QUICK TAKEAWAY
Obtaining Sexual Services For Consideration is a Canadian offence involving the illegal exchange of value for sexual services, including online transactions. Penalties increase when involving minors or if the transaction happens near public places frequented by minors. The prosecution must prove the involvement of consideration ("consideration" - money, drugs, alcohol, etc.) The offence can be treated as a summary conviction or an indictable offence, with a maximum penalty of five years in prison for the latter and a fine or shorter jail term for the former. The maximum penalty for cases involving minors is 10 years in prison.
Table of Contents:
What is 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 for someone to obtain them in exchange for "considerationAny form of payment in exchange for sexual services." That term encompasses money, drugs, alcohol or any other form of payment. It doesn't matter whether the payment is made by the person who receives the sexual service or by another person.
A Department of Justice document Prostitution Criminal Law Reform: Bill C-36, the Protection of Communities and Exploited Persons Act notes that while Canada's prostitution laws do not outlaw the sale of sexual services, purchasers of those services are "always criminalized for their role in the prostitution transaction." It adds that this offence applies to transactions that take place over the Internet, such as paying someone to provide a sexual service in front of a webcam. Sexual services include sexual intercourse, masturbation, oral sex, lap-dancing and, sado-masochistic activities, provided that the acts are "sexually stimulating or gratifying."
Harsher sentences will be given if you know the person providing the sexual services is under 18 or if the sexual services were obtained in a public place or next to a park, a school or religious institution or any place where persons under the age of 18 can reasonably be expected to be present.
What the Crown Must Prove
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 soliciting someone under 18, 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.
Treated as a Hybrid Offence
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 Obtaining Sexual Services For Consideration can be dealt with as a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, either as a summary convictionUsed for lesser offences or indictable offenceIndictable offences are more-serious criminal offences, depending on the circumstances.
Penalties for Obtaining Sexual Services for Consideration
The charge of obtaining sexual services for consideration is always an indictable offence with a maximum penalty of five years in prison. If the charge is treated as a summary conviction, the maximum penalty is a fine of $5,000, a jail term or two years less a day or both.
If the offence was committed in a public place, or next to a park, the grounds of a school or religious institution or any other place where people under 18 can reasonably be expected to be present, the maximum penalty remains the same but there is a minimum penalty of $2,000 if the charge is treated as an indictable offence. There is a maximum fine of $1,000 if the charge is prosecuted as a summary conviction.
The charge of obtaining sexual services from those under 18 is always an indictable offence with a maximum penalty of 10 years in prison.
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Cram & Associates
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Conron Law Professional Corporation
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Carl Busque Criminal Law
Christopher Uwagboe, Barrister & Solicitor, Professional Corporation
Glossary of Legal Terms
Consideration
Money, drugs, alcohol or any other form of payment in exchange for sexual services.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Prostitution
A transaction that involves both the purchase and the sale of sexual services, with only the purchase being illegal. It is also illegal to live on the material benefits of someone else's sex work.
Sexual services
An act that is sexual in nature and whose purpose is to sexually gratify the person who receives it.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
