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Criminal - Sex Trade - Protection of Communities and Exploited Persons Act (PCEPA). R. v. Kloubakov
In R. v. Kloubakov (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, this from an Alberta CA ruling that allowed a Crown appeal against an Alberta QB decision in which "the trial judge held that these offences [SS: 'receiving a material benefit from sexual services and of procuring': CCC 286.2 and 286.3] prohibited the safety measures contemplated in Bedford [SS: Canada (Attorney General) v. Bedford (SCC, 2013)] and therefore infringed s. 7 of the Charter".
Here the court canvasses the Protection of Communities and Exploited Persons Act (PCEPA), a federal statutory 2014 amendment which embodies the current criminal law regarding the trade in sexual services:(2) The Purposes of the PCEPA
[63] To interpret the impugned provisions harmoniously with the statutory scheme as a whole as required under the modern principle, we begin by considering the purposes of the PCEPA.
[64] The Alberta Court of Appeal agreed with the Ontario Court of Appeal in N.S. that the PCEPA has three purposes: to reduce the demand for prostitution; to prohibit the promotion of the prostitution of others; and to mitigate some of the dangers associated with the unlawful sale of sexual services. The Alberta Court of Appeal (at para. 48), quoting N.S. (at paras. 59 and 63), described the three purposes of the PCEPA as follows:... first, to reduce 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, in order to protect communities, human dignity and equality; second, to prohibit the promotion of the prostitution of others, the development of economic interests in the exploitation of the prostitution of others, and the institutionalization of prostitution through commercial enterprises in order to protect communities, human dignity and equality; and, third, to mitigate some of the dangers associated with the continued, unlawful provision of sexual services for consideration. In particular, Parliament’s latter objective is to ensure that, as much as possible, persons who continue to provide their sexual services for consideration, contrary to law, can avail themselves of the safety-enhancing measures identified in Bedford and report incidents of violence, without fear of prosecution.
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... the safety-related purpose of the PCEPA (beyond the protection of communities, human dignity and equality, through its first and second purposes) [is] limited to ensuring that persons who continue to provide their sexual services for consideration, contrary to law, can avail themselves of the safety-enhancing measures identified in Bedford and report incidents of violence. [65] Both courts of appeal identified these three purposes by reviewing the legislation as a whole (including the preamble) and extrinsic evidence (such as the legislative history, parliamentary debates, and the Technical Paper), which are relevant sources for determining the purpose of legislation (R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at paras. 31-32; Rizzo, at para. 35; Sullivan, at § 9.03; P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at paras. 1352-60).
[66] We would reformulate the Alberta and Ontario courts of appeal’s statement of the purposes of the PCEPA for two reasons. First, as this Court recently emphasized in R. v. Ndhlovu, 2022 SCC 38, “[t]he law’s purpose should be succinct, precise, and characterized at the appropriate level of generality, which ‘resides between the statement of an “animating social value” — which is too general — and a narrow articulation’ that amounts to a virtual repetition of the challenged provision, divorced from its context” (para. 62, quoting R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 27, quoting Moriarity, at para. 28). With respect, the three purposes articulated by the Alberta and Ontario courts of appeal are not sufficiently succinct or precise and involve a summary of the animating social values of the PCEPA.
[67] Second, as this Court also emphasized in Ndhlovu, “[a] law’s purpose is distinct from the means used to achieve that purpose” (para. 63, citing Safarzadeh-Markhali, at para. 26, and Moriarity, at para. 27). The three purposes identified by the Alberta and Ontario courts of appeal do not reflect this distinction and combine purposes and means.
[68] In order to frame the purposes of the PCEPA more succinctly and to maintain the essential distinction between purpose and means, we would identify the PCEPA as having two, rather than three, purposes: (1) to reduce the demand for sex work; and (2) to protect sex workers from the risks of violence, abuse, and exploitation associated with the sex work industry. The second purpose has two aspects: (a) to protect sex workers from third parties who commercialize the sale of sexual services; and (b) to allow sex workers to protect themselves from the dangers posed by purchasers of sexual services. We discuss these purposes below.
(a) Reducing the Demand for Sex Work
[69] The first purpose of the PCEPA is to reduce the demand for sex work. This purpose is pursued under the legislation with a view to discouraging entry into the commercial sex trade, deterring participation in it, and ultimately abolishing it to the greatest extent possible, in order to protect individuals, communities, human dignity, and equality.
[70] This purpose is reflected in the new purchasing and advertising offences, which aim to curb sex work by criminalizing the demand side of the commercial sex trade. It is underscored in the PCEPA’s preamble, which must “be read as part of the enactment intended to assist in explaining its purport and object” (Interpretation Act, R.S.C. 1985, c. I-21, s. 13). A preamble is “considered an integral part” of a statute and helps communicate the legislative purpose or the “mischief” the Act is designed to cure (Sullivan, at § 14.03[1] and [2]; Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, at para. 42; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at paras. 60-61; K. Roach, “The Uses and Audiences of Preambles in Legislation” (2001), 47 McGill L.J. 129, at pp. 152-53; see also R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at para. 14; R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 91). The first four recitals of the preamble state that the legislation seeks to reduce and ultimately eliminate the commercial sex trade, and with it the social harm, violence, and exploitation of marginalized and vulnerable persons, especially women and children, that Parliament sees as inherent in sex work:Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it;
Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity;
Whereas it is important to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children;
Whereas it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution[.] [71] The Technical Paper similarly describes the PCEPA as involving a “paradigm shift” from the treatment of sex work as a “nuisance”, to the view that it is “a form of sexual exploitation that disproportionately and negatively impacts . . . women and girls” (p. 3). It notes that the legislation maintains that “the best way to avoid prostitution’s harms is to bring an end to its practice” (p. 4).
[72] The Minister of Justice and Attorney General of Canada, the Hon. Peter MacKay, underscored these concerns at the second reading debate on Bill C-36 before the House of Commons (House of Commons Debates, vol. 147, No. 101, 2nd Sess., 41st Parl., June 11, 2014, at pp. 6652-55). He noted that the commercial sex industry disproportionately affects women and girls, particularly from Indigenous communities, and poses risks of coercion, exploitation, and violence by purchasers and third parties, which the legislation aims to address by prohibiting the commercial sex trade. As he explained: “The purchasing offence targets the demand for prostitution, thereby making prostitution an illegal activity, and to complement this offence, the advertising offence targets the promotion of this exploitative activity, thereby furthering the legislation’s overall objective of reducing the demand for sexual services” (p. 6653).
[73] The Minister of Justice also highlighted that “prostitution is an extremely dangerous activity” that “regularly involves physical violence, sexual violence, forc[ible] confinement, and drugs, and involvement in prostitution often causes post-traumatic stress disorder, which can result in permanent harm” (p. 6655). He noted that it also harms communities, including “children witnessing acts of prostitution, harassment of residents, unsanitary acts, and unwelcome solicitation of children by johns” (p. 6655).
(b) Protecting the Safety of Sex Workers
[74] The second purpose of the PCEPA is to protect sex workers from the risks of violence, abuse, and exploitation associated with the sex work industry. This purpose has two aspects: (a) to protect sex workers from third parties who commercialize the sale of sexual services; and (b) to allow sex workers to protect themselves from the dangers posed by purchasers of sexual services. Both aspects seek to protect individuals, communities, human dignity, and equality.
[75] The first aspect of the safety-related purpose is reflected in the material benefit, procuring, and advertising offences. All three offences recognize that third parties who profit from the sale of the sexual services of others cause, perpetuate, and exploit the harms of the commercial sex trade, including the risk of violence and abuse arising from third parties who commercialize sex work. Parliament considers that exploitation arises whenever a third party profits from the sale of the sexual services of another person. This aspect was highlighted by the Minister of Justice at the second reading of Bill C-36 (at pp. 6653-54), in the Technical Paper (at pp. 6-9), and in the fifth recital of the PCEPA’s preamble, which provides:Whereas it is important to continue to denounce and prohibit the procurement of persons for the purpose of prostitution and the development of economic interests in the exploitation of the prostitution of others as well as the commercialization and institutionalization of prostitution[.] [76] This aspect of the PCEPA’s safety-related purpose was carried over from the pre-Bedford regime, which had broadly criminalized “living on the avails of prostitution” to “target pimps and the parasitic, exploitative conduct in which they engage” (Bedford, at para. 137). Indeed, protecting sex workers from parasitic third parties has been a purpose of Canadian legislation regulating the sale of sexual services since the late 1800s (Crankshaw’s Criminal Code of Canada, R.S.C. 1985 (rev. ed. (loose-leaf)), at §§ 179:HIST, 197:HIST, 212:HIST and 213:HIST). The insight of Bedford, however, was that this purpose cannot be pursued at the cost of prohibiting sex workers from protecting themselves.
[77] This contextualizes the second aspect of the PCEPA’s safety-related purpose, to allow sex workers to protect themselves from the dangers posed by purchasers of sexual services. Although purchasing sexual services is now illegal and Parliament’s objective remains to eliminate the commercial sex trade to the fullest extent possible, Parliament has also recognized that Bill C-36’s “transformational paradigm shift will take time to realize”, because “changing social attitudes can be a long process” (Technical Paper, at p. 10). Parliament has therefore recognized under the PCEPA that “some will remain at risk of, or subjected to, exploitation” through sex work “while this transformation occurs” (p. 10).
[78] Bill C-36 focuses law enforcement’s attention on the demand side of the sex trade and on persons who exploit individuals selling sexual services. It also provides persons who sell their own sexual services with an immunity from prosecution and allows them to take the protective measures identified in Bedford, which include “selling sexual services from fixed indoor locations, hiring persons who may serve to enhance safety and negotiating safer conditions for the sale of sexual services in public places” (Technical Paper, at pp. 10-11). Subject to the exceptions to the exceptions in s. 286.2(5), such protective measures are permitted under the exceptions to the material benefit offence in s. 286.2(4). For example, under s. 286.2(4)(a) or (c), sex workers can provide sexual services from fixed indoor locations, including their own homes. Similarly, under s. 286.2(4)(c) or (d), sex workers can employ third parties to protect their safety, such as bodyguards, receptionists, or managers.
[79] An essential safety-related purpose of Bill C-36 is to address the safety concerns identified in Bedford in the larger context of all the harms, risks, and dangers associated with sex work, which is now contrary to law. As the Minister of Justice explained before the House of Commons:The proposed approach has been carefully tailored to address the specific vulnerability of those involved. The material benefit offence strikes a careful balance and ensures that those who sell their own sexual services have the same ability to interact with others as anyone else, while also recognizing the dangers, harms, and risks involved in allowing the development of economic interests in others’ prostitution. [p. 6654] [80] In addition, the sixth recital of the preamble notes that, under the PCEPA, Parliament “wishes to encourage those who engage in prostitution to report incidents of violence and to leave prostitution”. This is done, the Minister of Justice stated, through the new immunities from prosecution for persons who sell their own sexual services, which serve to “recogniz[e] the vulnerability” of such persons (p. 6654).
[81] Having identified the two purposes of the PCEPA as a whole, we now address the appellants’ specific arguments as to whether the material benefit offence in s. 286.2 and the procuring offence in s. 286.3 prevent sex workers from taking the safety measures identified in Bedford.
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