Court File and Parties

COURT FILE NO.: 14315/16 DATE: 20181129

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

• and -

Deshon Tarone Boodhoo, Kemoy Clayton Chisholm and Keon Anfernee Chisholm Applicants

Counsel: Heather Cook and Samantha Herbert, for the Crown Daniel Varilone, for Deshon Boodhoo Sarah Malik and Joanne Griffiths, for Kemoy Chisholm Hilary Dudding, for Keon Chisholm

Heard: May 10 and 11, 2018

Bale J.:

Overview

[1] A jury found Deshon Boodhoo, Kemoy Chisholm and Keon Chisholm guilty under Criminal Code ss. 286.2(2) (receiving material benefit from sexual services provided by a person under the age of 18 years), and 286.3(2) (procuring a person under the age of 18 years). In addition, Deshon Boodhoo and Keon Chisholm were found guilty under s. 163.1(3) (distributing child pornography), and 286.4 (advertising sexual services).

[2] Following their convictions, the applicants applied for an order declaring ss. 286.2(2), 286.3(2) and 286.4 of the Code to be unconstitutional. [^1] I dismissed the application, for the following reasons.

Legislative Framework

Canadian Charter of Rights and Freedoms

[3] Sections 1, 2 and 7 of the Charter provide:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

3. Everyone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.

Criminal Code

Obtaining sexual services for consideration – person under the age of 18 years

[4] Section 286.1(2) of the Code provides:

Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years and to a minimum punishment of imprisonment for a term of (a) for a first offence, six months; and (b) for each subsequent offence, one year.

Material benefit from sexual services provided by person under 18 years

[5] Section 286.2(2) of the Code provides:

Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(2), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.

[6] Section 286.2(4) of the Code provides for the following exceptions:

Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit (a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived; (b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived; (c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or (d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.

[7] Section 286.2(5) provides that the exceptions in s. 286.2(4) do not apply to a person who commits an offence under s. 286.2(2), if that person (a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived; (b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived; (c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration; (d) engaged in conduct, in relation to any person, that would constitute an offence under section 286.3; or (e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

Procuring a person under the age of 18 years

[8] Section 286.3(2) of the Code provides:

Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of 18 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 and to a minimum punishment of imprisonment for a term of five years.

[9] As charged in the indictment, the procuring offence of which the applicants were convicted was that for the purpose of facilitating an offence under subsection 286.1(2), they exercised control, direction or influence over the movements of a person under the age of 18 years who offers or provides sexual services for consideration.

Advertising sexual services

[10] Section 286.4 of the Code provides:

Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than five years; or (b) an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months.

Immunity – Material benefit and advertising

[11] Section 286.5 of the Code provides:

(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 s.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.

Applicants’ Position

[12] The applicants’ position is that ss. 286.2(2), 286.3(2) and 286.4 of the Code are overbroad and grossly disproportionate, and therefore offend section 7 of the Charter. In addition, they argue that s. 286.4 is arbitrary and offends s. 7, and that it offends s. 2(b) of the Charter.

[13] The applicants do not argue that the conduct for which they were convicted lies outside the conduct which Parliament intended to criminalize. Rather, they rely upon what they submit to be “reasonable hypotheticals” - potential fact scenarios constructed to demonstrate the unconstitutional impact of an impugned law.

[14] The following are the hypotheticals relied upon by the applicants:

First hypothetical

A is 18 years old. B is 17 years old. A has worked as an escort on and off for a year. B has only worked as an escort once before, on her own. A and B decide to work together. A suggests to B that they use online advertising to sell sexual services rather than solicit clients on the street because it is safer, given the ability to pre-screen using the phone and the relative security of the hotel. A suggests to B that they book a hotel room together in a neighbouring town, because she knows, through her experience, that it is safer to work there than the town they both reside in. A suggests to B that they share the cost of a box of condoms, because it is safer to use condoms. B agrees to these suggestions, and is encouraged and influenced to continue to work selling sex because she feels she can do so more safely with A’s suggestions in place, and because she and A will be working together. A is encouraged and influenced to continue to work selling sex because she feels she can do so more safely with B working alongside her.

Second hypothetical

A decides to stop escorting, and buys a car. She begins to offer a service driving other escorts to and from “out calls” (sexual services provided to clients at locations outside of the sex worker’s hotel or home). Not only does she drive B as part of this service, but she provides similar advice to B and the other escorts that she drives, which has the effect of encouraging them to continue to work as escorts as they can be transported to and from work safely. A also influences their choice of locations to do sex work as she provides her opinion on the safest areas to do sex work.

Third hypothetical

C and D are both adults, and both work as escorts advertising their own sexual services through a website. C has built up a good, safe clientele through years of careful screening of clients. C wants to stop escorting for a period of time but plans to return after a few months. She wishes to refer her clients to D, because she knows D will keep her clients happy, refer then back to her when she returns, and that she will not lose them to another escort. D wishes to take advantage of this, because of the value of a client base that has already been vetted for safety and good behaviour. C places a notice on her website advertisement that her clients should contact D for service until she returns.

Fourth hypothetical

E and F are escorts. They agree to do “duos” where they provide sexual services together. E takes F’s photograph and places it in an online advertisement along with her own photo, and includes text that states that she, along with F, are available to provide sexual services.

Discussion

Charter s. 7 analysis

[15] Section 7 of the Charter provides that the state cannot deny a person’s right to life, liberty or security of the person, except in accordance with the principles of fundamental justice.

[16] In the present case, in light of the penal consequences of the convictions, it is common ground that the impugned sections engage the liberty interests of the applicants. The remaining question, then, is whether the effect of the convictions on the applicants’ liberty is in accordance with the principles of fundamental justice.

[17] The principles of fundamental justice are an attempt to capture our basic values. Laws that are arbitrary, overbroad or grossly disproportionate are inherently bad, and offend those values: R. v. Bedford, 2013 SCC 72, at para. 96.

[18] A law is arbitrary where there is no rational connection between the objective of the law, and the limits it imposes on the life, liberty or security of persons subject to the law: Bedford, at para. 111.

[19] A law is overbroad where there is no rational connection between the objective of the law, and some, but not all, of the conduct that it impacts. In this sense, an overbroad law is arbitrary in part: Bedford, at paras. 112 f.

[20] A law is grossly disproportionate where its effects on life, liberty or security of the person are so grossly disproportionate to its objective that it cannot rationally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure: Bedford, at paras. 120 ff.

[21] The impugned sections of the Code were included in Bill C-36, the Protection of Communities and Exploited Persons Act, which came into force on December 6, 2014, as part of the Government of Canada’s legislative response to the decision of the Supreme Court of Canada in Bedford. In that case, the court declared three prostitution-related offences to be unconstitutional on the basis that they violated s. 7 of the Charter: s. 210 which made it an offence to keep or be in a bawdy house; s. 212(1)(j) which prohibited living on the avails of prostitution of another person; and 213(1)(c) which prohibited communicating in public for the purpose of prostitution. [^2]

Objectives of the legislation

[22] The applicants argue that the objective of the Protection of Communities and Exploited Persons Act is not a rejection of sex work per se, but rather “to enhance the safety, security, and dignity of people involved in sex work.” I disagree.

[23] The overall objective of the Act is “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”: Technical Paper – Bill C-36, [^3] at p. 3. More specifically, the Technical Paper provides the following:

Bill C-36 reflects a significant 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. Bill C-36 signals this transformational shift both through its statement of purpose, as reflected in its preamble, and its placement of most prostitution offences in Part VIII of the Criminal Code, Offences Against the Person.

Consequently, Bill C-36 recognizes that prostitution’s victims are manifold; individuals who sell their own sexual services are prostitution’s primary victims, but communities, in particular children who are exposed to prostitution, are also victims, as well as society itself. Bill C-36 also recognizes that those who create the demand for prostitution, i.e., purchasers of sexual services, and those who capitalize on that demand, i.e., third parties who economically benefit from the sale of those services, both cause and perpetuate prostitution’s harms.

Accordingly, Bill C-36 seeks to denounce and prohibit the demand for prostitution and to continue to denounce and prohibit the exploitation of the prostitution of others by third parties, the development of economic interests in the exploitation of the prostitution of others and the institutionalization of prostitution through commercial enterprises, such as strip clubs, massage parlours and escort agencies in which prostitution takes place. It also seeks to encourage those who sell their own sexual services to report incidents of violence and leave prostitution.

Bill C-36 maintains that the best way to avoid prostitution’s harms is to bring an end to its practice.

Material benefit from sexual services provided by person under 18 years – s. 286.2(2)

[24] The applicants argue that s. 286.2(2) is overbroad, but only because the exceptions in s. 286.2(4) are not available to a person engaged in conduct that would constitute an offence under section 286.3(2) which they say is overbroad. In other words, s. 286.2(2) is overbroad, but only because a person may be convicted of receiving a material benefit as a result of conduct that would constitute an offence under a provision of the Code which is itself overbroad, and therefore unconstitutional.

[25] This argument fails because s. 286.3(2) is not overbroad, or otherwise unconstitutional.

Procuring a person under the age of 18 years - s. 286.3(2)

[26] With respect to s. 286.3(2), the applicants argue that a person who “in any way, and to any extent, exercises influence upon another to engage in sexual services for consideration, or even to communicate for that purpose, has committed a criminal offence.” They say that the section is overbroad, and therefore unconstitutional, because by use of the word “influence”, Parliament has included conduct that bears no relation to the law’s purpose. [^4] I disagree. The use of the word “influence” in s. 286.3(2) is narrower than the applicants would have it, and the prohibited influence is not influence upon another to engage in sexual services for consideration, but rather, influence for the purpose of facilitating an offence under s. 286.1(2).

[27] The applicants argue that we should use a dictionary definition of the word “influence”, and cite the Cambridge Dictionary definition: “to affect or change how someone or something develops, behaves or thinks.”

[28] However, the word “influence” must be read together with the words “control” and “direction”. This rule of construction is described in Pierre-Andre Cote, The Interpretation of Legislation in Canada (4th ed.), at p. 332, as follows:

An expression’s meaning may be revealed by its association with others: it is known by the words with which it is associated (noscitur a sociis). This rule is usually applied to interpret terms forming part of an enumeration. The word “horn”, for example, is ambiguous when read alone but not so when included in “the trombone, horn and clarinet.”

Noscitur a sociis helpfully draws attention to the fact that a statute’s context can indicate a meaning far more restrictive than that found in the dictionary.

(See also Ruth Sullivan, Sullivan on the Construction of Statutes, (6th ed.), at p. 230).

[29] Both “control” and “direction” refer to conduct that causes a change in the movements of a sex worker. The word “influence” should be read the same way. It may refer to conduct that is less coercive than “control” or “direction”, but it is conduct that none-the-less causes a change in a sex worker’s movements.

[30] The applicants argue that the provision of safety advice to a sex worker would constitute an exercise of influence over her or his movements, for the purpose of facilitating an offence under s. 286.1(2), even though the purpose of the advice was to help the sex worker to work more safely. They say that if sex workers believe that they can provide sexual services safely, they are more likely to provide those services, with the result that offences under s. 286.1(2) will have been facilitated.

[31] I do not agree that the fact that a sex worker may somehow be encouraged by safety advice renders that advice to have been given for the purpose of facilitating a person to obtain the sexual services of that worker, or for the purpose of facilitating a person to communicate with someone for the purpose of obtaining the sexual services of that worker.

[32] In R. v. Beckford, 2013 ONSC 653, the court considered a defence argument that the provisions of ss. 279.01 and 279.011 were constitutionally overbroad. Under s. 279.011, every person who exercises control, direction or influence over the movements of a person under the age of 18 years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence. In rejecting the defence argument, the court held, at paras. 39 f:

The Crown takes the position that "for the purpose" requires a subjective state of mind directed at the prohibited consequence - the exploitation or facilitation of the exploitation of the person. This requires both intent and knowledge. As the Supreme Court of Canada indicated in R. v. Briscoe, 2010 SCC 13, [2010] S.C.J. No. 13, at paragraph 18: knowledge of the perpetrator's intention to commit the crime and the intention of assisting the perpetrator in its commission are necessary.

This, I find, is in keeping with the high degree of mens rea required in order for the offence to be committed, and eliminates the risk of punishing individuals for innocent, socially useful or casual acts which, absent any intent, indirectly contribute to the trafficking of persons.

[33] In my view, the same reasoning applies to the mental element required for a conviction under s. 286.3(2) for procuring a person under the age of 18 years. The influence must be “for the purpose of facilitating an offence under s. 286.1(2)”, i.e., for the purpose of facilitating another to obtain for consideration, or communicate for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years.

[34] The applicants rely upon their first and second hypotheticals in support of their argument that s. 286.3(2) is overbroad. In the first hypothetical, A gives various pieces of advice to B which amount to advice as to how to work more safely as an escort. Although not directly stated, the implication is that the purpose of the advice is to assist B in working in a safe manner. If that were the only purpose of the advice, then no offence would be committed, because the advice would not have been given for the purpose of facilitating an offence under s. 286.1(2). On the other hand, it is conceivable that someone might give such advice to a child for the purpose of facilitating others to purchase sex from her, and if such were the case, the person would quite rightly be subject to prosecution.

[35] The second hypothetical would appear to be directed toward the applicants’ argument that a person who would otherwise be entitled to rely upon the exceptions in s. 286.2(4) would be precluded from doing so by reason of s. 286.2(5)(d) which provides that the exceptions do not apply to a person who engaged in conduct that would constitute an offence under s. 286.3(2). However, the conduct that supposedly would amount to an offence under s. 286.3(2) is again the giving of safety advice which would not be an offence, unless the purpose of giving the advice was to facilitate the purchase of sexual services from a child. Whether the driving itself would be an offence would depend upon whether A’s driving came within the exception under s. 286.2(4)(d) which qualification on the right to receive material benefits from sex workers is not challenged by the applicants.

[36] Given the objectives of the legislation outlined earlier, and my findings in relation to overbreadth, it cannot seriously be argued that the effects of s. 286.3 on life, liberty, or security of the person are so grossly disproportionate to its objectives that it cannot be rationally supported.

[37] For these reasons, I find that ss. 286.2(2) and 286.3(2) are not overbroad or grossly disproportionate, and do not offend s. 7 of the Charter.

Advertising sexual services – s. 286.4

Charter section 7

[38] The legislative objective of s. 286.4 is characterized in the Technical Paper, at p. 6, as follows:

To complement the purchasing offence, Bill C-36 criminalizes, also for the first time in Canadian criminal law, advertising the sale of sexual services. This new offence targets the promotion of prostitution through advertisements, which contributes to the demand for prostitution. This approach is consistent with the legislation’s overall objective of reducing 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.

[39] The applicants argue that s. 286.4 is overbroad because it may catch third parties such as photographers or web hosts which it is not intended to do. However, the Technical Paper notes, that “publishers or website administrators could be held criminally liable as parties if they know of the existence of the advertisement and that the advertisement is in fact for the sale of sexual services.”

[40] The applicants argue that s. 286.4 is arbitrary because sex workers, but not third parties, may advertise their sexual services. However, there is a reason for the immunity given to sex workers. They are treated as victims who need support and assistance, rather than blame or punishment: Technical Paper, at p. 9.

[41] The applicants also argue that s. 286.4 is arbitrary because advertising by third parties is a service which should be allowed in the same manner as the services which are permitted under s. 286.2(4). However, there is a material difference: advertising services, unlike the services of drivers, bodyguards, bookkeepers etc., promote prostitution and create a demand for the purchase of sexual services.

[42] The applicants argue that s. 286.4 is in breach of the right of sex workers to security of the person, because it makes sex work more dangerous, because “it limits their ability to work together and limits their ability to create referral opportunities for one another that can enhance safety, and could have a chilling effect on the ability of sex workers to use websites as sources of pre-screening information by limiting their ability to work together”. I disagree.

[43] There is nothing in s. 286.4 which prohibits sex workers from working together, or using websites as sources of pre-screening information. Sex workers cannot be prosecuted for selling their own sexual services, whether independently or cooperatively, as long as the only benefit received is from the sale of their own sexual services: Technical Paper, at p. 9. In addition, there is a difference between screening opportunities such as “bad date” web sites, and web sites advertising the sale of the sexual services of others.

[44] In support of this argument, the applicants rely upon their third and fourth hypothetical situations. In the third hypothetical, C wants to take a break from escorting, but in order to keep her clients, she advertises the services of D on her web site. I do not see how the proscription on advertising affects her right to security of the person. The reason why sex workers cannot be prosecuted for advertising or selling their own sexual services is that the legislation sees sex workers as victims. If C’s purpose is to maintain a safe clientele while she takes a break from sex work, she can find some other way of doing so, without advertising the sexual services of another victim. If she loses clients while she is on her break, it is a commercial loss – the price she pays for taking the break. In the fourth hypothetical, whether they provide sexual services together or not, E and F are each advertising their own sexual services, and would not be subject to prosecution.

[45] For these reasons, I find that s. 286.4 of the Code is not overbroad, grossly disproportionate, or arbitrary and does not offend s. 7 of the Charter.

Charter section 2(b)

[46] The applicants argue that s. 286.4 offends the right under s. 2(b) of the Charter to freedom of expression, and that the section is not saved by s. 1 of the Charter. Crown counsel acknowledges that the proscription of advertising is contrary to the right to freedom of expression. However, she argues that on this issue, I am bound by the decision of the Supreme Court of Canada in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (the “Prostitution Reference”).

[47] In the Prostitution Reference, the court held that then s. 195.1(1)(c) of the Criminal Code which made it an offence to communicate for the purpose of engaging in prostitution represented a prima facie infringement of s. 2(b) of the Charter. However, the court concluded that the infringement was justified as a reasonable limit under s. 1.

[48] In Bedford, at para. 46, the court held that the question of whether the communication provision was a justified limit on freedom of expression had already been decided, and that the court’s decision on that question in the Prostitution Reference remained binding on lower courts. Because it was able to decide the Bedford issues on s. 7 grounds, the court did not go on to reconsider the s. 2(b) issue.

[49] The position of the applicants in the present case is that whether the infringement under s. 286.4 is justified as a reasonable limit under s. 1 of the Charter raises a new legal issue, upon which the Prostitution Reference is not binding, because advertising was not in issue on the reference.

[50] Whether or not the Prostitution Reference is technically binding with respect to the advertising provision, advertising sexual services is communication for the purpose of engaging in prostitution, and the analysis is substantially the same.

[51] The procedure to be followed when the state is attempting to justify a limit on a right or freedom under s. 1 is described in the Prostitution Reference, at para. 91, as follows:

In order to establish that a limit is reasonable and demonstrably justified in a free and democratic society, two criteria must be established. First, the legislative objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. The objective must be pressing and substantial before it can be characterized as sufficiently important to justify the restriction on the right or freedom. Second, once a sufficiently important objective is established, the party seeking to invoke s. 1 must show that the means chosen are reasonable and demonstrably justified in a free and democratic society. This involves a "proportionality test". In this part of the test, courts balance the interests of society with those of individuals and groups. There are three important components to the proportionality test: (1) the measures adopted must be rationally connected to the achievement of the objective in question; they must not be arbitrary, unfair or based on irrational considerations, (2) the means chosen, even if rationally connected to the objective, must impair as little as possible the right and freedom in question, and (3) there must be a proportionality between the effects of the measures responsible for limiting the Charter right or freedom, and the objective which has been identified as being pressing and substantial. In respect of the last component of the test, Dickson C.J. stated in Oakes, supra, at p. 140, that "[t]he more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society".

[52] Bill C-36’s objectives were based upon the following conclusions, from Government research, which I find to be pressing and substantial concerns:

• The majority of those who sell their own sexual services are women and girls. Marginalized groups, such as Aboriginal women and girls, are disproportionately represented.
• Entry into prostitution and remaining in it are both influenced by a variety of socioeconomic factors, such as poverty, youth, lack of education, child sexual abuse and other forms of child abuse, and drug addiction.
• Prostitution is an extremely dangerous activity that poses a risk of violence and psychological harm to those subjected to it, regardless of the venue or legal framework in which it takes place, both from purchasers of sexual services and from third parties.
• Prostitution reinforces gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. In this regard, prostitution harms everyone in society by sending the message that sexual acts can be bought by those with money and power. Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls by entrenching a clearly gendered practice in Canadian society.
• Prostitution also negatively impacts the communities in which it takes place through a number of factors, including: related criminality, such as human trafficking and drug-related crime; exposure of children to the sale of sex as a commodity and the risk of being drawn into a life of exploitation; harassment of residents; noise; impeding traffic; unsanitary acts, including leaving behind dangerous refuse such as used condoms or drug paraphernalia; and, unwelcome solicitation of children by purchasers.
• The purchase of sexual services creates the demand for prostitution, which maintains and furthers pre-existing power imbalances, and ensures that vulnerable persons remain subjected to it.
• Third parties promote and capitalize on this demand by facilitating the prostitution of others for their own gain. Such persons may initially pose as benevolent helpers, providers of assistance and protection to those who “work” for them. But the development of economic interests in the prostitution of others creates an incentive for exploitative conduct in order to maximize profits. Commercial enterprises in which prostitution takes place also raise these concerns and create opportunities for human trafficking for sexual exploitation to flourish.

[53] There can be no doubt that the proscription of advertising contained s. 286.4 is rationally connected to the legislative objective. The purpose of advertising an offer to provide sexual services for consideration is to promote the purchase of sexual services for consideration.

[54] The next question is whether the means chosen to achieve the legislative objective impair as little as possible the right to freedom of expression. In answering this question, it must be recognized that courts should not substitute a judicial opinion for a legislative one, in respect of where to draw a precise line as to what is a reasonable limit: Prostitution Reference, at para. 100.

[55] The research that informed Bill C-36 was extensive. A bibliography of the research is attached as an appendix to the Technical Paper. It includes empirical research, international, regional and governmental documents and reports, and other reports, including, opinion pieces, literature reviews and issue papers.

[56] In my view, s. 286.4 impairs freedom of expression as little as reasonably possible in order to promote the legislative objective of reducing the demand for prostitution. It applies only to advertising which promotes the purchase of sexual services (which is an offence under s. 286.1, the constitutionality of which is not challenged by the applicants). Sex workers themselves are provided with immunity from prosecution under s. 286.5.

[57] The final question to be answered is whether the effects of the law so severely trench on freedom of expression that the legislative objective is outweighed by the infringement. In my view, they do not. In the Prostitution Reference, at para. 5, the Chief Justice writes: “It can hardly be said that communications regarding an economic transaction of sex for money lie at, or even near, the core of the guarantee of freedom of expression.” The same may be said about advertising sexual services for consideration.

[58] For these reasons, I find that the Code s. 286.4 breach of Charter s. 2(b) is saved by s. 1.

Disposition

[59] In the end result, I find that ss. 286.2(2), 286.3(2) and 286.4 of the Criminal Code are constitutional, and the application is therefore dismissed.

“Bale J.”

Released: November 29, 2018

Footnotes

[^1]: In my view, motions challenging the constitutionality of offence sections of the Criminal Code, based upon “reasonable hypotheticals”, should be brought by way of pre-trial motion, and not following conviction. Unlike motions challenging the constitutionality of mandatory minimums, such motions, if successful, would avoid a trial. [^2]: Former s. 212(2) which proscribed living wholly or in part on the avails of prostitution of a person under the age of 18 years was not challenged in Bedford. [^3]: 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) (Ottawa: Department of Justice Canada, 2014). [^4]: Former s. 212(1)(h) which proscribed the exercise of control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution was not challenged in Bedford.