Authors: Benjamin Perrin
The day after his conviction for exploiting this young girl, Jackie walked out of jail and returned to his “business.”
Before leaving, Jackie was required to submit to a pinprick on his fingerâa blood sample for the national DNA databank. Under the terms of his three-year probation order, he is not to contact Genevieve. He is also not, however, under any obligation to report regularly to a probation officer.
The Crown prosecutor had asked Justice Durno to prohibit Jackie from attending any “adult entertainment establishments” as part of his probation order, reminding the judge that Jackie originally had exploited Genevieve in strip clubs. Jackie's lawyer challenged the prosecutor's request. “As Your Honour has heard,” he argued, “my client works in the music business, and, frankly, this would significantly impact with his ability to meet with other individuals apparently. It sounds odd when you say it, Your Honour, but that seems to be the practice.”
Upon consideration, Justice Durno ordered Jackie not to enter any adult entertainment facility only for the first eighteen months of his
probation. Jackie returned to his job as a “promoter” and, since May 10, 2010, has been free to resume his activities in adult entertainment facilities.
Genevieve had been offered the opportunity to make a victim statement in court prior to Jackie's sentencing. Not surprisingly, when she found that her abuser would be on the street the following day, she declined. The extent of the abuse she suffered and the way it violated her sense of self-worth remain off the record.
When a newspaper reporter asked Genevieve about her reaction to the case, she replied, “You feel like it's your fault. You feel like you're dumb.” Then she added, “That's why a lot of girls don't go see the police.”
A slap on the wrist
The weak sentencing practices for human trafficking in Peel Region's courts have spread to other provinces, even where the victims are minors. In a Montreal courtroom in November 2008, Michael Lennox Mark pleaded guilty to human trafficking. Mark had sold Christine, a seventeen-year-old from Quebec, in street-level prostitution because her underage ID prevented him from selling her in strip clubs. He also pleaded guilty to three counts of procuring Christine and two other Canadian women. The Montreal Police Service's investigation into Mark's activities, code-named “Project Onyx,” resulted in a sentence of two years imprisonment and two years probation. However, with a two-for-one credit for his year of pretrial custody, Mark served only
a single week
in prison after being convicted.
In April 2009, Vytautas Vilutis, whom we encountered in
Chapter 6
, also pleaded guilty to human trafficking and assault. The first person to be convicted in Canada for knowingly receiving a financial or material benefit from human trafficking, Vilutis was given a total sentence of two years (less a day) but in all served only fourteen months in jail.
The fundamental aim of sentencing in criminal law as set out in the
Criminal Code
is to ensure “respect for the law and the maintenance
of a just, peaceful and safe society.” On that basis, sentences should denounce unlawful conduct, deter the offender and others, keep offenders apart from society when needed, provide rehabilitation for offenders and reparations to their victims, and promote responsibility of the offender to victims and the community. None of these sentencing principles are being upheld when trafficking convictions amount to little more than time served in pretrial custody.
Sentences imposed on traffickers of children and teenagers are among the most inadequate. Canada signed the
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography
in November 2001 and ratified it in September 2005. According to this international treaty, “Each State Party shall make such offences punishable by appropriate penalties that take into account their grave nature.” Yet the human trafficking offence enacted in the
Criminal Code
in November 2005 does not establish more serious penalties for child trafficking. In fact, the age of the victim is irrelevant.
Joy Smith, member of Parliament for Kildonan-St. Paul in Manitoba, has been a tireless advocate for trafficking victims. After I shared several cases documented in this book with her, she introduced Bill C-268 in January 2009. This private member's bill requires that convicted child traffickers face a mandatory minimum sentence of five years imprisonment and up to fourteen years. A six-year minimum and up to life imprisonment applies if the victim is kidnapped, subject to an aggravated sexual assault, or killed. Constitutional standards prevented higher minimum sentences from being set. This amendment to the
Criminal Code
was seconded by numerous members of Parliament and applauded by an array of individuals and organizations. More than fourteen thousand Canadians signed a petition calling on Ottawa to pass the proposal for reform. On September 30, 2009, the House of Commons overwhelmingly adopted Bill C-268, with a vote of 239 in favour and 46 opposed; the opposition consisted of the Bloc Quebecois along with three rogue MPs from the New Democtratic Party: Libby Davies, Bill Siksay, and Leslie Megan.
British Columbia senator Yonah Martin sponsored Bill C-268 in the Senate, making an impassioned plea for it to be adopted. After months of delays, it finally moved forward. On June 3, 2010, I testified in support of Bill C-268 at the Senate Committee on Social Affairs, Science and Technology, giving evidence about several of the child trafficking cases documented in this book. That same day, the committee approved the Bill to go to the Senate for a final debate and vote, which was successful just before the summer recessâa victory for victim advocates. Bill C-268 is the only private member's bill to become law since the 2008 federal election. In the meantime, another piece of legislation recently has been adopted that also will make convicted criminals, including human traffickers, more accountable for their actions.
The
Truth in Sentencing Act
was introduced in March 2009 by the minister of justice and attorney general, Rob Nicholson, and by October 2009 had received royal assent. These amendments to the sentencing provisions of the
Criminal Code
establish a general guideline of “one-for-one” credit for pre-sentence custody when an accused is found guilty. The Act thereby limits the incentive for criminals, including human traffickers, to drag out their pretrial custody in order to obtain two-for-one or even three-for-one credit. Such games should have no place in our criminal justice system.
Trafficking lite: Convictions for less serious offences
In
Chapter 6
, we saw how Tyrel Henwood used the internet to lure fourteen-year-old Sarah to Victoria, where he forced her to be sold for sex. As a result, Henwood wasn't charged merely with human trafficking but also with assault, unlawful confinement, uttering threats to cause death or bodily harm, procuring a minor, making or distributing child pornography, living on the avails of prostitution of a person under the age of eighteen, compelling a minor to engage in prostitution, and threatening violence, intimidating, and coercionâa list of offences ranking among the
most serious in the
Criminal Code,
as well as in the minds of most Canadians.
In April 2009, Henwood pleaded guilty to assault, living off the avails of prostitution, and making or publishing child pornography. All of the other charges were dropped, including that of human trafficking. Henwood's lawyer tried to argue that Sarah was Henwood's “girlfriend” and that she was “complicit in the prostitution.” Given Henwood's unwillingness to accept responsibility for his alleged conduct, the Crown prosecutor's decision to withdraw the human trafficking charge is puzzling.
Unfortunately, Henwood's is not the only case where Crown prosecutors have questionably withdrawn human trafficking charges. The prose-cutors are either unfamiliar with the offence, skittish about losing a case and setting a bad precedent, or do not understand that the crime is being committed in Canada.
The apparent reluctance to tackle this heinous crime, where charges have been laid based upon credible evidence, seems to permeate all regions of the country. In 2008, Crown prosecutors in Montreal withdrew human trafficking charges in two separate cases, choosing instead to proceed with the more common charge of “procuring” under the
Criminal Code.
Similarly, in the summer of 2008, Ontario Crown prosecutors were unwilling to proceed with charges of human trafficking against a domestic sex trafficking ring operating between Calgary and Toronto. “They didn't want this to be the case taken to the Supreme Court,” says Detective Wendy Leaver of the Toronto Police Service, Special Victims Unit.
Depending on the facts of a given case, human traffickers in Canada may also be charged with so-called trafficking-related offences. Such charges may include the aggravated offence of living off the avails of prostitution of a person under eighteen, abduction, kidnapping, forcible confinement, extortion, conspiracy, assault, sexual assault, or various prostitution-related offences. The federal Department of Justice, Criminal Law Policy Section, has identified thirty-nine “trafficking-related” cases from 2004 through 2007, of which twenty- three
were unreported and sixteen reported, including convictions and pending cases before the courts.
In 2003, the U.S.
Trafficking in Persons Report
downgraded Canada to a Tier 2 ranking for “not fully comply[ing] with the minimum [international] standards for the elimination of trafficking.... [T]here have been few convictions of traffickers, due in part to deportation of witnesses.” Since then, despite the federal government having reported fewer “trafficking-related” convictions between 2003 and 2007, the ranking has returned to Tier 1. Apparently Canada was let off the hook for its lack of progress in prosecuting traffickers. Since 2008, however, the first set of actual human trafficking charges has progressed to convictions.
Canada needs more than a human trafficking offence on paper. It needs Crown prosecutors who willingly pursue these charges with vigour where evidence exists, judges who fully appreciate the enormous damage that offenders exert on their victims, and a public that recognizes the pervasiveness of the crime, coupled with an insistence that offenders receive appropriate punishment.
In many cases, charging a perpetrator with lesser offences where human trafficking appears fully justified is analogous to charging a murderer with assault, aggravated assault, or weapons offences instead of murder. Evidence of lesser charges should be used to obtain search warrants and execute wiretaps, and to initiate undercover operations and secure arrest warrants against suspected traffickers in order to fully investigate their activities and penetrate their networks. After a full investigation, the most serious charges that are supported by the evidence should be laid, along with the charges for less serious offences, to ensure that traffickers are held accountable and victims are protected.
Unsuccessful foreign trafficking prosecutions
Admittedly, barriers to successful human trafficking prosecutions arise as they do in many other applications of the law. Police and prosecutors don't always succeed in prosecuting alleged traffickers
because victims and witnesses may become unwilling or unable to testifyâin some instances traffickers or their associates threaten or otherwise intimidate themâor because the cases themselves prove to be unsubstantiated or insufficiently supported by evidence to proceed to trial. The prosecution must prove its case to the high criminal law standard of “proof beyond a reasonable doubt.” While these challenges are common to many criminal offences, they are exacerbated in the context of offences like human trafficking due to the vulnerability of victims, as well as the lack of authoritative court decisions that interpret the meaning and scope of these new crimes.
Although increasing numbers of international sex and forced labour trafficking victims have been identified and granted assistance and protection, Canada has not successfully convicted
any
of their traffickers.
The prosecution of Wai Chi (Michael) Ng is the highest-profile example in Canada of an acquittal for human trafficking charges due to a failure to prove the essential elements of the crime beyond a reasonable doubt. Ng was the first person to be prosecuted for human trafficking under the
Immigration and Refugee Protection Act
(IRPA), because the
Criminal Code
provision was not yet in place when he committed his alleged crimes between 2002 and 2004.
Ng ran King City Massage Acupressure Therapy Ltd. on Kingsway Street in Vancouver, next door to the Fantasy Factory, a twenty-four-hour adult store advertising twenty-five-cent peep shows. On separate occasions, Ng allegedly arranged for two Chinese women, identified in court records only as “Ms. W” and “Ms. T,” to come to Canada using fraudulent travel documents. They believed that they'd be employed as waitresses in his restaurant. When Ms. W arrived, however, she claimed she was told to sleep in Ng's basement. Because the restaurant had closed, the women wouldn't be employed as waitresses but rather would be sold to perform sex acts in Ng's massage parlour. They thought they had no alternative.
Prosecutors later would argue that Ng committed human trafficking because he used deception to transport the women to
Canada, “exert [ed] psychological and financial control over [them] and â kept Ms. W. socially isolated.”
After an altercation over money that Ng claimed Ms. T owed him, Ng allegedly became violent with both Ms. T and Ms. W. According to them, Ng shouted, “You people want to die today so I'll beat you to death.” Ms. T fled the massage parlour and called the Vancouver Police Department. Ng was charged with twenty-two offences under the
Criminal Code
and IRPA, including human trafficking under IRPA.
On June 21, 2007, Judge MacLean of the British Columbia Provincial Court found Ng guilty of procuring Ms. T and Ms. W and keeping a common bawdy house, contrary to the
Criminal Code,
plus several immigration offences. However, Ng was acquitted of both counts of human trafficking due to inconsistencies in the testimony of his alleged victims, along with a reasonable doubt as to whether they had been deceived in being brought into Canada.