Prostitution Laws in Canada: Is Sex Work Legal?

Prostitution is not defined in the Criminal Code which means that the definition of prostitution is understood through case law. Generally, prostitution is understood to be the exchange of sexual services for money or goods.

Three elements must be met in order for someone to characterize an act as prostitution:

• Provision of sexual services;
• The indiscriminate nature of the act; and
• Some form of payment.

With the passing of Bill C-36, it is illegal to purchase or advertise sexual services and to live on the material benefits of sex work in Canada. The new law came in response to the Supreme Court ruling in Canada (AG) v Bedford, 2013 SCC 72 (CanLII) (“Bedford”) which found that the previous laws prohibiting brothels, public communication for the purpose of prostitution and living on the profits of prostitution unconstitutional.

As a result of the decision in Bedford, the following sections of the Criminal Code were struck down:

• 210, Living in, owning, leasing, occupying or being inside of a ‘common bawdy house’;
• 212(1)(j), ‘Living off the avails of prostitution; and
• 213(1)(c), Communicating in public for the purpose of prostitution.

A common bawdy house is a place that is used for prostitution. Whereas ‘Living off the avails of’ prostitution means someone who makes a living from or lives off the money that prostitutes earn.

Given that all three of the above-aforementioned sections were deemed unconstitutional, the Parliament of Canada was provided 12 months to rewrite the prostitution laws. The amending legislation came into effect on December 6, 2014, and Bill C-36 made the purchase of sexual services in Canada illegal. The relevant criminal code sections in relation to prostitution are the following:

• 286.1 – Obtaining sexual services for consideration
• 286.1(2) – Obtaining sexual services for consideration from person under 18 years
• 286.2 (1) – Material benefit from sexual services
• 286.2 (2) – Material benefit from sexual services provided by person under 18 years
• 286.3 (1) – Procuring
• 286.3 (2) – Procuring — person under 18 years
• 286.4 – Advertising sexual services
• 213(1.1) – Communicating to provide sexual services for consideration

If you are facing solicitation charges, you need a criminal defence lawyer to look at your case as soon as possible. A conviction can carry serious penalties including expensive fines and jail time.

What Is Bill C-36?

Bill C-36, also referred as the Protection of Communities and Exploited Persons Act, received Royal Assent on November 6, 2014. Bill C-36 seeks to protect the dignity and equality of all Canadians by denouncing and prohibiting the purchase of sexual services, the exploitation of the prostitution of others, the development of economic interests in the sexual exploitation of others and the institutionalization of prostitution through commercial enterprises, such as strip clubs, massage parlours and escort agencies that offer sexual services for sale.

The overall objectives of Bill C-36 are stated as follows:

• To protect those who sell their own sexual services (sex workers);
• To protect communities, and especially children, from the harms caused by prostitution; and
• To reduce the demand for prostitution and its incidence.

Bill C-36 contains prostitution and human trafficking-related amendments, specifically in relation to:

• Purchasing offences;
• Advertising offences;
• Material benefit offences;
• Procuring offences;
• Communicating offences; and
• Trafficking in person offences.

Prostitution Offences

Purchasing Prostitution Offence

Under s.286.1 of the Criminal Code, 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 an offence. Bill C-36 criminalized the purchase of sexual services, the consideration, and communication involved in obtaining sexual services. This means that under Bill C-36’s purchasing offences the purchaser is committing an offence every time a transaction is considered or completed.

However, it is important to note that under the purchasing offences, sex workers are protected as the selling of their own sexual services are not criminalized by Bill C-36 as indicated by s. 286.5(2) of the Criminal Code.

If you have been convicted under s.286.1 of the Criminal Code and the Crown elects to proceed by indictment you will be liable for the following penalties:

If 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 then a minimum penalty of:

• for a first offence a fine of $2,000.00, and
• for each subsequent offence a fine of $4,000.00

 in any other case:

• for a first offence= a fine of $1,000.00, and
• for each subsequent offence= a fine of $2,000.00

If the Crown elects to proceed summarily then you will be subject to up to two years less a day in jail and/or a $5,000.00 fine.

However, you will be subject to the following minimum penalties if 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:

• for a first offence= a fine of $1,000.00, and
• for each subsequent offence= a fine of $2,000.00, or

in any other case,

• for a first offence= a fine of $500.00, and
• for each subsequent offence= a fine of $1,000.00

It is important to note that if you are trying to purchase sexual services from a child victim, you could be facing a minimum of six months and a maximum of 10 years in prison for your first offence. Any subsequent offences require a minimum of one year of imprisonment.

You also have the following dispositions available to you:

• fine alone;
• fine and probation;
• prison and probation;
• intermittent sentence;
• fine, probation and intermittent sentence; and
• conditional discharge.

If the victim is under the age of 18 you will only have available to you a sentence that involves prison, prison and probation or prison and fine.

However, some common defences to a purchasing offence are as follows:

• identity;
• lack of intent; and
• any applicable Charter defences

Advertising Prostitution Offences

Under s. 286.4 of the Criminal Code anyone that is knowingly advertising sexual services for purchase is guilty of an offence punished either summarily or by indictment.

However, it is important to note that advertising offences do not apply to those that are advertising their own sexual services as per s.286.5(2) of the Criminal Code. This means that only institutions, such as erotic massage parlours, strip clubs, or pimps promoting the sexual services of someone else, can be prosecuted for an advertising offence, not individual sex workers advertising the sale of their own sexual services.

If you are convicted under s. 286.4 of the Criminal Code, you may be subject to liability for the following:

• Indictment: up to 5 years in jail
• Summary: up to 18 months in jail

You also have the following dispositions available to you:

• Discharge;
• Suspended sentence;
• Stand-alone fine;
• Custody and probation;
• Custody and fine; and
• Conditional sentence.

However, some common defences to an advertising offence are as follows:

• identity;
• lack of intent;
• that you did not advertise an offer to provide sexual services for consideration; and
• any applicable Charter defences

Material Benefit Offence

Under s.286.2 of the Criminal Code, it is an offence when anyone receives a financial or material benefit by commissioning off the purchase of a sexual service. This offence also includes receiving money or another material benefit from the prostitution of others in the context of commercial enterprises that offer sexual services for sale. This means that you are committing an offence if you earn money by owning, managing or working for a commercial enterprise knowing that sexual services are purchased there. These commercial enterprises would include places such as strip clubs, massage parlours or escort agencies. For example, a bouncer who works at a strip club, knowing that prostitution takes place there would likely be guilty of the material benefit offence.

However, it is important to note that as per s.286.5(1)(a) of the Criminal Code those individuals who sell their own sexual services are protected from criminal liability for committing an offence under s.286.2 of the Criminal Code given that the only benefit they receive is from the sale of their own sexual services or for participating in the commission of this offence if the offence relates to their own sexual services as per s.286.5(2) of the Criminal Code.

This means that no offence is committed in the following contexts:

• Legitimate living arrangements (e.g., children, spouses, roommates, as per s.286.2(4)(a));
• Legal or moral obligations (e.g., supporting a disabled parent, gifts, as per s.286.2(4)(b));
• Goods and services offered to the general public (e.g., accountants, landlords, pharmacists, security companies, as per s.286.2(4)(c)); and,
• Goods and services offered informally for fair value (e.g., babysitting or protective services, as per s.286.2(4)(d)).

However, as per s.286.2(5) of the Criminal Code these exceptions will not apply to you if any of the following occur:

• You used, threatened, or attempted to use violence against the sex worker;
• You abused a position of trust, power, or authority;
• You providing intoxicating substances (Drugs, Alcohol, etc.) to continue & encourage the sale of sexual services;
• You engaged in conduct that would amount to procuring; and/or
• You received the benefit as a commercial enterprise that offers sexual services for sale

If you have been convicted under s.286.2 of the Criminal Code, you will be subject to the following penalties:

• Indictable up to 10 years in jail
• Summary up to 2 years less a day in jail and/or a $5,000 fine.

However, if the victim is under 18 years of age, then this is a straight indictable offence, and you are subject to a minimum penalty of 2 years in jail and can face up to a maximum of 14 years in jail.

You also have the following dispositions available to you:

• Discharge;
• Suspended sentence;
• fine alone;
• fine and probation;
• prison and probation;
• intermittent sentence;
• fine, probation and intermittent sentence; and
• conditional discharge.

However, some common defences to a material benefit offence are as follows:

• identity;
• lack of intent; and
• any applicable Charter defences

Procuring Prostitution Offence

Under s. 286.3 of the Criminal Code 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 committing an offence. An offence under 286.3 of the Criminal Code is different from the material benefit offence as rather than only requiring a passive involvement in the prostitution of others, an offence under s.286.3 of the Criminal Code criminalizes active involvement in the prostitution of others.

The term “procures” was defined in the case of R v Joseph, 2020 ONCA 733 (CanLII) as “to cause, or to induce, or to have a persuasive effect upon the conduct alleged. These are three distinct ways of procuring, which is not confined to causing someone to do something, let alone causing them to do it through reasoning or argument”.

This means that, for example, a “pimp” who induces another person to sell sexual services will likely be found guilty of a procuring offence.

However, it is important to note that those who sell their own sexual services are protected from criminal liability for participating in the commission of this offence if the offence relates to their own sexual services, as per s.286.5(2) of the Criminal Code.

If you have been convicted under s.286.3 of the Criminal Code, this is a straight indictable offence, and you may receive up to 14 years in jail.

However, if the victim is under 18 years of age, then you are subject to a minimum penalty of 5 years in jail but may receive up to 14 years in jail.

You also have the following dispositions available to you:

• Suspended sentence;
• fine alone;
• fine and probation;
• prison and probation;
• intermittent sentence; and
• fine, probation and intermittent sentence.

However, some common defences to a procuring offence are as follows:

• identity;
• lack of intent; and
• any applicable Charter defences

Communicating Prostitution Offence

Under s.213(1.1) of the Criminal Code, it is an offence to communicate with any person for the purposes of offering or providing sexual services for consideration in public places that are or are next to school grounds, playgrounds or daycare centres.

The term public place is defined under s.213(2) of the Criminal Code to include any place to which the public has access to as a right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

If you are convicted under s.213(1.1) this is a straight summary conviction and can receive a penalty of up to 2 years less a day in jail and/or a $5,000.00 fine.

You also have the following dispositions available to you:

• Discharge;
• Suspended sentence;
• fine alone;
• fine and probation;
• prison and probation;
• intermittent sentence;
• fine, probation and intermittent sentence; and
• conditional discharge.

However, some common defences to a communicating offence are as follows:

• identity;
• lack of intent;
• You did not communicate; and
• any applicable Charter defences

Trafficking In Persons Offences

Bill C-36 harmonizes the penalties imposed for human trafficking and prostitution-related conduct specifically in relation to the following offences:

• 279.01 of the Criminal Code, Trafficking in persons;
• 279.011 of the Criminal Code, Trafficking of a person under the age of 18;
• 279.02 of the Criminal Code, Material Benefit – Trafficking; and
• 279.03 of the Criminal Code, Withholding or destroying documents.

Purpose of criminalizing prostitution and Bill C-36

Bill C-36 criminalized the purchase of sex; however, the selling of sex was decriminalized. The intention was effectively to reduce the demand for sex workers and the purchase of sexual services. The criminalization aims to not only discourage individuals from seeking out sexual services but also serves to try to protect vulnerable sex workers as well.

What is operation northern spotlight?

Operation northern spotlight is a national, anti-trafficking police operation where the police work with vulnerable communities and social workers to identify and provide support to individuals who are suspected of being forced into the sex trade or believed to be at high risk of being trafficked. Operation northern spotlight was initially created by the Durham Regional Police in 2014 and involved 62 police agencies across Canada. This operation included undercover police officers making contact with women and men on social media sites commonly used in the “escort” sex trade industry and arranging to meet at hotel rooms in an effort to identify potential victims of human sex trafficking and raise awareness of sexual exploitation.

FAQ’s

Is stripping illegal?

No, stripping is not illegal. This is because strippers are entertainers in strip clubs, and it is not illegal to tip them or pay for private dances. However, if at any point you try to pay a stripper for sexual services then this is illegal, and you are committing an offence.

Are cam girls illegal?

No, cam girls are not illegal. This is because under the purchasing offences, sex workers are protected as the selling of their own sexual services are not criminalized under Bill C-36.

Is it illegal to be a sugar baby?

No, it is not illegal to be a sugar baby. A sugar baby are individuals that are pampered or cared for rich or affluent individuals to provide them with companionship. This means that this mutual arrangement can be categorized as a transactional dating arrangement between two people. As such, this arrangement is more akin to dating rather than a situation where sexual favours are being paid for.

Is it illegal to get an erotic massage?

Yes, it is illegal to get an erotic massage. This is because under Bill C-36 criminalizes the purchasing a sexual service and profiting from it the sale of the sexual service. This means that not only would the person buying a sexual service be charged with a purchasing offence, but the massage parlour could also be charged with a material benefits offence.