Obtaining Sexual Services For Consideration

Canada's prostitutionThe purchase and the sale of sexual services, with only the purchase being illegal laws do not criminalize the sale of sexual servicesA sexual act that gratifies the person who receives it, but s.286.1(1) of the Criminal Code makes it illegal to obtain sexual services in exchange for "considerationAny form of payment in exchange for sexual services." That can include money, drugs, alcohol or another form of payment. It does not matter whether the payment is made by the person who receives the sexual service or by someone else.

A Department of Justice document, Prostitution Criminal Law Reform: Bill C-36, the Protection of Communities and Exploited Persons Act, says purchasers of sexual services are "always criminalized for their role in the prostitution transaction." It also says the offence can apply to online transactions, such as paying someone to provide a sexual service by webcam. Sexual services can include sexual intercourse, masturbation, oral sex, lap-dancing, and sado-masochistic activities, if the acts are sexually stimulating or gratifying.

Higher penalties can apply if the person providing the sexual services is under 18, or if the sexual services are obtained in a public place or next to a park, a school, a religious institution, or another place where people under 18 can reasonably be expected to be present.

The Crown must prove that there was "consideration" for the sexual services. For example, it could be argued that a gift given after a sexual encounter may not amount to payment. If you are charged with obtaining sexual services from someone under 18 (s.286.1(2)), s.150.1(5) of the Code states it is not a defence to argue that you thought the person was 18 years old or older at the time of the offence, unless you took all reasonable steps to ascertain the complainant's age.

Canadian courts deal with offences in two ways. Summary offences are for less serious crimes while indictable offenceA more serious type of Canadian criminal offence.s include murder, sexual assault and aggravated assault. The charge of obtaining sexual services for consideration can be dealt with as a hybrid offenceAn offence the Crown can proceed with summarily or by indictment., either as a summary convictionLess-serious criminal offences or an indictable offence, depending on the circumstances.

The charge of obtaining sexual services for consideration under s.286.1(1) is a hybrid offence, meaning the Crown can choose to prosecute it as either an indictable offence or a summary conviction offence. As an indictable offence the maximum penalty is five years in prison. As a summary conviction offence the maximum penalty is a fine of $5,000, a jail term of two years less a day, or both.

In either case there are mandatory minimum fines. If the charge did not involve a qualifying location, the minimum fine for a first offence is $1,000 on an indictable charge and $500 on a summary conviction. For each subsequent offence those minimums rise to $2,000 and $1,000 respectively.

If the offence was committed in a public place, or in any place open to public view, that is or is next to a park, the grounds of a school or religious institution, or any other place where persons under 18 can reasonably be expected to be present, higher minimum fines apply. For an indictable charge the minimum is $2,000 for a first offence and $4,000 for each subsequent offence. For a summary conviction charge the minimum is $1,000 for a first offence and $2,000 for each subsequent offence. In all cases the maximum penalties described above remain the same regardless of location.

The charge of obtaining sexual services from a person under 18 under s.286.1(2) is always an indictable offence with a maximum penalty of 10 years in prison. There are also mandatory minimum jail terms: six months for a first offence and one year for each subsequent offence.

Since December 6, 2014, the Criminal Code has made it an offence to obtain sexual services for consideration or to communicate with anyone, anywhere, for that purpose. This offence targets the buyer. A person cannot be prosecuted under this section for selling their own sexual services.