Wednesday, October 30, 2013


The question of airport security has been in the spotlight for a while in Canada.  A recent case discusses the procedure of security clearances. A baggage handler who pleased guilty to a drug possession was refused security clearance.

Dolinski v. Canada (Attorney General)

Daryl Paul Dolinski, Applicant, and
Attorney General of Canada, Respondent
[2013] F.C.J. No. 1104
2013 FC 1030

Docket T-1317-12

 Federal Court
Edmonton, Alberta

Heneghan J.

Heard: April 10, 2013.
Judgment: October 10, 2013.
(30 paras.)

1     Mr. Daryl Paul Dolinski (the "Applicant") seeks judicial review of the decision of the Minister of Transport, Infrastructure and Communities (the "Minister"), dated June 6, 2012. In this decision, the Director General of Aviation Security, on behalf of the Minister, cancelled the Applicant's security clearance, pursuant to section 4.8 of the Aeronautics Act, R.S.C. 1985, c. A-2 (the "Act") and the Transportation Security Clearance Program ("TSCP").
2     The application for judicial review is taken pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7 and the Federal Courts Rules, SOR/98-106 (the "Rules").
3     The Attorney General of Canada (the"Respondent") represents the Minister in this proceeding.
4     The Applicant obtained security clearance at the Edmonton International Airport in 2006. On January 25, 2007, he and another airport employee were apprehended smoking marijuana in the Applicant's car. Marijuana and a scale were also found in the car. The Applicant was charged for possession of marijuana but the charge was withdrawn.
5     In 2008, the Applicant began working for Air Canada as a baggage handler.
6     On February 23, 2009, the Applicant was pulled over by the police. The officer observed what he believed to be marijuana and charged the Applicant with possession of a controlled substance. The officer also found $1180 in cash and fifty ecstasy tablets. As well, the officer found messages on the Applicant's cell phone from people asking to buy drugs and received a call from someone asking to "get two".
7     The Applicant was charged with possession of a controlled substance for the purpose of trafficking under subsection 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA")and possession of the proceeds of crime under subsection 355(b) of the Criminal Code, R.S.C., 1985, c. C-46. On December 7, 2009, the Applicant pled guilty to the lesser offence of possession of a controlled substance under subsection 4(1) of the CDSA and received a conditional discharge with twelve months probation. The Applicant retained his security clearance and continued to work for Air Canada. On April 3, 2011, he applied for renewal of his security clearance.
8     By letter dated March 27, 2012, the Applicant was informed by N. Dupuis, the Chief of Security Screening Programs, Security Programs Support at Transport Canada, that his security clearance would be reviewed by the Transportation Security Clearance Advisory Body. The reason for the review was that information had been obtained which raised concerns about the Applicant's suitability for clearance, that is information about the January 2007 and February 2009 incidents.
9     On April 12, 2012, the Applicant submitted a letter explaining the two incidents, a letter from his lawyer, a letter from his supervisor, and a letter from a Dr. Pagliaro, an expert witness who had been retained by the Applicant in connection with the criminal charges against him.
10     On April 20, 2012, the Applicant's security clearance was automatically renewed on the basis of a policy permitting automatic renewal, given the length of the review process. On April 25, 2012, the Applicant phoned the Edmonton International Airport Pass Control Office which informed him of the renewal and he began to use this pass.
11     On May 10, 2012, the Advisory Board reviewed the Applicant's security clearance and recommended that it be cancelled. On June 6, 2012, the Director General of Aviation Security, for the Minister, decided to cancel the Applicant's security clearance. The decision referred to the information which the Applicant provided.
12     The Director General concluded that the information regarding the Applicant's recent drug-related criminal offences, including the information regarding texts and calls to his phone from individuals asking to buy drugs, led him to believe that on a balance of probabilities the Applicant might be prone to commit an act, or assist or abet an individual to commit an act, that may unlawfully interfere with civil aviation. The Director General also stated that the Applicant's written statement did not contain sufficient information to address his concerns and that insufficient time had passed to demonstrate a change in the Applicant's behaviour.
13     By letter dated June 7, 2012, the Applicant was advised by the Director General of Aviation Security that the Minister had cancelled his transportation security clearance. The reasons provided in this letter are the same as those in the decision of June 6, 2012.
14     The Applicant argues that the decision was unreasonable. Section I.4 of the TSCP requires that the Minister hold a reasonable belief that a person may be prone to commit an act that unlawfully interferes with civil aviation, or to assist or abet a person in committing such an act. Relevant factors set out in section II.35(2)(a) of the TSCP include convictions for trafficking or possession for the purpose of trafficking, exporting, or importing, under the CDSA.
15     The Applicant submits that he was not convicted of such offences, but rather of possession, for which he received a conditional discharge. Although the Court noted in Lavoie v. Canada (Attorney General), 2007 FC 435 at paras. 23-26 that a conditional discharge does not prevent the Minister from considering a conviction, in that case the offence was listed in II.35(2)(a). Possession is not included in section II.35(2)(a). He argues that the Minister's decision was based on a factor not contemplated by the TSCP.
16     For his part, the Respondent argues that the Minister's decision was reasonable. The Minister had to consider whether reinstating the Applicant's security clearance would be contrary to the objectives set out in section I.4 of the TSCP. In making a decision under section I.4.4 of the TSCP, the Minister may consider any relevant factor, including but not limited to, those listed in II.35(2)(a).
17     The Respondent further submits that the jurisprudence is clear that the Minister may consider relevant factors not enumerated in the TSCP, including criminal charges resulting in a conviction, charges resulting in some other outcome, and conduct not resulting in criminal charges; see the decision in Fontaine v. Canada (Transport) (2007), 313 F.T.R. 309.
18     In Russo v. Canada (Transport) (2011), 406 F.T.R. 49, this Court held that the applicant's use of marijuana was a relevant consideration as he associated with criminals when purchasing the drug. In Lavoie,supra, this Court determined that the Advisory Board and Minister were not limited by the lack of a conviction or by the list in II.35(2)(a).
19     As in Russo, supra, the Applicant's association with criminals when purchasing marijuana is a relevant factor. The Minister's decision was also not based solely on the guilty plea and conditional discharge. Rather, the Minister considered several relevant factors including the 2007 charge for possession and the information indicative of drug trafficking.
20     The Respondent argues that a relatively low standard of proof is applicable to security clearance decisions. A refusal only requires a reasonable belief, on a balance of probabilities, that a person may be prone or induced to act to commit or assist in an act that may unlawfully interfere with civil aviation. A refusal can be based on a reasonable suspicion (Fontaine,supra, paras. 74-75, 81-82; Lavoie, supra, para. 29; Clue, supra, para. 20). Section I.4.4 involves an assessment of a person's character or propensities and does not require evidence of the actual commission of an unlawful act (Clue, supra, para. 20).
21     Here, the Advisory Body noted the conditional discharge and withdrawn charge, the RCMP reports, the Applicant's possession of a scale, the text messages and calls, that he was using drugs on his break at work, the Applicant's failure to address any of the information indicative of dealing, and the recent nature of the incidents.
22     The relevant provision of the Act is section 4.8 as follows:

·       4.8 The Minister may, for the purposes of this Act, grant or refuse to grant a security clearance to any person or suspend or cancel a security clearance. 
* * *

·       4.8 Le ministre peut, pour l'application de la présente loi, accorder, refuser, suspendre ou annuler une habilitation de sécurité. 
23     The following provisions of the TSCP are also relevant:

·       I.4 The objective of this Program is to prevent the uncontrolled entry into a restricted area of a listed airport by any individual who 

·       [...] 

·       4. 
the Minister reasonably believes, on a balance of probabilities, may be prone or induced to 

·       - 
commit an act that may unlawfully interfere with civil aviation; or 
·       - 
assist or abet any person to commit an act that may unlawfully interfere with civil aviation. 

·       II.35 

·       1. 
The Advisory Body may recommend to the Minister the cancellation or refusal of a security clearance to any individual if the Advisory Body has determined that the individual's presence in the restricted area of a listed airport would be inconsistent with the aim and objective of this Program. 
·       2. 
In making the determination referred to in subsection (1), the Advisory Body may consider any factor that is relevant, including whether the individual: 

·       a. 
has been convicted or otherwise found guilty in Canada or elsewhere of an offence including, but not limited to: 

·       i. 
any indictable offence punishable by imprisonment for more then 10 years, 
·       ii. 
trafficking, possession for the purpose of trafficking or exporting or importing under the Controlled Drugs and Substances Act, 
·       iii. 
any offences contained in Part VII of the Criminal Code - Disorderly Houses, Gaming and Betting, 
·       iv. 
any contravention of a provision set out in section 160 of the Customs Act, 
·       v. 
any offences under the Security Of Information Act; or 
vi. any offences under Part III of the
Immigration and Refugee Protection Act;

·       3. 
is likely to become involved in activities directed toward or in support of the threat or use of acts of serious violence against property or persons. 
* * *

·       L'objectif de ce programme est de prévenir l'entrée non contrôlée dans les zones réglementées d'un aéroport énuméré dans le cas de toute personne: 

·       [...] 

·       4. 
qui, selon le ministre et les probabilités, est sujette ou peut être incitée à: 

·       - 
commettre un acte d'intervention illicite pour l'aviation civile; ou 
·       - 
aider ou à inciter toute autre personne à commettre un acte d'intervention illicite pour l'aviation civile. 

·       II. 35 

·       1. 
L'Organisme consultatif peut recommander au ministre de refuser ou d'annuler l'habilitation d'une personne s'il est déterminé que la présence de ladite personne dans la zone réglementée d'un aéroport énuméré est contraire aux buts et objectifs du présent programme. 
·       2. 
Au moment de faire la détermination citée au sous-alinéa (1), l'Organisme consultatif peut considérer tout facteur pertinent, y compris: 

·       a. 
si la personne a été condamnée ou autrement trouvé coupable au Canada ou à l'étranger pour les infractions suivantes: 

·       i. 
tout acte criminel sujet à une peine d'emprisonnement de 10 ans ou plus; 
·       ii. 
le trafic, la possession dans le but d'en faire le trafic, ou l'exportation ou l'importation dans le cadre de la Loi sur les drogues et substances contrôlées; 
·       iii. 
tout acte criminel cité dans la partie VII du Code criminel intitulée "Maison de désordre, jeux et paris"; 
·       iv. 
tout acte contrevenant à une disposition de l'article 160 de la Loi sur les douanes; 
·       v. 
tout acte stipulé dans la Loi sur les secrets officiels; ou 
·       vi. 
tout acte stipulé dans la partie III de la Lois sur l'immigration et la protection des réfugiés. 

·       3. 
si elle possède une mauvaise réputation en matière de crédit et qu'elle occupe un poste de confiance; ou 
·       4. 
qu'il est probable qu'elle participe à des activités directes ou en appui à une menace ou qu'elle se livre à des actes de violence sérieuse contre la propriété ou des personnes. 
24     The TSCP states that the Advisory Board may consider"any factor that is relevant" and that offences to consider include but are not limited to those listed in II.35(2)(a). In Russo, supra Justice Russell dismissed a judicial review application where the applicant had been convicted of possession and production of marijuana, and admitted to continued occasional use of marijuana.
25     The within application relates to the Minister's decision to cancel a security clearance. This decision is a discretionary one, having regard to section 4.8 of the Act and the provisions of the TSCP cited above. Such a decision is reviewable on the standard of reasonableness; see the decisions in Fradette v. Canada (Attorney General), 2010 FC 884 at para. 17 and Clue v. Canada (Attorney General), 2011 FC 323 at para. 14. Accordingly, the only substantive issue arising is whether the Minister's decision was reasonable.
26     In my opinion, the Minister's decision was reasonable. The Applicant's argument that the TSCP's drug-related concerns are restricted to trafficking runs counter to the policy's plain language and the wide discretion afforded the Minister.
27     I am satisfied that the Minister's decision was reasonable in light of the evidence submitted and the applicable standard of proof. In Clue, supra, para. 20, Justice Barnes noted that the standard of proof in such cases involves an assessment of a person's character or propensities and does not require evidence of the actual commission of an unlawful act. This rationale was applied in the recent decision of Peles v. Attorney General of Canada, 2013 FC 294.
28     Although the first charge against the Applicant had been withdrawn and he had received a conditional discharge for the second, the Advisory Body noted the evidence suggested trafficking, that the Applicant had used drugs while on a break from work, and that the events were fairly recent.
29     This evidence reasonably supports the Minister's conclusion that the Applicant, on a balance of probabilities, might be prone or induced to commit, or to assist or abet an individual to commit, an act that unlawfully interferes with civil aviation.
30     In the result, the application for judicial review is dismissed. In the exercise of my discretion, pursuant to Rule 400(1) of the Rules I make no order as to costs.
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed, no order as to costs.


Sunday, October 27, 2013


I appeared on CCTV, China's largest TV channel, on an the question of US citizens in Canada relinquishing their US citizenship for tax reasons.

Thursday, October 17, 2013


Here is the text of the case involving the BC nanny front the Philippines.  It appears to me that, while the jury found Mr. Orr guilty, the language in the sentence by the judge is less convincing, given the many contradictions in the nanny's evidence.  A sentence of 18 months in jail seems comparatively harsh, but I suppose that the court wanted a send strong warning to employers. It will be interesting to see if an appeals court reduces this sentence.  there are very few reported cases in connection with human trafficking, and most involve much more direct and blatant violations, such as trying to get a person surreptitiously through a Port of Entry.

R. v. Orr

Between Regina, and
Franco Yiu Kwan Orr and Oi Ling Nicole Huen

[2013] B.C.J. No. 2257

2013 BCSC 1883

Docket: 26094

Registry: Vancouver

 British Columbia Supreme Court
Vancouver, British Columbia

R.B.T. Goepel J.

Heard: August 21, 2013.
Oral judgment: October 15, 2013.

(84 paras.)


Oral Reasons for Sentence

R.B.T. GOEPEL J. (orally):--


1     On June 26, 2013, a jury found Mr. Orr guilty of the following offences under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]:


·        Count 1 


·        Franco Yiu Kwan ORR, between the 1st day of December, 2007 and the 14th day of June, 2010, at or near the cities of Richmond and Vancouver, in the Province of British Columbia, and in the Hong Kong Special Administrative Region of the People's Republic of China, did knowingly organize the coming into Canada of Leticia SARMIENTO, by means of abduction, fraud, deception or use of threat of force or coercion, thereby committing an offence contrary to section 118(1) of the Immigration and Refugee Protection Act


·        Count 2 


·        Franco Yiu Kwan ORR, between the 8th day of September, 2008, and the 14th day of June, 2010, at or near the Cities of Richmond and Vancouver, in the Province of British Columbia, did employ a foreign national, to wit: Leticia Sarmiento, in a capacity to which the foreign national was not authorized under the Immigration and Refugee Protection Act to be employed, contrary to Subsection 124(1)(c) of the Immigration and Refugee Protection Act


·        Count 3 


·        Franco Yiu Kwan ORR, on or about the 25th day of June, 2008, at or near the Hong Kong Special Administrative Region of the People's Republic of China, did misrepresent or withhold material facts relating to a relevant matter that induced or could induce an error in the administration of the Immigration and Refugee Protection Act, to wit: providing false information to the Consulate General of Canada in support of the application for a temporary resident visa for entry to Canada for Leticia Sarmiento, contrary to section 127(a) of the Immigration and Refugee Protection Act

2     The jury acquitted Mr. Orr's wife, Ms. Huen, on counts one and two.

3     I must now impose a sentence. The Crown seeks a global sentence for the three offences of between five and six years. The defence seeks a conditional sentence.


4     The task of sentencing is made more difficult in this case because a jury is not required to give reasons for its decision or to set out the facts that it found in arriving at those decisions. The role of the sentencing judge after conviction by a jury is set out in ss. 724(2) and (3) of the Criminal Code, R.S.C. 1985, c. C-46, [the Criminal Code].

5     The applicable principles were summarized by Joyce J. in R. v. Brisson, 2009 BCSC 1606 at para. 5, distilling the Supreme Court of Canada's judgment in R. v. Ferguson, 2008 SCC 6:


·        1. 

The sentencing judge must determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. 

·        2. 

The sentencing judge is bound by the express and implied factual implications of the jury's verdict, and must accept as proven all facts express or implied that are essential to the jury's verdict. 

·        3. 

The sentencing judge must not accept as fact any evidence consistent only with a verdict rejected by the jury. 

·        4. 

When the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical processes of the jury, but should come to his or her own independent determination of the relevant facts. 

·        5. 

Aggravating facts must be established beyond a reasonable doubt. Other facts must be established on a balance of probabilities. 

·        6. 

The sentencing judge should therefore find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. 

6     In this case, the findings of fact are of critical importance in determining the appropriate sentence. As such, I find that the facts that follow were proven at trial.

7     Ms. Sarmiento was born and grew up in the Philippines. She graduated from high school and attended one year of college. She has three children, who were aged three, 18 months and eight months when she first left the Philippines in 2000 to work as a caregiver.

8     Ms. Sarmiento worked as a caregiver in various countries in order to support her children. She sent back to the Philippines almost all of the money she earned in her various positions.

9     Ms. Sarmiento was initially employed as a caregiver in Saudi Arabia on a two-year contract which commenced in 2000. That contract was subsequently renewed for an additional two years. In June 2004, she commenced work as a caregiver in Lebanon. That position ended because of civil strife in that country. In 2006, she obtained a position in Hong Kong as a domestic worker. That position terminated on or about June 12, 2007.

10     After her initial position in Hong Kong terminated, Ms. Sarmiento entered into a two year contract to work for the Orr family in Hong Kong. She commenced that employment on August 15, 2007. At that time, the Orrs had two children: Vanessa who was two and a half and Ashley who was less than one. A third child, Megan, was born on December 8, 2007.

11     Under the terms of the Hong Kong contract, Ms. Sarmiento was paid the equivalent of CAD $500 per month plus room and board. When she commenced her employment, she shared a room with another domestic helper. Ms. Sarmiento took care of the children while the other helper did the domestic chores.

12     After Megan was born, Ms. Sarmiento shared a room with Megan. Her duties included changing diapers, feeding and bathing Megan, and taking care of Megan if she was ill. If the baby woke up in the night, it was Ms. Sarmiento who took care of her. She also provided some assistance taking care of Vanessa and Ashley. The other worker continued to do the domestic chores.

13     Sometime towards the end of 2007 or early 2008, Mr. Orr told Ms. Sarmiento that the family was moving to Canada. Ms. Sarmiento was invited to come to Canada with the family. Mr. Orr told her that if she went to Canada, she would take care of the children and the family would get another helper for domestic chores. She was told that she would work eight hours a day, the same hours as she had in Hong Kong. She was also told she would be paid as required by Canadian law. Mr. Orr told Ms. Sarmiento that once she had been in Canada for two years he would assist her in becoming a permanent resident of Canada.

14     Ms. Sarmiento relied on these representations in agreeing to come to Canada. She enjoyed working for the Orr family and they treated her well in Hong Kong. Based on her discussion with Mr. Orr she expected that she would continue to work for them as long as they need her services which she expected to be several years.

15     The general rule is that any foreign national who wishes to work in Canada must first obtain a work permit. A work permit must be applied for from outside the country.

16     Canada has established a specific program under IRPA for foreign nationals who wish to work as live-in caregivers. Applicants must apply from outside the country for a work permit. To obtain the work permit the applicant must meet certain minimum standards of education and experience, be able to communicate effectively in either French or English and have an employment contract with their intended employer. The employment contract must meet the employment standards of the province in which the caretaker proposes to live. A person accepted into the caretaker program can ultimately apply for permanent residence in Canada.

17     The Immigration and Refugee Protection Regulations, SOR/2002-227, have a special provision which exempts foreign national caregivers from the work permit requirement. The exemption allows a caregiver to work in Canada for a maximum of six months while accompanying their employer. In such situations the caregiver is issued a Temporary Resident Visa.

18     Ms. Sarmiento relied on Mr. Orr to arrange her travel documentation. Mr. Orr had her complete an application for a Temporary Resident Visa.

19     Mr. Orr wrote a letter, dated June 25, 2008, to Citizenship and Immigration Canada ("CIC") in support of the visa application. In his letter he disclosed that Ms. Sarmiento had been employed as a domestic helper looking after the family's three young children since September 2007. He wrote that he would purchase a return airline ticket for her "after we have completed our visit" and that "she would travel back to Hong Kong with us".

20     The June 25, 2008 letter is the basis for the offence set out in Count 3. Essential to the jury's verdict on that count is a finding that at the time the letter was written, Mr. Orr intended to remain permanently in Canada and if that information had been known to the immigration authorities, the application for a Temporary Resident Visa would have been rejected.

21     Ms. Sarmiento was granted a Temporary Resident Visa. The visa expired March 1, 2009. The visa allowed but a single entry into Canada.

22     The Orr family and Ms. Sarmiento arrived in Canada on September 9, 2008. Mr. Orr did not hire a second domestic worker. Unlike in Hong Kong Ms. Sarmiento was required to assist with domestic chores such as cooking and cleaning, in addition to looking after the Orr children.

23     After the family arrived in Canada Ms. Sarmiento continued to be paid $500 a month plus room and board. When she raised this issue with Ms. Huen she was told she would continue to be paid that amount until her Honk Kong contract expired.

24     In November 2009, Ms. Sarmiento's wage was increased to $700 a month. This amount was still less than what Ms. Sarmiento would have been entitled to be paid pursuant to British Columbia law.

25     On or about March 1, 2009, Mr. Orr prepared on behalf of Ms. Sarmiento an application to extend her Temporary Resident Visa until August 30, 2009. By letter dated June 11, 2009, immigration officials advised Ms. Sarmiento that her request for an extension was denied and she was to leave Canada immediately. Mr. Orr knew the extension was refused.

26     Mr. Orr admits that he employed Ms. Sarmiento from September 9, 2008 until March 9, 2009. He says that subsequent to that date Ms. Sarmiento was a guest in their home, but not employed there. He says he would from time to time give her money to assist her.

27     The jury was instructed that if Mr. Orr was convicted on Count 3, it would mean that Ms. Sarmiento's visa was obtained by misrepresentation and as such would be a nullity. If the visa was a nullity, Ms. Sarmiento could never have legally been employed in Canada and the jury must return a guilty verdict on Count 2 based on Mr. Orr's admission that he employed Ms. Sarmiento from September 2008 until March 2009. Accordingly, it was not essential for the jury, in reaching its verdict, to decide whether Ms. Sarmiento remained employed in the period of March 9, 2009 to June 13, 2010.

28     Ms. Sarmiento testified that she remained employed until June 13, 2010. Her reason for coming to Canada with the Orr family was to earn money which she could send back to her family. If Ms. Sarmiento was not employed, there was no reason for her to stay in Canada. Ms. Sarmiento continued to receive a monthly wage and in November 2009 that wage was increased from $500 a month to $700 a month. I do not accept Mr. Orr's evidence that he did not continue to employ Ms. Sarmiento after receiving the letter from CIC rejecting the extension of her visa in June 2009. His evidence does not raise a reasonable doubt. I find that Mr. Orr continued to employ Ms. Sarmiento until June 13, 2010.

29     Ms. Sarmiento remained in the Orr home until June 13, 2010. On that day, after a quarrel with Ms. Huen, Ms. Sarmiento called 911. The police came to the Orr home in response to the call and ultimately removed Ms. Sarmiento from the home.

30     It is implicit in the jury's findings that Ms. Sarmiento's conditions of employment were different in Canada than in Hong Kong. Ms. Sarmiento was told there would be a second domestic helper who would do the household chores. There was not. She was also told she would be paid Canadian wages. She was not. Even when her wages were increased in November 2009 to $700 a month she was being paid less than the required wage under British Columbia law.

31     The more contentious factual questions are in regards to the particulars of her working conditions and whether Ms. Sarmiento was the victim of exploitation. In that regard, I note that the Crown did not lay charges under s. 279.01 of the Criminal Code, which makes it an offence to exercise control, direction or influence over the movements of a person for the purpose of exploiting them or facilitating their exploitation.

32     The particulars the Crown now relies on were not essential to the jury's verdict. The Crown relies on them, however, as the foundation of their sentencing submission. The particulars constitute aggravating factors which must be proven beyond a reasonable doubt.

33     The Crown submits that Ms. Sarmiento worked for 22 months in the Orr household under humiliating and degrading conditions. It submits she was forced to work 16 hours per day, seven days per week and was not allowed to attend church or to communicate with persons outside of the Orr family. It submits that her passport was withheld from her and she was not permitted to venture out of the house on her own. It submits that contact with her family in the Philippines was limited and she was only able to wire money to her family through Mr. Orr. It says the doors to the Orr resident could only be opened by means of an electronic keypad and that Ms. Sarmiento was not told the code. It says she was kept in a situation of isolation and control amounting to a form of modern-day slavery.

34     Mr. Orr denies Ms. Sarmiento was kept as a virtual slave. He says she was free to come and go from the house as she desired. He denies that she worked 16 hours per day. He says she could make unlimited phone calls to the Philippines. He denies that Ms. Sarmiento's passport was kept from her. He says she was treated as a member of the family and the family all celebrated her birthday.

35     The Crown's submission in relation to these aggravating facts is entirely dependent on the testimony of Ms. Sarmiento. It submits that it is implicit in the jury's verdict that it rejected Mr. Orr's evidence as untruthful and believed Ms. Sarmiento's evidence as to the manner in which she was treated in the Orr household.

36     As noted, all aggravating factors must be proved beyond a reasonable doubt. The fact that Mr. Orr was convicted does not mean that the jury believed all of Ms. Sarmiento's evidence. The jury was free to accept some or all of her evidence.

37     The jury's decision to acquit Ms. Huen of the charges against her is a clear indication that the jury did not accept all of Ms. Sarmiento's evidence. Some of her testimony was contradicted by other evidence led at trial from independent witnesses. Four examples will suffice.

38     Ms. Sarmiento testified that she only learned that her visa had expired and she was in Canada illegally on June 13, 2010, when she saw the immigration authorities on the day the police took her from the Orr home. She says she never knew her immigration status prior to June 13, 2010. Ms. Velasco, a Filipino nanny in whom Ms. Sarmiento had confided, testified that Ms. Sarmiento had told her that she was in Canada without status. She said that Ms. Sarmiento had told her that she had entered Canada as a tourist and had now overstayed as her employer had not renewed her visa.

39     Ms. Sarmiento testified that in the fall of 2008, Mr. Orr made all remittances on her behalf to the Philippines. She further testified that she did not have her passport at any time subsequent to the issuance of the visa in July 2008. She testified the remittances totalled less than $1,000. She denied that she had used her passport to open an account at the Philippines National Bank (the "PNB"). She denied that she had made those remittances from the PNB.

40     The records of the PNB indicate there were four remittances made in the fall of 2008 totalling in excess of $1,800. The PNB records show that an account was opened in the name of Ms. Sarmiento on October 22, 2008. Mr. Barros of the PNB testified that a party can only open an account if they show identification. A Filipino passport is an acceptable form of identification. When an account is opened, the bank's practice is to have the teller examine the passport to verify that the individual presenting the passport is the person to whom it belongs.

41     Ms. Sarmiento testified that she needed to enter a code in order to exit the Grant Street residence. She said there was a keypad lock on the front door. She testified people inside the house needed a key to open the door. She testified a key was needed to leave the townhouse premises. Several witnesses testified that there were ordinary locks on the doors. All testified that you did not need a key to open the doors from the inside.

42     Ms. Sarmiento testified that she was only allowed to call home to the Philippines once a month. In Hong Kong she called home three times a week. Evidence at the trial showed that some 95 calls were placed on the phone in the Grant Street residence to a cell phone number in the Philippines. The first calls were made on September 15, 2008 within a week of the family arriving from Hong Kong. No calls were placed to the number between December 6, 2008 and August 8, 2009 when the family was living in Richmond. The last four calls to the number were placed on June 8, 9 and 11, 2010. No calls were placed to the number after Ms. Sarmiento left the residence on June 13, 2010.

43     In regard to each of the four examples I find that Ms. Sarmiento's recollections are mistaken. I find that she had access to her passport when in Canada. I find that she attended at and opened an account at the PNB. The doors to the Orr home were not controlled by an electronic keypad. A person did not need a key to leave the Orr home. Ms. Sarmiento knew she was in Canada illegally long before she left the Orr home. Ms. Sarmiento called the Philippines from the Grant Street residence on a regular basis.

44     Given the totality of the evidence and the frailty of Ms. Sarmiento's recollections, I find that the Crown has not proven beyond a reasonable doubt the aggravating factors it alleges. I cannot find beyond a reasonable doubt that Ms. Sarmiento was treated as a virtual slave. While her working conditions were not the same as in Hong Kong, I cannot accept her evidence that that she was forced to work 16 hours a day, seven days a week. She was not forced to work in humiliating and degrading conditions. The Crown has not proven the aggravating facts concerning her employment.


45     Mr. Orr was born in Hong Kong and is now 50 years old. He came to Canada when he was 16 years old. He eventually obtained permanent residence status and is now a Canadian citizen. He initially lived in Vanderhoof, British Columbia and graduated from Nechako Secondary School.

46     Subsequent to graduating from high school, Mr. Orr went to the College of New Caledonia in Prince George and then moved to Vancouver where he attended BCIT. He ultimately obtained a Bachelor's of Arts in Economics from the University of Victoria.

47     Between 1988 and 1995, he was employed in the computer industry. Between 1995 and 1998 he worked for an immigration consultant firm. Commencing in 1998 he began to work as an agent and promoter in the entertainment field.

48     Mr. Orr met in his wife in 1998 and they were married in 2003. After they were married, they moved to Hong Kong where he became involved in the development of commercial real estate. In 2006, he became involved in a development project in Cambodia. The failure of that business lead to the family's decision to return to Canada in 2008 to seek out business opportunities here.

49     Unfortunately for Mr. Orr, he was not able to find any suitable business opportunities. He was unemployed from his return to Canada in September 2008 through to December 2010, when he obtained employment as a security guard. He worked as a security guard until recently. As a result of the publicity arising from his trial he has now lost that employment.

50     Mr. Orr and his wife have three daughters who were born in 2005, 2006 and 2007. Ms. Huen has taken a real estate course, but due to the publicity that has arisen as a result of this case, she has not been able to make a living in that field.

51     At the sentencing hearing, eleven letters attesting to Mr. Orr's good character were filed as exhibits. Most of the writers have known Mr. Orr for many years. The letters describe him as an honest, hardworking person who always tries to do his best and to be fair to those around him. The letters indicate that he is a devoted father as well as a loyal and supportive friend who is always concerned with others' feelings.


52     A victim impact statement was filed by Ms. Sarmiento. In her statement she says she used to trust people, but now doubts everything people say. She says she had to stop working to testify at the trial and recently lost a job because her employer did not believe she was able to legally work in Canada due to the media attention from the trial. Her children, who are still in the Philippines, do not understand why she is no longer able to send them money. She writes that she left her home in the Philippines in order to support her family and help them get an education and a better life. She says she feels that she is going crazy and she cries all the time. She also says she feels noticed when in public because of the media attention, leading her to feel embarrassed and judged. She believes it would have been better if she never came to Canada.


53     The offences which are the subject of the three counts all arise from breaches of the provisions of IRPA. Count 1 concerns s. 118(1) of IRPA, which makes it an offence for a person to knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion. In this case, it is alleged that Mr. Orr organized Ms. Sarmiento's coming into Canada by means of fraud and deception.

54     Section 118 of IRPA concerns human trafficking. In 2000, Canada signed the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2237 U.N.T.S. 319 [the Protocol ]. IRPA was enacted in 2001. The objectives of the Protocol are to prevent and combat trafficking in persons, to assist the victims of trafficking and to promote international cooperation amongst states to achieve these objectives. The Protocol defines trafficking in persons, in part, as the "transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception..." This language is similar to the language found in s. 118 of IRPA.

55     Pursuant to s. 120, a person who contravenes s. 118 is liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

56     Pursuant to s. 121(1), the court, in determining the penalty to be imposed under section 120, shall take into account as aggravating factors whether


·        (a) bodily harm or death occurred, or the life or safety of any person was endangered, as a result of the commission of the offence; 


·        (b) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization; 


·        (c) the commission of the offence was for profit, whether or not any profit was realized; and 


·        (d) a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence. 

57     Section 124(1)(c) holds that it is an offence for a person to employ a foreign national in a capacity in which the foreign national is not authorized to be employed under IRPA.

58     Pursuant to s. 125, a person who commits an offence under s. 124(1)(c) is liable on conviction on indictment to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.

59     Pursuant to s. 127(a) of IRPA, no person shall misrepresent or withhold material facts relating to a relevant matter that could induce an error in the administration of that act.

60     Pursuant to s. 128, a person who contravenes s. 127 is liable on conviction on indictment to a fine of not more than $100,000 or to a term of imprisonment of not more than five years, or to both.

61     None of the offences of which Mr. Orr has been convicted carry a minimum sentence.


62     The Crown submits that deterrence and denunciation are the main objectives of sentencing to be applied in this case. It notes that the provisions of s. 118 of IRPA were enacted in Canada as a legislative means to address the objectives of the Protocol, namely to prevent, supress and punish trafficking in persons, especially women and children.

63     In regards to the individual offences, the Crown submits an appropriate sentence for the conviction under s. 118 is between 5 and 6 years. For the misrepresentation offence under s. 127(a), the Crown submits an appropriate sentence would be two years in jail. In regards to the offence of employing a foreign national under s. 124(1)(c), the Crown submits an appropriate sentence would be 18 months in jail. The Crown seeks a global sentence for Mr. Orr for all three offences of between 5 and 6 years.

64     The defence submits that in the circumstances of this case, a conditional sentence of two years less a day plus a fine would be appropriate. The defence submits that Mr. Orr is not a danger to society, nor is there a concern about re-offending. As counsel notes, he is the sole provider for a young family that has been devastated by the publicity that this case has garnered. He is also facing civil claims brought by Ms. Sarmiento and the Employment Standards Branch who seeks to recover money they claim is owed to Ms. Sarmiento for unpaid wages.


65     Counsel has advised that, although the legislation has been in force for more than ten years, this is the first conviction in Canada under s. 118 of IRPA. Accordingly in regard to sentencing this is a matter of first impression and there are no Canadian authorities to assist.

66     Sentences have been imposed for human trafficking under s. 279.01 of the Criminal Code. I note, however, that exploitation is an essential ingredient of that offence. Exploitation is defined in the Criminal Code for the purposes of s. 279.01 as conduct that in all the circumstances could reasonably be expected to cause the victim to believe that their safety or the safety of a person known to them would be threatened if they failed to provide or offered to provide labour or services. This case does not involve such conduct and the cases under s. 279.01 are accordingly of little assistance.

67     Given the absence of Canadian authorities in regards to s. 118 the Crown asked this Court to consider Australian, British and American authorities which have considered cases of domestic servitude. The difficulty with that submission is that the principles of sentencing in those jurisdictions do not mirror those that I must apply. I also note that the legislation and the facts in the cases put before me are clearly distinguishable from the case at bar. In these circumstances I can place no reliance on those authorities.

68     There have been cases dealing with ss. 124(1)(c) and 127(a) of IRPA. In R. v. Choi (J.W.), 2013 MBCA 75, the accused plead guilty to one count under s. 124(1)(c) of IRPA arising from his illegal employment of six foreign nationals in a sushi restaurant. The trial judge imposed a conditional discharge. This sentence was reversed by the Court of Appeal who substituted a conviction and a fine of $20,000.

69     In R. v. Hupang, 2008 BCCA 4, the accused was charged under s. 127(a) for making misrepresentations in an application to extend a study permit and to apply for temporary resident status. The offender was a young man without a criminal record who had entered Canada legally to study and improve his circumstances. At trial he was sentenced to two months imprisonment and fined $2,500 following a guilty plea. He was released pending his appeal after serving 17 days in custody. The Court of Appeal allowed the appeal, set aside the custodial sentence and imposed a sentence of 17 days imprisonment that represented the time Mr. Hupang had already served.

70     In R. v. Tongo, 2002 BCPC 463, the three accused plead guilty to a single count of misrepresentation involving a scheme to smuggle three Chinese migrants into Canada. The accused were each sentenced to a period of incarceration of two months in addition to the equivalent of six weeks which they had already spent in jail.


71     The most significant mitigating factor in this case is that Mr. Orr has been a productive, law-abiding member of society since first coming to Canada as a teenager more than 30 years ago.

72     Mr. Orr continues to maintain his innocence in relation to these matters. That there is no expression of remorse is not an aggravating factor and is not to be taken into account in sentencing.

73     Section 121 of IRPA requires the court to take into account various matters as aggravating factors. In this case the only factor that applies is that Mr. Orr profited from the offence in that he paid Ms. Sarmiento less than the legislatively mandated minimum salary for the services that she was providing. In addition, I find that Mr. Orr's decision to continue to employ Ms. Sarmiento after he had received a letter from CIC in June 2009 requiring her to leave Canada immediately is also an aggravating factor.


74     The principles of sentencing are set out in ss. 718 to 718.2 of the Criminal Code. Deterrence, denunciation and rehabilitation are all important sentencing objectives. Pursuant to s. 718.1, the sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. A fit sentence must take into account the nature of the offence, the character of the offender and the circumstances surrounding the commission of the offence: R. v. Shropshire, [1995] 4 S.C.R. 227 at para. 18. While past cases can provide guidance, a fit sentence inevitably depends on the specific circumstances of the particular case.

75     In cases involving multiple offences, consideration must be given to the concept of totality. The principle was summarized in R. v. Li, 2009 BCCA 85 at paras. 26-28:


·        [26] Whether sentences for multiple offences are made consecutive or concurrent, it is the task of the sentencing judge to fix an appropriate global sentence that reflects the specific circumstances of the offences and the unique circumstances of the offender. The importance of this balancing is reflected in the principle of proportionality, which has been codified in s. 718.1 of the Criminal Code under the heading "fundamental principle": 


·        A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 


·        [27] The principle of totality also factors into the imposition of an appropriate aggregate sentence for multiple offences. In M.(C.A.), Lamer C.J.C. described the principle: 


·        [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979) at p. 56: 


·        The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". 


·        [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. See R. v. P.P.H., 2003 BCCA 591. 


76     These offences concern breaches of IRPA, which contains an integrated regulatory scheme to manage this country's immigration policies. The legislation includes protection for potential immigrants and penalties for those who might deceive them. The legislation provides protection for Canadian workers by prohibiting the employment of foreign nationals absent specific authorization for those nationals to work. The legislation depends upon the honesty of individuals who make representations for visas and other documentation.

77     I have little doubt that Mr. Orr has been, and will in the future again be, a productive member of Canadian society. The jury has, however, found that he brought Ms. Sarmiento into Canada by means of fraud and deception, that he illegally employed her and that he made misrepresentations to immigration officials so that she could obtain a visa.

78     The gravity of the offence created by s. 118 of IRPA, which was enacted to address human trafficking, is reflected in the fact that it carries a maximum sentence of life imprisonment. It is important to note, however, that the offence carries no minimum sentence. Parliament has clearly recognized that the circumstances of the offence and the offender must be specifically considered in determining the appropriate sentence.

79     Offences under s. 118 of IRPA will fall across a broad continuum of conduct. Aggravating factors can include whether bodily harm or death occurred, whether the life or safety of any person was endangered, whether the commission of the offence involved a criminal organization, whether the commission of the offence was for profit or whether the victim was subject to humiliating and degrading treatment. I have found above that the Crown has not proven that Ms. Sarmiento was subject to humiliating and degrading treatment. Mr. Orr did profit from his employment of Ms. Sarmiento due to the low wage paid, albeit the profit was relatively modest. The lack of significant aggravating factors puts this offence at the lower end of the continuum.

80     While the Crown did not prove beyond a reasonable doubt that Ms. Sarmiento was subjected to humiliating or degrading treatment, she was nonetheless the victim of these offences. She came to Canada at the behest of the Orrs. She was misled as to her working conditions, salary and her opportunity to stay permanently in Canada. When she came to know that she was in the country illegally, because she had no friends or relations in Canada, she was socially isolated with limited available options to resolve her situation. It was only after she made her 911 call that she found the assistance she required.

81     Individuals cannot be allowed to disregard the immigration laws of this country with impunity. The main sentencing objectives in the circumstances of this case must be those of denunciation and general deterrence. A conditional sentence would not be consistent with these objectives.

82     Mr. Orr would you please stand.

83     Given the nature and circumstances of this offence, and taking into account your past good character and lack of criminal record, I sentence you in regard to Count 1 of the indictment to 18 months in jail. In regard to each of Count 2 and Count 3, I sentence you to six months in jail. Although the three counts are separate offences under IRPA, they all arise from the same general circumstances. The misrepresentation to CIC allowed Ms. Sarmiento to come into the country where she then was illegally employed. Her employment arose from the initial deception that she would have the same working conditions in Canada as she did in Hong Kong. In these circumstances, and taking into account the concept of totality and proportionality, the sentence on counts 2 and 3 shall be served concurrently with the sentence under Count 1. Mr. Orr, your global sentence will be 18 months in jail.

84     I am not going to impose a victim surcharge or a fine. Ms. Sarmiento is actively pursuing in other proceedings her claims for compensation and those proceedings are the proper form to address the financial consequences of these offences.