Assistant Professor Benjamin Perrin[1]
(Faculty of Law, University of British
Columbia)
I. Introduction
Under-aged girls as young as 12 years old are being subjected to sexual exploitation by traffickers according to a Criminal Intelligence Service of Canada (CISC) strategic intelligence brief entitled “Organized Crime and Domestic Trafficking in Persons in Canada.”[2] Younger victims are more impressionable and easier for traffickers to control. The CISC also sounded the alarm that this is a pressing national problem: “Across the country, organized crime networks are actively trafficking Canadian-born women and under-age girls inter- and intra-provincially, and in some instances to the United States (US), destined for the sex trade.”[3]
Law
enforcement agencies are beginning to investigate and lay human trafficking
charges under s. 279.01 of the Criminal Code, which came into force in
November 2005.[4]
This offence carries a maximum term of imprisonment of 14 years, and up to life
imprisonment if the accused kidnaps the victim, subjects them to aggravated
assault or aggravated sexual assault, or causes the death of the victim during
the commission of the offence. However, there are currently no minimum
sentences provided, even when the victim is a child. This has proven to be a
serious gap in the current law, which Bill C-268 aims to address by
introducing a five-year mandatory minimum term of imprisonment for trafficking
in persons under 18 years of age.[5]
The Peel
Regional Police and Montreal Police Service have rescued child victims of sex
trafficking and secured convictions against their traffickers. However,
exceedingly inadequate sentences have been handed down by sentencing judges in
the first set of convictions. Bill C-268 arose directly from consultations with
these officers who are concerned about the safety of children. Parliament must
give the police a stronger tool against child trafficking in order to shut down
the domestic sex trafficking networks that are spreading out across the
country.
Imani
Nakpangi, Canada’s first convicted child trafficker earned a total of over
$360,000 over a two and a half year period by selling “Eve” (her real name has
been protected) – a 15-year-old girl who had been homeless – for sex. His
illicit profits were used to purchase a BMW and a large home in Niagara Falls
for himself.
Nakpangi
brutally controlled Eve by assaulting her, threatening her, and threatening to
kidnap her brother. Nakpangi was convicted of human trafficking on 24 June 2008
by Atwood J. in Brampton, Ontario, and sentenced to just three years on that
count.[6]
Factoring in his pre-trial custody credit, Nakpangi will spend less time in
jail for this conviction than he spent exploiting this vulnerable girl whose
life he has destroyed. In her own words, here is an excerpt from Eve’s Victim
Impact Statement that was read into the court record. It reveals just a glimpse
of her ongoing trauma and fear:
[I am c]onstantly
looking over my shoulder afraid either Imani or his friends are going to come
after me for putting him in jail. I don’t feel safe at home. He knows where I
live and what my family looks like, and where they live …. I have nightmares about him. I have low self
esteem. Feel like I’m only good for one thing, sex. I don’t see why someone, a
man, would be interested in me and try to get to know me because I feel
unworthy, dirty, tainted, nothing; basically lost two and a half to three years
of my life being with Imani.[7]
Eve
continues in her statement by describing her emotional, health, and financial
problems from having been enslaved by her trafficker. However, the Nakpangi
case is just the beginning.
In Montreal,
the sentence handed down in the case of Michael Lennox Mark is even more
appalling. Mark was convicted of human trafficking in November 2008 for forcing
a 17-year-old Canadian girl to be sold for sex.[8]
He was sentenced to two years imprisonment, but was given “two for one” credit
for his one year of pre-trial custody. As a result, he served only a single
week in prison after conviction. This sentence represents a monumental failure
of our criminal justice system and demands parliamentary intervention in the
form of Bill C-268.
II. Bill
C-268 is Consistent with Canada’s International Obligations
Canada’s
inadequate sentences for child trafficking have already attracted international
scrutiny. In October 2008, the Report
of the Canada-United States Consultation in Preparation for World Congress III
Against Sexual Exploitation of Children and Adolescents
recommended that Canada enact a “mandatory minimum penalty for child
trafficking.”[9]
The passage
of Bill C-268 is also consistent with Canada’s international obligations to protect
children. Canada signed the Optional
Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography on 10 November 2001 and
ratified it on 14 September 2005.[10]
Article 3(3) states: “Each State Party shall make such offences punishable by
appropriate penalties that take into account their grave nature.”[11]
Currently, s. 279.01 of the Criminal Code
(trafficking in persons) fails to satisfy this obligation.[12]
Conversely,
other countries have singled out child trafficking as a particularly heinous
crime that warrants a more serious penalty. In the U.S., there are strong
mandatory minimum sentences in place for sex trafficking involving children in U.S.
Code.[13]
If the victim was under the age of 14 at the time of offence, the punishment is
a fine and mandatory minimum term of imprisonment of 15 years, up to life. If
the victim was between the ages of 14 and 18 at the time of offence, the
punishment is a fine and mandatory minimum term of imprisonment of 10 years, up
to life.
III.
Bill C-268 is Constitutionally Sound
Finally,
Bill C-268 is constitutionally sound. The Supreme Court of Canada has recently
affirmed the test for when a mandatory minimum sentence of imprisonment will
constitute cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and
Freedoms.[14]
In the unanimous reasons for judgment in R.
v. Ferguson, McLachlin C.J.C. held:
The test for
whether a particular sentence constitutes cruel and unusual punishment is
whether the sentence is grossly disproportionate: R. v. Smith, [1987] 1 S.C.R. 1045. As this Court has repeatedly
held, to be considered grossly disproportionate, the sentence must be more than
merely excessive. The sentence must be “so excessive as to outrage standards of
decency” and disproportionate to the extent that Canadians “would find the
punishment abhorrent or intolerable”: R.
v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 4, citing Smith, at p. 1072, and Morrisey, at para. 26.[15]
The
imposition of a mandatory term of imprisonment of five years would not be
grossly disproportionate for the offence of trafficking in minors. Bill C-268
serves the purposes of denunciation, specific and general deterrence, and
protection of the public, specifically the vulnerable population of young
people who are targeted by traffickers including homeless and sexually
exploited youth, children in protective care, and aboriginal girls.
The Criminal Code already recognizes that
certain serious crimes involving child victims require more stringent
penalties. Most notably, s. 212(2.1) imposes a five year
mandatory minimum sentence for the aggravated offence of living on the avails
of prostitution of a person under the age of 18 years.[16]
This provision has routinely been applied by the Courts and was endorsed by the
Federal/Provincial/Territorial Working Group on Prostitution in its Report and Recommendations in
respect of Legislation, Policy and Practices Concerning Prostitution-Related
Activities:
[I]t is
difficult to imagine a case in which the minimum sentence would not be
suitable.
…
[I]t
definitely signals the community’s abhorrence of such a crime by imposing a
sentence commensurate with the gravity of the offence. Both public protection
and the expression of public revulsion for such conduct require that the
minimum time served in a correctional system be the subject of legislative
rather than judicial or administrative control.[17]
These
arguments apply with equal, or even greater, force to Bill C-268 in respect of
a mandatory minimum sentence for child trafficking. Bill C-268 would also bring
parity between the trafficking in persons sentencing structure, and s. 212(2.1),
with respect to child victims. This is important to provide Crown prosecutors
with charging options that best suit the facts of particular cases of child
sexual exploitation involving a pimp or trafficker.
IV. Support
Bill C-268
As a Private
Member’s Bill, introduced by Member of Parliament (MP) Joy Smith,[18]
Bill C-268 will not pass without the support of a majority of MPs. Supporting
Bill C-268 will be a demonstration of Canada’s commitment to hold perpetrators
of child trafficking accountable for their horrific crimes. Children like Eve,
and countless others, need to be protected from these predators.
More
information about Bill C-268 is found on Mrs. Smith’s website.[19]
[1] Assistant Professor, Faculty of Law, University of British Columbia. Online: UBC Faculty of Law <http://faculty.law.ubc.ca/perrin/>.
[2] Criminal Intelligence Service Canada (CISC), Strategic Intelligence Brief, “Organized Crime and Domestic Trafficking in Persons in Canada” (August 2008), online: CISC <http://www.cisc.gc.ca/products_services/domestic_trafficking_persons/document/sib_web_en.pdf>.
[3] Ibid. at 1 [footnotes omitted].
[4] Criminal Code, R.S.C. 1985, c. C-46, s. 279.01.
[5] Bill C-268, An Act to amend the Criminal Code, 2d Sess., 40th Parl., 2009.
[6] R. v. Imani Nakpangi (24 June 2008), Brampton AG 0087 (Ont. Ct. J.), Atwood J.
[7] Ibid. at 3-4.
[8] Interview of Detective Sergeant Dominic Montchamp, Montreal Police Service (20 November 2008).
[9] Shared Hope International, Report of the Canada-United States Consultation in Preparation for World Congress III Against Sexual Exploitation of Children and Adolescents Brooklyn at 6.>
[10] Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, GA Res. 263, UN GAOR, 54th Sess., UN Doc. A/RES/54/263.
[11] Ibid., art. 3(3).
[12] Supra note 4.
[13] Sex trafficking of children or by force, fraud, or coercion, U.S.C. 18 § 1591 (2008).
[15] R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at para. 14.
[16] Supra note 4, s. 212(2.1).
[17] Federal/Provincial/Territorial Working Group on Prostitution, Report and Recommendations in respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities (December 1998) online: Walnet <http://www.walnet.org/csis/reports/consult.rtf> at 21.
[18] Joy Smith, “Bill C-268 Mandatory Minimums for Child Trafficking,” online: Joy Smith <http://www.joysmith.ca/index.asp?ID=76&cat_ID=1>. Smith is the member of parliament for Kildonian-St. Paul, Manitoba.
[19] Joy Smith, “Bill C-268 Mandatory Minimums for Child Trafficking: How You Can Help,” online: Joy Smith <http://www.joysmith.ca/index.asp?ID=76&cat_ID=1&sub_ID=401>.
