|
Criminal - Child Prostitution. Quebec (Attorney General) v. Denis
In Quebec (Attorney General) v. Denis (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec CA ruling that found a mandatory minimum sentence for conviction under s.286.1(2)(a) ['Obtaining sexual services for consideration from person under 18 years'] was invalid under Charter 12 ['Treatment or punishment' (cruel and unusual)].
Here the court reviews the offence of child prostitution [CCC s.286.1(2) 'Obtaining Sexual Services From a Person Under the Age of 18 Years']:B. The Offence of Obtaining Sexual Services From a Person Under the Age of 18 Years: Section 286.1(2) Cr. C.
(1) The Legislative Amendments Show the Evolution of Canadian Society’s Understanding of the Gravity and Harmfulness of This Offence
[38] The offence of obtaining sexual services for consideration was created in 1985 through the enactment of s. 212 of the new Criminal Code, a provision dealing primarily with procuring that appeared in Part VII of the Criminal Code, “Disorderly Houses, Gaming and Betting” (An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.)). It was an indictable offence, which could not be prosecuted summarily and which was punishable by a maximum sentence of 10 years in a penitentiary. An amendment was introduced in 1987 to establish a maximum sentence of 5 years where the person from whom the accused sought to obtain sexual services was under the age of 18 years (s. 212(4) Cr. C.; An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 9). No mandatory minimum sentence was specified at the time. During the 20 years that followed, no significant changes were made to the provision. However, it is important to underscore two subsequent legislative amendments.
[39] In 2005, Parliament passed a major amendment. It amended the offence of obtaining sexual services from a minor for consideration to provide for a minimum sentence of six months (An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 10.1(2)). That legislative amendment was made in a context where “the Parliament of Canada ha[d] grave concerns regarding the vulnerability of children to all forms of exploitation” and in an effort to measure up to the international commitments made by Canada 15 years earlier when it ratified the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (see the preamble to the Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act). Indeed, the Convention provides that signatory states have an obligation to take “all appropriate . . . measures” to prevent “[t]he exploitative use of children in prostitution” (Article 34(b)). The introduction of a minimum sentence was one of the measures taken by Canada to combat the exploitation of children. It reflected a clear intention to prioritize, from a penological standpoint, strong denunciation of the sexual commodification of children as well as deterrence of those who might be tempted to participate in it (see R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6, at para. 139).
[40] Next, in 2014, Parliament amended this provision again following Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, in which this Court struck down certain provisions relating to prostitution. In response to the Court’s decision in Bedford, Parliament passed the Protection of Communities and Exploited Persons Act, which repealed s. 212(4) Cr. C. (s. 13) and replaced it with the new s. 286.1(2) Cr. C. (s. 20).
[41] Three important points emerge from this last legislative amendment and are worth noting.
[42] First, Parliament increased the maximum sentence for this offence from 5 to 10 years (s. 286.1(2) Cr. C.). The maximum sentence that may be imposed for an offence is a proxy for the objective gravity of the offence (R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147, at para. 106). The increase in the maximum sentence shows that Parliament wanted offenders to be punished more severely and conveys an intent to “shif[t] the distribution of proportionate sentences” (R. v. Sheppard, 2025 SCC 29, at para. 73, quoting Friesen, at para. 97; see also Friesen, at paras. 98-100). Parliament therefore sent an unequivocal message: this is an “extremely grave” offence (R. v. Ramelson, 2021 ONCA 328, 155 O.R. (3d) 481, at para. 102, aff’d on other grounds, 2022 SCC 44, [2022] 3 S.C.R. 450).
[43] Second, Parliament doubled the mandatory minimum sentence for each subsequent offence. Repeat offenders would now be liable to a one-year sentence (s. 286.1(2)(b) Cr. C.). By doing so, Parliament raised by another notch the priority given to the objectives of denunciation and deterrence in the context of sexual commodification of children. During the parliamentary debates, the Minister of Justice had in fact made these objectives explicit by explaining that the increase in sentences was meant to “send a clear message to those who exploit vulnerable persons and, in particular, inflict trauma and revictimization on women and children” (House of Commons Debates, vol. 147, No. 101, 2nd Sess., 41st Parl., June 11, 2014, at p. 6654 (Hon. P. MacKay)).
[44] Third, the reform carried out in 2014 removed this offence from Part VII of the Criminal Code, which deals with “Disorderly Houses, Gaming and Betting”, and added it to Part VIII, which concerns “Offences Against the Person and Reputation”. This change marked a fundamental paradigm shift. In Parliament’s view, prostitution must no longer be treated as merely a kind of “nuisance”, but rather as what it really is, “a form of exploitation” (House of Commons Debates, June 11, 2014, at p. 6653; see also R. v. Kloubakov, 2025 SCC 25, at para. 21). Therefore, the objective is no longer to protect good morals, but rather to severely punish interference with the bodily and psychological integrity of victims and to denounce both the objectification and the commodification of the human body. The arsenal of the criminal law is truly being used to uphold the dignity of victims, which is gravely wounded by offences related to the commodification of sexual services (Friesen, at paras. 55-56; Protection of Communities and Exploited Persons Act, preamble).
[45] Thus, the legislative amendments that have shaped the history of this offence show a clear evolution in Canadian society’s understanding of the gravity and harmfulness of the sexual commodification of children as well as Parliament’s desire to have this understanding reflected in the sentences imposed on offenders.
(2) The Crime of Obtaining Sexual Services From a Person Under the Age of 18 Years Involves Two Related Forms of Exploitation and Perpetuates Pre-existing Inequalities
[46] The offence of obtaining sexual services from a child for consideration is a particularly heinous crime. At the risk of repeating ourselves, there is no question that, in general, sexual offences against children “are among the most profoundly immoral acts an individual can commit” (Sheppard, at para. 1). Indeed, sexual abuse of children constitutes exploitation of a highly vulnerable population (Friesen, at para. 65).
[47] However, the sexual exploitation of a child is even more serious when it occurs in a context of commodification of sexual activity. In addition to being subjected to the exploitation that is inherent in all sexual abuse of children, the child is subjected to an additional form of exploitation: the commodification of their body. This crime must therefore be understood as being doubly exploitative.
[48] The sexual commodification of children contributes to their dehumanization. It is a “paradigm of serious wrongdoing” that “is a universally accepted wrong” (Alcorn, at para. 42). When a child is subjected to this type of abuse, it turns them into a mere sexual object for the gratification of adults’ sexual desires (Friesen, at paras. 78 and 89; Alcorn, at para. 43; see, by analogy, the comments of L’Heureux-Dubé, Gonthier and Bastarache JJ. in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 183). It is therefore hardly surprising that Canadian law has long recognized the specific evil represented by the sexual commodification of children as well as the need to suppress it and to severely punish the adults who create the demand for it by participating in it. Indeed, as we indicated above, the Criminal Code has expressly prohibited obtaining sexual services from a minor since 1988 (formerly s. 212(4) Cr. C., now s. 286.1(2) Cr. C.).
[49] The sexual commodification of children offends the basic code of values of Canadian society (Friesen, at para. 65). This crime reflects the fact that children are “some of the most vulnerable members of our society” and that they “deserve to enjoy a childhood free of sexual violence” (para. 1). The legislative scheme of sexual offences against children was created to protect their fundamental rights, that is, their personal autonomy, their bodily and sexual integrity, their dignity and their equality. Sexual violence causes serious physical, emotional and psychological harm to the children who are its victims. Such violence can “interfere with children’s self-fulfillment and healthy and autonomous development to adulthood” (Friesen, at para. 58; see also Sharpe, at paras. 158, 184-85 and 188, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at §12.64). Moreover, sexual violence causes harm not only to the direct victim of the offence, but also to families, communities and society more generally (Friesen, at para. 62).
[50] But there is more. Another aspect of this crime that is both important and salient cannot be ignored: it disproportionately affects certain segments of the population that are particularly vulnerable.
[51] In Friesen, our colleagues Wagner C.J. and Rowe J. made a point of saying that the sexual abuse of children disproportionately affects young girls and Indigenous persons (paras. 68-70). In fact, as they stated in their reasons, studies and statistics show that, in 2012, “81 percent of child and youth victims of police-reported sexual offences were female” (para. 68) and that Indigenous persons, too, “experience childhood sexual violence at a disproportionate level” (para. 70 (emphasis added)).
[52] The profile of the main victims of the sexual commodification of children matches the above description. For example, in Manitoba, “[m]ore than 70% of the children involved in the child sex industry . . . are Indigenous, with the majority of them being girls” (Alcorn, at para. 20). The Attorney General of Quebec, for his part, notes in his factum that victims are often young girls who have run away from youth protection centres and have mental health and addiction issues (A.F., at para. 3; Chrismas, at pp. 80-82; see also Friesen, at para. 71). The violence suffered by these groups has the effect of perpetuating pre-existing disadvantages; it undermines gender equality and equality between Indigenous and non-Indigenous persons (Friesen, at paras. 68 and 70). The sexual commodification of children also serves as a gateway to adult prostitution. Indeed, “[t]he average age of entry into the sex industry in Canada was fourteen years old” (Chrismas, at p. 48).
[53] The disproportionate impact of this crime on highly vulnerable populations must be taken into account in order (1) to properly understand both its harmfulness and its wrongfulness and (2) to recognize the legitimate interests that the legislative scheme is meant to protect (Friesen, at para. 50). As we emphasize in these reasons, the offence of obtaining sexual services from a person under the age of 18 years for consideration is a veritable scourge with devastating consequences both for victims and for society more generally. The state therefore has every interest in severely punishing it.
(3) The Offence of Obtaining Sexual Services From a Person Under the Age of 18 Years Captures Only Persons Whose Conduct Is Inherently Wrongful and Whose Moral Blameworthiness Is Necessarily High
[54] In argument before us, Mr. Denis focuses on the two ways in which a person may incur criminal liability under s. 286.1(2)(a) Cr. C.: either by obtaining the sexual services of a child or by communicating for the purpose of obtaining them. While he admits that [translation] “in both contexts, the objective gravity of the offence is undeniable”, Mr. Denis nevertheless submits that these two modes of commission mean that “moral responsibility can vary significantly” (R.F., at para. 41). He states in particular that this offence can [translation] “encompass an array of conduct of varying gravity” (para. 48) and that the advent of websites for sharing explicit content makes it possible to solicit sexual services online, “sometimes without organized exploitation in the classic sense” (para. 51).
[55] It is true that s. 286.1(2) Cr. C. specifies two different ways of committing this offence. The accused either obtains sexual services from a child for consideration or communicates for the purpose of obtaining them. In the latter scenario, the offence is inchoate (Alcorn, at paras. 54-55, quoting R. v. Chiang, 2012 BCCA 85, 286 C.C.C. (3d) 564, at para. 18). Given that communication can occur by various means in a variety of contexts, the commission of this offence may involve different degrees of blameworthiness.
[56] That being said, while it is true that this offence can be committed in a variety of circumstances, there should be no misapprehension as to the degree of variability that may exist in the blameworthiness of the offenders who commit this offence. This crime is heinous because it necessarily involves the intent to sexually abuse a child for consideration. As we have already noted, a child who is a victim of this offence is simultaneously subjected to two forms of serious exploitation. Any analysis of an offender’s blameworthiness must therefore start from the premise that their blameworthiness is very high. This will always be the case, regardless of the circumstances in which the offence is committed. Naturally, this does not mean that all offenders who commit this offence will have the same degree of blameworthiness. However, even when it is committed in the “least serious” circumstances, the degree of blameworthiness involved in this offence is high.
[57] Indeed, establishing the mens rea requires proving that the offender communicated with someone with the specific intent of obtaining sexual services for consideration from someone they knew to be under the age of 18 years. In other words, this offence always results from an unconscionable desire by the offender to subject the victim, whom the offender knows to be a minor, to sexual exploitation and the commodification of their body. In short, the fact that the offender does not ultimately obtain sexual services from the child (because the offender either changes their mind or is arrested before being able to obtain them) does not diminish their blameworthiness. Obtaining sexual services merely aggravates an offence that is already very serious (see Faroughi, at para. 116). In fact, “[the absence of a specific victim] does not detract from the degree of responsibility of the offender for that offence”, since the absence of an aggravating factor “is not a mitigating factor” (Friesen, at paras. 93 and 150).
[58] Similarly, where a charge results from a police sting operation, this does not diminish the offender’s moral blameworthiness, because the accused cannot “take . . . credit” for the absence of a specific victim (Friesen, at para. 93). Sexual offences committed against children are never considered “victimless” crimes, since people feed the market that profits from their exploitation (Sharpe, at para. 103). Police sting operations have become a crucial tool for detecting offenders and thus for protecting the children who could potentially become their victims (Friesen, at para. 94). It is important to remember that sexual violence against children is often “hidden, unreported, and under-recorded” (para. 67). The child sex trafficking industry prospers because it is “strategically invisible” (Alcorn, at para. 20, quoting Chrismas, at p. 31). . Quebec (Attorney General) v. Denis
In Quebec (Attorney General) v. Denis (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec CA ruling that found a mandatory minimum sentence for conviction under s.286.1(2)(a) ['Obtaining sexual services for consideration from person under 18 years'] was invalid under Charter 12 ['Treatment or punishment' (cruel and unusual)].
Here the court criticizes the use of the term 'sex worker' in the child prostitution context:A. The Duty of Courts to Avoid Using Euphemisms to Describe Sexual Offences Committed Against Children
[28] Before we get to the heart of the analysis, it is important to briefly address the language used by Mr. Denis in the sixth scenario he proposed before all levels of court (see amended motion (reproduced in A.R., vol. I, at pp. 74-104), at para. 115). In this scenario, the victim, a child, is described as a “sex worker”. The Attorney General sharply criticized the use of this terminology both in his factum and in his oral submissions before this Court. We agree with these criticisms.
[29] Let us be clear from the start: terms like “sex worker” ought not to be used in describing children who are victims of sexual commodification. These terms greatly trivialize the gravity of the crime and do nothing but obscure the true nature of the exploitative relationship that exists between the victims of this crime and the offenders who commit it.
[30] In Alcorn, Mainella J.A. rightly pointed out the problem with using such euphemisms:Language is an important part of the discussion of sexual offences against a child; as was said in Friesen, “sentencing is a communicative process, the language that sentencing judges use matters” (at para 147). I have used the term “child” to describe D.R. and anyone else under the age of 18. I have refrained from using the terms “sex work,” “sex worker,” “sex trade,” “customer” or “client” as such words blur the exploitative nature of the child sex industry. [Emphasis added; para. 10.] [31] We agree with the position expressed by Mainella J.A., which is entirely consistent with our Court’s instructions in Friesen and R. v. Bertrand Marchand, 2023 SCC 26. As Martin J. noted in the latter case, “[t]aking a critical look at the language used to describe sexual violence experienced by children is essential to adequately reflect the wrongfulness and the harmfulness of these offences” (para. 64).
[32] The expression “sex worker” implies the exercise of some choice, as if obtaining sexual services from a child were just one economic transaction among others. In this context, sexual relations between a child and an adult are, by their nature, a form of exploitation to which the child cannot consent (Bertrand Marchand, at para. 68; Friesen, at para. 53; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 26).
[33] But apart from the fact that sexual relations between children and adults are inherently exploitative, the use of the term “sex worker” to describe the phenomenon of sexual commodification of children obscures another important factor: the victims are highly vulnerable. The victims are often persons from disadvantaged backgrounds whose socio-economic situation is precarious and who have already experienced sexual abuse (R. Chrismas, Sex Industry Slavery: Protecting Canada’s Youth (2020), at pp. 48-49). They frequently struggle with alcohol and drug addiction problems, have mental health issues or are homeless (Bedford v. Canada (Attorney General), 2010 ONSC 4264, 102 O.R. (3d) 321, at para. 133; R. v. Gudmandson, 2018 MBPC 31, at para. 39; see, e.g., Alcorn, at para. 3; R. v. Ackman, 2017 MBCA 78, 354 C.C.C. (3d) 172, at para. 11). As a result, many of them engage in child prostitution simply to meet their basic needs. In this regard, the cases canvassed by the intervener the Attorney General of Manitoba in his factum are particularly revealing: sexual services are provided by victims in exchange for lodging and food, or for alcohol and drugs to which they are already addicted (paras. 22-39).
[34] Mainella J.A. was therefore entirely right to point out in Alcorn that “[t]he child sex industry is involuntary” and that it is “a myth to conflate sexual exploitation with the legitimate provision of labour” (para. 20 (emphasis added); see also Chrismas, at pp. 13 and 44). It is imperative to avoid suggesting that a child’s participation in the commodification of sexual activity may be a “choice” of some kind.
[35] In this regard, while we sometimes use the expression “sexual services” in these reasons to echo the language of s. 286.1(2) Cr. C., it is important to bear in mind that adults who seek sexual contact with children for consideration are not trying to obtain a mere “service”: they are participating in the dynamic of exploitation we have just discussed.
[36] Finally, one last point must be made. We want to stress that nowhere in its analysis did the Court of Appeal itself use the kind of language that trivializes what we have just described. On the contrary, the Court of Appeal’s judgment is entirely exemplary in this regard. The court spoke of the need to denounce offences [translation] “of a sexual nature committed against children” and referred to the “context of sexual exploitation of minors at the hands of adults”. In addition, it noted, children who are victims of this crime suffer especially serious consequences, as they are [translation] “at a crucial stage in their development”, and “their vulnerability is heightened as a result” (para. 52). Thus, there can be no doubt that the Court of Appeal’s reasons contribute fully to the “communicative and educative role of law” (Friesen, at para. 105). . Quebec (Attorney General) v. Denis [mandatory minimum sentencing]
In Quebec (Attorney General) v. Denis (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec CA ruling that found a mandatory minimum sentence for conviction under s.286.1(2)(a) ['Obtaining sexual services for consideration from person under 18 years'] was invalid under Charter 12 ['Treatment or punishment' (cruel and unusual)].
Here the court summarizes this Supreme Court of Canada case:[1] There is no doubt that the sexual commodification of children is a veritable scourge in Canada, one that the state has every interest in suppressing and severely punishing. Indeed, any sexual offence committed against a child involves an intolerable interference with their personal autonomy and their bodily and psychological integrity.
[2] But while it is undeniable that all sexual offences committed against children necessarily entail a risk of serious bodily and psychological harm, this risk is even more pronounced in the context of the commodification of sexual activity, where the worst forms of violence, coercion and abuse are commonplace. As recognized by the preamble to the Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25, sexual commodification inherently constitutes a form of serious exploitation that causes significant societal harm and undermines human dignity and equality.
[3] The iniquitous nature of this crime becomes even more apparent when one considers that this commodification disproportionately affects people who are already among the most vulnerable in our society: young girls, and, in some provinces, young Indigenous girls in particular (I.F., Attorney General of Manitoba, at paras. 14 et seq.; R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at para. 2, leave to appeal refused, [2022] 1 S.C.R. vi; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 68 and 70).
[4] There is no question that offenders who help create the demand for the sexual commodification of children always have a high degree of moral blameworthiness, since they make a conscious and intentional choice to contribute to the exploitation of victims who are clearly highly vulnerable. By participating in this abhorrent practice, they undermine one of the most cherished and fundamental values of Canadian society, the protection of children (Friesen, at para. 65).
[5] As Mainella J.A. of the Manitoba Court of Appeal aptly explained, “[a]t its core, the wrongfulness of child prostitution is a denial of a child’s humanity; the sexual relationship between the exploiter and the child is one of objectification where the powerful party, the exploiter, converts the child to an object to be sexually dominated” (Alcorn, at para. 43).
[6] This appeal requires the Court to consider the constitutional validity of the mandatory minimum sentence of six months’ imprisonment for the offence of obtaining sexual services — and consequently for its inchoate offence of communicating for the purpose of obtaining sexual services — from a person under the age of 18 years for consideration,[1] a sentence provided for in s. 286.1(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”).
[7] In this case, the Quebec Court of Appeal found that the mandatory minimum sentence was a fit sentence for the respondent, Mario Denis. It nevertheless held that the sentence infringed s. 12 of the Canadian Charter of Rights and Freedoms, because it would be grossly disproportionate if imposed on the offender in one of the scenarios proposed by Mr. Denis.
[8] For the reasons that follow, we would allow the appeal of the Attorney General of Quebec, overturn para. 8 of the judgment of the Quebec Court of Appeal and set aside the declaration that the mandatory minimum sentence is constitutionally invalid. Respectfully, the Court of Appeal erred in law in finding that the sentence would be grossly disproportionate in the reasonably foreseeable scenario it considered.
|
