b) Offences: Purchasers and Third Parties
Purchasing Offence
Bill C-36 criminalizes, for the first time in Canadian criminal law, the purchase of sexual services. This new offence makes prostitution itself an illegal practice; every time prostitution takes place, regardless of venue, an offence is committed. In criminalizing those who create the demand for prostitution, Bill C-36 furthers its overall objective to reduce that demand, with a view to ultimately abolishing prostitution to the greatest extent possible.
Bill C-36’s new purchasing offence prohibits obtaining sexual services for consideration, or communicating in any place for that purpose (section 286.1). This offence imposes maximum penalties of 5 years imprisonment where prosecuted by indictment and 18 months where prosecuted by summary conviction and escalating mandatory minimum fines. Purchasing sexual services from a person under the age of 18 is an even more serious offence. Although already prohibited in existing criminal law,[23] Bill C-36 moves this offence to Part VIII of the Criminal Code, along with most other prostitution offences, and increases the maximum penalty from 5 to 10 years imprisonment and the applicable mandatory minimum penalty for a subsequent offence from 6 months to one year.
The purchasing offence is carefully tailored to its objective of reducing the demand for sexual services. It is based on the existing offence that prohibits obtaining sexual services for consideration from persons under the age of 18 years and, accordingly, jurisprudence interpreting that offence assists in defining the scope of the new offence. Jurisprudence that interprets the meaning of “prostitution” is also instructive, given that “prostitution” is defined as the exchange of sexual services for payment.[24]
To determine whether a particular act constitutes a “sexual service for consideration” or “prostitution”, the court will consider whether the service is sexual in nature and whether the purpose of providing the service is to sexually gratify the person who receives it. Specifically, a contract or agreement, whether express or implied, for a specific sexual service in return for some form of consideration is required.[25] In particular, the consideration must be contingent on the provision of a particular sexual service and the contract or agreement must be entered into before the sexual service is provided.[26] Sexual activity involving no expectation of getting paid for the services provided does not meet the test.[27] Sexual activity in the context of ongoing relationships also fails to meet the test, unless the evidence shows that the alleged consideration was contingent on the provision of a particular sexual service.[28] In one case, gifts given to the complainant were not viewed as consideration for sexual favours rendered, but rather as gifts given “dans le cadre plus large de la relation affective entre l’accusé et le plaignant”.[29] Another case held that the phrase “sexual services for consideration” is not intended to apply to consensual actions between those having an affinity towards one another.[30]
The following activities have been found to constitute a sexual service or an act of prostitution, if provided in return for some form of consideration: lap-dancing, which involves sitting in the client’s lap and simulating sexual intercourse;[31] masturbation of a client in the context of a massage parlour, whether or not the client climaxes;[32] and, sado-masochistic activities, provided that the acts can be considered to be sexually stimulating/gratifying.[33] However, jurisprudence is clear that neither acts related to the production of pornography,[34] nor stripping[35] meet the test. In most cases, physical contact, or sexual interaction, between the person providing the service and the person receiving it is required; however, acts for which consideration is provided that take place in a private room in a club and that are sexual in nature, but do not involve physical contact between the “client” and “performer”, such as self-masturbation, have been found to constitute prostitution.[36]
In short, whether a particular service meets the test outlined above is a factual determination to be made by a court. Applicable jurisprudence provides flexibility in addressing new ways of effecting prostitution, while also limiting the scope of such offences to acts related to prostitution, consistent with its objective of reducing demand for sexual services.
Advertising Offence
To complement the purchasing offence, Bill C-36 criminalizes, also for the first time in Canadian criminal law, advertising the sale of sexual services. This new offence targets the promotion of prostitution through advertisements, which contributes to the demand for prostitution. This approach is consistent with the legislation’s overall objective of reducing 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.
Bill C-36’s new advertising offence criminalizes knowingly advertising an offer to provide sexual services for consideration (section 286.4). This offence imposes maximum penalties of 5 years imprisonment where prosecuted by indictment and 18 months where prosecuted by summary conviction.
The advertising offence targets persons who place advertisements in print media or post advertisements on websites. Publishers or website administrators could be held criminally liable as parties if they know of the existence of the advertisement and that the advertisement is in fact for the sale of sexual services. Bill C-36 also allows the court to order the seizure of materials containing advertisements for the sale of sexual services, as well as their removal from the Internet, regardless of who posted them, which is also consistent with Bill C-36’s objective of reducing demand for prostitution.
