Hadamard
Purchasing sexual services, or communicating for the purpose of doing so, carries significant legal ramifications in Canada under the Criminal Code. The primary provision governing this is section 286.1.
Obtaining Sexual Services from an Adult (s. 286.1(1))
Section 286.1(1) of the Criminal Code makes it an offence to obtain, or communicate to obtain, the sexual services of a person 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.
The Nova Scotia Court of Appeal in R v Rouse (2020), NSCA, confirmed that this section criminalizes the purchase itself and the broader concept of the “commodification of sexual activity.” The court noted:
[11] I am in agreement with the observation by Mr.Rouse’s counsel that s. 286.1 criminalizes the purchase of sexual services and the commodification of sexual activity. While the facts before the trial judge did not concern provision of “sexual services” as popularly conjured in modern parlance – that of “johns” and “sex workers” – the commodification of the relationship between Mr. Rouse and the victim, through the provision of drugs – not money – for sex is captured by that section. I see nothing in the reading of s. 286.1 that confines its application to certain types of encounters, or that limits the contractual consideration for sexual services to only that of money.
This means the “consideration” exchanged for sexual services does not need to be money; it can include items like drugs or other benefits. Courts will look at the context and circumstances to determine if the communication or transaction was for the purpose of obtaining sexual services for consideration, as seen in R v Coburn (2020), NSCA, where the accused’s claim of seeking a massage was rejected based on the evidence.
[20] …I do not believe Mr. Coburn’s evidence that he was seeking a massage and paid for a massage. His evidence on this does not raise a reasonable doubt and I am convinced beyond a reasonable doubt on all the evidence that his communication was for the purpose of obtaining sexual services for consideration. My reasons for saying this include the context and circumstances, the nature of the ads and the content of the communication…
Obtaining Sexual Services from a Minor (s. 286.1(2))
The ramifications are much more severe if the person whose sexual services are sought is under the age of 18. Section 286.1(2) states:
286.1 (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.
This is a strictly indictable offence with mandatory minimum prison sentences. Cases like R v Dare (2019), SCC, R v Ramelson (2021), ONCA, and R v Haniffa (2021), ONCA illustrate how this section is applied, often in the context of online police investigations targeting individuals seeking services from minors.
As highlighted in R v M.G.S. (2021), SKCA, the consideration involved does not need to be monetary. In that case, offering access to Wi-Fi was deemed sufficient consideration to ground a conviction under s. 286.1(2). The trial judge noted:
[30] …The essence of count 5 is that something is given in exchange for sexual services to a person under 18. The crux of the offence must be that there is a quid pro quo. [The older child’s] testimony clearly sets out that there was. …[The older child’s] testimony was clear that in exchange for her sexual compliance with [Mr. S.], he promised her relief from Wi-Fi restriction. The Crown has made out count 5.
Sentencing for offences under s. 286.1(2) takes into account the mandatory minimums, although these have faced constitutional challenges (as noted in R v Bains (2022), ABCA, referencing R v Charboneau, 2019 ABQB 882). Aggravating factors, such as the degree of planning or the specific nature of the communication, can influence the sentence (Bains). The distinct purpose of s. 286.1(2) is to protect against child prostitution, separate from child luring offences under s. 172.1 (Haniffa).
In summary, purchasing or communicating to purchase sexual services is illegal in Canada. The penalties vary significantly depending on whether the person providing the service is an adult or a minor, with offences involving minors carrying mandatory minimum prison sentences. The “consideration” exchanged need not be money.
Please note that while I have access to most Canadian legal cases, my database may not be exhaustive. There could be other relevant cases or specific legal nuances I haven’t identified.
0 Comments