Material Benefit from Sexual Services

Section 286.2 (1) of the Criminal Code makes it a crime to materially benefit from the sale of sexual servicesA sexual act that gratifies the person who receives it to others. Section 286.2 (2) provides harsher penalties if the person providing the sexual services is under 18. According to a Department of Justice (DoJ) document: Prostitution Criminal Law Reform: Bill C-36, the Protection of Communities and Exploited Persons Act , those who sell their own sexual services cannot be convicted of this offence if the only benefit they receive is from the sale of those services. The Code also notes that if you live with or are habitually in the company of a person who provides sexual services for money, that is proof that you are receiving material benefit from those services. There are exceptions to this rule . Section 286.2(4) provides four exceptions where receiving the benefit does not amount to this offence: a legitimate living arrangement with the person from whose sexual services the benefit comes (s.286.2(4)(a)); a benefit arising from a legal or moral obligation of the person offering sexual services toward you (s.286.2(4)(b)); payment for a service or goods you offer to the general public on the same terms and conditions (s.286.2(4)(c)); or payment for a service or goods you do not offer to the general public, as long as you did not counsel or encourage that person to provide sexual services and the payment is proportionate to the value of what you provided (s.286.2(4)(d)). However, none of these exceptions apply if a person benefiting from the person offering sexual services: used, threatened to use or attempted to use violence, intimidation or coercion; abused a position of trust, power or authority; provided a drug, alcohol or any other intoxicating substance to encourage the sale of sexual services; engaged in conduct, in relation to any person, that would amount to procuring; or received the benefit in the context of a commercial enterprise that offers sexual services for sale.

The Crown prosecutor must show that you received a financial or other material benefit from the sexual services another person offered. Those services could be offered in a private residence or in strip clubs, massage parlours or through escort agencies. If you live with or regularly spend time with someone who provides sexual services, the law presumes that you received a material benefit from those services. This presumption can be rebutted if you or your lawyer can point to evidence that raises a reasonable doubtThe standard that must be exceeded to find someone guilty about it. That evidence can sometimes come from questioning the Crown's own witnesses, without you having to take the stand yourself.

Canadian courts deal with offences in two ways. Summary offences are for less serious crimes while indictable offences include murder, sexual assault and aggravated assault. The charge of benefiting materially from prostitution can be dealt with as a hybrid offenceAn offence the Crown can proceed with summarily or by indictment., either as a summary convictionUsed for lesser offences or indictable offenceA more serious type of Canadian criminal offence., depending on the circumstances.

If the charge of materially benefiting from prostitution is treated as an indictable offence the maximum penalty is 10 years in prison. If the charge is prosecuted as a summary conviction, the maximum penalty is two years less a day in jail and/or a fine of up to $5,000. The charge of materially benefiting from the sexual services of someone under 18 years is always an indictable offence, with a maximum sentence of 14 years in prison and a minimum punishment of two years in jail.

This offence is sometimes described as materially benefiting from prostitution, but the current Criminal Code wording is material benefit from sexual services.