|
Criminal - Sex Trade - Immunity [CCC 286.5]. 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 immunity provision [CCC 286.5] in relation to the trade in sexual services, particularly as it relates to cooperatives:E. Immunity From Prosecution for a Person Selling or Advertising Their Own Sexual Services (Section 286.5)
[34] Although the PCEPA creates several offences, s. 286.5(1) provides that individuals who receive a material benefit from, or advertise, their own sexual services are immune from criminal prosecution. The legislation adopts an “asymmetrical approach” that “criminalizes the purchase but not the sale of sexual services” (Technical Paper, at p. 9). Section 286.5(2) similarly provides an immunity from prosecution to a person who aids, abets, conspires, or attempts to commit any of the offences in ss. 286.1 to 286.4, if the offence relates to the person’s own sexual services. Section 286.5 provides:286.5 (1) No person shall be prosecuted for
(a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services; or
(b) an offence under section 286.4 in relation to the advertisement of their own sexual services.
(2) No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services. ....
[96] First, an individual selling their own sexual services, whether independently or cooperatively with others, is not subject to criminal prosecution under the PCEPA. In such circumstances, no third party profits from the commodification of the sexual services of another person. Persons who sell their own sexual services would keep the proceeds from their activities and would benefit from the immunity from prosecution provided under s. 286.5. We therefore agree with the Technical Paper that a “commercial enterprise” cannot capture “individuals who sell their own sexual services, whether independently or cooperatively, from a particular location or from different locations” (p. 8; see also N.S., at para. 75).
....
[153] It also bears noting that the hypothetical but reasonably imaginable situation of sex workers operating through a cooperative had been proposed by the accused in N.S. to argue that such a cooperative would be a “commercial enterprise” under s. 286.2(5)(e), and thus in support of the accused’s argument that the material benefit offence infringed s. 7 of the Charter (see paras. 32 and 71‑74). As we have noted, the Ontario Court of Appeal correctly rejected that argument on the basis that such a sex worker cooperative would not be a “commercial enterprise” (paras. 70-85).
|
