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Criminal - Sex Trade - General. R. v. Kloubakov [recent history; with Bedford]
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, respectively] 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 summarizes the recent history of the Canadian law regarding sale of sexual services, particularly the Bedford case and the subsequent Protection of Communities and Exploited Persons Act (PCEPA):[1] Just over a decade ago, in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, this Court held that several criminal offences related to the sale of sexual services infringed s. 7 of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1. At the time, the exchange of sex for money was not a crime. The offences were declared unconstitutional because they restricted the legal activity of selling sexual services in a way that prohibited sex workers from taking safety measures, such as selling sex from fixed indoor locations and hiring drivers and bodyguards, thereby putting their lives and safety at risk. The Court’s declaration of invalidity was suspended for one year to give Parliament time to respond.
[2] Parliament responded to Bedford by enacting Bill C-36, the Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25 (“PCEPA”). The PCEPA adopted a new paradigm to regulate the sale of sexual services based on the “Nordic Model” used in several Scandinavian countries. That model regards the sale of sexual services as a form of sexual exploitation and seeks to reduce, and ultimately eliminate, the demand for it. For the first time in Canadian law, the PCEPA made purchasing sex a crime. The PCEPA also created several other criminal offences, including the two offences challenged in this appeal: receiving a material benefit from sexual services (Criminal Code, R.S.C. 1985, c. C-46, s. 286.2), and procuring a person to offer or provide sexual services for consideration (s. 286.3). The preamble to the PCEPA, as well as the current versions of the new Criminal Code provisions, are reproduced in the Appendix.
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II. Bedford
[5] In Bedford, this Court held that three provisions criminalizing activities related to the sale of sexual services that were challenged by current and former sex workers infringed s. 7 of the Charter and could not be justified under s. 1. At the time, the Court emphasized, the exchange of sex for money was not a crime (paras. 1, 5, 59, 87 and 89). Even so, the Criminal Code restricted where and how the sale of sexual services could take place through three offences: a bawdy-house offence (s. 210); a living on the avails of prostitution offence (s. 212(1)(j)); and a communicating offence (s. 213(1)(c)).
[6] The bawdy-house offence (s. 210) made it illegal to keep a common bawdy-house, to be an inmate of a common bawdy-house, to be found in a common bawdy-house without lawful excuse, or to be the owner, landlord, lessor, tenant, or occupier of a place who knowingly permitted it to be used as a common bawdy-house. A “common bawdy-house” was defined under s. 197(1) of the Criminal Code as a place that was kept or occupied or resorted to by one or more persons for the purpose of prostitution or acts of indecency.
[7] The living on the avails offence (s. 212(1)(j)) made it illegal to live wholly or partly on the avails of the prostitution of another person.
[8] Finally, the communicating offence (s. 213(1)(c)) made it illegal to stop or attempt to stop or in any manner communicate or attempt to communicate with any person for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute.
[9] McLachlin C.J., speaking for the Court in Bedford, held that all three offences engaged the rights of sex workers to security of the person under s. 7 of the Charter. They did so, she ruled, “by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks” (para. 60 (emphasis in original)). McLachlin C.J. drew an analogy “to a law preventing a cyclist from wearing a helmet” (para. 87), which would make the lawful activity of cycling more dangerous by preventing cyclists from trying to protect themselves.
[10] The bawdy-house offence had the practical effect of limiting the lawful sale of sexual services to street sex work and out-calls (where the sex worker meets the client at a designated location), and of prohibiting in-calls (where the client comes to a fixed indoor location such as the sex worker’s home or a safe house), even though street sex work and out-calls are materially more dangerous than in-calls (paras. 62-64).
[11] The bawdy-house and living on the avails offences also prevented sex workers from taking safeguards to reduce risks to their personal safety, such as hiring receptionists, assistants, drivers, and bodyguards, and using audio room monitoring (paras. 64 and 66-67).
[12] Finally, the communicating offence prohibited street sex workers from engaging in face-to-face communication with their clients, thus depriving them of an “essential tool” to screen clients for intoxication or propensity to violence, or from setting terms for the use of condoms, thus exposing them to significantly greater risks (paras. 68-71).
[13] McLachlin C.J. ruled that all three offences also infringed the principles of fundamental justice under s. 7 of the Charter.
[14] The bawdy-house offence was grossly disproportionate to its objectives because it prevented sex workers from working from fixed indoor locations. It created risks to the personal safety of sex workers that were totally “out of sync” with the objective of preventing community harms involving the nuisance arising from the sale of sexual services, such as neighbourhood disruption or disorder (paras. 120 and 130-32).
[15] The communicating offence was also grossly disproportionate to its objectives because it deprived street sex workers of the ability to screen customers in face-to-face interactions, creating risks to their personal safety that were a grossly disproportionate response to the nuisance caused by street sex work (paras. 146-59).
[16] Finally, the living on the avails offence was overbroad because it criminalized some conduct that bore no relation to the purpose of the offence to prevent the exploitation of sex workers. It did not distinguish between people who exploit sex workers, such as pimps living parasitically on a sex worker’s earnings, and others who could increase their safety and security, such as legitimate drivers, managers, or bodyguards (paras. 137-45).
[17] The Court held (at para. 162) that the infringements of s. 7 could not be justified under s. 1 of the Charter. The living on the avails offence did not minimally impair s. 7 rights because it applied to non-exploitative relationships, such as receptionists or accountants who work with sex workers. The law’s deleterious effect of preventing sex workers from taking safety measures also outweighed its positive effect of protecting them from exploitative relationships.
[18] Although all three offences were found to be unconstitutional, the Court suspended its declaration of invalidity for one year to allow Parliament time to respond to the Court’s decision (para. 169).
[19] McLachlin C.J. closed her reasons by cautioning that the Court’s ruling “does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted” (para. 165). As she explained, “[t]he regulation of prostitution is a complex and delicate matter”, and “[i]t will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime” (para. 165). McLachlin C.J. also noted that “[h]ow prostitution is regulated is a matter of great public concern, and few countries leave it entirely unregulated” (para. 167).
III. Parliament’s Response to Bedford: The Protection of Communities and Exploited Persons Act
[20] Parliament responded to Bedford within the one-year period of suspended invalidity by enacting Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts, 2nd Sess., 41st Parl., 2014, whose short title is the Protection of Communities and Exploited Persons Act (“PCEPA”). The PCEPA, which received royal assent on December 6, 2014 and came into force 30 days later, amended or repealed the three offences found to be unconstitutional in Bedford. These offences had formerly been included under Part VII of the Criminal Code, “Disorderly Houses, Gaming and Betting”. In their place, the PCEPA enacted four new offences that are now included in Part VIII, “Offences Against the Person and Reputation”, under a new heading “Commodification of Sexual Activity”.
[21] The new measures were explained in a Technical Paper released by the Department of Justice Canada with the legislation (Technical Paper: Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts (Protection of Communities and Exploited Persons Act) (2014)). The Technical Paper described the PCEPA as a “paradigm shift away from the treatment of prostitution as ‘nuisance’, as found by the Supreme Court of Canada in Bedford, toward treatment of prostitution as a form of sexual exploitation that disproportionately and negatively impacts on women and girls” (p. 3). The PCEPA adopted a version of the “Nordic Model”, so named because in 1999 Sweden had adopted “a legislative approach to prostitution that views the practice as a form of sexual exploitation by targeting those who create the demand for it and those who capitalize on that demand” (p. 12). Sweden’s approach was to criminalize the purchase of sexual services and to promote the abolition of sex work itself (D. M. Haak, “Two Different Conceptions of Equality: Arguments About the Constitutionality of Commercial Sex Laws in Canada” (2024), 2 S.C.L.R. (3d) 117, at p. 121). Over the last 25 years, similar approaches have been adopted in Norway, Iceland, Northern Ireland, Ireland, France, and Israel, and have been endorsed elsewhere in Europe (Technical Paper, at p. 12; see also D. M. Haak, “Revisiting the Analytical Distinction Between Section 7 and Section 1 of the Charter: Legislative Objectives, Policy Goals and Public Interests” (2023), 112 S.C.L.R. (2d) 115, at p. 132).
[22] The Technical Paper noted that the PCEPA seeks “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” (p. 3).
[23] The PCEPA created four new offences that were added to the Criminal Code: (1) a purchasing offence of purchasing sexual services or communicating for that purpose (s. 286.1); (2) a material benefit offence of receiving a financial or other material benefit knowing that it was obtained from the commission of the purchasing offence, subject to certain exceptions (s. 286.2); (3) a procuring offence of procuring a person to offer or provide sexual services for consideration or, for the purpose of facilitating the purchasing offence, recruiting, holding, concealing, or harbouring a person who offers or provides sexual services for consideration or exercising control, direction, or influence over the movement of that person (s. 286.3); and (4) an advertising offence of knowingly advertising an offer to provide sexual services for consideration (s. 286.4). In addition, persons selling or advertising their own sexual services are protected by an immunity from criminal prosecution (s. 286.5).
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[154] Finally, we agree with the appellants that the morality of sex work is not relevant to whether the impugned provisions engage the security of the person of sex workers. Relatedly, whether the purposes of the impugned provisions are invalid for being based on the erroneous premise that sex work is inherently exploitative is not relevant either. As this Court has noted, the justification of the public policy goal of impugned legislation is at the heart of the justification analysis under s. 1 of the Charter, “but it plays no part in the s. 7 analysis, which is concerned with the narrower question of whether the impugned law infringes individual rights” (Bedford, at para. 125; see also R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374, at paras. 71-72).
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