Invisible Chains (18 page)

Based on this definition, human trafficking in the
Criminal Code
protects both Canadians and foreign nationals. The offence is not conditional upon proving movement of the victim or the crossing of an international border. Rather, the focus is on exploitation of the victim. The maximum term of imprisonment for “trafficking in persons” is fourteen years; a term of up to life imprisonment is reserved for cases where the accused kidnaps, commits aggravated assault or aggravated sexual assault, or causes the victim's death.

Receiving a financial or material benefit while knowing it resulted from trafficking in persons is a separate criminal offence carrying a sentence of up to ten years imprisonment. It is also an offence to conceal, remove, withhold, or destroy any travel or identity documents that belong to another person for the purpose of committing or
facilitating trafficking in persons—an offence punishable by up to five years imprisonment.

These definitions add to laws against international trafficking that involve entry into Canada, which has been a federal immigration offence since June 2002. This portion of the
Immigration and Refugee Protection Act
states, “No person shall 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.” The term
organize
is defined as “recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.” The penalty is a fine of up to one million dollars and/or up to life imprisonment.

How many people have been charged and convicted of human trafficking in Canada? How stiff have their sentences been? There are no easy answers.

When the federal government was asked recently to provide this information to the U.N. Office on Drugs and Crime for its
Global Report on Trafficking in Persons,
no one in Ottawa or in any appropriate department was able to provide
any
official statistics. No central database in Canada collects this information, and most prosecutions are carried out locally. As a result, it is difficult to monitor progress in prosecuting traffickers, a serious oversight that hampers efforts to assess Canada's record. The absence of an appropriate database also makes it virtually impossible for individual jurisdictions to learn from successful and unsuccessful prosecutions with a view toward improving the judicial response to human trafficking.

To evaluate Canada's record in prosecuting human traffickers, I interviewed law enforcement officers and prosecutors in eight major Canadian cities. Consultations were also held with the RCMP's Human Trafficking National Coordination Centre and the federal Department of Justice. This research revealed early successes but also serious problems.

As of 2009, all convictions for human trafficking in Canada were guilty pleas with oral reasons given by sentencing judges—in other words, none of the convictions appear in databases of written legaldecisions
commonly used by researchers, lawyers, and judges. While the media reported some of these convictions, others were hidden from the broader public as forgotten audio files on computer hard drives in various Canadian courthouses. This absence of references makes it difficult for individual Crown prosecutors to find guidelines for the prosecution of human trafficking. There have yet to be any judicial decisions to help interpret and better understand the new offences.

Between April 2007 and April 2009, approximately thirty individuals in Canada were charged with human trafficking under the
Criminal Code.
The chart below tracks the outcome of these charges by province. Sometimes charges may be withdrawn due to a guilty plea by the accused on lesser or “trafficking-related” offences, or because the Crown prosecutor decides the evidence is insufficient to support a conviction, or the prosecution is not in the “public interest.”

The majority of accused human traffickers are alleged to have engaged in domestic sex trafficking (71 percent), while the rest were
involved in cases of international sex trafficking (23 percent) and international forced labour trafficking (6 percent). One other accused was charged and acquitted of international sex trafficking under the immigration offence, mentioned above, before the
Criminal Code
offence came into force.

Although multiple investigations involving these forms of exploitation took place in the Prairie provinces over this period, no charges were laid. Edmonton's first human trafficking charges, involving international sex trafficking, came in September 2009, whereas Calgary's first charges, involving both international and domestic sex trafficking, were laid in December of the same year. Just months before, in July 2009, Terry Comfort Downey from North Preston, Nova Scotia, became the first person to be charged with human trafficking in Atlantic Canada. The Halifax Regional Police and RCMP, with help from officers from five other provinces wearing body armour, arrested thirteen people on charges of trafficking in guns, drugs, and women.

Of the five traffickers convicted in Canada to date, four were men and one was a woman. All the convictions were based on guilty pleas, took place in Ontario and Quebec between June 2008 and April 2009, and involved domestic sex trafficking of Canadian women and teenage girls. None were associated with international human trafficking, despite the ongoing discovery of such victims in Canada.

The Peel Regional Police, Vice Unit, has been leading the way in Canada in investigating and charging domestic sex traffickers. The police force is the third largest in the country and is responsible for much of the Greater Toronto Area, including Mississauga, Brampton, Streetsville, and Pearson International Airport. All in all it serves 1.2 million local residents and almost 31 million travellers passing annually through the airport.

Despite the size of its mandated jurisdiction, Peel's Vice Unit employs just four front-line officers who are responsible for investigating liquor and gambling violations, drug offences, as well as street-level prostitution and sex trafficking. Over two years, the
Peel Regional Police laid human trafficking charges in thirteen cases involving twenty-one female Canadian victims, six of whom were under eighteen. Some traffickers were also charged with obtaining a material benefit from the crime and withholding documents to facilitate human trafficking. The majority of the victims of human trafficking identified by Peel Regional Police are Caucasian-Canadians, as well as several African-Canadian females from North Preston, Nova Scotia. The victims range in age from thirteen to thirty, but most were initially “recruited” while younger than eighteen.

Canada's first convicted human trafficker: Imani Nakpangi

In December 2007, an undercover police officer posing as a “client” made an appointment through Craigslist for sex with a fourteen-year-old girl in a Mississauga hotel room. There he found Samantha, wearing only a towel. (This teenager with fetal alcohol syndrome was introduced in
Chapter 6
.)

It was clear to officers that Samantha's troubled past, along with the recent sexual exploitation, had taken its toll. Yet when the police informed Samantha they would be arresting her pimp, Imani Nakpangi, she grew enraged, claiming that he was her boyfriend and she was pregnant with his child. And when Nakpangi told her he'd be going to jail to await a court date, the girl resolved to find money to cover his bail.

“I asked her what she got out of this, other than having to sleep with random men,” the officer reported. “She said, ‘I get respect.' That's the mind-game. He respected her. She never got that from her parents.”

In fact, as we learned in
Chapter 6
, Nakpangi had earned as much as four hundred thousand dollars from Samantha and a second victim, Eve, whom he controlled through violence and threats against her family.

In a Brampton courtroom eighteen months after his arrest, Nakpangi pleaded guilty to charges of human trafficking, among other activities. To the court he described his behaviour as careless.
“Careless, indeed, is, I would think, applicable only to being caught,” said Justice Hugh K. Atwood. “How careless can provide any insight into any degree of remorse is simply beyond me.”

With respect to eighteen-year-old Eve, who had endured two and a half years of sexual slavery, Nakpangi was convicted of human trafficking under the
Criminal Code
for exercising control or direction over her movements for the purpose of exploiting her, including assaulting and threatening her and her younger brother. Justice Atwood recognized that Nakpangi's victimization of Eve was “egregious in the extreme,” noting that Nakpangi used the proceeds from his crimes to finance “a life style which is lavish by any yard stick.”

Nakpangi was sentenced to three years imprisonment for human trafficking associated with Eve. With the “two-for-one” pretrial credit policy, Nakpangi will serve less time in prison for exploiting Eve than he'd spent victimizing her.

When it came to Samantha, Nakpangi escaped the charge of trafficking. In Canada's
Criminal Code,
the definition of “exploitation” requires victims to have provided “labour or services” as a result of reasonably fearing for their safety or the safety of someone known to them. Although Nakpangi had psychologically manipulated fourteen-year-old Samantha into prostitution and kept her earnings for himself, he hadn't “exploited” her within the meaning of the law because she hadn't feared for her safety. His actions would have qualified as human trafficking under the
Palermo Protocol
(which, when the victim is a minor, requires only that one of the listed acts be committed for the purpose of exploitation), but he was able to evade a conviction for human trafficking thanks to Canada's unduly narrow legal definition.

A precedent for lax punishment

The
Nakpangi
case reveals that Parliament has inadequately defined human trafficking and deviated from the internationally agreed definition after having committed to criminalizing the practice. Nakpangi is not the only accused to benefit from this oversight. His
case is notable because it demonstrates how a single trafficker may choose vastly different strategies to retain control over his victims: deception and psychological manipulation versus direct threats and physical assaults.

In the end, Nakpangi was convicted of “living off the avails of prostitution” of Samantha while she was under the age of eighteen years, contrary to section 212(2) of the
Criminal Code.
While this criminal offence carries a maximum penalty of fourteen years imprisonment, Justice Atwood sentenced Nakpangi to serve only the two-year mandatory minimum.

Nakpangi was ordered to serve his sentences consecutively, resulting in a total of five years. In the absence of a guilty plea, the judge stated that he would have found a six-and-a-half-year global sentence appropriate in this case. With 202 days served in pretrial custody, however, Nakpangi received a two-for-one credit for a total of 404 days deducted from his sentence on these charges. As a result, Nakpangi was sentenced overall to spend three years and eleven months in jail. As well, he was awarded the dubious distinction of becoming Canada's first convicted human trafficker.

A poet, a proselytizer, and a frequenter of strip clubs

In November 2008, Jacques “Jackie” Leonard-St. Vil, vice-president of Urban Heat Music, was in custody awaiting trial on human trafficking charges. Jackie, you'll recall, had lured his victim, Genevieve, with promises of modelling for album covers and CD releases, only to groom her for commercial sexual exploitation. When she attempted to leave, he beat her on multiple occasions.

The day his trial was scheduled to begin, Jackie decided to plead guilty, admitting that he'd controlled Genevieve and directed her movements for the purpose of exploiting her. Jackie also pleaded guilty to one count of “procuring” for living wholly or in part on the avails of prostitution of Genevieve. The Crown prosecutor submitted a copy of Jackie's youth criminal record to the court.

In his statement to the court, Jackie claimed to have turned his life around during his pretrial custody. His lawyer provided the court with documents indicating that Jackie had been writing poetry in jail and had participated in various educational and religious programs. However, the defence counsel also admitted that Jackie planned on returning to Urban Heat and would continue to frequent strip clubs for “business purposes.”

Briefed by the Crown prosecutor on the
Nakpangi
case, Justice Durno of the Superior Court of Justice handed down a sentence that reflected the
Nakpangi
precedent and outraged many advocates for a stronger response to the crime of human trafficking. Taking into account
Nakpangi
and the typical two-for-one credit awarded for pretrial custody, the judge agreed with the Crown prosecutor and defence counsel that the eighteen months and seventeen days Jackie had already spent in jail was within “the range of appropriate sentencing for cases of this nature.” As a result, Justice Durno sentenced Jackie to serve just
one day
in jail upon conviction.