R. v. Orr
Between
Regina, and
Franco Yiu Kwan Orr and Oi Ling Nicole Huen
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.
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):--
INTRODUCTION
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.
CIRCUMSTANCES OF THE OFFENCE
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:
The sentencing judge
must determine the facts necessary for sentencing from the issues before the
jury and from the jury's verdict.
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.
The sentencing judge
must not accept as fact any evidence consistent only with a verdict rejected by
the jury.
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.
Aggravating facts must
be established beyond a reasonable doubt. Other facts must be established on a
balance of probabilities.
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.
CIRCUMSTANCES OF THE OFFENDER
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.
IMPACT ON THE VICTIM
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.
LEGAL PARAMETERS
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.
POSITION OF THE CROWN AND DEFENCE
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.
CASE LAW
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.
MITIGATING AND AGGRAVATING FACTORS
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.
PRINCIPLES OF SENTENCING
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.
DISCUSSION
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.
R.B.T. GOEPEL J.
