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Criminal - Sex Trade - Procuring [CCC 286.3]. R. v. Deidun
In R. v. Deidun (Ont CA, 2026) the Ontario Court of Appeal allowed the criminal appeal of two defendants, these brought against convictions for "two counts of procuring a person to offer or provide sexual services for consideration, and two counts of receiving a material benefit from sexual services: Criminal Code, R.S.C. 1985, c. C-46, ss. 286.2(1) and 286.3(1)".
Here the court considers the criminal law of sexual procuring [CCC s.286.2(1)]:[3] The s. 286.1(1) and s. 286.3(1) offences were added to the Criminal Code in 2014, and there is now extensive appellate jurisprudence addressing their essential elements: see e.g., R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145; R. v. Ochrym, 2021 ONCA 48, 400 C.C.C. (3d) 358, leave to appeal refused, [2021] S.C.C.A. No. 106; R. v. N.S., 2022 ONCA 160, 169 O.R. (3d) 401, leave to appeal refused, [2022] S.C.C.A. No. 281; R. v. Kloubakov, 2025 SCC 25, 505 D.L.R. (4th) 197.
[4] Unfortunately, the trial judge did not have the benefit of this case law when she charged the jury in December 2018. As a result, her instructions misdirected the jury on several important legal points. These errors were not corrected at any other points in the charge. In my view the charge, read as a whole, did not equip the jurors with an accurate understanding of the law that they had to apply to decide the case: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 36-37. As I will explain, I am not persuaded that the appellants’ convictions can be upheld in the face of this misdirection by invoking the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. I would accordingly allow the conviction appeals, set aside both appellants’ convictions, and order a new trial.
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1. The procuring counts
[11] Section 286.1(1) of the Criminal Code makes it an offence to obtain sexual services for consideration. Section 286.3(1) then provides:286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years. [12] Although the s. 286.3(1) offence is commonly referred to as the “procuring offence”, it actually has two distinct modes of commission, only the first of which requires proof of “procuring” in a technical legal sense (“to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged”: R. v. Deutsch, 1986 CanLII 21 (SCC), [1986] 2 S.C.R. 2, at pp. 26-27). As Hoy A.C.J.O. explained in Gallone, at para. 59:[T]here are two modes of committing the actus reus of the procuring offence:
1. The accused “procures a person to offer or provide sexual services for consideration”; or
2. The accused “recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person.” [13] In this case, the appellants were jointly charged with three counts alleging that they committed offences under s. 286.3(1). Count 1, which applied to A.O., merged both modes of committing the s. 286.3(1) offence into a single charge. However, the two counts that applied to D.H. split the two modes of committing the s. 286.3(1) offence into separate counts: Count 3 alleged that the appellants had “procured” D.H., while Count 4 was particularized to track the language of the second mode of commission.
[14] For several reasons, it is unnecessary to consider whether the jury was properly instructed about the procuring mode of committing the s. 286.3(1) offence. Although Count 1 was drafted to include the procuring mode, the jury was instructed that the Crown was not relying on the procuring mode in relation to A.O. With respect to D.H., where the procuring mode had been charged separately in Count 3, the jury acquitted both appellants on this count. Accordingly, I will focus on the trial judge’s instructions regarding the second mode of committing the s. 286.3(1) offence.
[15] The trial judge directed the jury to consider two questions in relation to this mode. With respect to Count 1 – the charge relating to A.O. – she instructed the jury:The first question – has the Crown proven beyond a reasonable doubt that Mr. Deidun and/or Ms. Bernard did recruit, hold, conceal or harbour [A.O.], or that Mr. Deidun and/or Ms. Bernard exercised direction or influence over [A.O.’s] movements?
And the second question – has the Crown proven beyond a reasonable doubt that Mr. Deidun and/or Ms. Bernard did so for the purpose of facilitating an act of prostitution by [A.O.]?
She later instructed the jurors to consider these same two questions when dealing with Count 4, which related to D.H. [16] The trial judge then provided the jury with brief definitions of the terms “procure”, “recruit”, “hold”, “conceal”, and “harbour”. Although Ms. Stephens takes issue with the correctness or completeness of some of these definitions, I will focus on the trial judge’s instructions regarding the essential elements of control, direction or influence.
[17] The trial judge told the jury:Control is exercising power or influence, or to restrict activity; To exercise direction over someone is to instruct with authority, to cause someone to take a particular course, or to govern; and, Influence means to have influence on: the control, direction or influence over must relate to the movements of the person involved.
Direction or influence would include such matters as being told where to go, posting advertisements for sexual services, providing transportation or lodgings, providing financial support to carry out certain behaviour, and what to do and what to charge.
It is not necessary for the Crown to prove all or even several of these actions. Any one of these requirements is sufficient. Not all of you have to agree on the same requirement as long as all of you have agreed that the Crown has proven one of these requirements beyond a reasonable doubt. [Emphasis added.] [18] In my view, the jurors might well have understood from these instructions that it was sufficient for the Crown to prove that the appellants had each performed at least one of the actions the trial judge had listed as examples of “direction or influence” – for instance, booking a hotel room for the complainants; driving them to a hotel; or providing them with advice about how to conduct their sex work. It may be, as the Crown argues, that the trial judge actually meant the phrase “these requirements” to refer back to the essential elements of exercising control, direction or influence. However, the jury might reasonably have believed that the trial judge was instead talking about the conduct she had just identified as constituting “direction or influence”.
[19] If this is indeed what the jurors understood, it was incorrect in several respects. Most importantly, in Gallone this court adopted Rochon J.A.’s observation in Urizar c. R., 2013 QCCA 46, [2013] R.J.Q. 43, at para. 74 that the phrase “‘exercises control, direction or influence over the movements of a person’ generally suggests a situation that results from a series of acts rather than an isolated act”: Gallone, at para. 48. Hoy A.C.J.O. then added, at para. 50:In my view, the essence of what the Court of Appeal of Quebec adds here is that all these residual terms – “exercises control, direction or influence” – evoke a scenario in which a person, by virtue of her or his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and his or her movements. [Emphasis added.] [20] This court later expanded on this last point in Ochrym, at para. 33, explaining:Had Parliament intended s. 286.3(1) to criminalize any conduct affecting a complainant’s movements that facilitates the provision of sexual service for consideration, it would have done so more clearly. For example, s. 286.4 provides that it is an offence to knowingly advertise an offer to provide sexual services for consideration. Parliament did not provide that driving a sex worker to a motel or booking the motel where the worker provides sexual services for consideration is an offence. Rather, … Parliament used terms which require consideration of whether because of the relationship between the accused and the complainant, the accused was in a position or had the ability to, and did, exercise control, direct or influence the movements of a person who provides sexual services for consideration. Some regard must be had to the nature of the relationship between the accused and the complainant. [Emphasis added.] [21] The jurors in this case were never told that the essential elements of the s. 286.3(1) offence generally required proof of more than an isolated act, nor were they told that when deciding whether the appellants had exercised control, direction, or influence over the complainants’ movements, the jurors had to consider the nature of the appellants’ relationship with the complainants, and assess whether this relationship gave the appellants some form of power over the complainants.
[22] The jurors in this case were faced with conflicting testimony, both about the nature and extent of the appellants’ relationships with the two complainants, and about what specific actions the appellants performed that facilitated the complainants’ sex work. Depending on what evidence the jurors accepted, it was not a foregone conclusion that they would necessarily have been satisfied that the appellants’ relationships with either or both of the complainants gave them “some power – whether physical, psychological, moral or otherwise – over the complainant[s] and [their] movements”: Gallone, at para. 50. However, the jurors were never told that this was something they had to consider.
[23] I do not accept the Crown’s argument that the trial judge’s instructions were functionally adequate in the context of the case because the appellants denied having done anything to knowingly facilitate the complainants’ sex work. The jury was not faced with the choice of either entirely accepting the appellants’ evidence or wholly accepting the testimony of the three main Crown witnesses, which was mutually contradictory in some respects. Rather, the jury was entitled to accept some, all, or none of the evidence from any of these witnesses. Different jurors might have accepted different parts of the Crown witnesses’ evidence, and rejected different aspects of the appellants’ testimony. Indeed, the jurors might reasonably have concluded that they did not need to resolve the conflicting evidence about how much the appellants had done to facilitate the two complainants’ sex work, as long as they were all satisfied that each of the appellants had done at least one of the things that the trial judge had identified as examples of exercising direction or influence over the complainants’ movements.
[24] I also do not agree that the gap in the trial judge’s instructions can be seen as having been filled by Crown counsel’s closing address, for three main reasons. First, “counsel’s closing arguments cannot replace an accurate and sufficient instruction on the law”: Abdullahi, at para. 65 (italics in original). Second, while Crown counsel urged the jury to find that both of the appellants had done multiple things to facilitate the two complainants’ sex work, she also suggested that it was not necessary for the Crown to prove this. For instance, Crown counsel told the jury: “You can be guilty of the [procuring] offence by transporting people to the hotels with knowledge that you are helping them go there in order to escort.” Third, Crown counsel never told the jury that the question of whether the appellants had exercised control, direction or influence over the complainants’ movements required consideration of whether their relationship with the complainants gave them some form of power over the complainants’ movements. In my view, the Crown’s closing address would have reinforced rather than corrected the erroneous understanding of the law that the jury might have formed from the trial judge’s instructions.
[25] In summary, I would hold that the trial judge misdirected the jury about what the Crown needed to prove in order to establish the actus reus of the second mode of commission of the s. 286.3(1) offence, as charged in Counts 1 and 4. This makes it unnecessary for me to address the appellants’ further argument that the trial judge also erred in her instructions about the mental element of this offence. . 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 law of 'procuring' [CC 286.3] in relation to the trade in sexual services:C. Procuring Offence (Section 286.3)
[31] Section 286.3(1) creates the procuring offence. It provides:286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years. [32] Section 286.3(2) imposes a higher maximum penalty if the person procured is under the age of 18.
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(4) The Procuring Offence Also Does Not Prevent Taking Safety Measures
(a) The Purpose of the Procuring Offence
[110] The procuring offence, s. 286.3(1), also does not prevent sex workers from taking the safety measures contemplated in Bedford.
[111] A person can be found guilty of procuring in one of two ways, which can be described as two modes of liability: (1) by procuring a person “to offer or provide sexual services for consideration”; or (2) by recruiting, holding, concealing, or harbouring a person, or exercising “control, direction or influence over the movements of that person” for the purpose of facilitating the purchasing offence (Technical Paper, at p. 8). The procuring offence necessarily requires the procurer’s active involvement in the sale of the sexual services of another, which can be established under either mode of liability.
[112] Consistent with the safety-related purpose of the PCEPA, the purpose of the procuring offence is to prevent the procurement of persons for the purpose of facilitating the purchase of sexual services (Technical Paper, at p. 8; see also PCEPA, preamble, fifth recital). It does so by prohibiting “comprehensively all conduct related to procuring others for the purpose of prostitution” (Technical Paper, at p. 8), which Parliament views as inherently exploitative.
[113] We respectfully disagree with the Ontario Court of Appeal in N.S. that the purpose of the procuring offence “does not include giving effect to the safety-related objective of the PCEPA with respect to those who continue to sell their sexual services for consideration” (para. 122). The procuring offence promotes the first aspect of the safety-related objective of the PCEPA: to protect sex workers from third parties who commercialize the sale of sexual services. It does so by deterring persons (procurers) from directly or indirectly encouraging others to enter the commercial sex trade. This protects vulnerable persons from being induced into what Parliament views as the inherently exploitative practice of sex work and from being exposed to the risks of violence associated with it, including the risk of violence and abuse from procurers. At the same time, as we will explain below, the procuring offence also gives effect to the second aspect of the safety-related objective of the PCEPA by allowing for the safety measures identified in Bedford.
[114] The Technical Paper notes that the difference between the material benefit and procuring offences turns on “the level of involvement in the prostitution of other persons” (p. 9). The procuring offence requires “active involvement in the provision of another person’s sexual services”, while “passive involvement is sufficient to make out the material benefit offence” (p. 9). As the Technical Paper explains:For example, a “classic pimp” is likely to be caught by both the procuring offence and the material benefit offence, because pimps generally induce or cause others to offer or provide their sexual services and they economically benefit from that activity. In contrast, a person who derives a benefit from the prostitution of others, without actively inciting the provision of sexual services, such as a “bouncer”, who works at a strip club and knows that prostitution takes place there, is only caught by the material benefit offence. This difference justifies the imposition of higher penalties for procuring. [Footnote omitted; p. 9.] [115] Finally, the purpose of the procuring offence can be gleaned from the marginal note describing the offence, which is a relevant aid to interpretation (R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 37; Sullivan, at § 14.06[3]). The English marginal note uses the term “Procuring”, while the French marginal note uses the more specific term “Proxénétisme”, which means [translation] “[g]enerating revenue from the prostitution of others” (Le Grand Robert de la langue française) and translates into the English word “pimping”. The narrower French term reflects the shared meaning of the English and French marginal notes and is therefore preferred. The procuring offence is thus closely tied to the purpose of preventing the procurement — or “pimping” — of others for the purpose of facilitating the purchase of sexual services.
(b) The Procuring Offence Allows Sex Workers To Take Safety Measures
[116] The procuring offence does not prevent persons who sell their own sexual services from taking safety measures, such as receiving advice that might increase their safety or selling sexual services from fixed indoor locations. The procuring offence requires active involvement in the sale of another person’s sexual services by insisting on a high mens rea of a specific intent to facilitate the purchasing offence in s. 286.1.
[117] The first mode of liability under s. 286.3(1) is to “procur[e] a person to offer or provide sexual services for consideration”. To “procure” means “to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged” (Gallone, at para. 61, citing R. v. Deutsch, 1986 CanLII 21 (SCC), [1986] 2 S.C.R. 2, at pp. 26-27; N.S., at para. 97; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 65).
[118] The second mode of liability under s. 286.3(1) is to recruit, hold, conceal, or harbour a person who sells their own sexual services, or to exercise control, direction, or influence over the movements of that person, and in either case, the prohibited conduct must be “for the purpose of facilitating an offence under subsection 286.1(1)”; that is, for the purpose of facilitating the purchasing offence by inducing a person to offer sexual services for purchase. This “purpose” element requires a high mens rea of specific intent. The accused must not merely knowingly or unwittingly facilitate the purchasing offence, but rather must specifically intend their actions to induce a person to offer sexual services for purchase (N.S., at para. 100; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at paras. 45-47; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at paras. 32-33; Joseph, at para. 88; Gallone, at para. 63). The accused’s intention is determined subjectively, with reference to the nature of the relationship between the accused and the person allegedly procured (Legare, at paras. 32-33; R. v. Ochrym, 2021 ONCA 48, 400 C.C.C. (3d) 358, at paras. 33-34).
[119] A person who merely gives advice on safe practices to a sex worker, or who merely rents a room to a sex worker, would not, without more, be guilty of procuring under either mode of liability for the procuring offence.
(i) Merely Giving Advice on Safe Working Practices Is Not “Procuring”
[120] We agree with the Alberta Court of Appeal that the trial judge erred in concluding that a more experienced sex worker who merely gives advice to a novice sex worker on how to work safely could be found guilty of procuring (paras. 77 and 82; constitutional ruling, at para. 229).
[121] Merely giving advice on how to work safely would not engage either mode of liability for the procuring offence. It would not involve causing, inducing, or having a persuasive effect on a sex worker to offer or provide sexual services for consideration. Nor would it involve conduct specifically intended to facilitate the purchasing offence by inducing a person to provide sexual services for purchase.
[122] We acknowledge that exercising control, direction, or influence over another person can involve a spectrum of power over the individual (see R. v. T.J.F., 2024 SCC 38, at paras. 65-66). At the same time, the procuring offence would not be made out without the specific intent to facilitate the purchasing offence by inducing a person to provide sexual services for purchase. As the Alberta Court of Appeal correctly held, “[t]he mere giving of advice . . ., without more, is not conduct that is caught by the offence” (para. 82).
[123] We conclude that merely giving advice on safe practices for sex work is not “procuring”.
(ii) Merely Renting a Room to a Sex Worker Is Also Not “Procuring”
[124] We also agree with the Alberta Court of Appeal that the trial judge erred in concluding that merely renting a room to a sex worker from which they could sell sexual services could, without more, constitute procuring (paras. 77 and 82; constitutional ruling, at para. 229). Even if renting a room could constitute the act of “harbouring” a sex worker under the second mode of the procuring offence, it would not involve conduct prohibited by the procuring offence, unless a person has the necessary mens rea.
[125] Renting a room to a sex worker, and knowing that it will be used for the purpose of providing sexual services for consideration, would facilitate selling sexual services. Yet the procuring offence is tied not to the act of selling sex, which benefits from an immunity from prosecution under s. 286.5, but to the purchasing offence under s. 286.1. To prove procuring, the Crown must establish the specific intention to facilitate the purchase of sex by inducing a person to offer sexual services for purchase. This conclusion flows directly from the asymmetrical scheme of the PCEPA, which focuses on prohibiting the demand side of the commercial sex trade and, on the supply side, grants an immunity from prosecution to persons who sell their own sexual services.
[126] We are therefore persuaded by the following analysis of the Ontario Court of Appeal in N.S. (at paras. 107-8), which the Alberta Court of Appeal endorsed (at para. 80):Facilitating an offence under s. 286.1 is narrower than facilitating commercial sex work.
The offence in s. 286.1 is obtaining for consideration or communicating with anyone for the purpose of obtaining for consideration the sexual services of a person. The offence is not providing sexual services for consideration. The purpose requirement in s. 286.3 is therefore tied directly to the asymmetrical scheme of the PCEPA. The Crown must prove that the accused intended to assist the principal in the commission of the offence in s. 286.1. [Emphasis in original; citation omitted.] [127] The Ontario Court of Appeal in N.S. noted that the difference between facilitating the purchase of sex (which would constitute procuring) and facilitating the sale of sex (which would not) “may seem like a fine point of logic, but it flows directly from the wording of s. 286.3 and the scheme of the PCEPA” (para. 109). The court explained that “[t]he criminal law is familiar with asymmetrical offences, and trial judges are adept at inferring which side of the transaction an accused intended to facilitate” (para. 114). For the procuring offence under scrutiny here, Parliament has expressly designed the PCEPA to distinguish between the purchase and the sale of sexual services. The former remains criminalized, while the latter benefits from an immunity from prosecution. The procuring offence cannot be interpreted to undermine the expressly asymmetrical scheme of the PCEPA.
[128] In addition, the Ontario Court of Appeal in N.S. cited this Court’s decision in R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, and noted that, “[d]epending on the facts in a given case, a person may intend to assist the buyer, the seller, or both” (para. 114). In Greyeyes, this Court held that the mens rea requirement of acting “for the purpose of” aiding or abetting the offence of trafficking was made out because the accused intended to assist with the commission of that offence, by bringing together the parties to the transaction and acting as a conduit for delivering the drugs from the seller to the buyer. In the present context, the procuring offence provides in relevant part that a person commits procuring only if they act with the specific intent of (i.e., “for the purpose of”) facilitating the purchasing offence under s. 286.1.
[129] Interpreting the procuring offence so broadly as to prohibit sex workers from renting rooms to sell their own sexual services would also render nugatory the proportionate benefit exception in s. 286.2(4)(d). Recall that this provision exempts from criminal liability the receipt of a financial or other material benefit derived from the sale of sexual services, if the person receiving the benefit “did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good”. It would be incongruous to exempt legitimate rental arrangements from the scope of the material benefit offence, yet to criminalize the same conduct under the procuring offence (N.S., at para. 103). As noted above, an interpretation that renders a related statutory provision nugatory should be avoided.
[130] The same analysis applies to other security services, such as receptionists, managers, or drivers, employed by sex workers when such employees lack the necessary mens rea for the procuring offence. Third parties who work to increase the safety of sex workers are expressly exempted from the scope of the material benefit offence and are not captured by the procuring offence, unless they have the specific intent to facilitate the purchase of sex by inducing sex workers to offer sexual services for purchase. This reflects the asymmetrical scheme of the PCEPA and both aspects of its safety-related purpose.
[131] By contrast, a commercial agency that recruits persons to sell sexual services, provides premises for transactions, advertises to potential purchasers, makes appointments, and collects agency fees would engage both modes of liability of the procuring offence. Such a commercial agency would be directly engaged in promoting the commodification of sexual services, contrary to the first aspect of the safety-related purpose of the PCEPA.
(iii) Conclusion
[132] The procuring offence does not preclude sex workers from taking the safety measures contemplated by Bedford.
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