Commodification of Sexual Services (Offence)
| 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 (*) |
| Summary Dispositions | |
| Avail. Disp. |
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| Minimum | fine incarceration |
| Maximum | 18 months incarceration |
| Indictable Dispositions | |
| Avail. Disp. |
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| 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
Template:PleadingsHybridListTemplate:PleadingsIndictableList| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
|---|
Offences under s. 286.1(1) and 286.4 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), 286.2(1), 286.2(2), 286.3(1), and 286.3(2) 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 | Template:ReleaseProfileAll | ||||
| s. 286.2 to 286.3 | Template:ReleaseProfileNoID |
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.
A peace officer who charges a person under s 286.1(1) 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 to 286.3 | s. 286.1(2), 286.2, and 286.3 | N/A | s. 286.1 to 286.3 |
Offences under s. 286.1 to 286.3 are designated offences eligible for wiretap under s. 183.
Offences under s. 286.1(2), 286.2, and 286.3 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
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 imprisonment for a term of not more than 18 months and 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.
...
2014, c. 25, s. 20.
– CCC
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.
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.
...
2014, c. 25, s. 20.
– CCC
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.
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.
2014, c. 25, s. 20.
– CCC
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.
2014, c. 25, s. 20.
– CCC
Proof of the Offence
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Proving material benefit from sexual services under s. 286.1(1) should include:
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Proving obtaining sexual services for consideration from person under 18 years under s. 286.1(2) should include:
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Proving obtaining sexual services for consideration from person under 18 years under s. 286.1(2) should include:
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Proving material benefit from sexual services under s. 286.2(1) should include:
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Proving material benefit from sexual services under s. 286.2(1) should include:
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Proving procuring sexual services under s. 286.3(1) should include:
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Proving procuring sexual services (under 18 years) under s. 286.3(2) should include:
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Proving advertising sexual services under s. 286.4 should include:
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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.
Pake, ibid. at para 25
</ref>
Intention of the accused may be inferred from the circumstances of the communications.[3]
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).
2014, c. 25, s. 20.
– CCC
Definitions
197(1) In this Part,
...
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.
– CCC
Presumptions
286.2
...
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.
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.
...
2014, c. 25, s. 20.
– CCC
Immunity
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.
2014, c. 25, s. 20.
– CCC
Evidence
Participation of Third Parties
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
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
- 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 custody |
| s. 286.1(1) and 286.4 | Indictment Election | 5 years custody |
| s. 286.1(2) or 286.2(1) | N/A | 10 years custody |
| s. 286.2(2), 286.3(1), and 286.3(2) | N/A | 14 years custody |
Offences under s. 286.1(1) and 286.4 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years custody. If prosecuted by summary conviction, the maximum penalty is 18 months custody.
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) | Indictment | $2,000 | $4,000 |
| s. 286.1(1)(b)(i) | Summary | $1,000 | $2,000 |
| s. 286.1(1)(a)(ii) | Indictment | $1,000 | $2,000 |
| s. 286.1(1)(b)(ii) | Summary | $500 | $1,000 |
| s. 286.1(2) | N/A | 6 months custody | 1 year custody |
| s. 286.2(1) | N/A | N/A | N/A |
| s. 286.2(2) | N/A | 2 years custody | Same |
| s. 286.3(1) | N/A | N/A | N/A |
| s. 286.3(2) | N/A | 5 years custody | 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 finewith 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 |
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| s. 286.2(1) [material benefit] | any |  |
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| s. 286.3(1) [procuring] | any | |
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| s. 286.3(2) [procuring, under 18] | any | |
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| s. 286.4 | any | |
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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] 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) 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
There are no statutory requirements that the sentences be consecutive.
Principles
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).
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
Ranges
Increased Penalty
286.1.
...
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.
...
2014, c. 25, s. 20.
– CCC
Ancillary Sentencing Orders
Offence-specific Orders
| Order | Conviction | Description |
|---|---|---|
| DNA Orders | s. 286.1(2), 286.2(2) or 286.3(2) |
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| SOIRA Orders | s. 286.1(1), (2), 286.2(1), (2) or 286.3{1), (2) |
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
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) |
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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 His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| 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. NB: does not apply to summary offences. |
History
These offences came into force December 6th, 2014.[2]
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.
- ↑
R v Berner, 2013 BCCA 188 (CanLII) at para 36
- ↑ See List of Legislative Amendments
See Also
Reference