VANCOUVER - A British Columbia man who lied to immigration officials in order to bring the family nanny to Canada from Hong Kong, luring her with empty promises so she would care for his three children, should spend 18 months in prison, a B.C. Supreme Court judge said Tuesday.
Franco Orr has been a productive member of society with no criminal record but he must spend time behind bars in order to deter others who would violate Canada's immigration laws, Justice Richard Goepel told the 50-year-old businessman before he was handcuffed and led out of the courtroom by a sheriff.
"Individuals cannot be allowed to disregard the immigration laws of this country with impunity," Goepel said.
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.
Goepel said the Crown did not prove the nanny, Leticia Sarmiento, was subjected to humiliating or degrading treatment in the Orr residence, which would have been an aggravating factor.
"Mr. Orr did profit from his employment of Miss Sarmiento due to the low-wage pay, albeit the profit was relatively modest," the judge said. "A lack of significant aggravating factors puts this offence at the lower end of the continuum."
Sarmiento was nonetheless affected by the offences, Goepel said.
"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," the judge said.
"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."
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 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 did note 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," he said.
Orr's lawyer, Nicholas Preovolos, 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.
He said the judge noted Orr's good character, and ultimately the only aggravating factor was the financial benefit of paying a low wage — $500 a month, according to Sarmiento's testimony.
"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," the defence lawyer 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."
Outside court after the sentencing, Sarmiento said she felt she got justice, but she said she still hasn't seen her family in the Philippines — which includes her three children — in seven years.
Through tears, she said she has applied for permanent resident status and is working in Canada.
"Hopefully I can bring my family here," she told reporters.
As for the judge's finding that the Crown did not prove she was subjected to degrading treatment, Sarmiento said she told the truth in her court testimony.
"I'm the one who knows (what really happened) because I'm the one inside the house," she said. "I'm not lying. I'm telling the truth."
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.
Note to readers: This is a corrected story. An earlier version said he would be appealing his sentence, instead of conviction.
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