View source for Commodification of Sexual Services (Offence)

{{LevelOne}}{{HeaderOffences}}

{{OffenceBox |OffenceTitle=Commodification of Sexual Services|OffencePage=Commodification of Sexual Services|Section=286.1 to 286.4|Act={{OBCCC}} |CrownElection={{OBHybridIndictableElection}}|Jurisdiction={{OBJurisdictionAll}} |Bail={{OBBailVar}} |SummaryDisp= {{OBDispMinVar}} |SummaryMin={{OBTime|fine}} |SummaryMax= {{OBTime|18 months}} |IndictableDisp={{OBDispMinVar}} |IndictableMin= {{OBTime|fine or 6 months or 1, 2, 5 years}} |IndictableMax= {{OBTime|2, 5, 10 or 14 years}} }}

==Overview==
{{OverviewVIII|commodification of sexual services}}

===Pleadings===

{{PleadingsHeader}}

{{PleadingsHybridList|286.1(1) [obtaining sexual services] and <br>286.4 [advertising] | Yes | {{YesIfCrown-Under14}} }}

{{PleadingsIndictableList|286.1(2) [obtaining sexual services, under 18], <br>286.2(1) [material benefit] | No | {{Yes-Under14}} }}

{{PleadingsIndictableList|286.2(2) [material benefit, under 18], <br>286.3(1) [procuring], and <br>286.3(2) [procuring, under 18] | No | {{Yes-14Above}} }}

{{PleadingsEnd}}

{{PleadingsHybridElection|s. 286.1(1) and 286.4}}

{{PleadingsIndictElection|s. 286.1(2), 286.2(1), 286.2(2), 286.3(1), and 286.3(2)}}

{{IncreasedPenalty|s. 286.1 to 286.3}}

===Release===

{{ReleaseHeader}}

|s. 286.1 || {{ReleaseProfileAll}} 
|-
|s. 286.2 to 286.3 || {{ReleaseProfileNoID}} 
|-
{{ReleaseEnd}}


{{ReleaseAllOptions|s. 286.1 to 286.3}}

:''Fingeprints and Photos''
{{IDCriminalAct|s 286.1(1)}}

===Publication Bans===
{{GeneralPubBan}}

{{486.4PublicationBan|s. 286.1 to 286.3}}

===Offence Designations===

{{DesignationHeader}}
|s. 286.1 || {{OKMark}} <!--wire--> || {{OKMark}} (286.1(2) only)<!--DO-->||{{OKMark}} <!--SPIO--> || {{XMark}} <!--consent-->
|-
|s. 286.2 || {{OKMark}} <!--wire--> || {{OKMark}} <!--DO-->||{{OKMark}} <!--SPIO--> || {{XMark}} <!--consent-->
|-
|s. 286.3 || {{OKMark}} <!--wire--> || {{OKMark}} <!--DO-->||{{OKMark}} <!--SPIO--> || {{XMark}} <!--consent-->
|-
{{DesignationEnd}}

{{WiretapDesignation|s. 286.1 to 286.3}}

{{DODesignation|s. 286.1(2), 286.2, and 286.3}}

{{SPIODesignation|A|s. 286.1 to 286.3}}

{{SeeBelowForAncillary}}

==Offence Wording==
{{quotation|
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),
:::(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.
<br>...<br>
{{LegHistory10s|2014, c. 25}}, s. 20;
{{LegHistory10s|2019, c. 25}}, s. 108.
|[{{CCCSec|286.1}} CCC]
}}

{{quotation|
; Material benefit from sexual services
286.2 (1) 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(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
<br>
; 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), 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.
<br>
...<br>

{{LegHistory10s|2014, c. 25}}, s. 20.
|[{{CCCSec|286.2}} CCC]
}}

{{quotation|
; 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), 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.
<br>
; 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), 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.
<br>
{{LegHistory10s|2014, c. 25}}, s. 20.
|[{{CCCSec|286.1}} CCC]
}}

{{quotation|
; 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 and liable to imprisonment for a term of not more than 18 months.

{{LegHistory10s|2014, c. 25}}, s. 20.
|[{{CCCSec|286.1}} CCC]
}}

==Proof of the Offence==

{{ElementHeader}}

{{ElementLeft}}

{{Proving|material benefit from sexual services|286.1(1)}}
{{InitialElements}}
# {{box}} the culprit "obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person"
# {{box}} 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"

{{ElementRight}}

{{Proving|obtaining sexual services for consideration from person under 18 years|286.1(2)}}
{{InitialElements}}
# {{box}} the culprit "obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person"
# {{box}} the person is under 18 years of age
# {{box}} the culprit knew or was wilfully blind to the person's age 

{{ElementLeft}}

{{Proving|obtaining sexual services for consideration from person under 18 years|286.1(2)}}
{{InitialElements}}
# {{box}} the culprit "obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person"
# {{box}} the person is under 18 years of age
# {{box}} the culprit knew or was wilfully blind to the person's age 

{{ElementRight}}

{{Proving|material benefit from sexual services|286.2(1)}}
{{InitialElements}}
# {{box}} the culprit "receives a financial or other material benefit"
# {{box}} the culprit knew "it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1)"

{{ElementLeft}}

{{Proving|material benefit from sexual services|286.2(1)}}
{{InitialElements}}
# {{box}} the culprit "receives a financial or other material benefit"
# {{box}} the culprit knew "it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(2)"

{{ElementRight}}

{{Proving|procuring sexual services|286.3(1)}}
{{InitialElements}}
# {{box}} the culprit either 
## {{box}} "procures a person to offer or provide sexual services for consideration", 
## {{box}} "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 
## {{box}} "exercises control, direction or influence over the movements of that person"

{{ElementLeft}}

{{Proving|procuring sexual services (under 18 years)|286.3(2)}}
{{InitialElements}}
# {{box}} the culprit either 
## {{box}} "procures a person to offer or provide sexual services for consideration", 
## {{box}} "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 
## {{box}} "exercises control, direction or influence over the movements of that person"
# {{box}} the person is under the age of 18
# {{box}} the culprit knew or was wilfully blind to the person's age

{{ElementRight}}

{{Proving|advertising sexual services|286.4}}
{{InitialElements}}
# {{box}} the culprit "advertises an offer to provide sexual services for consideration"
# {{box}} the culprit did it "knowingly"

{{ElementEnd}}

==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.<ref>
''R v NMP'', [http://canlii.ca/t/230fd 2000 CanLII 26945] (NS CA){{perNSCA|Chipman JA}}{{atL|230fd|26}} - Chipman warns that mens rea also required to make out offence<br>
</ref>

; 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.<ref>
''R v Pake'', [1995] AJ 1152 (ABCA), [http://canlii.ca/t/2dbvk 1995 ABCA 493] (CanLII){{perABCA|Foisy JA}} - re s. 213 prostitution offence<br>
</ref>
The necessary intention must exist ''at the time of the communication''. A change of heart after the fact is not relevant.<ref>
{{ibid1|Pake}}{{atL|2dbvk|25}}<br>
</ref>

Intention of the accused may be inferred from the circumstances of the communications.<ref>
{{ibid1|Pake}}{{atL|2dbvk|24}}<br>
{{supra1|NMP}}{{atL|2dbvk|27}}<br>
</ref>

{{reflist|2}}
===Misc Definitions===
{{quotation|
286.1<br>...<br>
; 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).
<br>
2014, c. 25, s. 20.
|[{{CCCSec|286.1}} CCC]
}}

{{quotation|
; Definitions
197(1) In this Part,<br>...<br>
'''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)
<br>...<br>
'''public place''' includes any place to which the public have access as of right or by invitation, express or implied. (endroit public)<br>
<br>...<br>
R.S., 1985, c. C-46, s. 197; R.S., 1985, c. 27 (1st Supp.), s. 29; 2014, c. 25, s. 12.
|[{{CCCSec|197}} CCC]
}}

===Presumptions===
{{quotation|
286.2<br>...<br>
; Presumption
(3) For the purposes of subsections (1) and (2), 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.
<br>
; Exception
(4) Subject to subsection (5), subsections (1) and (2) 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) does not apply to a person who commits an offence under subsection (1) or (2) 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; or
:(e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

...<br>
{{LegHistory10s|2014, c. 25}}, s. 20.
|[{{CCCSec|286.2}} CCC]
}}

===Immunity===
{{quotation|
; Immunity — material benefit and advertising
286.5 (1) No person shall be prosecuted for
:(a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services; or
:(b) an offence under section 286.4 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 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.
<br>
2014, c. 25, s. 20.
|[{{CCCSec|286.1}} CCC]
}}

{{reflist|2}}

{{Section274to275|s. 286.1, 286.2, or 286.3}}
{{Section274Offences}}
{{Section278.2Offences|s. 286.1, 286.2, or 286.3}}

==Participation of Third Parties==
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}

; Testimonial Aids
{{3rdPTestimonyAids}}

; On Finding of Guilt

{{606NoticeSPIO|s. 286.1 to 286.3}}

{{RestitutionNotice}}

{{VISNotice}}

==Sentencing Principles and Ranges==
{{seealsoSentencing}}
{{seealsoSentencingSexual}}

===Sentencing Profile===
; Maximum Penalties

{{SProfileMaxHeader‎}}

{{SProfileMax|s. 286.1(1) and 286.4|Summary Election|18 months custody}}

{{SProfileMax|s. 286.1(1) and 286.4|Indictment Election|5 years custody}}

{{SProfileMax|s. 286.1(2) or 286.2(1) | {{NA}} | 10 years custody }}

{{SProfileMax|s. 286.2(2), 286.3(1), and 286.3(2) | {{NA}} | 14 years custody }}

{{SProfileEnd}}

{{MaxPenaltyHybrid|s. 286.1(1) and 286.4|5 years custody|18 months custody}}

{{MaxPenaltyIndictment|s. 286.1(2), 286.2(1), 286.2(2), 286.3(1), and 286.3(2)|'''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

{{SProfileMinHeader‎}}

{{SProfileMin|s. 286.1(1)(a)(i) | Indictment | $2,000 | $4,000 }}
{{SProfileMin|s. 286.1(1)(b)(i) | Summary | $1,000 | $2,000 }}
{{SProfileMin|s. 286.1(1)(a)(ii) | Indictment | $1,000 | $2,000 }}
{{SProfileMin|s. 286.1(1)(b)(ii) | Summary | $500 | $1,000 }}

{{SProfileMin|s. 286.1(2) | {{NA}} | 6 months custody | 1 year custody}}

{{SProfileMin|s. 286.2(1) |{{NA}} |  {{NA}}| {{NA}}}}

{{SProfileMin|s. 286.2(2) | {{NA}} | 2 years custody | Same }}

{{SProfileMin|s. 286.3(1) | {{NA}} | {{NA}} | {{NA}} }} 

{{SProfileMin|s. 286.3(2) | {{NA}} | 5 years custody | Same }}

{{SProfileMin|s. 286.4 | {{NA}} | None | None }} 
{{SProfileEnd}}

{{MinPenaltyHybrid1|s. 286.1(1)|s. 286.1(1)(a)(i)|'''$2,000 fine or $4,000 fine''' with a prior conviction|'''$1,000 or $2,000 fine''' with a prior conviction |''' $1,000 or $2,000 fine''' with a prior conviction|''' $500 or $1,000 fine'''with a prior conviction}}

{{MinPenalty|s. 286.1(2), 286.2(2), and 286.3(2)| '''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
{{SProfileAvailHeader}}
|s. 286.2(1) [material benefit]|| any || {{SProfileOnlyFine}}
|-
|s. 286.3(1)  [procuring] || any || {{SProfileNoDischarge}}
|-
|s. 286.3(2) [procuring, under 18]|| any || {{SProfileOnlyJail}}
|-
|s. 286.4 || any ||{{SProfileAll}}
|-
{{SProfileEnd}}

{{OnlyFineAvailable|s. 286.2(1) and 286.3(1)}}

{{NoDischargeAvailable|s. 286.3(1) [procuring]}}

{{OnlyJailAvailable|s. 286.3(2)}}

{{AllDispositionsAvailable1|s. 286.4}}

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).<ref>
''R v Berner'', [http://canlii.ca/t/fx6j8 2013 BCCA 188] (CanLII){{TheCourtBCCA}} (3:0){{atL|fx6j8|36}}<br>
</ref>

; Consecutive Sentences
{{ConsecutiveSexOffence}}

===Principles===

The predominant sentencing principles are those of denunciation and deterrence.<ref>
''R v Rouse'', [http://canlii.ca/t/hvf9f 2018 NSSC 240] (CanLII){{perNSSC|Warner J}}
</ref>

; Young Victim
{{YVictimPrinciple}}

; 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.<ref>
''R v Joseph'', [http://canlii.ca/t/hthfs 2018 ONSC 4646] (CanLII){{perONSC|McKinnon J}}{{atL|hthfs|94}}<br>
</ref>
{{reflist|2}}

===Factors===
{{quotation|
286.2
<br>...<br>
; 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.
|[{{CCCSec|286.2}} CCC]
}}

===Ranges===
{{seealsoRanges|Commodification of Sexual Services}}

===Increased Penalty===
{{quotation|
286.1.<br>...<br>
; Subsequent offences
(3) In determining, for the purpose of subsection (2), 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) 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.
<br>
...<br>
2014, c. 25, s. 20.
|[{{CCCSec|286.1}} CCC]
}}

==Ancillary Sentencing Orders==
{{seealso|Ancillary Orders}}

; Offence-specific Orders
{{AOrderHeader}}
| [[DNA Orders]] ||s. 286.1(2), 286.2(2) or 286.3(2) ||
* {{PrimDNA1|s. 286.1(2), 286.2(2), or 286.3(2)}}
* {{PrimDNA2|s. 286.2(1) or 286.3(1)}}
* {{SecondDNA(CtoE)|s. 286.1(1)}}
* {{SecondDNA(AorB)Hybrid|s. 286.4}}
|-
| [[SOIRA Orders]] ||s. 286.1(1), (2), 286.2(1), (2) or 286.3{1), (2) ||
* {{SOIRA1|B|s. 286.1(2), 286.2(2) or 286.3(2)}}
* {{SOIRA2|B|s. 286.1(1), 286.2(1) or 286.3(1)}}
|-
| [[Section 161 Orders]] || s. 286.1(2), 286.2(2), or 286.3(2)|| 
* {{Section161|s. 286.1(2), 286.2(2), or 286.3(2)}}
{{AOrderEnd}}

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==Record Suspensions and Pardons== 
{{NoRecordSuspension|s. 286.1 [obtaining sexual services for consideration from person under 18 years], 286.2 [material benefit from sexual services provided by person under 18 years], and 286.3 [procuring — person under 18 years]}}

==History==
{{seealso|List of Criminal Code Amendments}}
These offences came into force December 6th, 2014.<ref>
See [[List of Legislative Amendments]]
</ref>

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.

{{reflist|2}}

==See Also==
; References
* [[Pre-Trial and Trial Motions Checklist]]

{{OffencesNavBar/Sexual}}

[[Category:Offences with Maximum Penalty of 18 Months]]
[[Category:Offences with Maximum Penalty of 5 Years]]
[[Category:Offences with Maximum Penalty of 10 Years]]
[[Category:Offences with Maximum Penalty of 14 Years]]