A 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 prison.

Klaus 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 by humans.

The 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.

Nielsen’s 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 police.

Nielsen 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.

The 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.

In 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.”

Perkins-McVey 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 tried.

“The 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.”

Nielsen’s actions “shook the confidence” of the country’s international relationships when it comes to patents, the judge said.

“As 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.

Nielsen 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 judge said.

However, the judge found the scientist was carrying the vials for business purposes, not bio-terrorism or to intentionally put the public at risk.

But given his expertise, Nielsen “should have known better,” the judge said.

In 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.

He 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 agreements.

Nielsen’s lawyer, Solomon Friedman, had asked for two years of house arrest, the maximum conditional sentence available.

The 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.

She 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.

The 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.

“He 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,” she said.

The 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.

In his letter to the court, Nielsen apologized for his actions and expressed his “deep regret.”

“I know my actions were wrong, even if I justified them to myself at the time,” he wrote. “I know my actions have embarrassed the Canadian government, and by extension, my hard-working and dedicated colleagues.”

aseymour@postmedia.com

Twitter.com/andrew_seymour