Former employer gets 18 months for trafficking Filipina caregiver
VANCOUVER, Canada – “Masaya na rin ako kahit isa’t kalahating taon lang. At least, may hustisya pa rin.” (I’m happy even if it’s only 1-1/2 years, at least there’s justice), Leticia Sarmiento reacted to the 18-month sentence for her former employer, Franco Yiu Kwan Orr on Tuesday, October 15.
After a month-long jury trial, Orr was convicted in June on three counts under the Immigration and Refugee Protection Act: human trafficking, employing a foreign national and misrepresenting facts to immigration officials.
While there have been dozens of convictions for human trafficking under the Criminal Code, this is the first such conviction under the Immigration Act. (READ: Filipina wins human trafficking case)
Sarmiento was brought to Canada by the couple and arrived in Vancouver in September 2008 under a visitor’s visa. She was previously working for them in Hong Kong and her contract was still not finished when the family decided to move to Canada.
She has 3 children in the Philippines whom she had not seen for more than 7 years now except for a few months. She previously worked in Saudi Arabia and Lebanon before working in Hong Kong.
His wife, Oi Ling Nicole Huen, was acquitted of all charges, although Sarmiento insists outside court that she was more abusive than her husband.
In fact, it was Huen’s action of throwing water at Sarmiento after she got angry that she (Sarmiento) gave her daughter the wrong kind of milk that triggered the 911 calls. That call lead to the discovery of Sarmiento and eventual charges laid against Orr and Huen.
Sarmiento bristled when asked about defense allegation that she was ‘lying’, saying she is the only one who can tell what kind of man Orr was “since I have lived in their household for many years.”
Breaking into tears outside court, Sarmiento told reporters that she has not seen her children for 7 years and that she hopes the end of the trial would hasten their reunion.
“Ang panawagan ko ay huwag silang matakot para ipaglaban ang karapatan bilang isang mangagawa.” (My message to other workers is not to be afraid to fight for their rights.)
"Individuals cannot be allowed to disregard the immigration laws of this country with impunity," Justice Richard Goepel said in handing down his sentence to the 50-year old businessman who lured Sarmiento to come with his family to Canada from Hong Kong.
Denunciation and deterrence
The judge handed down sentences of 18 months for human trafficking, and six months each for the other two counts, to be served concurrently.
“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,” the judge said.
The judge did not impose a victim surcharge or a fine. saying that 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.”
The Crown had asked for a five- to six-year sentence, while the defence sought a conditional sentence, which Goepel said would not offer the denunciation or general deterrence required.
He noted Orr had no criminal record.
"I have little doubt that Mr. Orr has been, and will in the future again be, a productive member of Canadian society," Judge Goepel said.
"I think it sets a very strict precedent, an 18-month jail sentence where only one aggravating factor has been proven sets a very strict precedent," defence lawyer Nicholas Preovolos said after sentencing.
"If someone is brought in contrary to the human trafficking provisions of the Immigration and Refugee Protection Act, it looks like a jail sentence is what's in store for them,“ Preovolos warns.
He said the family expected a conditional sentence.
"His wife is in shock. She wasn't expecting that he would receive a true custodial sentence. She was expecting a conditional sentence, or a sentence of house arrest," Preovolos said outside the courthouse.
He said Orr had already instructed his lawyers to file an appeal of his conviction.
An application will be filed to have Orr released on bail pending that appeal, and Preovolos said he hopes his client will have a bail hearing within a week.
Sarmiento filed a claim with the provincial Employment Standards Tribunal seeking unpaid wages; overtime and vacation pay for the 22 months she worked for the Orrs.
She was awarded more than $34,000 but Orr appealed, and in June, the tribunal overturned the ruling and ordered a new hearing.
Members of the Filipino community including Migrante B.C. and West Coast Domestic Workers’ Association have supported Sarmiento throughout her ordeal and were present during the sentencing.
Vancouver-Kensington NDP MLA Mable Elmore said the sentence was a significant one given that the judge stated “denunciation and general deterrence ”were the sentencing objectives.
Some Filipinos interviewed by Philippine Asian News Today were not happy with the ‘light sentence’ prompting one to say “bakasyon lang yan” (it’s just a vacation). – Rappler.com
Ted Alcuitas is senior editor of Philippine Asian News Today in Vancouver. He has been closely following the case of Leticia Sarmiento. Rappler is publishing this article and the accompanying photo with his permission.