R. v. Kloubakov, 2025 SCC 25

SUPREME COURT OF CANADA
Citation: R. v. Kloubakov, 2025 SCC 25			Appeal Heard: November 12 and 13, 2024 Judgment Rendered: July 24, 2025 Docket: 41017
Between:   Mikhail Kloubakov and Hicham Moustaine Appellants   and   His Majesty The King Respondent   - and -   Attorney General of Canada, Attorney General of Ontario, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of British Columbia, Vancouver Rape Relief Society, Concertation des luttes contre l’exploitation sexuelle, Aboriginal Women’s Action Network, Formerly Exploited Voices Now Educating, London Abused Women’s Centre, Strength in Sisterhood, Christian Legal Fellowship, Women’s Legal Education and Action Fund Inc., Amnesty International, Canadian Section (English Speaking), HIV & AIDS Legal Clinic Ontario, Coalition des organismes communautaires québécois de lutte contre le sida, Action Canada for Sexual Health and Rights, Canadian Civil Liberties Association, Tiffany Anwar, David Asper Centre for Constitutional Rights, British Columbia Civil Liberties Association, Ontario Coalition of Rape Crisis Centres, Evangelical Fellowship of Canada and Association for Reformed Political Action Canada Interveners       Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 172)	The Court

 

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

 

Mikhail Kloubakov and

Hicham Moustaine                                                                                        Appellants

v.

His Majesty The King                                                                                 Respondent

and

Attorney General of Canada,

Attorney General of Ontario,

Attorney General of Nova Scotia,

Attorney General of Manitoba,

Attorney General of British Columbia,

Vancouver Rape Relief Society,

Concertation des luttes contre l’exploitation sexuelle,

Aboriginal Women’s Action Network,

Formerly Exploited Voices Now Educating,

London Abused Women’s Centre, Strength in Sisterhood,

Christian Legal Fellowship,

Women’s Legal Education and Action Fund Inc.,

Amnesty International, Canadian Section (English Speaking),

HIV & AIDS Legal Clinic Ontario, Coalition des organismes

communautaires québécois de lutte contre le sida,

Action Canada for Sexual Health and Rights,

Canadian Civil Liberties Association, Tiffany Anwar,

David Asper Centre for Constitutional Rights,

British Columbia Civil Liberties Association,

Ontario Coalition of Rape Crisis Centres,

Evangelical Fellowship of Canada and

Association for Reformed Political Action Canada                                  Interveners

Indexed as: R. v. Kloubakov

2025 SCC 25

File No.: 41017.

2024: November 12, 13; 2025: July 24.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

on appeal from the court of appeal of alberta

                    Constitutional law — Charter of Rights — Right to security of person — Sex workers — Sexual services — Safety measures — Whether offences of receiving material benefit from sexual services and procuring person to offer or provide sexual services for consideration set out in Criminal Code infringe right to security of person of sex workers by preventing them from taking necessary safety measures — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C‑46, ss. 286.2, 286.3.

                    In 2014, Parliament enacted Bill C‑36, the Protection of Communities and Exploited Persons Act (“PCEPA”), as a new paradigm to regulate the sale of sexual services in Canada in response to the Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. In Bedford, several criminal offences related to the sale of sexual services had been declared unconstitutional because they restricted the legal activity of selling sexual services in a way that prohibited sex workers from taking safety measures to protect themselves, such as selling sex from fixed indoor locations and hiring drivers and bodyguards. The PCEPA made purchasing sex a crime, and added new offences to the Criminal Code, including receiving a material benefit from sexual services (s. 286.2), and procuring a person to offer or provide sexual services for consideration (s. 286.3).

                    The accused, who worked as drivers in an escort business, were charged in 2019 with several criminal offences, including the material benefit and procuring offences in ss. 286.2 and 286.3. They were convicted of these two offences; however, the trial judge held that these offences prohibited sex workers from taking the safety measures contemplated in Bedford and therefore negatively affected their security of the person, and infringed s. 7 of the Charter. The trial judge ordered a stay of proceedings. The Court of Appeal restored the accused’s convictions, holding that the impugned offences did not prohibit sex workers from taking safety measures and therefore did not infringe s. 7.

                    Held: The appeal should be dismissed.

                    Applying the modern principle of statutory interpretation, neither the material benefit offence nor the procuring offence prohibits the safety measures contemplated in Bedford. As a result, the offences do not engage sex workers’ security of the person and do not infringe s. 7 of the Charter. The convictions of the accused are affirmed.

                    Before evaluating the constitutionality of statutory provisions, it is first necessary to interpret the provisions at issue in accordance with the modern principle, under which the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The statutory provisions must be interpreted based on their text, context, and purpose to determine their scope.

                    In this case, the new offences added to the Criminal Code have two purposes: (1) to reduce the demand for sex work; and (2) to protect sex workers from the risks of violence, abuse, and exploitation associated with the sex work industry. The first purpose is pursued with a view to discouraging entry into the commercial sex trade, deterring participation in it, and ultimately abolishing it to the greatest extent possible, in order to protect individuals, communities, human dignity, and equality, given the social harm, violence, and exploitation of marginalized and vulnerable persons, especially women and children, that Parliament sees as inherent in sex work. The second purpose has two aspects: (a) to protect sex workers from third parties who commercialize the sale of sexual services; and (b) to allow sex workers to protect themselves from the dangers posed by purchasers of sexual services. The first aspect is reflected in, among other things, the material benefit and procuring offences, which recognize that third parties who profit from the sale of sexual services cause, perpetuate, and exploit the harms of the commercial sex trade. Under the second aspect, persons who sell their own sexual services are provided with an immunity from prosecution. Both aspects seek to protect individuals, communities, human dignity, and equality.

                    Correctly interpreted, the material benefit offence does not prevent sex workers from taking the safety measures identified in Bedford. The purpose of the material benefit offence is to criminalize receiving a material benefit from the sale of sexual services of others in exploitative circumstances, including by preventing third parties from profiting from the sex work of others, while allowing sex workers to take safety measures and to enter into legitimate family and business relationships. The material benefit offence prohibits persons from receiving a financial or other material benefit knowing that it is obtained by, or derived directly or indirectly from, the purchase of the sexual services of others, but its scope is narrowed by legislated exceptions in s. 286.2(4), which allow sex workers to protect themselves and to enter into business arrangements through which they can hire staff. The legislated exceptions, however, exclude five circumstances that Parliament regards as exploitative, including two circumstances challenged in the instant case: when a material benefit is obtained “in the context of a commercial enterprise that offers sexual services for consideration” (s. 286.2(5)(e)); and when a person provides “a drug, alcohol or any other intoxicating substance” to a sex worker for the purpose of aiding or abetting that person to sell sexual services (s. 286.2(5)(c)).

                    Section 286.2(5)(e) does not prevent sex workers from taking safety measures. The term “commercial enterprise” is not defined in the PCEPA; any interpretation of this provision must consider its purpose in the context of the PCEPA as a whole. The heading in the Criminal Code above the provisions added by the PCEPA, “Commodification of Sexual Activity”, informs the interpretation of all of these provisions, including the term “commercial enterprise”. A “commercial enterprise” necessarily involves the making of a profit derived from the commodification of sexual activity by a third party. Accordingly, the key question for identifying a commercial enterprise is whether a third party shares in the profits of another person’s sex work. There is no requirement for factually exploitative conduct or for the profits to be excessive or unreasonable. The prohibition on “commercial enterprises” instead targets the inherent exploitation that Parliament sees as arising from commodification and commercialization of sex work by third parties. It will be for the courts to determine on a case‑by‑case basis whether any given enterprise is a “commercial enterprise” engaged in the commodification of sexual activity, based on specific facts and on a contextual and purposive reading of the term. However, certain types of conduct are necessarily excluded from the scope of a “commercial enterprise”: an individual who sells their own sexual services, whether independently or cooperatively with others; a third party, such as a driver, receptionist, bodyguard, or manager, who provides security services to persons who sell their own sexual services under a cooperative arrangement; sex workers who operate indoors from a not‑for‑profit “safe house”; and an individual or entity that merely rents premises to an independent sex worker and does not participate in commodifying sexual activity.

                    With respect to s. 286.2(5)(c), this provision also does not prevent sex workers from taking safety measures, as it does not criminalize the act of a third party in giving a Tylenol pill to a person who sells their own sexual services. Although the word “drug” in the English version of the provision might refer to both narcotics and other medications such as Tylenol, any ambiguity is resolved by the narrower word “drogue” in the French version, which only refers to narcotics, and not to other medications. In addition, the word “drug” in s. 286.2(5)(c) is included in a list with the other associated words “alcohol and any other intoxicating substance”; these words all share a common feature, namely, that they only refer to intoxicating substances. A Tylenol pill is not an intoxicating substance. This interpretation is also consistent with the objective of the PCEPA as a whole to target the exploitation of sex workers, including by third parties who prey on drug addictions in order to exercise power and control over sex workers.

                    The procuring offence also does not prevent sex workers from taking safety measures. The purpose of the procuring offence is to prevent the procurement of persons for the purpose of facilitating the purchase of sexual services. It prohibits the procuring of a person in order to offer or provide sexual services for consideration, as well as the recruiting, holding, concealing, or harbouring of a person, or exercising control, direction, or influence over the movements of that person, for the purpose of facilitating the purchase of sexual services. The offence deters procurers from directly or indirectly encouraging others to enter the commercial sex trade. It necessarily requires the procurer’s active involvement in the sale of another person’s sexual services by insisting on a high mens rea of a specific intent to facilitate the purchase of sexual services. The prohibited conduct must be for the purpose of facilitating the offence of purchasing sex, by inducing a person to offer sexual services for purchase. The accused must not merely knowingly or unwittingly facilitate the offence of purchasing sex, but must also specifically intend their actions to induce a person to offer sexual services for purchase. The accused’s intention is determined subjectively, with reference to the nature of the relationship. 

                    A person who merely gives advice on safe practices to a sex worker would not, without more, be guilty of procuring, as this does not involve causing, inducing, or having a persuasive effect on a sex worker to offer or provide sexual services for consideration. Nor does it involve conduct specifically intended to facilitate the offence of purchasing sex. Similarly, merely renting a room to a sex worker from which they could sell sexual services also cannot, without more, constitute procuring, as such conduct lacks the necessary mens rea — i.e., the specific intention to facilitate the purchase of sex by inducing a person to offer sexual services for purchase. While renting a room to a sex worker would facilitate the act of selling sex, it would not constitute procuring, because Parliament has expressly designed the new offences to distinguish between the purchase and the sale of sexual services: the former remains criminalized, while the latter benefits from an immunity from prosecution. As well, third parties such as receptionists, managers, or drivers employed by sex workers, who work to increase their safety, are not captured by the procuring offence, because such employees lack the necessary mens rea, unless they have the specific intent to facilitate the purchase of sex. By contrast, a commercial agency that recruits persons to sell sexual services, provides premises for transactions, advertises to potential purchasers, makes appointments, and collects agency fees would engage liability under the procuring offence. Such a commercial agency would be directly engaged in promoting the commodification of sexual services, contrary to the first aspect of the safety‑related purpose of the new offences.

                    As to whether the material benefit and procuring offences infringe s. 7 of the Charter, the established legal framework under s. 7 proceeds in two steps. At the first step, the claimant must establish that the impugned legislative provision deprives someone of life, liberty, or security of the person. This requires showing a sufficient causal connection between the legislation and the alleged deprivation or negative impact on the s. 7 interest; even the risk of such a deprivation suffices to engage s. 7. At the second step, the claimant must show that this deprivation is not in accordance with the principles of fundamental justice — for example, if the law is arbitrary, overbroad, or grossly disproportionate.

                    Properly interpreted in accordance with the modern principle of statutory interpretation, both the material benefit and procuring offences permit sex workers, or any individuals they hire, to take the safety measures contemplated in Bedford, such as using fixed indoor locations, hiring the services of third parties to mitigate safety risks, providing sexual services in cooperation with other sex workers, or advising each other on safe working conditions. Thus, neither offence engages sex workers’ security of the person. With respect to sex workers’ right to life, consideration of the risks of violence or even death faced by sex workers would duplicate the analysis regarding the right to security of the person. As for the right to liberty, whether s. 7 of the Charter protects a fundamental right to sell sexual services as an aspect of an individual’s right to liberty amounts to a new constitutional issue. New constitutional issues will only be heard in rare cases, taking into account all of the circumstances, including the state of the record, fairness to all parties, the importance of having the issue resolved, its suitability for decision and the broader interests of the administration of justice. In the instant case, it would be imprudent to decide this issue, as it was not considered in the courts below.

Cases Cited

                    Considered: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. N.S., 2022 ONCA 160, 413 C.C.C. (3d) 5, leave to appeal refused, Bulletin of Proceedings, January 13, 2023, at p. 32; referred to: Canadian Alliance for Sex Work Law Reform v. Attorney General, 2023 ONSC 5197, 535 C.R.R. (2d) 40; R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601; R. v. Downes, 2023 SCC 6; R. v. Mills, [1999] 3 S.C.R. 668; La Presse inc. v. Quebec, 2023 SCC 22; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Ndhlovu, 2022 SCC 38; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175; R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395; R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225; R. v. Lucas, [1998] 1 S.C.R. 439; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727; Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48; Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217; Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; R. v. Deutsch, [1986] 2 S.C.R. 2; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Ochrym, 2021 ONCA 48, 400 C.C.C. (3d) 358; R. v. T.J.F., 2024 SCC 38; R. v. Greyeyes, [1997] 2 S.C.R. 825; Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549; R. v. Morgentaler, [1988] 1 S.C.R. 30; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Walker v. Prince Edward Island, [1995] 2 S.C.R. 407; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; R. v. Campbell, 2024 SCC 42; R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3.

Statutes and Regulations Cited

Bill C‑36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts, 2nd Sess., 41st Parl., 2014.

Canadian Charter of Rights and Freedoms, ss. 1, 7, 24(1).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 21, 91(1)(a), 95(1), 96(1), Part VIII, 279.01, 279.02, 286.1 to 286.4 [ad. 2014, c. 25, s. 20], 286.5.

Interpretation Act, R.S.C. 1985, c. I‑21, s. 13.

Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25, preamble.

Authors Cited

Brun, Henri, Guy Tremblay and Eugénie Brouillet. Droit constitutionnel, 6th ed. Cowansville, Que.: Yvon Blais, 2014.

Canada. Department of Justice. Technical Paper: Bill C‑36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts (Protection of Communities and Exploited Persons Act). Ottawa, updated December 1, 2014.

Canada. House of Commons. House of Commons Debates, vol. 147, No. 101, 2nd Sess., 41st Parl., June 11, 2014, pp. 6652-55.

Côté, Pierre‑André, and Mathieu Devinat. Interprétation des lois, 5th ed. Montréal: Thémis, 2021.

Crankshaw’s Criminal Code of Canada, R.S.C. 1985, rev. ed. Toronto: Carswell, 1993 (loose-leaf updated 2025, release 3).

Grand Robert de la langue française (electronic version), “drogue”, “proxénétisme”.

Haak, Debra M. “Revisiting the Analytical Distinction Between Section 7 and Section 1 of the Charter: Legislative Objectives, Policy Goals and Public Interests” (2023), 112 S.C.L.R. (2d) 115.

Haak, Debra M. “The Case of the Reasonable Hypothetical Sex Worker” (2022), 60 Alta. L. Rev. 205.

Haak, Debra M. “Two Different Conceptions of Equality: Arguments About the Constitutionality of Commercial Sex Laws in Canada” (2024), 2 S.C.L.R. (3d) 117.

Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2023 (updated 2024, release 1).

Roach, Kent. “The Uses and Audiences of Preambles in Legislation” (2001), 47 McGill L.J. 129.

Stewart, Hamish. “Overbreadth Revisited” (2024), 69 McGill L.J. 247.

Sullivan, Ruth. The Construction of Statutes, 7th ed. Toronto: LexisNexis, 2022.

Watt, David, Michelle Fuerst and Jill D. Makepeace. The 2025 Annotated Tremeear’s Criminal Code. Toronto: Thomson Reuters, 2024.

                    APPEAL from a judgment of the Alberta Court of Appeal (Rowbotham, Hughes and Antonio JJ.A.), 2023 ABCA 287, 64 Alta. L.R. (7th) 61, [2024] 4 W.W.R. 465, 430 C.C.C. (3d) 392, 537 C.R.R. (2d) 332, 91 C.R. (7th) 89, [2023] A.J. No. 1034 (Lexis), 2023 CarswellAlta 2566 (WL), setting aside two decisions of Eidsvik J., 2022 ABQB 21, [2022] A.J. n^o 29 (Lexis), 2022 CarswellAlta 83 (WL), and 2021 ABQB 960, [2021] A.J. n^o 1756 (Lexis), 2021 CarswellAlta 3356 (WL). Appeal dismissed.

                    Shannon Gunn Emery and Kimberly Arial, for the appellants.

                    Matthew Griener and Katherine Elizabeth Fraser, for the respondent.

                    John Provart and Lindy Rouillard-Labbé, for the intervener Attorney General of Canada.

                    Deborah Krick, for the intervener Attorney General of Ontario.

                    Mark A. Scott, K.C., for the intervener Attorney General of Nova Scotia.

                    Charles Murray, Inderjit Singh and Dayna Queau-Guzzi, for the intervener Attorney General of Manitoba.

                    Lara Vizsolyi, for the intervener Attorney General of British Columbia.

                    Janine Benedet, K.C., and Gwendoline Allison, for the interveners Vancouver Rape Relief Society, Concertation des luttes contre l’exploitation sexuelle, Aboriginal Women’s Action Network, Formerly Exploited Voices Now Educating, London Abused Women’s Centre and Strength in Sisterhood.

                    André M. Schutten, Derek Ross and Vivian Clemence, for the intervener Christian Legal Fellowship.

                    Andrea Gonsalves, Alexandra Heine and Olivia Eng, for the intervener Women’s Legal Education and Action Fund Inc.

                    Danielle Bisnar and Clémence Thabet, for the intervener Amnesty International, Canadian Section (English Speaking).

                    Geetha Philipupillai, Laurent Trépanier Capistran and Ryan Peck, for the interveners HIV & AIDS Legal Clinic Ontario, Coalition des organismes communautaires québécois de lutte contre le sida and Action Canada for Sexual Health and Rights.

                    Zain Naqi and Annecy Pang, for the intervener Canadian Civil Liberties Association.

                    Michael Rosenberg, Alana Robert and Holly Kallmeyer, for the intervener Tiffany Anwar.

                    Stephen Aylward and Cheryl Milne, for the intervener David Asper Centre for Constitutional Rights.

                    Akosua Matthews and Ruthie Wellen, for the intervener British Columbia Civil Liberties Association.

                    Marcus McCann and M. P. Tristan Miller, for the intervener Ontario Coalition of Rape Crisis Centres.

                    Garifalia Milousis and John Sikkema, for the interveners Evangelical Fellowship of Canada and Association for Reformed Political Action Canada.

                   The following is the judgment delivered by

                   The Court —

TABLE OF CONTENTS
Paragraph
I.          Introduction	[1]
II.        Bedford	[5]
III.       Parliament’s Response to Bedford: The Protection of Communities and Exploited Persons Act	[20]
A.        Purchasing Offence (Section 286.1)	[25]
B.        Material Benefit Offence (Section 286.2)	[27]
(1)  The Prohibition (Section 286.2(1))	[27]
(2)  Exceptions (Section 286.2(4))	[29]
(3)  Exceptions to the Exceptions (Section 286.2(5))	[30]
C.        Procuring Offence (Section 286.3)	[31]
D.        Advertising Offence (Section 286.4)	[33]
E.         Immunity From Prosecution for a Person Selling or Advertising Their Own Sexual Services (Section 286.5)	[34]
IV.       Background Facts	[35]
V.        Decisions Below	[43]
A.        Court of Queen’s Bench of Alberta, 2021 ABQB 960 (Eidsvik J.) (“constitutional ruling”)	[43]
B.        Court of Queen’s Bench of Alberta, 2022 ABQB 21 (Eidsvik J.)	[51]
C.        Court of Appeal of Alberta, 2023 ABCA 287, 64 Alta. L.R. (7th) 61 (Rowbotham, Hughes and Antonio JJ.A.)	[53]
VI.       Issues	[58]
VII.     Analysis	[59]
A.        What Is the Scope of the Conduct Captured by the Material Benefit and Procuring Offences?	[61]
(1)  Principles of Statutory Interpretation	[61]
(2)  The Purposes of the PCEPA	[63]
(a)   Reducing the Demand for Sex Work	[69]
(b)   Protecting the Safety of Sex Workers	[74]
(3)  The Material Benefit Offence Does Not Prevent Taking Safety Measures	[82]
(a)   The Purpose of the Material Benefit Offence (Section 286.2)	[82]
(b)   The Material Benefit Offence Allows Sex Workers To Take Safety Measures	[84]
(i)     “Commercial Enterprise” Provision (Section 286.2(5)(e))	[87]
(ii)    Drug, Alcohol, or Any Other Intoxicating Substance (Section 286.2(5)(c))	[105]
(iii)   Conclusion	[109]
(4)  The Procuring Offence Also Does Not Prevent Taking Safety Measures	[110]
(a)   The Purpose of the Procuring Offence	[110]
(b)   The Procuring Offence Allows Sex Workers To Take Safety Measures	[116]
(i)     Merely Giving Advice on Safe Working Practices Is Not “Procuring”	[120]
(ii)    Merely Renting a Room to a Sex Worker Is Also Not “Procuring”	[124]
(iii)   Conclusion	[132]
(5)  Conclusion on Statutory Interpretation	[133]
B.        Do the Impugned Provisions Infringe Section 7 of the Charter?	[135]
(1)  Legal Framework Under Section 7	[136]
(2)  The Appellants’ Core Section 7 Argument	[141]
(3)  Engagement of Section 7	[146]
(a)   Security of the Person	[146]
(b)   Life and Liberty	[156]
(c)   Conclusion	[170]
(4)  Conclusion on Section 7	[171]
VIII.    Disposition	[172]
APPENDIX

 

 

I.               Introduction

[1]                             Just over a decade ago, in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, this Court held that several criminal offences related to the sale of sexual services infringed s. 7 of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1. At the time, the exchange of sex for money was not a crime. The offences were declared unconstitutional because they restricted the legal activity of selling sexual services in a way that prohibited sex workers from taking safety measures, such as selling sex from fixed indoor locations and hiring drivers and bodyguards, thereby putting their lives and safety at risk. The Court’s declaration of invalidity was suspended for one year to give Parliament time to respond.

[2]                             Parliament responded to Bedford by enacting Bill C-36, the Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25 (“PCEPA”). The PCEPA adopted a new paradigm to regulate the sale of sexual services based on the “Nordic Model” used in several Scandinavian countries. That model regards the sale of sexual services as a form of sexual exploitation and seeks to reduce, and ultimately eliminate, the demand for it. For the first time in Canadian law, the PCEPA made purchasing sex a crime. The PCEPA also created several other criminal offences, including the two offences challenged in this appeal: receiving a material benefit from sexual services (Criminal Code, R.S.C. 1985, c. C-46, s. 286.2), and procuring a person to offer or provide sexual services for consideration (s. 286.3). The preamble to the PCEPA, as well as the current versions of the new Criminal Code provisions, are reproduced in the Appendix.

[3]                             The appellants, Mikhail Kloubakov and Hicham Moustaine, worked as drivers in an “escort business” or commercial sex operation in Calgary. They were convicted before the Alberta Court of Queen’s Bench of receiving a material benefit from sexual services and of procuring. In a subsequent decision, the trial judge held that these offences prohibited the safety measures contemplated in Bedford and therefore infringed s. 7 of the Charter; the trial judge then ordered a stay of the proceedings against the appellants. The Alberta Court of Appeal overturned this ruling and restored the appellants’ convictions. The court agreed with the intervening decision of the Ontario Court of Appeal in R. v. N.S., 2022 ONCA 160, 413 C.C.C. (3d) 5 (per Hoy J.A., leave to appeal to our Court refused, Bulletin of Proceedings, January 13, 2023, at p. 32), that, properly interpreted, neither the material benefit offence nor the procuring offence prohibits the safety measures contemplated in Bedford and therefore neither offence infringes s. 7. The appellants now appeal to this Court as of right.

[4]                             For the reasons that follow, we conclude that the material benefit and procuring offences do not prevent taking the safety measures contemplated in Bedford and do not infringe s. 7 of the Charter on this basis. As a result, we would dismiss the appeal.

II.            Bedford

[5]                             In Bedford, this Court held that three provisions criminalizing activities related to the sale of sexual services that were challenged by current and former sex workers infringed s. 7 of the Charter and could not be justified under s. 1. At the time, the Court emphasized, the exchange of sex for money was not a crime (paras. 1, 5, 59, 87 and 89). Even so, the Criminal Code restricted where and how the sale of sexual services could take place through three offences: a bawdy-house offence (s. 210); a living on the avails of prostitution offence (s. 212(1)(j)); and a communicating offence (s. 213(1)(c)).

[6]                             The bawdy-house offence (s. 210) made it illegal to keep a common bawdy-house, to be an inmate of a common bawdy-house, to be found in a common bawdy-house without lawful excuse, or to be the owner, landlord, lessor, tenant, or occupier of a place who knowingly permitted it to be used as a common bawdy-house. A “common bawdy-house” was defined under s. 197(1) of the Criminal Code as a place that was kept or occupied or resorted to by one or more persons for the purpose of prostitution or acts of indecency.

[7]                             The living on the avails offence (s. 212(1)(j)) made it illegal to live wholly or partly on the avails of the prostitution of another person.

[8]                             Finally, the communicating offence (s. 213(1)(c)) made it illegal to stop or attempt to stop or in any manner communicate or attempt to communicate with any person for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute.

[9]                             McLachlin C.J., speaking for the Court in Bedford, held that all three offences engaged the rights of sex workers to security of the person under s. 7 of the Charter. They did so, she ruled, “by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks” (para. 60 (emphasis in original)). McLachlin C.J. drew an analogy “to a law preventing a cyclist from wearing a helmet” (para. 87), which would make the lawful activity of cycling more dangerous by preventing cyclists from trying to protect themselves.

[10]                         The bawdy-house offence had the practical effect of limiting the lawful sale of sexual services to street sex work and out-calls (where the sex worker meets the client at a designated location), and of prohibiting in-calls (where the client comes to a fixed indoor location such as the sex worker’s home or a safe house), even though street sex work and out-calls are materially more dangerous than in-calls (paras. 62-64).

[11]                         The bawdy-house and living on the avails offences also prevented sex workers from taking safeguards to reduce risks to their personal safety, such as hiring receptionists, assistants, drivers, and bodyguards, and using audio room monitoring (paras. 64 and 66-67).

[12]                         Finally, the communicating offence prohibited street sex workers from engaging in face-to-face communication with their clients, thus depriving them of an “essential tool” to screen clients for intoxication or propensity to violence, or from setting terms for the use of condoms, thus exposing them to significantly greater risks (paras. 68-71).

[13]                         McLachlin C.J. ruled that all three offences also infringed the principles of fundamental justice under s. 7 of the Charter.

[14]                         The bawdy-house offence was grossly disproportionate to its objectives because it prevented sex workers from working from fixed indoor locations. It created risks to the personal safety of sex workers that were totally “out of sync” with the objective of preventing community harms involving the nuisance arising from the sale of sexual services, such as neighbourhood disruption or disorder (paras. 120 and 130-32).

[15]                         The communicating offence was also grossly disproportionate to its objectives because it deprived street sex workers of the ability to screen customers in face-to-face interactions, creating risks to their personal safety that were a grossly disproportionate response to the nuisance caused by street sex work (paras. 146-59).

[16]                         Finally, the living on the avails offence was overbroad because it criminalized some conduct that bore no relation to the purpose of the offence to prevent the exploitation of sex workers. It did not distinguish between people who exploit sex workers, such as pimps living parasitically on a sex worker’s earnings, and others who could increase their safety and security, such as legitimate drivers, managers, or bodyguards (paras. 137-45).

[17]                         The Court held (at para. 162) that the infringements of s. 7 could not be justified under s. 1 of the Charter. The living on the avails offence did not minimally impair s. 7 rights because it applied to non-exploitative relationships, such as receptionists or accountants who work with sex workers. The law’s deleterious effect of preventing sex workers from taking safety measures also outweighed its positive effect of protecting them from exploitative relationships.

[18]                         Although all three offences were found to be unconstitutional, the Court suspended its declaration of invalidity for one year to allow Parliament time to respond to the Court’s decision (para. 169).

[19]                         McLachlin C.J. closed her reasons by cautioning that the Court’s ruling “does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted” (para. 165). As she explained, “[t]he regulation of prostitution is a complex and delicate matter”, and “[i]t will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime” (para. 165). McLachlin C.J. also noted that “[h]ow prostitution is regulated is a matter of great public concern, and few countries leave it entirely unregulated” (para. 167).

III.         Parliament’s Response to Bedford: The Protection of Communities and Exploited Persons Act

[20]                          Parliament responded to Bedford within the one-year period of suspended invalidity by enacting Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts, 2nd Sess., 41st Parl., 2014, whose short title is the Protection of Communities and Exploited Persons Act (“PCEPA”). The PCEPA, which received royal assent on December 6, 2014 and came into force 30 days later, amended or repealed the three offences found to be unconstitutional in Bedford. These offences had formerly been included under Part VII of the Criminal Code, “Disorderly Houses, Gaming and Betting”. In their place, the PCEPA enacted four new offences that are now included in Part VIII, “Offences Against the Person and Reputation”, under a new heading “Commodification of Sexual Activity”.

[21]                          The new measures were explained in a Technical Paper released by the Department of Justice Canada with the legislation (Technical Paper: Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts (Protection of Communities and Exploited Persons Act) (2014)). The Technical Paper described the PCEPA as a “paradigm shift away from the treatment of prostitution as ‘nuisance’, as found by the Supreme Court of Canada in Bedford, toward treatment of prostitution as a form of sexual exploitation that disproportionately and negatively impacts on women and girls” (p. 3). The PCEPA adopted a version of the “Nordic Model”, so named because in 1999 Sweden had adopted “a legislative approach to prostitution that views the practice as a form of sexual exploitation by targeting those who create the demand for it and those who capitalize on that demand” (p. 12). Sweden’s approach was to criminalize the purchase of sexual services and to promote the abolition of sex work itself (D. M. Haak, “Two Different Conceptions of Equality: Arguments About the Constitutionality of Commercial Sex Laws in Canada” (2024), 2 S.C.L.R. (3d) 117, at p. 121). Over the last 25 years, similar approaches have been adopted in Norway, Iceland, Northern Ireland, Ireland, France, and Israel, and have been endorsed elsewhere in Europe (Technical Paper, at p. 12; see also D. M. Haak, “Revisiting the Analytical Distinction Between Section 7 and Section 1 of the Charter: Legislative Objectives, Policy Goals and Public Interests” (2023), 112 S.C.L.R. (2d) 115, at p. 132).

[22]                          The Technical Paper noted that the PCEPA seeks “to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible” (p. 3).

[23]                         The PCEPA created four new offences that were added to the Criminal Code: (1) a purchasing offence of purchasing sexual services or communicating for that purpose (s. 286.1); (2) a material benefit offence of receiving a financial or other material benefit knowing that it was obtained from the commission of the purchasing offence, subject to certain exceptions (s. 286.2); (3) a procuring offence of procuring a person to offer or provide sexual services for consideration or, for the purpose of facilitating the purchasing offence, recruiting, holding, concealing, or harbouring a person who offers or provides sexual services for consideration or exercising control, direction, or influence over the movement of that person (s. 286.3); and (4) an advertising offence of knowingly advertising an offer to provide sexual services for consideration (s. 286.4). In addition, persons selling or advertising their own sexual services are protected by an immunity from criminal prosecution (s. 286.5).

[24]                         Only the material benefit and procuring offences are at issue in this appeal.

A.           Purchasing Offence (Section 286.1)

[25]                         For the first time in Canadian law, s. 286.1 of the Criminal Code makes it an offence to purchase sexual services or to communicate with anyone for that purpose. As the Technical Paper explains, “[t]his new offence makes prostitution itself an illegal practice; every time prostitution takes place, regardless of venue, an offence is committed” (p. 5). Criminalizing those who create the demand for the sale of sexual services was seen as furthering the “overall objective to reduce that demand, with a view to ultimately abolishing prostitution to the greatest extent possible” (p. 5). Section 286.1(1) provides:

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.

[26]                          Section 286.1(2) creates a separate offence, with more severe punishment, of purchasing sexual services from a person under the age of 18.

B.            Material Benefit Offence (Section 286.2)

(1)          The Prohibition (Section 286.2(1))

[27]                          Section 286.2(1) creates a new “material benefit” offence that modernizes the living on the avails of prostitution offence that was found to be unconstitutional in Bedford. Section 286.2 states that it is an offence to receive a financial or other material benefit knowing that it is obtained by or derived directly or indirectly from the commission of the purchasing offence set out in s. 286.1. Section 286.2(1) provides:

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), 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.

[28]                         Section 286.2(2) creates a separate offence, with more severe punishment, of receiving a material benefit from sexual services provided by a person under the age of 18.

(2)          Exceptions (Section 286.2(4))

[29]                         Section 286.2(4) narrows the material benefit offence by creating four exceptions to s. 286.2(1) and (2), such that it is not an offence to receive a material benefit if the person who receives the benefit does so: (1) in the context of a legitimate living arrangement with the provider of the sexual services; (2) as a result of a legal or moral obligation of the provider; (3) in consideration for goods and services offered on the same terms and conditions to the general public; or (4) in consideration for goods and services to the provider of sexual services under certain conditions. Section 286.2(4) provides:

(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.

(3)          Exceptions to the Exceptions (Section 286.2(5))

[30]                         Section 286.2(5) provides five exceptions to the exceptions to the material benefit offence, such that it continues to be a criminal offence to receive a material benefit if the person who receives the benefit: (1) used, threatened to use, or attempted to use violence, intimidation, or coercion in relation to the sex worker; (2) abused a position of trust, power, or authority in relation to the sex worker; (3) provided a drug, alcohol, or any other intoxicating substance to the sex worker; (4) engaged in conduct in relation to any person that would constitute an offence under s. 286.3 (procuring); or (5) received the benefit in the context of a commercial enterprise that offers sexual services for consideration. Section 286.2(5) states:

(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.

C.            Procuring Offence (Section 286.3)

[31]                         Section 286.3(1) creates the procuring offence. It provides:

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.

[32]                         Section 286.3(2) imposes a higher maximum penalty if the person procured is under the age of 18.

D.           Advertising Offence (Section 286.4)

[33]                         Section 286.4 creates a new offence, for the first time in Canadian law, of advertising the sale of sexual services. Section 286.4 states:

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.

E.            Immunity From Prosecution for a Person Selling or Advertising Their Own Sexual Services (Section 286.5)

[34]                         Although the PCEPA creates several offences, s. 286.5(1) provides that individuals who receive a material benefit from, or advertise, their own sexual services are immune from criminal prosecution. The legislation adopts an “asymmetrical approach” that “criminalizes the purchase but not the sale of sexual services” (Technical Paper, at p. 9). Section 286.5(2) similarly provides an immunity from prosecution to a person who aids, abets, conspires, or attempts to commit any of the offences in ss. 286.1 to 286.4, if the offence relates to the person’s own sexual services. Section 286.5 provides:

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.

 

(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.

IV.         Background Facts

[35]                         The appellants, Mikhail Kloubakov and Hicham Moustaine, were employed in an escort business that was operated in Calgary by Vincent Marcheterre and Antoni Proietti. The appellants’ primary responsibility was to drive sex workers to and from out-calls to provide sexual services to clients at arranged locations. The appellants also collected all the money the sex workers earned and transferred the proceeds to Mr. Marcheterre and Mr. Proietti. Lastly, Mr. Kloubakov handled other tasks such as cooking and cleaning at properties rented by Mr. Marcheterre and Mr. Proietti where the sex workers lived. As compensation, both appellants received room and board and $100 each a day.

[36]                         In 2018, Mr. Marcheterre and Mr. Proietti were arrested and pleaded guilty to five charges of human trafficking with a sexual purpose and receiving a material benefit derived from the sale of sexual services by women under their control.

[37]                         Subsequently, the appellants were charged with several criminal offences, including trafficking in persons (s. 279.01), obtaining a material benefit from trafficking in persons (s. 279.02), obtaining a material benefit from the provision of sexual services (s. 286.2(1)), procuring (s. 286.3(1)), and advertising sexual services (s. 286.4). Mr. Moustaine was also charged with several firearms offences (ss. 91(1)(a), 95(1) and 96(1)).

[38]                         Both appellants admitted that they had received a material benefit from the provision of sexual services, but they contested the other charges.

[39]                         The complainants, M.L. and C.T., are two sex workers who formerly worked for Mr. Marcheterre and Mr. Proietti. They testified on behalf of the Crown at the appellants’ criminal trial (2021 ABQB 817, per Eidsvik J.). The Crown also tendered agreed statements of facts of three former clients of M.L. and C.T., as well as expert evidence and other testimony from two police officers. The appellants presented no evidence in their defence.

[40]                         M.L. testified that she met Mr. Proietti in Montréal when she was 17. She had just lost her job, could not pay her bills, and was struggling with drug abuse. She first worked for Mr. Proietti as part of a fraudulent credit card scheme, but she was soon put to work as a sex worker in Saint-Sauveur, Quebec, after Mr. Proietti introduced her to Mr. Marcheterre. She provided sexual services to as many as twelve customers a day, averaging six or seven customers a day, danced nude almost every night, and gave all the money she earned to Mr. Marcheterre. She described feeling disgusted and mentally and physically exhausted. After about 18 months in Saint-Sauveur, Mr. Marcheterre and Mr. Proietti sent her to work as a sex worker in Calgary because she could make more money for them there. M.L. thought of Mr. Marcheterre as her boyfriend, but she later considered that this had been naïve. The trial judge found that M.L. was kicked and slapped by Mr. Marcheterre. M.L. estimated that she earned more than $200,000 for Mr. Marcheterre and Mr. Proietti. Once the appellants began their work as drivers in 2018, they collected all of M.L.’s earnings and transferred the funds electronically to Mr. Marcheterre and Mr. Proietti.

[41]                         C.T. testified that she met Mr. Marcheterre and Mr. Proietti in Gatineau, Quebec when she was 23. After attempting to pursue sex work for Mr. Marcheterre and Mr. Proietti in Quebec to make money, she too was sent to Calgary to work as a sex worker, initially providing sexual services to seven or eight customers a day, but later to two or three customers a day, and sometimes to one customer a day. Mr. Marcheterre and Mr. Proietti received all the money she earned, from which they paid her room and board. The trial judge found that C.T. was beaten at least once by Mr. Marcheterre and Mr. Proietti, a month before their arrest, that she witnessed violence towards other sex workers, and that she feared for her safety. C.T. also provided oral sex to Mr. Kloubakov once at Mr. Marcheterre and Mr. Proietti’s direction. She did not dare to say no — she simply did what she was told. The appellants were responsible for collecting all of C.T.’s earnings and would then transfer the funds electronically to Mr. Marcheterre and Mr. Proietti. C.T. described the appellants as Mr. Marcheterre and Mr. Proietti’s “assistants”.

[42]                         The trial judge convicted the appellants of obtaining a material benefit from the provision of the complainants’ sexual services for consideration between March and August 2018, contrary to s. 286.2 of the Criminal Code. She also convicted them of procuring the complainants to provide sexual services for consideration, contrary to s. 286.3(1), by aiding and abetting Mr. Marcheterre and Mr. Proietti to do so under s. 21 of the Criminal Code. She acquitted the appellants of the remaining charges.

V.           Decisions Below

A.           Court of Queen’s Bench of Alberta, 2021 ABQB 960 (Eidsvik J.) (“constitutional ruling”)

[43]                         After convicting the appellants, the trial judge heard evidence and argument in support of their constitutional challenge. She held that the material benefit and procuring offences infringed s. 7 of the Charter because they negatively affected the security of the person of sex workers. She also found that both offences were overbroad and were thus not in accordance with the principles of fundamental justice.

[44]                         The trial judge reviewed the evidence from the criminal trial and considered evidence tendered by the appellants, including the testimony of two sex workers, B.C. and D., and of Professor Katrin Roots, an Assistant Professor in the Department of Criminology at Wilfrid Laurier University and an expert in human trafficking. She also considered a reasonable hypothetical proposed by the appellants regarding the operation of a commercial escort agency that receives half of the fees paid by clients for sex work and in return provides them with several services, including safety measures (reproduced at Appendix A of the trial judge’s constitutional ruling). The Crown adduced no further evidence.

[45]                         B.C., an Indigenous woman, had worked in the sex trade in massage parlours both before and after this Court’s decision in Bedford, but she had stopped doing so by the time of trial and was then a law student. She described how the massage parlours had set the fees and provided a location from which she could sell sexual services in exchange for part of her earnings. They also employed several safety measures, such as cameras at the entrance, a “bad client” list, and a rule requiring at least two women to work at the facility at any time. In her view, there remained legal uncertainty under the PCEPA as to whether it was legal for sex workers to take safety measures, such as hiring bodyguards, or to engage in advertising. The trial judge noted that, according to B.C., it was [translation] “difficult to obtain straight answers from lawyers on this subject”; “[s]he found the licensing regime requirements stressful, and she was afraid of finding herself in trouble with the law, which would preclude her from working in the massage parlour” (para. 84). The trial judge stated that, in B.C.’s view, [translation] “[t]he provisions enacted after Bedford led to confusion and were uncertain” (para. 96).

[46]                         D. was still a sex worker at the time of trial and was also a law student. She had worked for an escort agency in the past, but she was now an independent sex worker working for herself. She explained that the agency would book appointments, handle advertising and marketing, and provide transportation. The agency’s drivers, who were paid from D.’s earnings, would also provide security. D. testified that it remained dangerous to work as a sex worker in Canada under the PCEPA. As the trial judge noted, [translation] “[s]he is of the view that it is difficult to work safely because of the laws in force in Canada. The biggest problem is that clients are criminalized, and this presents difficulties for screening whether a client causes safety problems” (para. 99).

[47]                         Professor Roots’ evidence challenged the premise of the PCEPA that the commercial sex industry necessarily involves exploitation. As the trial judge summarized her view, [translation] “the legislation assumes that those who assist sex workers are exploiters. Consequently, the protectionist anti-human trafficking legislation focuses on pimps and exploiters and, in fact, has the effect of preventing safe working conditions” (para. 124). Professor Roots testified that the practical effect of the PCEPA is to prevent sex workers from hiring persons who might enhance their safety, such as drivers or security services. In Professor Roots’ opinion, the trial judge noted, the vagueness of the material benefit offence [translation] “actually criminalizes the agencies that are the safest, and sex workers cannot really make use of them” (para. 140).

[48]                         Turning to s. 7 of the Charter, the trial judge identified the PCEPA as having at least two main purposes: [translation] “. . . to criminalize the sex trade to reduce (and eliminate) that conduct, but also to protect workers who were involved in that activity, while recognizing that some would continue to engage in such work” (para. 33).

[49]                         In the trial judge’s view, the material benefit offence infringed s. 7 of the Charter. The trial judge readily found that the offence undermined the security of the person of sex workers. As she explained, [translation] “[t]he breadth of the exceptions to the exceptions” in s. 286.2(5) and “the uncertainties created by the wording in the section” were such that the problems identified in Bedford endured (para. 185). As she stated, [translation] “this provision continues to criminalize third parties who may be providing security services to sex workers in non-exploitative situations” (para. 185). The trial judge found that the material benefit offence also failed to improve the safety of sex workers by not functioning to encourage them to report violence or other safety issues to the police. The exceptions in s. 286.2(4) are [translation] “illusory”, she ruled, “because sex workers cannot, or are afraid to, hire or obtain security services from third parties and cannot work in non-exploitative situations . . . without the risk of those third parties being found guilty” (para. 202). Although the material benefit offence was not arbitrary, it was overbroad because it criminalized individuals who could promote the safety of sex workers in non-exploitative situations. The objective of allowing sex workers to retain the services of others to protect their safety was also not being met.

[50]                         The trial judge similarly concluded that the procuring offence infringed s. 7 of the Charter. It undermined the security of the person of sex workers by targeting third parties who may provide security services to them in circumstances without exploitation, ultimately increasing the prevalence of exploitative actors in the commercial sex trade. The offence was also overbroad because it criminalized individuals who assist sex workers in a non-exploitative manner.

B.            Court of Queen’s Bench of Alberta, 2022 ABQB 21 (Eidsvik J.)

[51]                         In a subsequent ruling, the trial judge held that the infringements of s. 7 could not be justified under s. 1 of the Charter. She accepted that both the material benefit and procuring offences have pressing and substantial objectives of criminalizing the sex trade in order to reduce and eliminate sex work and to protect sex workers who continue to engage in sex work, and that the measures are rationally connected to these objectives. The trial judge found, however, that both offences criminalize conduct where there is no exploitation and therefore fail the minimal impairment test. As the trial judge explained, [translation] “there was no effort by Parliament to exclude from that section the criminalization of persons who have non-exploitative relationships with sex workers” (para. 26).

[52]                         The trial judge declared both offences to be of no force or effect, but she suspended the declaration of invalidity for 30 days. She also stayed the proceedings involving the appellants under s. 24(1) of the Charter.

C.            Court of Appeal of Alberta, 2023 ABCA 287, 64 Alta. L.R. (7th) 61 (Rowbotham, Hughes and Antonio JJ.A.)

[53]                         The Alberta Court of Appeal allowed the appeal and ruled that neither the material benefit offence nor the procuring offence infringes s. 7 of the Charter. The court largely agreed with the reasoning and conclusion of the Ontario Court of Appeal in N.S., which was released after the trial judge’s decision and was the first appellate decision to consider the constitutionality of the material benefit and procuring offences.

[54]                         The Alberta Court of Appeal held that the trial judge mischaracterized the purposes of the PCEPA and misinterpreted the scope of the material benefit and procuring offences. The court agreed with the Ontario Court of Appeal in N.S. that the PCEPA has three main objectives: to reduce the demand for prostitution, to prohibit the promotion of the prostitution of others, and to mitigate some dangers associated with the continued unlawful sale of sexual services. The court also agreed with the reasoning in N.S. that, properly interpreted, the material benefit and procuring offences permit sex workers to take a range of measures to protect their safety and security when selling their own sexual services contrary to law, including: hiring drivers and taking other security measures, either individually or in cooperation with other sex workers; giving advice to another sex worker on how to work safely; or renting a room from another sex worker from which to sell sexual services.

[55]                         The Alberta Court of Appeal held that the trial judge’s mischaracterization of the purposes of the PCEPA and her errors in statutory interpretation led her to conclude that the material benefit and procuring offences are overbroad contrary to s. 7 of the Charter. The court ruled that the trial judge’s overbreadth analysis was based on conduct that is simply not criminalized.

[56]                         The Alberta Court of Appeal declined to discuss the reasonable hypothetical reproduced in the trial judge’s constitutional ruling regarding the operation of a commercial escort agency because the trial judge relied mainly on the evidence and made limited reference to the hypothetical.

[57]                         As a result, the Alberta Court of Appeal restored the appellants’ convictions for receiving a material benefit and procuring and remanded their cases for sentencing.

VI.         Issues

[58]                         The only issues before this Court are whether the material benefit and procuring offences infringe s. 7 of the Charter, and if so, whether any such infringement is justified under s. 1. Neither the purchasing offence nor the advertising offence was constitutionally challenged in the courts below because the appellants were not charged with these offences. The appellants’ notice of constitutional question before this Court similarly asks only whether the material benefit and procuring offences unjustifiably infringe s. 7 of the Charter.^[1]

VII.      Analysis

[59]                         This Court has observed that, before evaluating the constitutionality of statutory provisions, it is first necessary to interpret the provisions at issue based on their text, context, and purpose to determine their scope (R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3, at para. 17; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 33; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 55). As Professor Hamish Stewart has noted, “[d]etermining the objective or purpose of a law is essentially an exercise in statutory interpretation. . . . [T]he task of interpretation for section 7 purposes is generally no different from any other exercise in statutory interpretation” (“Overbreadth Revisited” (2024), 69 McGill L.J. 247, at p. 254 (footnote omitted)).

[60]                         The Alberta Court of Appeal, like the Ontario Court of Appeal in N.S., interpreted the impugned provisions in the course of its analysis under s. 7 of the Charter. In our respectful view, it is preferable in this case to first interpret the impugned provisions to determine their scope, and then to ask whether they infringe s. 7.

A.           What Is the Scope of the Conduct Captured by the Material Benefit and Procuring Offences?

(1)          Principles of Statutory Interpretation

[61]                         Statutory interpretation is conducted in accordance with the modern principle, under which “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 117). The modern principle requires courts to interpret legislation “according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole” (Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10; R. v. Downes, 2023 SCC 6, at para. 24).

[62]                         Supplementing the modern principle is “the presumption that Parliament intended to enact legislation in conformity with the Charter” (Sharpe, at para. 33). This presumption, sometimes called the presumption of compliance, requires courts to adopt “[a] posture of respect towards Parliament”, such that “if legislation is amenable to two interpretations, a court should choose the interpretation that upholds the legislation as constitutional” (R. v. Mills, [1999] 3 S.C.R. 668, at para. 56; Sharpe, at para. 33; J.J., at para. 18; La Presse inc. v. Quebec, 2023 SCC 22, at para. 24; R. Sullivan, The Construction of Statutes (7th ed. 2022), at §§ 16.01[2] and 16.02). Courts should “strive, where possible, to give effect to” Parliament’s presumed intention to comply with the Charter (Mills, at para. 56; J.J., at para. 18).

(2)          The Purposes of the PCEPA

[63]                         To interpret the impugned provisions harmoniously with the statutory scheme as a whole as required under the modern principle, we begin by considering the purposes of the PCEPA.

[64]                         The Alberta Court of Appeal agreed with the Ontario Court of Appeal in N.S. that the PCEPA has three purposes: to reduce the demand for prostitution; to prohibit the promotion of the prostitution of others; and to mitigate some of the dangers associated with the unlawful sale of sexual services. The Alberta Court of Appeal (at para. 48), quoting N.S. (at paras. 59 and 63), described the three purposes of the PCEPA as follows:

. . . first, to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible, in order to protect communities, human dignity and equality; second, to prohibit the promotion of the prostitution of others, the development of economic interests in the exploitation of the prostitution of others, and the institutionalization of prostitution through commercial enterprises in order to protect communities, human dignity and equality; and, third, to mitigate some of the dangers associated with the continued, unlawful provision of sexual services for consideration. In particular, Parliament’s latter objective is to ensure that, as much as possible, persons who continue to provide their sexual services for consideration, contrary to law, can avail themselves of the safety-enhancing measures identified in Bedford and report incidents of violence, without fear of prosecution.

 

. . .

 

. . . the safety-related purpose of the PCEPA (beyond the protection of communities, human dignity and equality, through its first and second purposes) [is] limited to ensuring that persons who continue to provide their sexual services for consideration, contrary to law, can avail themselves of the safety-enhancing measures identified in Bedford and report incidents of violence.

[65]                         Both courts of appeal identified these three purposes by reviewing the legislation as a whole (including the preamble) and extrinsic evidence (such as the legislative history, parliamentary debates, and the Technical Paper), which are relevant sources for determining the purpose of legislation (R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at paras. 31-32; Rizzo, at para. 35; Sullivan, at § 9.03; P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at paras. 1352-60).

[66]                         We would reformulate the Alberta and Ontario courts of appeal’s statement of the purposes of the PCEPA for two reasons. First, as this Court recently emphasized in R. v. Ndhlovu, 2022 SCC 38, “[t]he law’s purpose should be succinct, precise, and characterized at the appropriate level of generality, which ‘resides between the statement of an “animating social value” — which is too general — and a narrow articulation’ that amounts to a virtual repetition of the challenged provision, divorced from its context” (para. 62, quoting R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 27, quoting Moriarity, at para. 28). With respect, the three purposes articulated by the Alberta and Ontario courts of appeal are not sufficiently succinct or precise and involve a summary of the animating social values of the PCEPA.

[67]                         Second, as this Court also emphasized in Ndhlovu, “[a] law’s purpose is distinct from the means used to achieve that purpose” (para. 63, citing Safarzadeh-Markhali, at para. 26, and Moriarity, at para. 27). The three purposes identified by the Alberta and Ontario courts of appeal do not reflect this distinction and combine purposes and means.

[68]                         In order to frame the purposes of the PCEPA more succinctly and to maintain the essential distinction between purpose and means, we would identify the PCEPA as having two, rather than three, purposes: (1) to reduce the demand for sex work; and (2) to protect sex workers from the risks of violence, abuse, and exploitation associated with the sex work industry. The second purpose has two aspects: (a) to protect sex workers from third parties who commercialize the sale of sexual services; and (b) to allow sex workers to protect themselves from the dangers posed by purchasers of sexual services. We discuss these purposes below.

(a)           Reducing the Demand for Sex Work

[69]                         The first purpose of the PCEPA is to reduce the demand for sex work. This purpose is pursued under the legislation with a view to discouraging entry into the commercial sex trade, deterring participation in it, and ultimately abolishing it to the greatest extent possible, in order to protect individuals, communities, human dignity, and equality.

[70]                         This purpose is reflected in the new purchasing and advertising offences, which aim to curb sex work by criminalizing the demand side of the commercial sex trade. It is underscored in the PCEPA’s preamble, which must “be read as part of the enactment intended to assist in explaining its purport and object” (Interpretation Act, R.S.C. 1985, c. I-21, s. 13). A preamble is “considered an integral part” of a statute and helps communicate the legislative purpose or the “mischief” the Act is designed to cure (Sullivan, at § 14.03[1] and [2]; Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, at para. 42; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at paras. 60-61; K. Roach, “The Uses and Audiences of Preambles in Legislation” (2001), 47 McGill L.J. 129, at pp. 152-53; see also R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at para. 14; R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 91). The first four recitals of the preamble state that the legislation seeks to reduce and ultimately eliminate the commercial sex trade, and with it the social harm, violence, and exploitation of marginalized and vulnerable persons, especially women and children, that Parliament sees as inherent in sex work:

Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it;

 

Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity;

 

Whereas it is important to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children;

 

Whereas it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution[.]

[71]                         The Technical Paper similarly describes the PCEPA as involving a “paradigm shift” from the treatment of sex work as a “nuisance”, to the view that it is “a form of sexual exploitation that disproportionately and negatively impacts . . . women and girls” (p. 3). It notes that the legislation maintains that “the best way to avoid prostitution’s harms is to bring an end to its practice” (p. 4).

[72]                         The Minister of Justice and Attorney General of Canada, the Hon. Peter MacKay, underscored these concerns at the second reading debate on Bill C-36 before the House of Commons (House of Commons Debates, vol. 147, No. 101, 2nd Sess., 41st Parl., June 11, 2014, at pp. 6652-55). He noted that the commercial sex industry disproportionately affects women and girls, particularly from Indigenous communities, and poses risks of coercion, exploitation, and violence by purchasers and third parties, which the legislation aims to address by prohibiting the commercial sex trade. As he explained: “The purchasing offence targets the demand for prostitution, thereby making prostitution an illegal activity, and to complement this offence, the advertising offence targets the promotion of this exploitative activity, thereby furthering the legislation’s overall objective of reducing the demand for sexual services” (p. 6653).

[73]                         The Minister of Justice also highlighted that “prostitution is an extremely dangerous activity” that “regularly involves physical violence, sexual violence, forc[ible] confinement, and drugs, and involvement in prostitution often causes post-traumatic stress disorder, which can result in permanent harm” (p. 6655). He noted that it also harms communities, including “children witnessing acts of prostitution, harassment of residents, unsanitary acts, and unwelcome solicitation of children by johns” (p. 6655).

(b)          Protecting the Safety of Sex Workers

[74]                         The second purpose of the PCEPA is to protect sex workers from the risks of violence, abuse, and exploitation associated with the sex work industry. This purpose has two aspects: (a) to protect sex workers from third parties who commercialize the sale of sexual services; and (b) to allow sex workers to protect themselves from the dangers posed by purchasers of sexual services. Both aspects seek to protect individuals, communities, human dignity, and equality.

[75]                         The first aspect of the safety-related purpose is reflected in the material benefit, procuring, and advertising offences. All three offences recognize that third parties who profit from the sale of the sexual services of others cause, perpetuate, and exploit the harms of the commercial sex trade, including the risk of violence and abuse arising from third parties who commercialize sex work. Parliament considers that exploitation arises whenever a third party profits from the sale of the sexual services of another person. This aspect was highlighted by the Minister of Justice at the second reading of Bill C-36 (at pp. 6653-54), in the Technical Paper (at pp. 6-9), and in the fifth recital of the PCEPA’s preamble, which provides:

Whereas it is important to continue to denounce and prohibit the procurement of persons for the purpose of prostitution and the development of economic interests in the exploitation of the prostitution of others as well as the commercialization and institutionalization of prostitution[.]

[76]                         This aspect of the PCEPA’s safety-related purpose was carried over from the pre-Bedford regime, which had broadly criminalized “living on the avails of prostitution” to “target pimps and the parasitic, exploitative conduct in which they engage” (Bedford, at para. 137). Indeed, protecting sex workers from parasitic third parties has been a purpose of Canadian legislation regulating the sale of sexual services since the late 1800s (Crankshaw’s Criminal Code of Canada, R.S.C. 1985 (rev. ed. (loose-leaf)), at §§ 179:HIST, 197:HIST, 212:HIST and 213:HIST). The insight of Bedford, however, was that this purpose cannot be pursued at the cost of prohibiting sex workers from protecting themselves.

[77]                         This contextualizes the second aspect of the PCEPA’s safety-related purpose, to allow sex workers to protect themselves from the dangers posed by purchasers of sexual services. Although purchasing sexual services is now illegal and Parliament’s objective remains to eliminate the commercial sex trade to the fullest extent possible, Parliament has also recognized that Bill C-36’s “transformational paradigm shift will take time to realize”, because “changing social attitudes can be a long process” (Technical Paper, at p. 10). Parliament has therefore recognized under the PCEPA that “some will remain at risk of, or subjected to, exploitation” through sex work “while this transformation occurs” (p. 10).

[78]                         Bill C-36 focuses law enforcement’s attention on the demand side of the sex trade and on persons who exploit individuals selling sexual services. It also provides persons who sell their own sexual services with an immunity from prosecution and allows them to take the protective measures identified in Bedford, which include “selling sexual services from fixed indoor locations, hiring persons who may serve to enhance safety and negotiating safer conditions for the sale of sexual services in public places” (Technical Paper, at pp. 10-11). Subject to the exceptions to the exceptions in s. 286.2(5), such protective measures are permitted under the exceptions to the material benefit offence in s. 286.2(4). For example, under s. 286.2(4)(a) or (c), sex workers can provide sexual services from fixed indoor locations, including their own homes. Similarly, under s. 286.2(4)(c) or (d), sex workers can employ third parties to protect their safety, such as bodyguards, receptionists, or managers.

[79]                         An essential safety-related purpose of Bill C-36 is to address the safety concerns identified in Bedford in the larger context of all the harms, risks, and dangers associated with sex work, which is now contrary to law. As the Minister of Justice explained before the House of Commons:

The proposed approach has been carefully tailored to address the specific vulnerability of those involved. The material benefit offence strikes a careful balance and ensures that those who sell their own sexual services have the same ability to interact with others as anyone else, while also recognizing the dangers, harms, and risks involved in allowing the development of economic interests in others’ prostitution. [p. 6654]

[80]                         In addition, the sixth recital of the preamble notes that, under the PCEPA, Parliament “wishes to encourage those who engage in prostitution to report incidents of violence and to leave prostitution”. This is done, the Minister of Justice stated, through the new immunities from prosecution for persons who sell their own sexual services, which serve to “recogniz[e] the vulnerability” of such persons (p. 6654).

[81]                         Having identified the two purposes of the PCEPA as a whole, we now address the appellants’ specific arguments as to whether the material benefit offence in s. 286.2 and the procuring offence in s. 286.3 prevent sex workers from taking the safety measures identified in Bedford.

(3)          The Material Benefit Offence Does Not Prevent Taking Safety Measures

(a)           The Purpose of the Material Benefit Offence (Section 286.2)

[82]                         The material benefit offence prohibits persons from receiving a financial or other material benefit knowing that it is obtained by, or derived directly or indirectly from, the purchase of the sexual services of others. This offence modernizes the living on the avails of prostitution offence that was found to be unconstitutional in Bedford. The scope of the material benefit offence is narrowed by the four legislated exceptions in s. 286.2(4), which allow sex workers to take the safety measures contemplated in Bedford. At the same time, the legislated exceptions exclude five circumstances (the exceptions to the exceptions) listed in s. 286.2(5), all of which the legislation regards as being exploitative in nature.

[83]                         Consistent with both aspects of the safety-related purpose of the PCEPA, the purpose of the material benefit offence is to prevent third parties from profiting from the sex work of others, while allowing sex workers to take the safety measures identified in Bedford. The material benefit offence “criminalizes receiving a material benefit from the prostitution of others in exploitative circumstances, including from participation in business activities involving prostitution from which third parties profit”, and permits “those who sell their own sexual services [to enter] into legitimate family and business relationships on the same basis as anyone else” (Technical Paper, at pp. 6-7).

(b)          The Material Benefit Offence Allows Sex Workers To Take Safety Measures

[84]                         The exceptions to the material benefit offence set out in s. 286.2(4) ensure that sex workers can lawfully take the safety measures contemplated in Bedford and maintain regular familial or business relationships. The debate before this Court focused on two exploitative circumstances (or exceptions to the exceptions) that remain within the scope of the material benefit offence under s. 286.2(5): (1) a material benefit obtained “in the context of a commercial enterprise that offers sexual services for consideration”, under s. 286.2(5)(e); and (2) a person who provides “a drug, alcohol or any other intoxicating substance” to a sex worker for the purpose of aiding or abetting that person to sell sexual services, under s. 286.2(5)(c).

[85]                         The appellants argue that s. 286.2(5)(c) and (e) effectively nullify the exceptions set out in s. 286.2(4) and once again prohibit the safety measures contemplated in Bedford. They assert that the “commercial enterprise” provision criminalizes non-exploitative business arrangements that would allow sex workers to take safety precautions. They also argue that the “drug, alcohol or any other intoxicating substance” provision exposes a third party, hired to provide security for a sex worker, to criminal liability if, for example, they provide the latter with any “drugs” such as “a Tylenol tablet for a headache” (C.A. reasons, at para. 72, quoting the trial judge’s constitutional ruling, at para. 171) to help them continue to sell their sexual services.

[86]                         We disagree with these submissions. Neither provision prevents sex workers from taking the safety measures contemplated in Bedford.

(i)            “Commercial Enterprise” Provision (Section 286.2(5)(e))

[87]                         We begin by considering the scope of the “commercial enterprise” provision and whether it prevents sex workers from taking safety measures. Recall that s. 286.2(5)(e) provides that a third party cannot rely on the exceptions to the material benefit offence if they received the benefit “in the context of a commercial enterprise that offers sexual services for consideration”.

[88]                         The term “commercial enterprise” is not defined in the PCEPA. The trial judge interpreted this term, based on its dictionary definition, as meaning “any enterprise or business entered into for profit” (constitutional ruling, at paras. 174-75). She noted that Parliament could have insisted on a requirement of exploitation, such as by requiring third party profiteering or making excessive profits, but that it chose not to do so (para. 175). She concluded that the provision criminalizes any for-profit business offering sexual services for consideration, even if the business involves no exploitation. According to the trial judge, third parties who provide security services through a for-profit business to persons who sell their own sexual services would be subject to criminal prosecution, even if they do not engage in exploitation (para. 183).

[89]                         Like the Alberta Court of Appeal, we reject the trial judge’s interpretation of the term “commercial enterprise”. The trial judge failed to consider the purpose of this provision in the context of the PCEPA as a whole. As noted by the Ontario Court of Appeal in N.S. (at para. 76 (emphasis added)), whose analysis the Alberta Court of Appeal adopted (at para. 69), “a ‘commercial enterprise’ in s. 286.2(5)(e) necessarily involves the making of a profit derived from third party exploitation of the sex worker. In other words, it involves the making of a profit from the commodification of sexual activity by a third party.” The key question for identifying a commercial enterprise is whether a third party shares in the profits of another person’s sex work.

[90]                         We pause to consider the meaning of “commodification”, why it is a key contextual factor when interpreting the PCEPA, including the scope of a “commercial enterprise”, and why Parliament views commodification through a commercial enterprise as being inherently exploitative, rather than seeing any exploitation as turning on the specific factual circumstances of the commodification in question.

[91]                         The heading in the Criminal Code above the new offences introduced by Bill C-36, “Commodification of Sexual Activity”, informs the interpretation of all these provisions, including the term “commercial enterprise” (see R. v. Lucas, [1998] 1 S.C.R. 439, at para. 47; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at p. 377; Sullivan, at § 14.05[3]). The term “commodification” refers to “the action of turning something into or treating something as a mere commodity” (D. Watt, K.C., M. Fuerst and J. D. Makepeace, The 2025 Annotated Tremeear’s Criminal Code (2024), at p. 740). Under the PCEPA, Parliament views the commodification of another human being’s sexual activity as being inherently exploitative because it reinforces gender inequalities in society and normalizes the harmful idea that a person’s body is a commodity to be bought and sold. Parliament is also concerned about exposing children to this harmful idea and the risk of perpetuating a cycle of exploitation. As the Technical Paper explains:

Prostitution reinforces gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. In this regard, prostitution harms everyone in society by sending the message that sexual acts can be bought by those with money and power. Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls by entrenching a clearly gendered practice in Canadian society.

 

Prostitution also negatively impacts the communities in which it takes place through a number of factors, including . . . exposure of children to the sale of sex as a commodity and the risk of being drawn into a life of exploitation . . . . [Emphasis added; footnotes omitted; p. 4.]

[92]                         When seen from the perspective of the new paradigm of the PCEPA, Parliament views profiting from the commodification of another human being’s sexual activity as inherently involving exploitation. Parliament’s perspective that commodification necessarily involves exploitation does not turn on whether the commercial enterprise makes “excessive” profits, nor does it require a specific act of exploitation, beyond profiting from the commodification of another human being’s sexual activity. Under the PCEPA, commodification, and thus exploitation, results from the fact of profiting from the sale of another human being’s sexual activity.

[93]                         For this reason, we agree with the Alberta Court of Appeal that the term “commercial enterprise” in s. 286.2(5)(e) does not require factually exploitative conduct or third-party profiteering, in the sense of making excessive or unreasonable profits (paras. 68-70). Factually exploitative conduct is prohibited by s. 286.2(5)(a) and (b), which stipulate that none of the exceptions to the material benefit offence is available if violence, intimidation, or coercion is used (s. 286.2(5)(a)) or if a position of power or trust is abused (s. 286.2(5)(b)) in relation to a sex worker. Third-party profiteering, in the sense of making excessive or unreasonable profits, is prohibited by s. 286.2(4)(d) because the proportionate benefit exception to the material benefit offence is only available if the benefit received is proportionate to the value of the service or good provided. The prohibition on “commercial enterprises” instead targets the inherent exploitation that Parliament sees as arising from commodification and commercialization of sex work by third parties. This provision prevents third parties from profiting from the commodification of sex work.

[94]                         We will consider below whether, as urged by the appellants and certain interveners, Parliament’s perspective under the PCEPA of viewing commodification as inherently exploitative is a ground for challenging the law under s. 7 of the Charter. For now, we simply note that this is the perspective that Parliament has adopted under this legislation.

[95]                         This takes us to the question of what specific type of profit-making entity would be considered a “commercial enterprise”. It will be for the courts to determine on a case-by-case basis whether any given enterprise is a “commercial enterprise” engaged in the commodification of sexual activity. That question must be determined based on specific facts and on a contextual and purposive reading of the term “commercial enterprise” under the PCEPA. Even so, three observations can be made regarding what is necessarily excluded from the scope of a “commercial enterprise” as a matter of statutory interpretation. This may help future consideration of this issue.

[96]                         First, an individual selling their own sexual services, whether independently or cooperatively with others, is not subject to criminal prosecution under the PCEPA. In such circumstances, no third party profits from the commodification of the sexual services of another person. Persons who sell their own sexual services would keep the proceeds from their activities and would benefit from the immunity from prosecution provided under s. 286.5. We therefore agree with the Technical Paper that a “commercial enterprise” cannot capture “individuals who sell their own sexual services, whether independently or cooperatively, from a particular location or from different locations” (p. 8; see also N.S., at para. 75).

[97]                         We also agree with the Ontario Court of Appeal in N.S. that the hypothetical situation of a cooperative arrangement among sex workers — under which sex workers share costs to lease premises, or hire drivers, receptionists, bodyguards, managers, or other security services — would not be a “commercial enterprise”, because no third party would profit from the commodification of the sexual services of another, and because each sex worker would benefit from the immunity under s. 286.5(1). As the Ontario Court of Appeal explained:

The hypothetical [of a lawful arrangement] describes a cooperative: an arrangement where sex workers cooperate to obtain premises and services related to their respective sales of sexual services. The cost of the premises and services is shared; each sex worker pays their share out of their earnings from the sale of their sexual services. The cooperative is not engaged in or concerned with profit. It operates on a shared cost basis. It is the opposite of an enterprise concerned with profit. Each individual sex worker, not the cooperative, is concerned with profit. [para. 74]

[98]                         The term “cooperative” in this context does not refer to a specific legal entity or form of business association. It refers to a way of operating in which each sex worker controls both their own work and the revenue generated from it, as well as their working conditions. Under such a cooperative arrangement, one sex worker could delegate to other sex workers or to a manager tasks associated with the operation of the cooperative.

[99]                         Such legal entities or business associations could include, for instance, a business arrangement, such as a sole proprietorship, partnership, or joint venture, through which a sex worker or a group of sex workers could hire employees or make use of services that contribute to a safer working environment. Sex workers could contribute to the payment of expenses, provided that any profits are ultimately retained by the sex workers and are not shared with any third party. The key feature is that no one shares in the profit of sex work other than the sex worker. Each of these arrangements addresses the risks associated with the sex work industry and identified by this Court in Bedford: they permit sex workers to use a fixed indoor location and create an employment relationship between sex workers and those whom they hire.

[100]                     A third party, such as a driver, receptionist, bodyguard, or manager, who provides security services to persons who sell their own sexual services under a cooperative arrangement, could do so lawfully, as long as they do not counsel or encourage such persons to sell sexual services, and provided that the payment or other benefit they receive is proportionate to the value of services they provide (s. 286.2(4)(d)). To interpret “commercial enterprise” under s. 286.2(5)(e) so broadly as to exclude sex workers from lawfully hiring persons who provide security services would nullify s. 286.2(4)(d), a related statutory provision. Such an interpretation should be avoided (Sullivan, at § 13.02[3]; Côté and Devinat, at paras. 1060-62; Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727, at para. 66).

[101]                     We will consider further below whether such a cooperative arrangement is illusory, as urged by the appellants. For now, we simply note that such a cooperative arrangement does not violate the law.

[102]                     Second, a not-for-profit “safe house” from which sex workers could operate safely indoors would not be a “commercial enterprise”. For example, in Bedford, this Court described how “Grandma’s House”, a charitable enterprise, had run a safe house in the Downtown Eastside of Vancouver where street sex workers could safely bring their clients at a time of growing fears of a serial killer prowling the streets (para. 64). McLachlin C.J. observed that, for some sex workers, “particularly those who are destitute, safe houses such as Grandma’s House may be critical. For these people, the ability to work in brothels or hire security, even if those activities were lawful, may be illusory” (para. 64). She concluded that a law that prohibits sex workers from bringing clients to a safe house is grossly disproportionate to the objective of deterring community disruption and therefore infringes s. 7 of the Charter. As she explained, a law that prevents sex workers “from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose” (para. 136). Under the PCEPA, however, an enterprise like Grandma’s House that operates as a charitable, not-for-profit safe house would not be considered a “commercial enterprise”, because it would not profit from the sale of the sexual services of another person. As a result, the PCEPA does not prohibit such a safe house from operating. It bears noting that the appellants’ circumstances are far removed from a safe house such as Grandma’s House.

[103]                     Third, in keeping with the purpose of the material benefit offence to prevent the development of economic interests in the exploitation of the sex work of others, as well as its institutionalization and commercialization, operations that would be considered “commercial enterprises” would include, for example, enterprises owned by third parties that present themselves as a strip club or massage parlour, but operate in part for the purpose of facilitating the purchase of sexual services. Such enterprises, which allow third parties to profit from the commodification of another person’s sexual activity or from the sex work of others, contribute to institutionalizing the commercial sex work industry. They would therefore be excluded from the exceptions set out at s. 286.2(4) and would be captured by the meaning of “commercial enterprise”. At the same time, an individual or entity that merely rented premises to an independent sex worker and did not participate in commodifying sexual activity would not be considered a “commercial enterprise”.

[104]                     In summary, s. 286.2(5)(e) does not restrict the ability of sex workers from taking the safety measures contemplated in Bedford. It allows sex workers, either individually or collectively with other sex workers, to enter into business arrangements through which they can hire staff to provide a safe working environment, including drivers, receptionists, bodyguards, or managers, provided that third parties do not profit from the sale of sexual services. Nor does this provision prevent sex workers from operating from not-for-profit safe houses.

(ii)          Drug, Alcohol, or Any Other Intoxicating Substance (Section 286.2(5)(c))

[105]                     The appellants also argue that the trial judge correctly concluded that s. 286.2(5)(c) would criminalize the act of a third party, such as a driver or bodyguard, in giving a Tylenol pill to a person who sells their own sexual services, if doing so is to aid or abet that person to offer or provide sexual services for consideration. Criminalizing such conduct, the appellants submit, undercuts the ability of sex workers to hire third parties, like the appellants, to protect their security.

[106]                     Like the Alberta Court of Appeal, we reject this argument. The trial judge’s reading of s. 286.2(5)(c) is inconsistent with the principles of statutory interpretation. Section 286.2(5)(c) states that the conduct of a person who provides “a drug, alcohol or any other intoxicating substance” to the person from whose sexual services the benefit is derived falls within the scope of the material benefit offence. Although the word “drug” in the English text version of s. 286.2(5)(c) might refer to both narcotics and other medications (such as a Tylenol pill), any ambiguity is resolved by the narrower word “drogue” in the French text version, which only refers to narcotics, and not to other medications (Le Grand Robert de la langue française (electronic version)). The narrower French text reflects the shared meaning and is therefore preferred under the rules of bilingual interpretation (Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, at para. 72, citing Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at para. 25, and Côté and Devinat, at para. 1131; see also R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at paras. 28-29). In this case, the shared meaning also reflects Parliament’s intention (Côté and Devinat, at para. 1134).

[107]                     In addition, including the word “drug” in a list with the other associated words “alcohol or any other intoxicating substance” suggests a common feature among the words, namely, that they only refer to intoxicating substances (Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76, at para. 41). A Tylenol pill is not an intoxicating substance.

[108]                     Lastly, this interpretation is consistent with the objective of the PCEPA as a whole to target the exploitation of sex workers. As the Technical Paper notes, entry into sex work and remaining in it are influenced by “a variety of socio-economic factors, such as . . . drug addiction” (p. 4). This provision targets third parties who exploit drug addiction to exercise power and control over sex workers. It does not criminalize giving a Tylenol pill or another non-intoxicating substance to a sex worker.

(iii)        Conclusion

[109]                     Section 286.2(5)(c) does not prevent sex workers from taking the safety measures contemplated in Bedford.

(4)          The Procuring Offence Also Does Not Prevent Taking Safety Measures

(a)           The Purpose of the Procuring Offence

[110]                     The procuring offence, s. 286.3(1), also does not prevent sex workers from taking the safety measures contemplated in Bedford.

[111]                     A person can be found guilty of procuring in one of two ways, which can be described as two modes of liability: (1) by procuring a person “to offer or provide sexual services for consideration”; or (2) by recruiting, holding, concealing, or harbouring a person, or exercising “control, direction or influence over the movements of that person” for the purpose of facilitating the purchasing offence (Technical Paper, at p. 8). The procuring offence necessarily requires the procurer’s active involvement in the sale of the sexual services of another, which can be established under either mode of liability.

[112]                     Consistent with the safety-related purpose of the PCEPA, the purpose of the procuring offence is to prevent the procurement of persons for the purpose of facilitating the purchase of sexual services (Technical Paper, at p. 8; see also PCEPA, preamble, fifth recital). It does so by prohibiting “comprehensively all conduct related to procuring others for the purpose of prostitution” (Technical Paper, at p. 8), which Parliament views as inherently exploitative.

[113]                     We respectfully disagree with the Ontario Court of Appeal in N.S. that the purpose of the procuring offence “does not include giving effect to the safety-related objective of the PCEPA with respect to those who continue to sell their sexual services for consideration” (para. 122). The procuring offence promotes the first aspect of the safety-related objective of the PCEPA: to protect sex workers from third parties who commercialize the sale of sexual services. It does so by deterring persons (procurers) from directly or indirectly encouraging others to enter the commercial sex trade. This protects vulnerable persons from being induced into what Parliament views as the inherently exploitative practice of sex work and from being exposed to the risks of violence associated with it, including the risk of violence and abuse from procurers. At the same time, as we will explain below, the procuring offence also gives effect to the second aspect of the safety-related objective of the PCEPA by allowing for the safety measures identified in Bedford.

[114]                     The Technical Paper notes that the difference between the material benefit and procuring offences turns on “the level of involvement in the prostitution of other persons” (p. 9). The procuring offence requires “active involvement in the provision of another person’s sexual services”, while “passive involvement is sufficient to make out the material benefit offence” (p. 9). As the Technical Paper explains:

For example, a “classic pimp” is likely to be caught by both the procuring offence and the material benefit offence, because pimps generally induce or cause others to offer or provide their sexual services and they economically benefit from that activity. In contrast, a person who derives a benefit from the prostitution of others, without actively inciting the provision of sexual services, such as a “bouncer”, who works at a strip club and knows that prostitution takes place there, is only caught by the material benefit offence. This difference justifies the imposition of higher penalties for procuring. [Footnote omitted; p. 9.]

[115]                     Finally, the purpose of the procuring offence can be gleaned from the marginal note describing the offence, which is a relevant aid to interpretation (R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 37; Sullivan, at § 14.06[3]). The English marginal note uses the term “Procuring”, while the French marginal note uses the more specific term “Proxénétisme”, which means [translation] “[g]enerating revenue from the prostitution of others” (Le Grand Robert de la langue française) and translates into the English word “pimping”. The narrower French term reflects the shared meaning of the English and French marginal notes and is therefore preferred. The procuring offence is thus closely tied to the purpose of preventing the procurement — or “pimping” — of others for the purpose of facilitating the purchase of sexual services.

(b)          The Procuring Offence Allows Sex Workers To Take Safety Measures

[116]                     The procuring offence does not prevent persons who sell their own sexual services from taking safety measures, such as receiving advice that might increase their safety or selling sexual services from fixed indoor locations. The procuring offence requires active involvement in the sale of another person’s sexual services by insisting on a high mens rea of a specific intent to facilitate the purchasing offence in s. 286.1.

[117]                     The first mode of liability under s. 286.3(1) is to “procur[e] a person to offer or provide sexual services for consideration”. To “procure” means “to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged” (Gallone, at para. 61, citing R. v. Deutsch, [1986] 2 S.C.R. 2, at pp. 26-27; N.S., at para. 97; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 65).

[118]                     The second mode of liability under s. 286.3(1) is to recruit, hold, conceal, or harbour a person who sells their own sexual services, or to exercise control, direction, or influence over the movements of that person, and in either case, the prohibited conduct must be “for the purpose of facilitating an offence under subsection 286.1(1)”; that is, for the purpose of facilitating the purchasing offence by inducing a person to offer sexual services for purchase. This “purpose” element requires a high mens rea of specific intent. The accused must not merely knowingly or unwittingly facilitate the purchasing offence, but rather must specifically intend their actions to induce a person to offer sexual services for purchase (N.S., at para. 100; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at paras. 45-47; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at paras. 32-33; Joseph, at para. 88; Gallone, at para. 63). The accused’s intention is determined subjectively, with reference to the nature of the relationship between the accused and the person allegedly procured (Legare, at paras. 32-33; R. v. Ochrym, 2021 ONCA 48, 400 C.C.C. (3d) 358, at paras. 33-34).

[119]                     A person who merely gives advice on safe practices to a sex worker, or who merely rents a room to a sex worker, would not, without more, be guilty of procuring under either mode of liability for the procuring offence.

(i)            Merely Giving Advice on Safe Working Practices Is Not “Procuring”

[120]                     We agree with the Alberta Court of Appeal that the trial judge erred in concluding that a more experienced sex worker who merely gives advice to a novice sex worker on how to work safely could be found guilty of procuring (paras. 77 and 82; constitutional ruling, at para. 229).

[121]                     Merely giving advice on how to work safely would not engage either mode of liability for the procuring offence. It would not involve causing, inducing, or having a persuasive effect on a sex worker to offer or provide sexual services for consideration. Nor would it involve conduct specifically intended to facilitate the purchasing offence by inducing a person to provide sexual services for purchase.

[122]                     We acknowledge that exercising control, direction, or influence over another person can involve a spectrum of power over the individual (see R. v. T.J.F., 2024 SCC 38, at paras. 65-66). At the same time, the procuring offence would not be made out without the specific intent to facilitate the purchasing offence by inducing a person to provide sexual services for purchase. As the Alberta Court of Appeal correctly held, “[t]he mere giving of advice . . ., without more, is not conduct that is caught by the offence” (para. 82).

[123]                     We conclude that merely giving advice on safe practices for sex work is not “procuring”.

(ii)          Merely Renting a Room to a Sex Worker Is Also Not “Procuring”

[124]                     We also agree with the Alberta Court of Appeal that the trial judge erred in concluding that merely renting a room to a sex worker from which they could sell sexual services could, without more, constitute procuring (paras. 77 and 82; constitutional ruling, at para. 229). Even if renting a room could constitute the act of “harbouring” a sex worker under the second mode of the procuring offence, it would not involve conduct prohibited by the procuring offence, unless a person has the necessary mens rea.

[125]                     Renting a room to a sex worker, and knowing that it will be used for the purpose of providing sexual services for consideration, would facilitate selling sexual services. Yet the procuring offence is tied not to the act of selling sex, which benefits from an immunity from prosecution under s. 286.5, but to the purchasing offence under s. 286.1. To prove procuring, the Crown must establish the specific intention to facilitate the purchase of sex by inducing a person to offer sexual services for purchase. This conclusion flows directly from the asymmetrical scheme of the PCEPA, which focuses on prohibiting the demand side of the commercial sex trade and, on the supply side, grants an immunity from prosecution to persons who sell their own sexual services.

[126]                     We are therefore persuaded by the following analysis of the Ontario Court of Appeal in N.S. (at paras. 107-8), which the Alberta Court of Appeal endorsed (at para. 80):

Facilitating an offence under s. 286.1 is narrower than facilitating commercial sex work.

 

The offence in s. 286.1 is obtaining for consideration or communicating with anyone for the purpose of obtaining for consideration the sexual services of a person. The offence is not providing sexual services for consideration. The purpose requirement in s. 286.3 is therefore tied directly to the asymmetrical scheme of the PCEPA. The Crown must prove that the accused intended to assist the principal in the commission of the offence in s. 286.1. [Emphasis in original; citation omitted.]

[127]                     The Ontario Court of Appeal in N.S. noted that the difference between facilitating the purchase of sex (which would constitute procuring) and facilitating the sale of sex (which would not) “may seem like a fine point of logic, but it flows directly from the wording of s. 286.3 and the scheme of the PCEPA” (para. 109). The court explained that “[t]he criminal law is familiar with asymmetrical offences, and trial judges are adept at inferring which side of the transaction an accused intended to facilitate” (para. 114).  For the procuring offence under scrutiny here, Parliament has expressly designed the PCEPA to distinguish between the purchase and the sale of sexual services. The former remains criminalized, while the latter benefits from an immunity from prosecution. The procuring offence cannot be interpreted to undermine the expressly asymmetrical scheme of the PCEPA.

[128]                     In addition, the Ontario Court of Appeal in N.S. cited this Court’s decision in R. v. Greyeyes, [1997] 2 S.C.R. 825, and noted that, “[d]epending on the facts in a given case, a person may intend to assist the buyer, the seller, or both” (para. 114). In Greyeyes, this Court held that the mens rea requirement of acting “for the purpose of” aiding or abetting the offence of trafficking was made out because the accused intended to assist with the commission of that offence, by bringing together the parties to the transaction and acting as a conduit for delivering the drugs from the seller to the buyer. In the present context, the procuring offence provides in relevant part that a person commits procuring only if they act with the specific intent of (i.e., “for the purpose of”) facilitating the purchasing offence under s. 286.1.

[129]                     Interpreting the procuring offence so broadly as to prohibit sex workers from renting rooms to sell their own sexual services would also render nugatory the proportionate benefit exception in s. 286.2(4)(d). Recall that this provision exempts from criminal liability the receipt of a financial or other material benefit derived from the sale of sexual services, if the person receiving the benefit “did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good”. It would be incongruous to exempt legitimate rental arrangements from the scope of the material benefit offence, yet to criminalize the same conduct under the procuring offence (N.S., at para. 103). As noted above, an interpretation that renders a related statutory provision nugatory should be avoided.

[130]                     The same analysis applies to other security services, such as receptionists, managers, or drivers, employed by sex workers when such employees lack the necessary mens rea for the procuring offence. Third parties who work to increase the safety of sex workers are expressly exempted from the scope of the material benefit offence and are not captured by the procuring offence, unless they have the specific intent to facilitate the purchase of sex by inducing sex workers to offer sexual services for purchase. This reflects the asymmetrical scheme of the PCEPA and both aspects of its safety-related purpose.

[131]                     By contrast, a commercial agency that recruits persons to sell sexual services, provides premises for transactions, advertises to potential purchasers, makes appointments, and collects agency fees would engage both modes of liability of the procuring offence. Such a commercial agency would be directly engaged in promoting the commodification of sexual services, contrary to the first aspect of the safety-related purpose of the PCEPA.

(iii)        Conclusion

[132]                     The procuring offence does not preclude sex workers from taking the safety measures contemplated by Bedford.

(5)          Conclusion on Statutory Interpretation

[133]                     Applying the modern principle of statutory interpretation, neither the material benefit offence nor the procuring offence prohibits the safety measures contemplated in Bedford. Because both offences are unambiguous, there is no need to resort to the presumption that Parliament intended to comply with the Charter.

[134]                     Having interpreted the scope of the material benefit and procuring offences, we now consider whether these offences infringe s. 7 of the Charter.

B.            Do the Impugned Provisions Infringe Section 7 of the Charter?

[135]                     We first review the established legal framework under s. 7 of the Charter. We then summarize the appellants’ core argument under s. 7, which focuses on the right to security of the person, and the appellants’ new arguments before this Court on the rights to life and liberty. We next consider whether s. 7 is engaged. Both courts below ruled only on the right to security of the person. Like the courts below, we focus on the right to security of the person, but also comment briefly on the rights to life and liberty. In our view, neither the material benefit offence nor the procuring offence prevents sex workers from taking the safety measures contemplated in Bedford. As a result, the appellants’ core argument fails to show that the impugned offences infringe s. 7.

(1)          Legal Framework Under Section 7

[136]                     Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[137]                     A claim that legislation breaches s. 7 of the Charter proceeds in two steps. At the first step, the claimant must establish that the impugned legislative provision deprives them of life, liberty, or security of the person. This requires showing a sufficient causal connection between the legislation and the alleged interference with or negative impact on the s. 7 interest. A risk of such a deprivation suffices to engage s. 7 (Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at para. 56; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 62). At the second step, the claimant must show that this deprivation is not in accordance with the principles of fundamental justice. This requires establishing that an impugned provision conflicts with basic constitutional values, including the values against a law being arbitrary, overbroad, or grossly disproportionate (Bedford, at paras. 57-58, 75-76, 93-96 and 123; Carter, at para. 72; Canadian Council for Refugees, at paras. 56 and 60; J.J., at para. 116).

[138]                     A law is arbitrary if “there is no connection between the effect and the object of the law” (Bedford, at para. 98; see also paras. 99-100). A law will be considered arbitrary for the purposes of s. 7 if it imposes limits on life, liberty, or security of the person “that have no connection to [the law’s] purpose” (R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602, at para. 23; P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 47:24; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. XII-6.66).

[139]                     A law is overbroad when it is “so broad in scope that it includes some conduct that bears no relation to its purpose” (Bedford, at para. 112 (emphasis in original); J.J., at para. 136; Appulonappa, at para. 26; Carter, at para. 85; Canadian Council for Refugees, at paras. 126-63; Hogg and Wright, at § 47:25; Brun, Tremblay and Brouillet, at para. XII-6.65). A claimant must show that there is “no rational connection between the purposes of the law and some, but not all, of its impacts” (Bedford, at para. 112 (emphasis in original); J.J., at para. 136). As a matter of constitutional principle, a “law must not go further than reasonably necessary to achieve its legislative goals” (Safarzadeh-Markhali, at para. 50). A law is overbroad if it “overreaches in a single case” (Canadian Council for Refugees, at para. 141, citing Bedford, at paras. 113 and 123, and Ndhlovu, at para. 78). The overbreadth principle “allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others” (Bedford, at para. 113; Appulonappa, at para. 26; Carter, at para. 85).

[140]                     Finally, a law will be grossly disproportionate only “in extreme cases”, if the seriousness of the s. 7 deprivation is “totally out of sync with the objective of the measure”, such that the law “cannot rationally be supported” (Bedford, at para. 120; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 143; Hogg and Wright, at § 47:26; Brun, Tremblay and Brouillet, at paras. XII-6.58 and XII-6.66). An example is a “hypothetical . . . law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk” (Bedford, at para. 120). The draconian impact of such a law would “be entirely outside the norms accepted in our free and democratic society” (para. 120).

(2)          The Appellants’ Core Section 7 Argument

[141]                     The Crown does not dispute that the material benefit and procuring offences engage the appellants’ liberty. Having been convicted of the impugned offences, the appellants are exposed to a penalty of imprisonment, thereby triggering their liberty interest (Canadian Council for Refugees, at para. 89; Moriarity, at para. 18).

[142]                     The appellants, however, do not rely on the impact of the material benefit or procuring offences on their own liberty. They assert that the impugned offences are unconstitutional because they perpetuate the constitutional defects identified in Bedford. They say that the offences continue to expose sex workers to dangerous working conditions by preventing them from trying to protect their safety when selling sexual services, and that this infringes their security of the person (Bedford, at para. 60). They claim that the offences prohibit sex workers from: (1) working from fixed indoor locations; (2) hiring the services of third parties, such as drivers or bodyguards, to mitigate safety risks; (3) providing sexual services in cooperation, and sharing costs, with other sex workers; and (4) advising each other on safe working conditions.

[143]                     The appellants argue that it is irrelevant that the impugned provisions do not infringe their personal security of the person. As this Court has recognized, it is “established that a court may consider ‘reasonable hypotheticals’ to determine whether a law is consistent with the Charter”, including under s. 7 (Appulonappa, at para. 28; see also D. M. Haak, “The Case of the Reasonable Hypothetical Sex Worker” (2022), 60 Alta. L. Rev. 205, at pp. 211-13). The appellants say that because the impugned provisions infringe sex workers’ right to security of the person in hypothetical but reasonably imaginable situations, the provisions themselves are unconstitutional, since “no one can be convicted of an offence under an unconstitutional law” (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 313).

[144]                     Finally, the appellants contend that, at the stage of determining whether s. 7 of the Charter is engaged, it makes no difference to the analysis that the purchase of sexual services was lawful at the time of Bedford, but is now unlawful under the PCEPA. They say that whether a law criminalizes conduct has no bearing on whether it engages s. 7. They highlight that this Court has stated that whether s. 7 is engaged is “simply a matter of the purpose and effect of the law that is challenged, not whether the law is right or wrong. The morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right” (Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 102).

[145]                     At the same time, the appellants submit that the purpose of the PCEPA is invalid because it pursues the criminalization of sex work at all costs, based on the mistaken premise that all sex work is exploitative. The intervener Tiffany Anwar similarly contends that “the PCEPA is premised on a fallacy that exploitation is ‘inherent in prostitution’” (I.F., at para. 20, citing the PCEPA’s preamble). That foundational assumption, Ms. Anwar submits, is “balderdash”, and results in the needless deprivation of the safeguards provided by “non-exploitive, non-coercive third parties”, such as Ms. Anwar’s escort business (para. 20).

(3)          Engagement of Section 7

(a)           Security of the Person

[146]                     As we have explained, when the material benefit and procuring offences are properly interpreted in accordance with the modern principle of statutory interpretation, both offences permit sex workers to take the safety measures contemplated in Bedford. Neither offence prohibits sex workers from working from fixed indoor locations, hiring the services of third parties such as drivers, bodyguards, or receptionists to mitigate safety risks, providing sexual services in cooperative and cost-sharing arrangements with other sex workers, or advising each other on safe working conditions. Thus, neither offence engages sex workers’ security of the person on this basis. With respect, the trial judge’s contrary conclusion was based on an erroneous interpretation of the legislation.

[147]                     The trial judge also relied on the uncertainty regarding the interpretation of the PCEPA as a basis to find that sex workers’ security of the person was engaged. The appellants seek to highlight the challenges in interpreting the PCEPA by noting that B.C. and D., two sex workers who were also law students, testified that there remained legal uncertainty on the scope of the material benefit and procuring offences and whether they allow sex workers to take the safety measures contemplated in Bedford.

[148]                     Despite advancing arguments based on legal uncertainty, the appellants did not challenge the constitutionality of the impugned provisions on the basis of vagueness, a recognized principle of fundamental justice under s. 7 of the Charter. A vague provision for the purposes of s. 7 is one that “does not provide an adequate basis for legal debate” or is “not intelligible”, in the sense that it does “does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion” (R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 639-40; Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549, at para. 62; Hogg and Wright, at §§ 47:27-47:28; Brun, Tremblay and Brouillet, at para. XII-6.64). No such argument was advanced here.

[149]                     Here, this Court has now interpreted the scope of the material benefit and procuring offences and has confirmed that sex workers and third parties they hire can take the safety measures contemplated in Bedford without offending either provision. A challenge to legislation under s. 7 of the Charter must proceed on a correct interpretation of the law, which this Court has now provided.

[150]                     We also reject the argument that, under the PCEPA, the safety measures contemplated in Bedford are illusory or practically illusory. The trial judge, in support of her conclusion that the material benefit offence infringed s. 7, had cited Dickson C.J.’s observation in R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 70, that it is a principle of fundamental justice that “when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory” (see constitutional ruling, at para. 201). More recently, this Court has confirmed that it is “insufficient for curative mechanisms to be available in law but unavailable in practice. Empty promises do not safeguard against breaches of constitutionally protected rights” (Canadian Council for Refugees, at para. 158). At the same time, the Court has emphasized that “the legislation must be the cause of the alleged difficulties in order for Charter scrutiny to attach to it” (Canadian Council for Refugees, at para. 158, citing Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at para. 128).

[151]                     The trial judge noted that sex workers fear that they cannot access the exceptions to the material benefit offence to hire non-exploitative third parties without those third parties risking prosecution (constitutional ruling, at para. 202). The intervener Ms. Anwar, who runs a commercial escort agency, similarly argues before this Court that it is “fantasy” to say that sex workers can employ safety measures through “unrealistic ‘cooperatives’” (I.F., at para. 23). In her view, third-party owned escort agencies like hers are the only avenue through which sex workers can access the safety measures contemplated in Bedford.

[152]                     In our view, the trial judge’s finding that sex-worker cooperatives are practically illusory was based on her incorrect interpretation of the PCEPA — an error of law — and therefore does not attract appellate deference. As we have explained, correctly interpreted, the impugned provisions permit all the safety measures identified by the trial judge as being important, including screening clients, maintaining a list of bad customers, adopting a zero-tolerance policy, hiring security, developing emergency protocols, and ensuring access to drivers (see constitutional ruling, at para. 130). Because the trial judge erred in interpreting the legislation, she made no finding of fact as to whether sex workers face greater threats to their security of the person by virtue of not having access to the security services that might be offered by “commercial enterprises” such as commercial escort agencies, rather than by hiring security services themselves or through a cooperative arrangement with other sex workers. This issue is raised squarely in Canadian Alliance for Sex Work Law Reform v. Attorney General, 2023 ONSC 5197, 535 C.R.R. (2d) 40 (at paras. 257 and 262-74), on the basis of a much fuller evidentiary record and is currently pending before the Ontario Court of Appeal. We therefore decline to address this issue further in the context of this case.

[153]                     It also bears noting that the hypothetical but reasonably imaginable situation of sex workers operating through a cooperative had been proposed by the accused in N.S. to argue that such a cooperative would be a “commercial enterprise” under s. 286.2(5)(e), and thus in support of the accused’s argument that the material benefit offence infringed s. 7 of the Charter (see paras. 32 and 71‑74). As we have noted, the Ontario Court of Appeal correctly rejected that argument on the basis that such a sex worker cooperative would not be a “commercial enterprise” (paras. 70-85).

[154]                     Finally, we agree with the appellants that the morality of sex work is not relevant to whether the impugned provisions engage the security of the person of sex workers. Relatedly, whether the purposes of the impugned provisions are invalid for being based on the erroneous premise that sex work is inherently exploitative is not relevant either. As this Court has noted, the justification of the public policy goal of impugned legislation is at the heart of the justification analysis under s. 1 of the Charter, “but it plays no part in the s. 7 analysis, which is concerned with the narrower question of whether the impugned law infringes individual rights” (Bedford, at para. 125; see also R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374, at paras. 71-72).

[155]                     We conclude that neither the material benefit offence nor the procuring offence prohibits sex workers or third parties they hire from taking the safety measures outlined in Bedford. As a result, the appellants have failed to demonstrate that either of the impugned offences engages sex workers’ security of the person.

(b)          Life and Liberty

[156]                     The debate in the courts below focused on the right to security of the person. Neither court below made any determinations regarding the right to life or liberty under s. 7. Even so, because the appellants and several interveners now invoke the rights to life and liberty before this Court, we briefly touch on these arguments.

[157]                     We first consider the right to life.

[158]                     The appellants suggest in passing that sex workers’ right to life under s. 7 of the Charter is engaged. They argue that when sex workers cannot take safety measures, such as working from fixed indoor locations or hiring third parties to provide safety services, the risk of violence to them and even the loss of their lives increases dramatically.

[159]                     We accept that the right to life under s. 7 is engaged by a law that “imposes death or an increased risk of death on a person, either directly or indirectly” (Carter, at para. 62). It is also undeniable that “[a] risk of such a deprivation suffices” (Canadian Council for Refugees, at para. 56, citing Carter, at para. 62, Malmo-Levine, at para. 89, and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 27). At the same time, this Court has noted that “concerns about autonomy and quality of life have traditionally been treated as liberty and security rights” (Carter, at para. 62).

[160]                     The concerns about the risks of violence or even death faced by sex workers are serious and most troubling, but in this case, the consideration of such risks would duplicate the analysis of the security of the person under s. 7. The trial judge also made no finding that the PCEPA is linked causally to an increased risk of death. Finally, this issue has been raised squarely in Canadian Alliance for Sex Work Law Reform (at paras. 218, 248 and 499) based on a much fuller evidentiary record and is pending before the Ontario Court of Appeal. We therefore refrain from addressing this issue further.

[161]                     We next consider the right to liberty.

[162]                     The appellants briefly intimate that sex workers’ economic liberty is engaged because the PCEPA restricts their ability to earn a living from sex work. They note, for example, that D. earned $600 per hour as a sex worker, while B.C. made $15,000 in a week as an erotic dancer, and both financed their law school educations through sex work.

[163]                     As a counterpoint, in forceful submissions, the intervener the Women’s Equality Coalition (consisting of the Vancouver Rape Relief Society, Concertation des luttes contre l’exploitation sexuelle, Aboriginal Women’s Action Network, Formerly Exploited Voices Now Educating, London Abused Women’s Centre and Strength in Sisterhood) rejected “the Appellants’ promotion of prostitution as a solution to women’s economic inequality” (I.F., at para. 1). This intervener “particularly reject[ed] the cruel logic that the overrepresentation of the most marginalized women, including Indigenous women, in the prostitution industry, is akin to an employment equity program, rather than a reflection of profound sexism and sexualized colonialism” (para. 1).

[164]                     This Court has been cautious when adjudicating claims for economic rights under s. 7 of the Charter. The Court has stated that a “purely . . . economic interest” is not protected by s. 7 of the Charter, which does not guarantee “[t]he ability to generate business revenue by one’s chosen means” (Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 46).

[165]                     Nor, as Dickson C.J. once wrote, does s. 7 of the Charter protect “an unconstrained right to transact business whenever one wishes” (R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 786).

[166]                     This Court has also rejected a claim that s. 7 protects the right to engage in the business or profession of one’s choice, ruling that provincial legislation providing that no person can practise as a public accountant in the province without being a member of the provincial institute of chartered accountants does not infringe s. 7 (Walker v. Prince Edward Island, [1995] 2 S.C.R. 407; see also Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1179, per Lamer J. (as he then was); Hogg and Wright, at § 47:10; Brun, Tremblay and Brouillet, at para. XII-6.19).

[167]                     At the same time, it has been suggested that “the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence” (Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 66, per La Forest J.; see also Siemens, at para. 45).

[168]                     Whether s. 7 of the Charter protects a fundamental right to sell sexual services as an aspect of an individual’s right to liberty amounts to a new constitutional issue in this case. Such a new constitutional issue must be approached with great caution on appeal. As this Court recently reiterated, “appellate courts are generally reluctant to entertain new arguments when ‘they are deprived of the trial court’s perspective’” (R. v. Campbell, 2024 SCC 42, at para. 143, quoting R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 40). This Court will hear new constitutional issues only in “rare cases” (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 37). As the Court has stated, “[w]hether to hear and decide a constitutional issue when it has not been properly raised in the courts below is a matter for the Court’s discretion, taking into account all of the circumstances, including the state of the record, fairness to all parties, the importance of having the issue resolved by this Court, its suitability for decision and the broader interests of the administration of justice” (Guindon, at para. 20; see also Downes, at para. 57). The test is stringent (Guindon, at paras. 22-23).

[169]                     In our respectful view, it would be most imprudent in this case to decide whether s. 7 of the Charter protects a fundamental right to sell sexual services as a part of an individual’s right to liberty. The courts below addressed the constitutionality of the impugned provisions only from the perspective of sex workers’ security of the person. Although a claim for a s. 7 right to sell sexual services would arguably have an economic dimension, some, like the appellants, contend that it also has a fundamentally personal dimension that justifies Charter protection. Since this complex and highly contentious issue was not considered or decided below, this Court does not have the benefit of the lower courts’ decisions on this point. We therefore decline to address this issue further in this appeal.

(c)           Conclusion

[170]                     Based on the record before this Court, we conclude that the material benefit and procuring offences do not engage sex workers’ security of the person under the appellants’ core s. 7 argument. These offences, properly interpreted, allow for the safety measures contemplated in Bedford. Given this conclusion, it is not necessary to address the principles of fundamental justice. 

(4)          Conclusion on Section 7

[171]                     The material benefit and procuring offences do not infringe s. 7 of the Charter. It is unnecessary to consider s. 1.

VIII.   Disposition

[172]                     The appeal is dismissed and the appellants’ convictions are affirmed.

APPENDIX

Relevant Statutory Provisions

 

Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25

Preamble

Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it;

Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity;

Whereas it is important to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children;

Whereas it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution;

Whereas it is important to continue to denounce and prohibit the procurement of persons for the purpose of prostitution and the development of economic interests in the exploitation of the prostitution of others as well as the commercialization and institutionalization of prostitution;

Whereas the Parliament of Canada wishes to encourage those who engage in prostitution to report incidents of violence and to leave prostitution;

And whereas the Parliament of Canada is committed to protecting communities from the harms associated with prostitution;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

 

 

Criminal Code, R.S.C. 1985, c. C‐46

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.

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.

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).

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), 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), 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.

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.

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.

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.

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.

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.

 

                    Appeal dismissed.

                    Solicitors for the appellants: Gunn Law Group, Edmonton; Arial Law, Calgary.

                    Solicitor for the respondent: Alberta Crown Prosecution Service, Appeals and Specialized Prosecutions Office, Edmonton.

                    Solicitors for the intervener Attorney General of Canada: Attorney General of Canada — Department of Justice Canada, National Litigation Sector, Toronto; Attorney General of Canada — Department of Justice Canada, Montréal.

                    Solicitor for the intervener Attorney General of Ontario: Ministry of the Attorney General of Ontario, Crown Law Office — Criminal, Toronto.

                    Solicitor for the intervener Attorney General of Nova Scotia: Nova Scotia Public Prosecution Service, Halifax.

                    Solicitor for the intervener Attorney General of Manitoba: Attorney General of Manitoba — Constitutional Law Section, Winnipeg.

                    Solicitor for the intervener Attorney General of British Columbia: Attorney General of British Columbia — Criminal Appeals and Special Prosecutions, Victoria.

                    Solicitors for the interveners Vancouver Rape Relief Society, Concertation des luttes contre l’exploitation sexuelle, Aboriginal Women’s Action Network, Formerly Exploited Voices Now Educating, London Abused Women’s Centre and Strength in Sisterhood: Peter A. Allard School of Law — University of British Columbia, Vancouver; Barton Thaney, Vancouver.

                    Solicitor for the intervener Christian Legal Fellowship: Christian Legal Fellowship, London.

                    Solicitors for the intervener Women’s Legal Education and Action Fund Inc.: Stockwoods, Toronto.

                    Solicitors for the intervener Amnesty International, Canadian Section (English Speaking): Cavalluzzo, Toronto.

                    Solicitors for the interveners HIV & AIDS Legal Clinic Ontario, Coalition des organismes communautaires québécois de lutte contre le sida and Action Canada for Sexual Health and Rights: Goldblatt Partners, Ottawa; Coalition des organismes communautaires québécois de lutte contre le sida, Montréal; HIV & AIDS Legal Clinic Ontario, Toronto.

                    Solicitors for the intervener Canadian Civil Liberties Association: Lax O’Sullivan Lisus Gottlieb, Toronto.

                    Solicitors for the intervener Tiffany Anwar: McCarthy Tétrault, Toronto.

                    Solicitors for the intervener David Asper Centre for Constitutional Rights: Stockwoods, Toronto; David Asper Centre for Constitutional Rights, Toronto.

                    Solicitors for the intervener British Columbia Civil Liberties Association: Kastner Ko, Toronto.

                    Solicitors for the intervener Ontario Coalition of Rape Crisis Centres: Marcus McCann Professional Corporation, Toronto; Sugden, McFee & Roos, Vancouver.

                    Solicitors for the interveners Evangelical Fellowship of Canada and Association for Reformed Political Action Canada: Acacia Group, Ottawa; Association for Reformed Political Action Canada, Ottawa.