences for which the offender is to be sentenced. A number of the imposters who obtained passports pursuant to the scheme in this case were prosecuted. I am advised that each of them pleaded guilty and that the sentences imposed were all in the range of six months. The mastermind of the scheme, Moshe Gur, pleaded guilty before Justice McMahon to four counts, including a count of being a party to Ms Zeitoune’s breach of trust. He was sentenced to a term of imprisonment of 2½ years, less six months credit for pre-sentence custody.
[30] Parity does not require that everyone involved in an offence should receive the same punishment, regardless of their individual roles, backgrounds and circumstances. In R. v. Issa (1992), 57 O.A.C. 253, at page 255, the Court of Appeal explained:
So long as sentencing remains an individual process, there may be sentences meted out to offenders for participation in the same offence which are justifiably disparate. I think that Clayton Ruby's statement in Sentencing (3d ed, 1987), at p. 29, is correct, that the rule against unreasonable disparity in sentencing 'does not require equal sentences, but only understandable sentences, when examined together'.
[31] The sentences imposed on the individual imposters for their efforts to fraudulently obtain passports are of minimal assistance in determining what sentence Ms Zeitoune should receive. Their involvement in the scheme was at a much lower level that hers. However, the parity principle does require careful consideration of the sentence imposed on Moshe Gur. Gur was not only the architect of the scheme to enable imposters to obtain Canadian passports, he was the person directing its implementation. Unlike him, Ms Zeitoune had no involvement in obtaining the forged documents upon which the imposters relied and she had no involvement in the preparation of the fraudulent applications. Unlike him, she had no prior criminal record. And unlike him, there is no evidence that she received a substantial financial benefit for her participation.
[32] However, also unlike him, Ms Zeitoune pleaded not guilty and had a trial and she continues to maintain her innocence. None of those things are aggravating circumstances. They merely point to the absence of what was, for Mr. Gur, an important mitigating circumstance. Indeed, in his reasons for sentencing Mr. Gur to a period of imprisonment of 2½ years, Justice McMahon stated, at page 8, paragraph 6 that Gur was entitled to “a significant reduction” in sentence by reason of his guilty plea.
[33] More importantly, unlike Mr. Gur, Ms Zeitoune was in a position of public trust. Justice McMahon recognized this distinguishing circumstance at page 13 of his reasons for sentencing Mr. Gur:
Mr. Gur, however, was not the person in a position of trust inside the passport office who knowingly processed the fraudulent passports. That person’s level of moral culpability would certainly be greater than Mr. Gur’s. [emphasis added]
[34] I agree with that assessment. Section 718.2(a)(iii) provides that evidence that the offender abused a position of trust in committing the offence shall be deemed to be an aggravating circumstance. Further, while the fact that someone outside of Passport Canada was engaged in a scheme to undermine the integrity of the passport system raises concerns that are serious enough, those concerns are significantly exacerbated by the discovery that a trusted official within Passport Canada was knowingly facilitating the scheme.
[35] The sentence imposed on Moshe Gur is a useful reference point in determining the sentence to be imposed on Ms Zeitoune. However, the situations of Mr. Gur and Ms Zeitoune are not the same for sentencing purposes and the principle of parity does not require that their sentences be the same. I am of the view that on balance the differences call for a greater penalty for Ms Zeitoune.
[36] In determining what that penalty should be, I take into account that Ms Zeitoune has no prior criminal record, that she has the support of her parents, her siblings and her daughter, all of whom speak well of her, and that she has suffered the loss of her reputation and her career. I bear in mind that there is no evidence that she obtained a significant financial benefit from her participation in the scheme.
[37] However, her participation was a clear, serious and marked breach of the trust reposed in her. The faithfulness of Passport Officers to their obligations is fundamental to the integrity of the Canadian passport system. Entitling imposters to receive passports is the complete antithesis of what a Passport Officer is entrusted to do. In sentencing Mr. Gur, Justice McMahon noted that his scheme “strikes at the heart of our international responsibilities as a country” and weakens international confidence in our passport system. It undermines the ability of all countries to make confident and reliable determinations of the identities and past histories of persons seeking to cross their borders. The inability to confidently and reliably make those determinations can have very serious consequences for international safety and security.
[38] In the circumstances, the sentence of two years proposed by Mr. Sandberg would not be adequate to denounce Ms Zeitoune’s conduct and to deter others who might be tempted to violate their public trust. I conclude that the gravity of Ms Zeitoune’s breach of trust and the extent of her moral culpability require a substantial penitentiary sentence.
E. Disposition
[39] In my opinion, the appropriate sentence on the charge of breach of trust is 3½ years imprisonment (42 months) and that is the sentence I impose now. On each of the other four counts, Ms Zeitoune is sentenced to terms of imprisonment of one year, to be served concurrently with each other and with the sentence imposed for the count of breach of trust.
MacDonnell, J. Delivered: July 27, 2018
[1] R. v. Zeitoune, 2018 ONSC 2846 [2] the Canadian Passport Order, SI 81-86, s. 4(2)