COURT FILE NO.: 4789/20
DATE: June 21, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: )
Her Majesty the Queen )
Respondent )
- and - )
Meaghan Cunningham, for the Respondent
Joshua MacDonald ) John K. Lefurgey, for the Applicant
Applicant
) HEARD at Welland: May 26, 2021
Corrected decision: The text of the original decision was corrected on August 19, 2021 and the description of the corrections is appended.
REASONS FOR DECISION ON APPLICATION
The Honourable Justice G.B. Gambacorta
OVERVIEW
[1] This application is a challenge to the constitutionality of ss. 286.2(1), 286.3(1) and
286.4 of the Criminal Code of Canada based on five (5) hypothetical scenarios.
[2] The accused, Joshua MacDonald, contends that ss. 286.2(1), 286.3(1) and 286.4 are overbroad and have effects grossly disproportionate to the purposes for which they were enacted.
[3] At the time the application was filed, the accused sought a declaration that the aforementioned sections infringed ss. 2(b), 2(d), and7 of the Canadian Charter of Rights and Freedoms and were of no force and effect under s. 52(1) of the Constitution Act, 1982.
[4] Since the filing of the application, a parallel challenge to the same sections of the
Charter was considered by my brother, Sutherland J., in R. v. N.S., 2021 ONSC 1628.
[5] Justice Sutherland released his decision on March 4, 2021, wherein he ruled that ss. 286.2(1), 286.3(1) and 286.4 violated s. 7 of the Charter and were not saved by s. 1 of the Charter. Then, on April 21, 2021, he released R. v. N.S., 2021 ONSC 2920, wherein he considered the constitutional remedy and declared the impugned sections immediately invalid and of no force and effect.
[6] On May 26, 2021, I heard submissions on both the effect of N.S. on this application and on the merits of this application, with some discrete modifications. Mr. MacDonald narrowed his application, abandoning a claim that the five hypothetical scenarios he had presented infringed his rights pursuant to ss. 2(b) and 2(d) of the Charter. Further, he abandoned the first hypothetical scenario and his arguments related to vagueness and arbitrariness under s.7.
OVERVIEW
[7] Mr. MacDonald is charged with two counts of human trafficking under s. 279.01(1) of the Criminal Code, and three prostitution-related offences under ss.286.2(1), 286.3(1) and 286.4. His trial is scheduled to commence on June 28, 2021.
[8] The declaration of invalidity in relation to ss. 286.2(1), 286.3(1) and 286.4 made by Sutherland J. on April 21, 2021, impacts the starting point for the analysis of the application before me and the Crown’s ability to pursue those charges at trial.
[9] We have recently received guidance from the Ontario Court of Appeal with respect to the application of the principles of stare decisis to s.52(1) declarations made by
superior court judges. In R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, at para. 38, leave to appeal granted, [2020] S.C.C.A No. 232, Paciocco J.A. wrote the following:
[38] The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: R. v. Scarlett, 2013 ONSC 562, at para. 43; Re Hansard Spruce Mils Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superior court judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong. In this way, the principles of stare decisis can operate, while recognizing that the effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made.
[10] Thus, I am instructed to respect the earlier declaration of unconstitutionality unless I conclude that Sutherland J.’s declaration is plainly the result of a wrong decision.
[11] The Crown, with notice and through submissions, has argued that the earlier decision by Sutherland J. in N.S. is plainly wrong as a result of three fundamental errors made by Sutherland J. in his analysis. The Crown bears the onus to satisfy me that this is the case, before anything else can occur.
[12] Although my brother, Bale J., also considered the constitutionality of these same provisions in R. v. Boodhoo et. al., 2018 ONSC 7205, 51 C.R. (7th) 207, and upheld the constitutionality of the provisions, he did so in the context of victims under the age of eighteen (18). Therefore, I do not find it to be a conflicting decision which would eliminate the need for me to consider whether Sutherland J.’s decision is plainly wrong.
[13] Mr. MacDonald advances two arguments in support of his application.
[14] First, he argues that I ought to accept the conclusion reached by Sutherland
J. in N.S. He agrees that, in order for me to revisit the analysis on the constitutional challenge, I must first find the earlier decision to be plainly wrong, even though I am not bound by it. He contends that it is not plainly wrong, and that I should defer to it, irrespective of the fact that I might have decided it differently.
[15] Second, Mr. MacDonald argues that, even if I find the reasoning in N.S. to be plainly wrong, I should find that ss. 286.2(1), 286.3(1) and 286.4 are overbroad and not rationally connected to the objectives that gave rise to their enactment in the new statutory regime post-Bedford1 and grossly disproportionate in their impact.
[16] After careful deliberation and for the reasons that follow, I accept the Crown’s argument that the declaration of invalidity in N.S. was plainly the result of a wrong decision. Respectfully, I find that Sutherland J. incorrectly identified the purpose and objective of Bill C-36 and applied that incorrect purpose and objective to his s. 7 analysis, which undermined his ultimate conclusion. I find that the new statutory scheme (ss. 286.2(1), 286.3(1) and 286.4) created by the implementation of Bill C-36 is rationally connected to the purposes for which it was enacted, which is not only deterring the commodification of sexual services and preventing the exploitation of vulnerable persons, but to reduce the demand for prostitution with a view to discourage entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible.2 I find that the challenged legislation does not go further than necessary to achieve its objectives or have effects grossly disproportionate to the objectives of its measures.
[17] Therefore, I find that ss. 286.2(1), 286.3(1) and 286.4 accord with the principles of fundamental justice and do not infringe Mr. MacDonald’s rights under s. 7 of the Charter. The application is dismissed.
ANALYSIS
The new statutory scheme
BILL C-36
[18] Bill C-36 was introduced on June 4, 2014, in response to the Supreme Court of Canada’s decision in Bedford. It received Royal Assent on November 6, 2014, and came into force on December 6, 2014.3
[19] The new statutory scheme includes the following challenged sections related to the commodification of sexual activity:
Obtaining sexual services for consideration
1 See Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101. See also Bill C-36, the Protection of Communities and Exploited Persons Act, 2nd Sess. 41st. Parl., 2014, c. 25 (in force as of 6 December 2014).
2 See R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 92; Canada, Department of Justice, “Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act” (Ottawa: D.O.J., 10 March 2015), at p. 3, online (pdf): <www.justice.gc.ca/eng/rp-pr/other-autre/protect/protect.pdf>.
3 Technical Paper, at p. 3.
286.1 (1) 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 is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years and a minimum punishment of,
(i) in the case where the offence is committed in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present,
(A) for a first offence, a fine of $2,000, and
(B) for each subsequent offence, a fine of $4,000, or
(ii) in any other case,
(A) for a first offence, a fine of $1,000, and
(B) for each subsequent offence, a fine of $2,000; or
(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,
(i) in the case referred to in subparagraph (a)(i),
(A) for a first offence, a fine of $1,000, and
(B) for each subsequent offence, a fine of $2,000, or
(ii) in any other case,
(A) for a first offence, a fine of $500, and
(B) for each subsequent offence, a fine of $1,000.
Obtaining sexual services for consideration from person under 18 years
(2) 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 10 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.
Subsequent offences
(3) In determining, for the purpose of subsection (2), whether a convicted person has committed a subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
(a) an offence under that subsection; or
(b) an offence under subsection 212(4) of this Act, as it read from time to time before the day on which this subsection comes into force.
Sequence of convictions only
(4) In determining, for the purposes of this section, whether a convicted person has committed a subsequent offence, the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences, whether any offence occurred before or after any conviction or whether offences were prosecuted by indictment or by way of summary conviction proceedings.
Definitions of place and public place
(5) For the purposes of this section, place and public place have the same meaning as in subsection 197(1).
Material benefit from sexual services
286.2 (1) Every person 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(1), is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.
Material benefit from sexual services provided by person under 18 years
(2) 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.
Presumption
(3) For the purposes of subsections (1) and (2), evidence that a person lives with or is habitually in the company of a person who offers or provides
sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services.
Exception
(4) 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.
No exception
(5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (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.
Aggravating factor
(6) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that that person received the benefit in the context of a commercial enterprise that offers sexual services for consideration.
Procuring
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.
Procuring — person under 18 years
(2) 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.
Advertising sexual services
286.4 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.
Immunity — material benefit and advertising
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.
Immunity — aiding, abetting, etc.
(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.
[20] Its overall objective was 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.4
[21] Bill C-36 represented a significant shift away from the treatment of prostitution as a “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 women and girls.5
[22] Of material significance is that the new legislative scheme in Bill C-36 criminalizes the purchase of sexual services for the first time in Canada, making prostitution itself an illegal practice.6
[23] However, while Bill C-36 criminalized the purchase of sexual services, it expressly immunized from prosecution the following individuals: those who receive a material benefit from the sale of their own sexual services; those who advertise their own sexual services; and those who play any part in the purchasing, material benefit, procuring or advertising offences in relation to the sale of their own sexual services.7
[24] Parliament acknowledged this intentional asymmetrical approach to the legislative scheme in Bill C-36, as a means to encourage those who sell their sexual services to report incidents of violence and exploitation committed against them, rather than to avoid detection.8
Is N.S. plainly wrong?
[25] Mr. MacDonald acknowledges that Sutherland J.’s decision in N.S., a decision of a judge of coordinate jurisdiction, does not strictly bind me or prevent me from considering the constitutionality of ss. 286.2(1), 286.3(1) and 286.4. He agrees the recent guidance from the Ontario Court of Appeal in Sullivan is instructive on this point and argues that the decision in N.S. should be respected, unless I conclude it was plainly wrong.
4 Gallone, at para. 92; Technical Paper, at p. 3.
5 Technical Paper, at p. 3.
6 Technical Paper, at p. 5
7 Technical Paper, at p. 9.
8 Technical Paper, at p. 9.
[26] In Sullivan, at para. 38, citing R. v. Scarlett, 2013 ONSC 562, at para. 43, and Re Hansard Spruce Mills Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592, the Court of Appeal held that “superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision”.
[27] In Scarlett, at para. 43, the court identified three reasons to depart from a decision, as referred to in Hansard Spruce Mills. They include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration.
[28] Prior to N.S., Bale J. rejected a challenge to the new statutory scheme in Boodhoo, albeit in the context of victims under the age of eighteen years old. While I do not find this to be a conflicting decision on the statutory interpretation by a court of concurrent jurisdiction given that his analysis related to different provisions, it offers another persuasive analysis of the new scheme.
[29] The Crown argues that N.S. is plainly wrong, as a result of three fundamental errors made by Sutherland J. First, Sutherland J. incorrectly concluded that the sale of sexual services is not prohibited by the present legislative scheme, which then permeated and undermined his conclusion. Second, Sutherland J. incorrectly defined the scope of ss. 286.2(1) and 286.3(1) contrary to parliamentary intent and the principles of statutory interpretation, which then undermined his conclusion. Third, Sutherland J. incorrectly identified the purpose and objective of the new commodification of sexual services provisions created by Bill C-36, in their entirety, and applied a different objective in the context of his s. 7 analysis. The Crown bears the onus to satisfy me that this is the case.
[30] Mr. MacDonald argues that N.S. is not plainly wrong. He contends the validity of the judgment has not been affected by subsequent decisions, that Sutherland
J. did not overlook any binding caselaw and that the decision was not made without full consideration. He therefore argues that I should defer to Sutherland J.’s conclusion that the impugned sections violate his s.7 rights.
[31] As a starting point, it is important to recognize that the purpose of Bill C-36 is not the same as the purpose of the predecessor legislation surrounding the provision of sexual services and that which was at issue in Bedford. Bill C-36 ushered in a completely different model which sought to make prostitution an illegal practice while intentionally immunizing the seller from prosecution. It therefore needs to be interpreted with its stated objective in mind.
[32] I also remind myself that it is not the court’s role to engage in policy debates pertaining to whether prostitution should be decriminalized. As stated by our court of
appeal in Bedford, the court’s role is to decide whether or not the challenged laws accord with the constitution, which is the supreme law of the land.9
Did Justice Sutherland err in his conclusion that the sale of on e’s sexual services is allowed by the present legislative scheme?
[33] At para. 56 of N.S., Sutherland J. writes the following:
[56] Section 286.1, in broad terms, makes it a criminal offence for everyone who obtains or communicates with anyone to obtain, for consideration, sexual services. This section does not prohibit the sale of sexual services for consideration. This section prohibits everyone who “obtains for consideration” or communicates for “the purpose of obtaining for consideration” sexual services for consideration. From the plain meaning of the section, it is my view, that this section prohibits only the purchase and not the sale of sexual services for consideration. However, a sex worker could be prosecuted for aiding and abetting, or conspiring for the sale of sexual services.
[34] At para. 65 in N.S., Sutherland J. concludes as follows:
[65] Consequently, Parliament has determined that commercial sex work for individual sex workers is allowed, and such sex workers may have the assistance of third parties in limited circumstances to facilitate their health and safety in conducting their commercial sex work. Thus, aspects of commercial sex work, purchasing, communicating, advertising and the receiving of a benefit is illegal. But individual sex workers and the benefits such sex workers receive from their own work or their aiding, abetting, conspiring or attempting to commit the purchase of their sexual services is allowed.
[35] Respectfully, I find that these paragraphs contain conclusions which are incongruous. I also find the reference to prostitution being allowed to be incorrect.
[36] With the enactment of s. 286.1, Parliament criminalized both the purchase and sale of sexual services. In doing so, I find Parliament made the entire transaction illegal, as anyone who is part of that transaction, including the seller, would be a party to the purchase of a sexual service.
[37] However, Parliament deliberately chose to provide immunity from prosecution to those who sell their own sexual services through the enactment of s. 286.5,
9 Canada (Attorney General) v. Bedford, 2012 ONCA 186, 109 O.R. (3d) 1, at para. 9.
recognizing that they are victims of an exploitative industry, who need support and assistance, rather than blame and punishment.10
[38] This immunity cannot be said to make the act of selling sexual services lawful. In fact, I find Parliament intended the opposite. Otherwise, it would have been unnecessary for Parliament to enact the immunity provisions in the first place. As Hamish Stewart observes in “The Constitutionality of the New Sex Work Law” (2016) 54:1 Alta. L. Rev. 69 at p. 74:
The offence of obtaining or communicating is said to have been inspired by the “Nordic model,” according to which the purchaser of sexual services commits an offence but the seller does not. But that is not what Bill C-36 says. It would have been easy enough to add a subsection to section 286.1 stating explicitly that a person who provides sexual services for consideration does not commit an offence, but Parliament chose not to do that. Instead, to assess the criminal liability of a sex worker, one has read on to section 286.5(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.
It is implicit in this provision that the seller of sexual services is indeed guilty of the offence of obtaining sexual services; otherwise, there would be no need to immunize him from prosecution.
[39] The enactment of s. 286.1(1) created a hybrid offence that can be committed in one of two ways: obtaining or communicating. It is an offence to obtain for consideration the sexual services of the person. It is also an offence to communicate with anyone for the purpose of obtaining, for consideration, the sexual services of a person. While the obtaining offence appears to be directed at the person who seeks the service, the communicating offence applies to both the solicitor and the solicited.11
[40] This is important to consider in the context of the immunity provisions. Section 286.5 provides immunity from prosecution to individuals selling their own sexual services where their conduct would otherwise attract criminal liability by various forms of participation in prohibited prostitution related offences.
[41] The specific language chosen by Parliament in s. 286.5 states that “[n]o person shall be prosecuted for…”. This can be immediately distinguished from other
10 Technical Paper, at p. 9.
11 See s. 286.1 of the Criminal Code.
sections of the Criminal Code where Parliament enacted language which states that “[n]o person commits an offence”12 or “[n]o person is criminally responsible”13 or “[n]o person is a party to” an offence14.
[42] I find that this distinction matters. Had Parliament intended to allow, legalize or make the selling of one’s own sexual services “lawful”, it would have used language consistent with that intention, rather than language granting immunity to or exempting the seller from prosecution. This naturally implies that the act is otherwise prohibited.
[43] This interpretation is further supported by an excerpt from then Minister of Justice and Attorney General of Canada, the Honourable Peter MacKay, at the second reading debate on Bill C-36, captured in the Ontario Court of Appeal’s decision in Gallone, at para. 92:
The purchasing offence targets the demand for prostitution, thereby making prostitution an illegal activity, and to complement this offence, the advertising offence targets the promotion of this exploitative activity, thereby
fu rthe ring the leg islatio n ’s o ve ra ll o b ject ive o f redu cing th e d ema n d fo r sexual services: House of Commons Debates, 41st Parl., 2nd Sess., No. 101 (11 June 2014), at p.6653 (Hon. Peter MacKay). [Emphasis added.]
[44] Further, the court in Gallone, at para. 94, specifically considered the effect of the immunity provision in the context of s. 286.4:
As its language makes clear, the immunity provision does not “legalize” the advertising of one’s own sexual services. It simply exempts those who do advertise their own sexual services from prosecution. The advertising is still unlawful. As Donald Piragoff, Senior Assistant Deputy Minister, Policy Section [sic], Department of Justice, stated during questioning before the Standing Senate Committee on Legal and Constitutional Affairs on September 11, 2014 regarding the meaning of the immunity provision generally:
If you look at the language used in the section [i.e. s. 286.5]… it says no person shall be prosecuted. It doesn’t say no person commits an offence or no person is criminally liable. It says no person shall be prosecuted in the following circumstances. It’s an immunity from prosecution. That doesn’t mean that the person is not involved in illegal activity. Proceedings of the Standing Senate Committee on Legal and Constitutional
12 See e.g. ss. 320.14(5)–(7) of the Criminal Code.
13 See s. 16(1) of the Criminal Code.
14 See e.g. ss. 227(2) and 241(3) of the Criminal Code.
Affairs, 41-2, No. 15 (11 September 2014) at p. 15:36 (Hon. David Piragoff).
[45] I find that Gallone represents clear guidance from our appellate court on the meaning of the immunity provision.
[46] I agree with the Crown that Sutherland J. made a fundamental error by not following this binding authority. At para. 145 of N.S., Sutherland J. acknowledges that, with the new scheme, there is a difference in the law. However he takes the view that “there is no functional difference between creating an exemption from the scope of the offence itself and creating an exemption that prevents certain persons from being prosecuted for that offence”. This, in my view, is an interpretation that is inconsistent with Gallone, which states that immunity (or exemption from prosecution) does not make the actions of the person receiving the immunity lawful.
[47] The impact of this error is evident in the paragraphs that follow in N.S. At para. 147, Sutherland J. writes as follows:
If the conduct of a sex worker is prohibited by section 286.2, the sex worker is still allowed such conduct due to the immunity from prosecution provided. Thus, as it pertains to section 286.2, I would substitute “not illegal” with “allowed”. The casual question is whether the section 296.2 makes this statutorily allowed activity of benefiting from the sale of one’s selling sexual services for consideration more dangerous.
[48] Respectfully, equating “the exemption from prosecution” with it being “an allowed activity”, in the wake of Gallone, is plainly wrong.
Did Justice Sutherland incorrectly interpret the elements of the impugned offences which in turn caused him to conclude the conduct in the hypotheticals would be captured by the reach of the law?
[49] There is clear direction, and no dispute in this case, as to the accepted principles of statutory interpretation. The Ontario Court of Appeal in Gallone, at para. 30, summarizes the principles as follows:
[30] The modern principle of statutory interpretation is that “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 7, quoting Elmer A. Driedger, The Construction of Statutes (Toronto: Butterworths, 1974), at p. 67; see also Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; R. v. Hutchinson, 2014 SCC 19, [2014] S.C.R. 346,
at para. 16.
[31] In addition to this modern principle of statutory interpretation, the presumption against tautology is relevant. That presumption of statutory interpretation instructs “that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain”: Sullivan, at p. 211, citing Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, 1985 CanLII 35 (SCC), [1985] 1 S.C.R. 831, at p. 838.
Instead, “[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose”: Sullivan, at p.
- Thus, “[e]very part of a provision or set of provisions should be given meaning if possible”, and courts should avoid, “as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant”: Hutchinson, at para. 16; Sullivan, at p. 211.
Section 286.2(1) – Material Benefit
[50] At para. 100 of N.S., Sutherland J. notes that neither “benefit” nor “commercial enterprise” is defined in the sections under Commodification of Sexual Activities in the Criminal Code. Thereafter, he discusses ordinary meanings, as defined in dictionaries, the Technical Paper on Bill C-36 and some court commentary. At para. 105, Sutherland J. concludes, that, in his view, and in the context of commodification of sexual activity, “benefit has an ordinary meaning of any profit, advantage or acquired right or privilege”, and “commercial enterprise means any enterprise or business entered into for profit” [Emphasis added]. He goes on to explain that, accordingly, “commercial enterprise in s. 286.2(5)(e) encompasses an enterprise with the purpose of making a profit from the selling of sexual services for consideration.”
[51] Thereafter, Sutherland J. goes on to assess hypotheticals two (2) and four (4), which involve co-operative sex work scenarios, in the context of these definitions incorporated into the impugned sections. At paras. 109–10, and in respect of those hypotheticals, Sutherland J. concludes that “[t]heir respective sex work for consideration are enterprises entered into for profit with an expense sharing arrangement between sex workers. The respective sex work enterprises, I conclude, are commercial enterprises, that is an enterprise with the purpose of making a profit from selling sexual services for consideration” [Emphasis added]. This, in turn, resulted in a finding by Sutherland J. that sex workers working co-operatively would be captured by s. 286.2(5)(e) of the Criminal Code.
[52] Respectfully, I find his analysis of the material benefit section15 to be wrong. I find that it ignores the accepted principles of statutory interpretation and that it runs contrary to the available extrinsic evidence of Parliamentary intent.
[53] In the Technical Paper on Bill C-36, at p.7, Parliament made it very clear that they did not intend to criminalize co-operative sex work and designed the new
15 See s. 286.2 of the Criminal Code.
scheme in a way that sellers working co-operatively would not be captured by the new offences:
Although “commercial enterprise” is not defined, the phrase has been interpreted in sentencing cases under the Controlled Drugs and Substances Act. Courts apply a contextual analysis to determine whether a particular enterprise is commercial in nature which provides flexibility to the courts to find different types of enterprises, including informal ones, to be “commercial”. In the context of Bill C-36, a “commercial enterprise” necessarily involves third party profiteering. Courts would likely take into account considerations such as the number of persons involved, the duration of the activities and the level of organization surrounding the activities. The only type of enterprise that this phrase cannot capture is one involving individuals who sell their own sexual services, whether independently or cooperatively, from a particular location or from different locations. Bill C-36 does not allow for prosecution in these circumstances for reasons outlined in the section below. Otherwise, Bill C- 36 provides flexibility to the courts to find different types of enterprises, including informal ones, to be “commercial” in nature. [Emphasis added.]
[54] I find that Sutherland J.’s strict reliance on the dictionary definition of “commercial enterprise” to the exclusion of this declaration of parliamentary intent, as found in the Technical Paper, breached the principles of statutory interpretation.
[55] The error of interpretation also ignored the component of “third party profiteering” necessarily viewed by Parliament as part of a “commercial enterprise” and which was absent from the hypothetical scenario under review.
[56] Further, I find Sutherland J.’s narrow approach to the interpretation of “commercial enterprise” under s. 286.2(5)(e) would even capture, as an enterprise, an individual sex worker who has a purpose of making a profit from the selling of sexual services. This interpretation, when extrapolated, would render almost all of s. 286.2(4) entirely without effect. Consequently, and in consideration of the presumption against tautology, I cannot accept Parliament intended this absurd result.
[57] Even if I am wrong, and while judges may interpret legislation in ways that are different, but equally plausible, where only one is consistent with constitutional principles, the court has an obligation to interpret the provision in a constitutional manner.
Proper interpretation applied to hypotheticals
[58] When interpreted in accordance with all of the principles of statutory interpretation, including Parliament’s declared intention to immunize sex workers working individually or co-operatively from prosecution, s. 286.2(1) is neither overbroad, nor does it have effects grossly disproportionate to its purpose.
[59] In the absence of any of the factors codified in ss.286.2(5)(a)–(e), the other participants in the hypotheticals (security personnel, bookkeeper, landlord, receptionist, etc.) would be captured by the exceptions in ss. 286.2(4)(a)–(d) and would not be subject to prosecution for receiving a material benefit under s. 286.2(1).
[60] Sex workers working co-operatively (in a non-exploitative way) would also not be captured within the intended scope of s. 286.2(1) as it relates to receiving a material benefit. If Parliament did not intend for sex workers working independently or co-operatively to be captured by the new scheme, then Parliament did not intend that any sort of ancillary benefit received by them, as a result of that co-operative work, would be captured by the scheme or within the meaning of s. 286.2(1). This is because any benefit that a sex worker would receive working co-operatively is a benefit derived from the provision of that worker’s own sexual services. Further support for this interpretation rests in the codification of immunities in ss. 286.5(1) and 286.5(2).
[61] I find that it would be contrary to the principles of statutory interpretation, Parliament’s declared intention and would also produce an absurd result, if the court interpreted s. 286.2(1) as capturing the conduct of sex workers working co-operatively (in a non-exploitative way) when that same conduct, pursued independently, is expressly immunized.
[62] Thus, if the workers in the hypothetical scenarios are not in jeopardy of prosecution, then their liberty and security interests as encompassed by s. 7 of the Charter are not engaged and I find Sutherland J.’s resultant conclusion that s. 286.2(1) violates s. 7 of the Charter to be wrong.
Section 286.3(1) – Procuring
[63] At paras. 137–38 of N.S., Sutherland J. held that sex workers working co- operatively would be captured by s. 286.3(1), as would the conduct of a former sex worker providing safety advice:
[137] Dealing with the sex workers, I am satisfied that by assisting each other in conducting commercial sex, in assisting in advertising in obtaining clients, in providing accommodation to conduct commercial sex work, that each could be prosecuted for procuring, by harbouring, concealing for the purpose of facilitating commercial sex work and directing, influencing or control over the movements of a sex worker for the purpose of facilitating commercial sex work.
[138] Concerning the former sex worker, I agree with the Crown that giving advice on safety issues, in itself does not offend section 286.3 unless the intentional element is made out. The facts do not make out that the purpose of the advice is to facilitate an offence. However, the providing of advice on how to set up, advertise and conduct oneself clearly falls within directing, influencing, or an element of control over the movements
of the sex worker for the purpose of facilitating commercial sex work. The facts infer that the intention of the advising is to assist the students setting up a commercial sex work enterprise.
[64] I find that this interpretation of s. 286.3 fails to accord with Parliament’s intent and the recent guidance from our court of appeal on the scope of s. 286.3.
[65] Page nine (9) of the Technical Paper on Bill C-36 sets out Parliament’s clear intention to create a new procuring offence which only captures the conduct of those who are actively involved in the provision of another person’s sexual services.
[66] In Gallone, the Ontario Court of Appeal gave us binding guidance on the conduct that is captured by s. 286.3(1) and the required mens rea for conviction.
[67] Then, in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, the Court of Appeal confirmed the need to read the modes of commission identified in s. 286.3 disjunctively and clarified that a “purpose” requirement imposes a “high” “specific intent” mens rea, which requires more than knowing facilitation:
“[T]he accused must specifically intend his actions to have this general effect” (emphasis in original): Khawaja, at para. 46; see also R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 16-18. In the case of
s. 286.3, that general effect is the effect of “facilitating an offence under subsection 286.1”: R. v. Boodhoo and others, 2018 ONSC 7205, at paras. 32-33; R. v. Antoine, 2019 ONSC 3843, at para. 40.
[68] Assessing the hypothetical scenarios (two and four) in light of this binding direction on the scope of s. 286.3 leaves me struggling to see how Sutherland J. made his finding that the sex workers could be prosecuted. Respectfully, none of the co- operative sex workers in those hypotheticals “procure” one another to provide sexual services. The scenario is predicated on students who independently decide to become sex workers, ahead of deciding to work co-operatively, devoid of any notion that any of them recruited the other. There is no indication that any of them holds, conceals, harbours or shelters any other. The scenario provides that they jointly lease the premises, jointly hire the staff and voluntarily engage in co-operative sex work. Lastly, and perhaps most importantly, none of them can be described as engaging in the least coercive way of committing an offence under s. 286.3 by exercising control, direction or influence over the movement of another sex worker for the purpose of facilitating an offence under s.
286.1 of the Criminal Code, as the element of persuasion is absent.16
[69] Similarly, I find Sutherland J. erred in his finding that the “known or experienced” sex worker that they approached for assistance could be captured by the reach of s. 286.3. The scenario is devoid of any notion that she induces, alters, sways or affects the will of the co-operative sex worker students as it relates to their provision of
16 See Gallone, at para. 47.
sexual services for consideration. Her conduct does not meet the actus reas or the high specific intent mens rea required to facilitate an offence under s. 286.1, as confirmed in Joseph.
[70] Thus, I find Sutherland J.’s analysis of s. 286.3 to be plainly wrong and to have undermined his conclusion at para. 141 that the provision infringes s. 7 of the Charter.
Section 286.4 – Advertising
[71] At para. 121 of N.S., Sutherland J. concluded that, while s. 286.5(1)(b) immunizes the sex worker students in the hypotheticals (two and four) from prosecution, the sex workers’ security of the person would be infringed by s. 286.4 by “their inability of frank and detailed disclosure in the advertisement of the sexual services offered and expectations for such sexual services”. This finding is predicated on the fact that informed third party web designers, internet providers, newspapers etc. are subject to prosecution.
[72] In the paragraphs preceding his finding, Sutherland J. discussed the expert evidence upon which he made this finding, related it to that which was received and accepted in Bedford, and held that prior, open and detailed communication between sex worker and purchaser were critical to the safety and security of the sex worker (by reducing likelihood of confrontation and violence). I find that, while Bedford identified a link between communication and safety of the sex worker, there was no similar finding in relation to advertising.
[73] Then, at para. 117, Sutherland J. writes that, due to the increased use of technology and the internet, and the illegality of aspects of commercial sex work in Canada, sex workers use this digital vehicle for advertising their services to indicate in detail the services provided and the expectations with sexual activity, and the price and particulars for specific services. Although the court identifies that the third parties in the hypothetical scenarios would be subject to prosecution, the court does not explain how the proscription on advertising in s. 286.4 creates dangerous conditions or interferes with the security of the person of the sex worker.
[74] Advertising by third-party is but one part of the platform for communication. The platform or the technology is the internet. Regardless of whether the method of communication is the internet (website), or a chat, an email, a text message, or the telephone, s. 286.4 does not interfere with a sex workers ability to openly communicate through those means due to the operation of s. 286.5.
[75] I agree with my brother, Bale J., in his analysis of s. 286.4 in Boodhoo, at para. 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.
[76] I find that Sutherland J. erred in assessing the impact of s. 286.4 in holding that it infringed the sex workers’ security of the person by prohibiting open and safe communication or perhaps a sex worker’s ability to take protective steps. I find that it does not, and that the analysis was, therefore, not fully considered and plainly wrong.
Did Justice Sutherland misidentify the purpose/objective of Bill C-36 in the s. 7 analysis?
[77] At the commencement of the analysis at para. 52 in N.S., Sutherland J. states that the purpose of Bill C-36 or The Protection of Communities and Exploited Persons Act (“PCEPA”) is “to immunize from prosecution any individual sex worker who performs sex work, and to allow the assistance of third parties in limited circumstances, while making all other aspects of commercial sex work illegal.”[Emphasis added.]
[78] Then, at para. 54, Sutherland J. acknowledges the paradigm shift made by Parliament in no longer treating commercial sex work as a nuisance to now treating it as a form of sexual exploitation. He then writes that, “[i]n doing so, Parliament decided to make some aspects of commercial sex work illegal, with emphasis on individuals who purchase sexual services and on third parties who exploit individuals that sell sexual services.” [Emphasis added.]
[79] Justice Sutherland goes on to state the following at para. 55:
[55] Consequently, keeping in mind the objectives of safety and prevention of exploitation, as illustrated in the summary and preamble to the statue as elaborated in the Technical Paper, Parliament enacted a complicated interconnected scheme to prohibit commercial sex work for adults, individuals over the age of 18. [Emphasis added.]
[80] I find that Sutherland J. misidentified the overall objective of the new legislative scheme, which is fundamentally different than what was before the court in Bedford. The new legislative scheme, with immunities and exemptions from prosecution, does not reflect a continued objective of permitting prostitution to occur safely or a scheme designed to only criminalize certain aspects of commercial sex work.
[81] Respectfully, and although Bill C-36 seeks to balance safety concerns posed by prostitution by not prohibiting individuals from taking certain measures to protect themselves when selling their own sexual services, I find that the purpose of the new legislative scheme created by Bill C-36 is as set out in the preamble of the Technical Paper and as confirmed by our court of appeal at para. 92 in Gallone: that is, “the overall objective of the new offences “is to red u ce the demand for prostitution with a view to
discouraging entry into it, deterring participation in it and ultimately abolishing it to the
g rea te st e xte n t p o ssib le”.” 17 [Emphasis added.]
[82] Although Sutherland J. applied this objective to his analysis of whether the impugned sections were arbitrary, he attributed a different objective to the scheme when assessing overbreadth and gross disproportionality. This is evident by comparing paras. 151, 156 and 157 of his analysis on arbitrariness to his analysis on overbreadth and gross disproportionality at paras. 165 and 175.
[83] As a result, I find attributing an incorrect objective to the legislation would have undoubtedly impacted his s.7 analysis as it related to considerations of overbreadth and gross disproportionality. Thus, I respectfully conclude that his conclusion is wrong.
The Hypotheticals on this Application
[84] Mr. MacDonald has modified his original application based on the outcome of N.S. and now relies on four (4) reasonable hypotheticals, which he contends demonstrate that the impugned provisions violate s. 7 of the Charter. He acknowledges, that, if the court finds that N.S. is plainly wrong, his application will likely fail given the similarities of the hypotheticals. The hypotheticals in Mr. MacDonald’s application are largely based on the hypothetical scenarios considered in N.S. and R. v. Anwar, 2020 ONCJ 103, 454 C.R.R. (2d) 52, with some further additions. Here, I will only consider other issues raised, but not included, within the same hypotheticals from N.S. and those raised within the additional hypotheticals not before the court in N.S.
[85] Also, and in accordance with the finding in N.S., Mr. MacDonald has abandoned his arguments that the impugned provisions are arbitrary and vague. He solely relies on overbreadth and gross disproportionality to establish his claim of a s.7 infringement. Therefore, my analysis will focus on an assessment of those two principles.
[86] There is no dispute in this case that the court can consider the effect of the challenged provisions on reasonable hypothetical scenarios: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.
[87] The proposed hypotheticals are as follows:
• Hypothetical 1: abandoned
• Hypothetical 2: Students Deciding to Do Sex Work
Three 21-year old students at Brock University are unable to afford their tuition and living expenses at university. They decide to become sex workers, a profession with which they are entirely unfamiliar. They approach a known sex worker for assistance and advice. She facilitates their plan by helping to set them up, including helping them find rental
17 Gallone, at para. 92.
premises out of which to operate, helping them hire security and a receptionist, and arranging for a professional photographer and website designer to facilitate their advertising on the internet. In one variation of the hypothetical, the web designer sets up individual web pages for each worker. In another variation, there is a joint web page for all three sex workers.
The three students then lease premises, hire security, a receptionist and a bookkeeper, and commence to sell sexual services. Their lives are safer and their business affairs are more organized as a result of their group endeavor and the assistance of the sex worker and the paid staff.
The students in the hypothetical have committed indictable offences under ss. 286.2(1), 286.3(1), and 286.4(1) of the Criminal Code.
The sex worker has committed the offence of procuring under
s. 286.3(1) and is a party to offences under ss. 286.2(1) and 286.4(1).
The landlord has committed an offence under s. 286.2(1) because he/she is receiving rent in the context of a commercial enterprise that offers sexual services for consideration.
The security personnel, the receptionist, and the bookkeeper have committed offences under s. 286.2(1) because they are receiving remuneration in the context of a commercial enterprise that offers sexual services for consideration.
The professional photographer, the website designer, and the internet provider have committed the office of advertising under s. 286.4(1) as principals or parties.
• Hypothetical 3: Opening a Co-op and Hiring Mrs. Doubtfire
Three young women decide to work together in the sex trade. By working together they hope to increase safety, cut down costs, and accumulate enough money to get out of the sex trade and pursue other interests. None of them are very organized or disciplined, so they mutually hire an assistant, Mrs. Doubtfire, to book appointments, buy supplies, look after payment of rent, and in other ways act as an office manager. Because all three recognize their lack of organizational skills and discipline, Mrs. Doubtfire is directed to encourage them to show up for appointments promptly, to book enough appointments to meet their financial goals, and to encourage them to work appropriate hours to achieve those goals even if they should express a desire to work fewer hours on particular days.
The final decision is always up to the employer, the sex workers, but it is a specific part of Mrs. Doubtfire’s job description to encourage them to work.
By mutually agreeing that Mrs. Doubtfire’s duties included encouraging each other to provide sexual services for money, all three of the young women are guilty of an offence under s. 286.3 by encouraging and influencing the sale of sexual services. The three women, because they share costs, also run afoul of the material benefits offence (s. 286.2). Mrs. Doubtfire is also guilty of procuring (s. 286.3) for doing what her employers, the sex trade workers, hired her to do: influence or encourage them. In addition, she is receiving a material benefit under s. 286.2 and does not qualify for any exclusions.
• Hypothetical 4: Opening a Sole Proprietorship
The same facts as in the previous example, except that there is only one sex trade worker who hires Mrs. Doubtfire. In this case, although the worker is safe from prosecution, her employee, Mrs. Doubtfire, is liable to prosecution under the procuring offence for encouraging or influencing her to perform sexual acts for money, even though this is what the sex trade worker hired her to do. Mrs. Doubtfire is also guilty of receiving a material benefit.
• Hypothetical 5: Getting By With Help From a Friend
Rapunzel is a sex trade worker. She wishes to advertise her services so that she can (a) increase the money she makes from those services; and
(b) screen those people who wish to purchase her services, to preserve her safety. She wishes to put an ad on Back Page, a web page where people go to look for sexual services.
Rapunzel is not very computer literate. She takes pictures and writes text for her ad, but does not know how to post in online. She talks to her friend Mark, who is aware that she sells her sexual services, is aware that she wishes to post an ad online, and is aware that she wishes to increase her profits and screen potential clients for safety reasons. She asks Mark to help her post the ad online. It takes Mark about one minute to post it online, he receives no pay, and he has no further involvement with the ad.
Mark is guilty of an offence under s. 286.4 (advertising), even though all he did was help his friend, for no recompense, in a situation where she lacked certain skills and where what she was doing (advertising) was legal for her to do.
Analysis
Section 7 of the Charter and the principles of fundamental justice
[88] Section 7 of the Charter states that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[89] Section 1 of the Charter guarantees that the rights and freedoms set out in the Charter are subject only to such reasonable limits that are prescribed by law and can be demonstrably justified in a free and democratic society.
[90] To demonstrate a violation of s.7, the applicant must establish, on a balance of probabilities, that the challenged law limits the right to life, liberty or security of the person, in a manner that is contrary to the principles of fundamental justice. Thereafter, the Crown would bear the burden of justifying the infringement under s.1 of the Charter.
[91] The principles of fundamental justice include the principles against arbitrariness, overbreadth, gross disproportionality and vagueness.18
Overbreadth
[92] The overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the following question: are those means necessary to achieve the state objective?19
[93] In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator.20
[94] However, before it can be found that an enactment is so broad that it infringes s. 7 of the Charter, it must be clear that the legislation infringes life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective.21
[95] To determine a law’s purpose, the courts must look to following:
statements of purpose in the legislation, if any;
the text, context and scheme of the legislation; and
18 See Bedford, at paras. 45, 94–123.
19 R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, at para. 49. See also Bedford, at para. 101.
20 Heywood, at paras. 51–52.
21 Heywood, at para. 52.
- extrinsic evidence, such as legislative history and evolution.22
Gross Disproportionality
[96] In Bedford, at paras. 120–21, the Supreme Court of Canada held that a law is grossly disproportionate where its effects on life, liberty or security of the person are so grossly disproportionate to its purpose that they cannot rationally be supported.
[97] The court went on to say that “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…the connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society.”23
Bill C-36 Overall Objective
[98] As I have stated in my previous analysis, the overall objective of PCEPA or Bill C-36 has been confirmed by the Ontario Court of Appeal in Gallone, at para. 92:
[T]he overall objective of the new offences “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”.
[99] There can be no dispute that the objective and purpose of the new scheme and impugned sections is fundamentally different than that of the sections scrutinized in Bedford.
[100] Mr. MacDonald argues that, nonetheless, the present legislation continues to put sex workers at risk, punishes morally innocent people who assist sex workers, and is constitutionally invalid based on its overbreadth and disproportionate effect. I disagree.
[101] As I have found, prostitution is now an illegal activity. Further, Parliament has enacted s. 286.2(4) with a specific view to address the safety concerns identified by the Supreme Court of Canada in Bedford.
[102] All of the hypothetical scenarios proposed by Mr. MacDonald involve individuals who are selling their own sexual services, are informed independent adults, and are choosing to engage in what is now a prohibited activity.
[103] In light of the change in legality of prostitution, it is important to consider the scope of the Charter rights applicable to someone who is making a free and informed choice to engage in criminal activity.
22 R. v. Safarzadeh-MarkhaliI, 2016 SCC 14, [2016] 1 SCR 180, at paras. 24–31.
23 Bedford, at paras. 120–21.
Do the h yp o th e tica ls d e mo n stra te a n inf ring e me n t o f the se x workers’ co n stitutio n a lly protected liberty right under s.7 because they are overbroad or have grossly disproportionate effects?
[104] As stated by the Supreme Court of Canada in Godbout v. Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844, at paras. 65–66, the scope of the right to liberty under s.7 is not only concerned with physical liberty, but also with fundamental concepts of human dignity, individual autonomy, and privacy. The court went on to say that the autonomy protected by the s.7 right to liberty encompasses only those matters that can be properly characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. While I do not find it would advance this particular analysis to embark on a recitation of all of the personal choices the Supreme Court has deemed sufficient to engage the liberty interest under s.7, I do believe it would be beneficial (and relevant) to make reference to those the court has stated do not.
[105] The Supreme Court of Canada has stated that the right to liberty under s. 7 of the Charter does not protect the following:
• the freedom to transact business whenever one wishes;24
• the ability to exercise one’s chosen profession;25
• the ability to generate business revenue by one’s chosen means;26 and
• the freedom to contract or freedom to choose a particular career.27
Hypothetical #2
[106] I have canvassed this analysis in consideration of the decision in N.S. and found that applying the proper principles of statutory interpretation consistent with parliamentary intent demonstrates that the liberty interests of the sex workers are not engaged by this scenario. Further, I found that the people hired by the sex workers would be captured by the exceptions in s. 286.2(4) and therefore would not have committed an offence, and the exception to the exception in s. 286.2(5)(e) would not apply.
[107] Presuming the website designer and photographer are aware that their services are in furtherance of advertising an offer to provide sexual services for consideration, and they actively participate in creating the advertisement, then, under the
24 R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, at p. 786.
25 Prostitution Reference, Reference re: ss.193 & 195.1(1)(c) of the Criminal Code, 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123. See also Walker v. prince Edward Island, 1995 CanLII 92 (SCC), [1995] 2 S.C.R. 407.
26 Siemens v. Manitoba, 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 46.
27 Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, at paras. 201–02.
new scheme, their conduct would be captured by s. 286.4 and they would be subject to prosecution.
Is this infringement necessary to achieve the State objective?
[108] I find that this infringement on the liberty of the informed website designer and photographer is in accordance with the principles of fundamental justice. Prostitution is now an illegal activity in Canada.
[109] The legislative objective of s. 286.4 is stated 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.
[110] Also, at p.6, the Technical Paper identifies that Parliament’s intention through s. 286.4 is to capture or criminalize persons who knowingly advertise illegal activity.
[111] I am reminded that the court must pay a measure of deference to the means selected by the legislature and should not interfere with legislation unless the court finds that the enactment is unnecessarily broad. To be overbroad, the enactment must go beyond what is needed to accomplish the governmental objective.28 Section 286.4 (prohibition on advertising) cannot be said, nor do I find it to be, unnecessarily or overly broad, because it serves to reduce the demand for prostitution, thereby furthering Parliament’s stated objective to discourage entry into prostitution, deter participation in prostitution, and abolish prostitution to the greatest extent possible. I find s.286.4 does not go further than necessary to achieve that objective.
[112] Further, I do not find that the prohibition on advertising sexual services is so extreme or draconian to be disproportionate to Parliament’s interest in deterring activities that increase the demand for sexual services, which may lead to the exploitation of vulnerable persons. Hence, I do not find s. 286.4 to be grossly disproportionate in its effects.
Hypotheticals #3 and #4
28 Heywood, at paras. 51–52.
[113] For the reasons stated in my analysis of N.S., the liberty interests of the sex workers are not implicated under s. 286.2 because none of them are exposed to prosecution.
[114] In these scenarios, Mrs. Doubtfire is hired by the sex worker(s) and directed to “encourage” the sex worker(s) to work. The applicant contends that this hypothetical demonstrates the overbreadth and gross disproportionality of the law as Mrs. Doubtfire would be liable for receiving a material benefit pursuant to s.286.2(1) because she would not qualify for the exception in s. 286.2(4)(d), by doing what she was hired to do.
[115] Frankly, I find this scenario does not assist in demonstrating the kind of conduct that these laws would reasonably be expected to catch and a basis upon which a law should be set aside. I find that the inclusion of an employee like Mrs. Doubtfire creates an improbable or far-fetched scenario, as opposed to a reasonably foreseeable one, as contemplated at para. 62 in Nur. I find a scenario where a sex worker(s) hires an employee, and then instructs the employee to counsel and encourage the employer to perform sexual services in exchange for money, to be fanciful and/or remote. I do not find it to be a scenario that is reasonably foreseeable based on judicial experience and common sense.
[116] What is more is that the other exceptions to s. 286.2 found in ss. 286.2(4)(a)–(c) do not contain a similar disqualifier for the acts of counselling and encouraging. The disqualifier only applies where the person is receiving a financial or material benefit in consideration for a good or service that they do not offer to the general public. Typically, drivers, bodyguards, accountants, and assistants would be excepted by s. 286.2(4)(c) because they offer their services to the general public on the same terms and conditions.
[117] The presumption against tautology must be respected by the court and it supports this interpretation.
[118] I find the insertion of these words signals a clear intention by Parliament to criminalize scenarios like the Mrs. Doubtfire scenario. That is, situations where third parties have an economic interest in the prostitution of others, they encourage and influence the sex worker to engage in prostitution and do not offer the service to the general public. It follows, then, that for Mrs. Doubtfire to make money she needs the sex workers to continue to sell their sexual services. Given that she has a financial interest in their continued involvement in illegal commercial sex transactions, the scenario has the potential to become exploitative.
[119] Therefore, I do not find the hypotheticals involving Mrs. Doubtfire to be reasonable or to demonstrate that the reach of s. 286.2 is overbroad or grossly disproportionate in its effects.
Section 286.3(1) – Procuring
[120] The applicant contends that this hypothetical also demonstrates the overbreadth and gross disproportionality of s. 286.3(1), as all three sex workers as well as Mrs. Doubtfire would be liable for procuring by encouraging or influencing the sale of sexual services.
[121] For the reasons already stated in my analysis of N.S., I find that s.286.3(1) would not criminalize the sex workers in a co-operative working scenario for assisting or encouraging each other to do what they have each independently already decided they want to do. Similarly, this scenario lacks the element of persuasion which is required for an offence to be committed even in the least-coercive way.29 The scenario states that the final decision about whether to work is always left up to the individual sex worker.
[122] As for Mrs. Doubtfire, I find that her conduct would not attract criminal liability under s.286.3(1), either. Firstly, she is an employee who is not in a position to exercise any effective power or control or influence over the sex worker(s), her employer(s). Secondly, she is not affecting the will of any of the sex worker(s) to engage in prostitution. The sex worker(s) want to maximize their work to meet their financial goals. Her tasks do not involve proposing ideas or persuading the sex worker(s) to do anything other than what they have told her to do, which falls short of the definition of exercising influence, as stated in Gallone. Lastly, and even if I am wrong and Mrs. Doubtfire is exercising influence over the movements of the sex worker(s), I find she cannot be said to be acting with the purposive and high specific mens rea required to commit an offence under s.286.3(1), which requires that she was doing so for the purpose of facilitating an offence under s. 286.1.
[123] Therefore, I do not find that hypotheticals #3 or #4 demonstrate that s. 286.3 is overbroad or has grossly disproportionate effects resulting in a breach of s. 7 of the Charter.
Hypothetical #5
[124] The applicant contends that this hypothetical demonstrates the overbreadth and gross disproportionality of the law, as Mark’s conduct in this hypothetical makes him subject to prosecution for an offence under s. 286.4. There can be no dispute, nor does the Crown dispute, that by helping Rapunzel post an online ad, Mark would be subject to prosecution under s. 286.4.
Is this infringement necessary to achieve the State objective?
[125] This analysis turns on the same principles as that regarding the webpage designer in the advertising scenario in hypothetical #2. The only factual difference between the two is the lack of financial compensation in Mark’s case.
29 See Gallone and Joseph.
[126] The Ontario Court of Appeal in Gallone, at para. 92, recognized that the prohibition on advertising in s. 286.4 is central to the overall objective of Bill C-36 of reducing the demand for sexual services. Mark’s conduct, irrespective of recompense, was intentionally criminalized by Parliament because promotion of prostitution contributes to the demand for it.
[127] Further, this hypothetical seeks to highlight a distinction between the tech- savvy and computer illiterate sex worker, with the latter being disadvantaged by an inability to advertise due to the repercussion to anyone who helps her. This discussion needs to start with the fact that, under the new scheme, advertising sexual services is illegal and neither sex worker has the legal right to advertise her own sexual services. Rather, Parliament has chosen to grant them immunity from prosecution, recognizing that they are victims of an exploitative industry.30 The same cannot be said of Mark. He is not victimized or vulnerable in the same way as someone selling their sexual services and Parliament has deliberately chosen not to extend the same immunity.
[128] I find s. 286.4 to be closely connected to the overall purpose of Bill C-36, which was informed by pressing and substantial harms.31 Further, I find that the deprivation to Mark’s liberty is not out of sync with the objectives of the measure.
[129] As I find this infringement on Mark’s liberty to be in accordance with the principles of fundamental justice, I find that s. 286.4 does not offend s. 7 of the Charter.
Do the h yp o th e tica ls d e mo n stra te a n inf ring e me n t o f the se x wo rker’ co n stitu tio na lly protected security of the person right under s.7?
[130] Generally, the right to security of the person under s. 7 of the Charter is given a broad interpretation and has both a physical and psychological aspect. It does not generally include property or economic rights, however, as long as the deprivation does not fundamentally deprive the person of the ability to earn a livelihood. One’s security of the person is not deprived when he or she is prohibited from pursuing a particular profession.32
[131] The hypotheticals proposed do not demonstrate that the sex workers are prevented by the legislation from taking steps to protect themselves. Parliament has enacted the exceptions in s. 286.2(4) with a specific view to address the safety concerns identified by the Supreme Court of Canada in Bedford.
[132] Sex workers can now hire drivers and bodyguards, they can lease a premise from which they can conduct their business and they can communicate in advance with prospective customers while being immunized from prosecution.
30 Technical Paper, at p. 9.
31 Technical Paper, at pp. 3–4.
32 R. v. Weyer (1988), 83 N.R. 272 (F.C.A.), leave to appeal to S.C.C. refused in 88 N.R. 397n.
Hypothetical #2
[133] Hypothetical #2 suggests that the co-operative work scenario is safer and allows for more organized business affairs.
[134] The new scheme, as I have found, does not criminalize co-operative sex work. Further, it does not prevent sex workers from taking steps to ensure their safety, nor does it impose dangerous conditions on those who sell sexual services.
[135] With respect to the joint webpage made by the sex workers to advertise their services, I cannot identify any connection which might be suggested between safety and a joint advertisement, and therefore do not find this scenario to infringe the sex workers’ security of the person rights.
[136] Lastly, I find that the right to security of the person under s.7 does not encompass “a right to have more organized business affairs”.
Hypothetical #3 and #4
[137] In these scenarios, Mrs. Doubtfire is hired to help the sex workers maximize their profits. The scenarios do not ascribe to her a role related to ensuring the safety and security of the workers. Therefore, I do not find that the sex workers’ s.7 rights to security of the person are engaged.
Hypothetical #5
[138] In this scenario, Rapunzel wants to post an advertisement online to increase her profit from the provision of her services and to screen potential clients for safety reasons. While this scenario does not explain how this method of advertising would screen clients, like the scenario before the court in N.S., I do not find s. 286.4 prohibits Rapunzel from communicating in advance with prospective clients to effect safety measures, nor does it impose a dangerous condition on her.
[139] Further, and with respect to Rapunzel’s desire to maximize her profits from the sale of her own sexual services, I do not find this to be a deprivation that relates to her security of the person, as defined in s. 7 of the Charter.
[140] Therefore, I find that s. 286.4 accords with the principles of fundamental justice and does not infringe s. 7 of the Charter.
Conclusion
[141] When interpreted in accordance with all of the principles of statutory interpretation, I find that ss. 286.2(1), 286.3(1) and 286.4 are not overbroad, do not have grossly disproportionate effects and do not offend s. 7 of the Charter.
[142] Therefore, the application is dismissed.
Gambacorta J.
Released: June 21, 2021
COURT FILE NO.: 4789/20
DATE: June 21, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Joshua MacDonald
REASONS FOR DECISION ON APPLICATION
Gambacorta, J.
Released: June 21, 2021
2
Correction Notice
August 19, 2021: The following corrections were made:
Paragraph 12: “sister” was replaced with “brother” and “she” was replaced with “he”.
Paragraph 28: “her” was replaced with “his”.
Paragraph 75: “sister” was replaced with “brother” and “her” was replaced with “his”.