former federal government scientist and world-renowned expert who
attempted to smuggle a potentially harmful bacteria out of the
country in his carry-on luggage has been sentenced to two years in
Nielsen was arrested on Oct. 24, 2012, as he headed to the Ottawa
airport en route to China with 17 vials of the brucella bacteria
packed in a thermos of ice inside a child’s lunch bag. The bacteria
and the contagious disease it causes — brucellosis — mostly
affect animals such as cows, goats and sheep, but can be contracted
improper transportation of the bacteria violated several federal
regulations, but also represented a breach of trust for the former
Canadian Food Inspection Agency scientist who had partnered with a
Chinese-born colleague named Wei Ling Yu to manufacture and sell
brucellosis diagnostic kits that Nielsen had helped develop as a
government employee — all the while undercutting the U.S.-based
company who held the commercial rights to the patents.
arrest followed an 18-month undercover RCMP investigation and came
nearly two years after he and his business partner had been fired by
the Canadian Food Inspection Agency (CFIA). Yu is still wanted by
argued his actions were altruistic and single-handedly helped lower
the cost of test kits for developing countries, where the disease is
still prevalent, driving the price down to 50 cents from 85 cents and
cutting heavily into the normal 90 per cent markup of the kits.
prosecution conceded there was no evidence Nielsen personally
profited from the sale of the test kits, which he and his partner
began to market after creating their own company, Peace River
Biotechnology Company, in 2006.
sentencing the 72-year-old Nielsen, Ontario Court Justice Heather
Perkins-McVey called it a “tragic case of an extraordinary man, a
scientist who made decisions in his conduct that breached the trust
of his employer of 30 years, and acted contrary to the public good.”
noted there were acts of dishonesty toward his employer, including
the use of coded language in five years worth of emails, that
suggested a degree of planning and sophistication. And while there
was no evidence of bribery of international officials on behalf of
Nielsen, there were indications that his business partner may have
motive was to promote the use of Chinese test kits, which would have
had the effect of diverting customers away from using the Canadian
product,” said Perkins-McVey. “Both Dr. Nielsen and the
co-accused used government property to start their own business. As a
public servant, he was entrusted with advancing the public good.”
actions “shook the confidence” of the country’s international
relationships when it comes to patents, the judge said.
a result of the accused and Ms. Yu’s (alleged) actions, it may be
perceived that working with CFIA comes with a risk, that Canada
cannot protect their international property,” the judge said.
acknowledged if his flight had been delayed or his bag was handled by
others there was a risk of harm. And if people had become sick, it
could have been difficult to diagnose and treat their illness, the
the judge found the scientist was carrying the vials for business
purposes, not bio-terrorism or to intentionally put the public at
given his expertise, Nielsen “should have known better,” the
a letter to the court, Nielsen claimed he didn’t realize the vials
contained live bacteria, although an expert testified that the manner
in which they were packed suggested otherwise.
also contended there was no criminal intent to his actions, and that
the offences were committed out of ignorance. Nielsen wrote he didn’t
know the information he was sharing was a violation of licence
lawyer, Solomon Friedman, had asked for two years of house arrest,
the maximum conditional sentence available.
judge admitted she “agonized” over whether to send Nielsen to
jail. The judge acknowledged that Nielsen presented a low risk to
reoffend and that he suffered from a myriad of serious and permanent
health issues that require a carefully monitored diet and treatment.
recognized that he had pleaded guilty to 11 counts of breach of trust
and regulatory offences sparing the cost of a lengthy trial, took
responsibility for his actions and expressed remorse.
father and grandfather has worked 1,500 hours of community service
since his arrest, is highly educated and has worked to eradicate
brucellosis around the world, the judge added. Nielsen is the author
of numerous books and scholarly scientific papers on the brucella
bacteria and has travelled the world lecturing and advising
governments on the subject.
is also a man who has committed a breach of trust and a man who has
put others at serious potential risk through his recklessness and
improper packaging and transport of the brucella bacteria vials,”
judge said she recognized how difficult prison would be for Nielsen,
but wasn’t persuaded that allowing him to serve his sentence in the
community would send the appropriate message of denunciation and
deterrence the law requires.
his letter to the court, Nielsen apologized for his actions and
expressed his “deep regret.”