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Criminal - Sex Trade - Procuring [CCC 286.3]. 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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