Commodification of Sexual Services (Offence)

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Commodification of Sexual Services
s. 286.1 to 286.4 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum fine incarceration
Maximum 18 months incarceration
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum fine or 6 months or 1, 2, 5 years incarceration
Maximum 2, 5, 10 or 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to commodification of sexual services are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 286.1(1) [comm. to obtaining sexual services] and
s. 286.4 [comm. to obtaining sexual services]
Hybrid Offence(s) OK Symbol.png Yes, if Crown proceeds by Indictment X Mark Symbol.png (under 14 years max)
286.1(2) [comm. to obtaining sexual services, under 18],
286.2(1) [material benefit from sexual services]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)
286.2(2) [material benefit from sexual services, under 18],
286.3(1) [procuring into sex serv.], and
286.3(2) [procuring into sex serv., under 18]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 286.1(1) [comm. to obtaining sexual services] and 286.4 [advertising sexual services] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 286.1(2) [comm. to obtaining sexual services, under 18], 286.2(1) [material benefit from sexual services], 286.2(2) [material benefit from sexual services, under 18], 286.3(1) [procuring into sex serv.], and 286.3(2) [procuring into sex serv., under 18] are straight indictable. There is a Defence election of Court under s. 536(2).

Before the statutory increased penalties can be applied for convictions under s. 286.1 to 286.3, notice of increased penalty under s. 727 must be given.

Release

Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a Release Order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 286.1 [comm. to obtaining sexual services] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 286.2 to 286.3 OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png (summary offence)


When charged under s. 286.1 to 286.3, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Fingerprints and Photos

A peace officer who charges a person under s 286.1(1) [comm. to obtaining sexual services] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 286.1 to 286.3 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations

Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 286.1 [comm. to obtaining sexual services] OK Symbol.png OK Symbol.png (286.1(2) only) OK Symbol.png X Mark Symbol.png
s. 286.2 [material benefit from sexual services] OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 286.3 [procuring into sex serv.] OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 286.4 [advertising sexual services] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png

Offences under s. 286.1 to 286.3 are designated offences eligible for wiretap under s. 183.

Offences under s. 286.1(2) [comm. to obtaining sexual services, under 18], 286.2 [material benefit from sexual services], and 286.3 [procuring into sex serv.] are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 286.1 to 286.3 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Commodification of Sexual Activity
Obtaining sexual services for consideration

286.1 (1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years and a minimum punishment of,
(i) in the case where the offence is committed in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present,
(A) for a first offence, a fine of  $2,000, and
(B) for each subsequent offence, a fine of  $4,000, or
(ii) in any other case,
(A) for a first offence, a fine of  $1,000, and
(B) for each subsequent offence, a fine of  $2,000; or
(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,
(i) in the case referred to in subparagraph (a)(i) [x],
(A) for a first offence, a fine of  $1,000, and
(B) for each subsequent offence, a fine of  $2,000, or
(ii) in any other case,
(A) for a first offence, a fine of  $500, and
(B) for each subsequent offence, a fine of  $1,000.
Obtaining sexual services for consideration from person under 18 years

(2) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of

(a) for a first offence, six months; and
(b) for each subsequent offence, one year.


...
2014, c. 25, s. 20; 2019, c. 25, s. 108.
[annotation(s) added]

CCC


Note up: 286.1(1) and (2)

Material benefit from sexual services

286.2 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1) [comm. to obtain sexual services for consideration], is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.
Material benefit from sexual services provided by person under 18 years

(2) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(2) [comm. to obtain sexual services for consideration — person under 18], is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.
...

2014, c. 25, s. 20; 2019, c. 25, s. 109.

CCC


Note up: 286.2(1) and (2)

Procuring

286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1) [comm. to obtain sexual services for consideration], recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

Procuring — person under 18 years

(2) Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(2) [comm. to obtain sexual services for consideration — person under 18], recruits, holds, conceals or harbours a person under the age of 18 who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of five years.
2014, c. 25, s. 20.

CCC


Note up: 286.3(1) and (2)

Advertising sexual services

286.4 Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.

2014, c. 25, s. 20; 2019, c. 25, s. 110.

CCC


Note up: 286.4

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
286.1(2) obtaining sexual services for consideration – under 18 years "... did communicate with [name of alleged victim] for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years contrary to section 286.1(2) of the Criminal Code."

Proof of the Offence

Proving material benefit from sexual services under s. 286.1(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person"
  5. the act occurred "in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present"

Proving obtaining sexual services for consideration from person under 18 years under s. 286.1(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person"
  5. the person is under 18 years of age
  6. the culprit knew or was wilfully blind to the person's age

Proving obtaining sexual services for consideration from person under 18 years under s. 286.1(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person"
  5. the person is under 18 years of age
  6. the culprit knew or was wilfully blind to the person's age

Proving material benefit from sexual services under s. 286.2(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "receives a financial or other material benefit"
  5. the culprit knew "it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1)"

Proving material benefit from sexual services under s. 286.2(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "receives a financial or other material benefit"
  5. the culprit knew "it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(2)"

Proving procuring sexual services under s. 286.3(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either
    1. "procures a person to offer or provide sexual services for consideration",
    2. "recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration" and does it "for the purpose of facilitating an offence under subsection 286.1(1)" or
    3. "exercises control, direction or influence over the movements of that person"

Proving procuring sexual services (under 18 years) under s. 286.3(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either
    1. "procures a person to offer or provide sexual services for consideration",
    2. "recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration" and does it "for the purpose of facilitating an offence under subsection 286.1(2)" or
    3. "exercises control, direction or influence over the movements of that person"
  5. the person is under the age of 18
  6. the culprit knew or was wilfully blind to the person's age

Proving advertising sexual services under s. 286.4 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "advertises an offer to provide sexual services for consideration"
  5. the culprit did it "knowingly"

Interpretation

Communicating
Actus Reus

The actus reus for an offence under s. 286.1(1) requires proof that the offender communicated words in public with respect to obtaining sexual services of a prostitute.[1]

Communicating
Mens Rea

The offence relating to communicating for the purpose of obtaining sexual services under s. 286.1(1) requires that, at the time of communication, the accused intended to engage the sexual services of a prostitute.[2] The necessary intention must exist at the time of the communication. A change of heart after the fact is not relevant.[3]

Intention of the accused may be inferred from the circumstances of the communications.[4]

  1. R v NMP, 2000 CanLII 26945 (NS CA), per Chipman JA, at para 26 - Chipman warns that mens rea also required to make out offence
  2. R v Pake, [1995] AJ 1152 (ABCA), 1995 ABCA 493 (CanLII), per Foisy JA - re s. 213 prostitution offence
  3. Pake, ibid., at para 25
  4. Pake, ibid., at para 24
    NMP, supra, at para 27

Procuring

See Procuring and Living on the Avails of Prostitution (Repealed Offence)#Procuring

Misc Definitions

286.1
...

Definitions of “place” and “public place”

(5) For the purposes of this section, "place" and "public place" have the same meaning as in subsection 197(1) [disorderly houses, gaming and betting – definitions].
2014, c. 25, s. 20.
[annotation(s) added]

CCC


Note up: 286.1(5)

Definitions

197(1) In this Part [Pt. VII – Disorderly Houses, Gaming and Betting (s. 197 to 213)],
...
place includes any place, whether or not

(a) it is covered or enclosed,
(b) it is used permanently or temporarily, or
(c) any person has an exclusive right of user with respect to it; (local ou endroit)


...
public place includes any place to which the public have access as of right or by invitation, express or implied. (endroit public)

...
R.S., 1985, c. C-46, s. 197; R.S., 1985, c. 27 (1st Supp.), s. 29; 2014, c. 25, s. 12.
[annotation(s) added]

CCC


Note up: 197(1)

Presumptions

286.2
...

Presumption

(3) For the purposes of subsections (1) [material benefit from sexual services provided – offence] and (2) [material benefit from sexual services provided — person under 18], evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services.

Exception

(4) Subject to subsection (5) [material benefit from sexual services – no exceptions], subsections (1) [material benefit from sexual services provided – offence] and (2) [material benefit from sexual services provided — person under 18] do not apply to a person who receives the benefit

(a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived;
(b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived;
(c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or
(d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.
No exception

(5) Subsection (4) [material benefit from sexual services – exceptions] does not apply to a person who commits an offence under subsection (1) [material benefit from sexual services provided – offence] or (2) [material benefit from sexual services provided — person under 18] if that person

(a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived;
(b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived;
(c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration;
(d) engaged in conduct, in relation to any person, that would constitute an offence under section 286.3 [procuring]; or
(e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

...
2014, c. 25, s. 20.
[annotation(s) added]

CCC


Note up: 286.2(3), (4) and (5)

Immunity

Immunity — material benefit and advertising

286.5 (1) No person shall be prosecuted for

(a) an offence under section 286.2 [material benefit from sexual services provided] if the benefit is derived from the provision of their own sexual services; or
(b) an offence under section 286.4 [advertising sexual services] in relation to the advertisement of their own sexual services.
Immunity — aiding, abetting, etc.

(2) No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 [x] or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services.
2014, c. 25, s. 20.

CCC


Note up: 286.5(1) and (2)

Modification of Rules of Evidence

For offences under this section (s. 286.1, 286.2, or 286.3):

Holdback of Disclosure

For offences under this section (s. 286.1, 286.2, or 286.3), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 286.1 [comm. to obtaining sexual services],
s. 286.2 [material benefit from sexual services],
s. 286.3 [procuring into sex serv.],
s. 286.4 [advertising sexual services]

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 286.1(1) and 286.4 summary election 18 months incarceration
s. 286.1(1) and 286.4 Indictment Election 5 years incarceration
s. 286.1(2) or 286.2(1) N/A 10 years incarceration
s. 286.2(2), 286.3(1), and 286.3(2) N/A 14 years incarceration

Offences under s. 286.1(1) and 286.4 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.

Offences under s. 286.1(2), 286.2(1), 286.2(2), 286.3(1), and 286.3(2) are straight indictable. The maximum penalty is 10 years incarceration under s. 286.1(2) or 286.2(1), 14 years incarceration under s. 286.2(2), 286.3(1), and 286.3(2).

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 286.1(1)(a)(i) indictable election $2,000 $4,000
s. 286.1(1)(b)(i) summary election $1,000 $2,000
s. 286.1(1)(a)(ii) indictable election $1,000 $2,000
s. 286.1(1)(b)(ii) summary election $500 $1,000
s. 286.1(2) N/A 6 months incarceration 1 year incarceration
s. 286.2(1) N/A N/A N/A
s. 286.2(2) N/A 2 years incarceration Same
s. 286.3(1) N/A N/A N/A
s. 286.3(2) N/A 5 years incarceration Same
s. 286.4 N/A None None

Offences under s. 286.1(1), where aggravating factors under s. 286.1(1)(a)(i) are made out, have a mandatory minimum penalty of $2,000 fine or $4,000 fine with a prior conviction when prosecuted by indictment and $1,000 or $2,000 fine with a prior conviction when prosecuted by summary conviction. Where aggravating factors under s. 286.1(1)(a)(i) are not made out, the mandatory minimum is $1,000 or $2,000 fine with a prior conviction when prosecuted by indictment and $500 or $1,000 fine with a prior conviction when prosecuted by summary conviction.

For offences under s. 286.1(2), 286.2(2), and 286.3(2) there is a mandatory minimum penalty of 6 months or 12 months with a prior conviction [s. 286.1(2)], 2 years incarceration [s. 286.2(2)] or 5 years incarceration [s. 286.3(2)].

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 286.2(1) [material benefit from sexual services] any X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png
s. 286.3(1) [procuring into sex serv.] any X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 286.3(2) [procuring into sex serv., under 18] any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 286.4 [advertising sexual services] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

Offences under s. 286.2(1) and 286.3(1) have a mandatory fine, and so there can be probation or jail ordered as well. There can be no discharge or conditional sentences.

If convicted under s. 286.3(1) [procuring into sex serv.] a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 286.3(2) [procuring into sex serv., under 18] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

For offences under s. 286.4, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Section 731(1)(a) precludes the use of suspended sentences where there are mandatory minimums, which would apply to convictions under s. 286.1(1)(a) or (b).[1]

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

The predominant sentencing principles are those of denunciation and deterrence.[2]

Young Victim

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Constitutionality

At least one Court has found that the mandatory minimum under s. 286.2 is unconstitutional for being cruel and unusual contrary to s. 12 of the Charter.[3]

  1. R v Berner, 2013 BCCA 188 (CanLII), per curiam (3:0), at para 36
  2. R v Rouse, 2018 NSSC 240 (CanLII), per Warner J
  3. R v Joseph, 2018 ONSC 4646 (CanLII), per McKinnon J, at para 94

Factors

286.2
...

Aggravating factor

(6) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that that person received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

2014, c. 25, s. 20.

CCC


Note up: 286.2(6)

Ranges

see also: Commodification of Sexual Services (Sentencing Cases)

Increased Penalty

286.1
...

Subsequent offences

(3) In determining, for the purpose of subsection (2) [comm. to obtain sexual services for consideration – person under 18], whether a convicted person has committed a subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under that subsection; or
(b) an offence under subsection 212(4) [prostitution of person under 18 years] of this Act, as it read from time to time before the day on which this subsection comes into force.
Sequence of convictions only

(4) In determining, for the purposes of this section, whether a convicted person has committed a subsequent offence, the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences, whether any offence occurred before or after any conviction or whether offences were prosecuted by indictment or by way of summary conviction proceedings.

Definitions of place and public place

(5) For the purposes of this section, place and public place have the same meaning as in subsection 197(1) [disorderly houses, gaming and betting – definitions].

2014, c. 25, s. 20; 2019, c. 25, s. 108.
[annotation(s) added]

CCC


Note up: 286.1(3), (4) and (5)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 286.1(2), 286.2(2) or 286.3(2)
SOIRA Orders s. 286.1(1), (2), 286.2(1), (2) or 286.3{1), (2)
  • On conviction under s. 286.1(2), 286.2(2) or 286.3(2), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 286.1(1), 286.2(1) or 286.3(1), as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 286.1(2), 286.2(2), or 286.3(2)
  • If convicted under s. 286.1(2), 286.2(2), or 286.3(2), the judge may make discretionary 161 Order.
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Victim Under 18 Years

Convictions under s. 286.1(2) [comm. to obtaining sexual services, under 18], 286.2(2) [material benefit from sexual services, under 18], and 286.3(2) [procuring into sex serv., under 18] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

Victim 18 Years or More

Convictions under 286.1(1), 286.2(1), 286.3(1), and 286.4 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

On September 19, 2019, s. 286.1(1) was amended by Bill C-75 to change the penalties including the maximum penalty from 18 months to 2 years less a day. Section 286.2(1) was amended to become a hybrid offence. Section 286.4(1) changed the summary offence penalty from 18 months to 2 years less a day.

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the minimum and maximum penalties. On subsequent convictions, the minimum increased from 6 months to 1 year. The maximum penalty increased from 5 years to 10 years.

These offences came into force December 6th, 2014.[1]

See Also

References