RULING #1 ON APPLICATION

I. OVERVIEW

[1] Julio Maldonado Vallejos (“Mr. Maldonado”) is charged with human trafficking and other related offences. Mr. Maldonado has brought an application challenging the constitutionality of sections 286.3 and 286.4 of the Criminal Code of Canada, which are both prostitution-related offences.

[2] Three Superior Court judges have recently released conflicting decisions dealing with parallel constitutional challenges in other cases. Faced with conflicting decisions by courts with concurrent jurisdiction, I must follow the decision or decisions I find to be correct.

[3] For the reasons that follow, I find that the issue was correctly decided by Gambacorta J. in R. v. MacDonald, 2021 ONSC 4423 and by LeMay J. in R. v. Jonathan Williams, July 2, 2021, unreported. I decline to apply Sutherland J.’s earlier declaration of invalidity in R. v. N.S., 2021 ONSC 1628 and 2021 ONSC 2920. The trial shall proceed on all charges and the second stage of the constitutional challenge will be litigated after the evidence is called.

II. BACKGROUND

[4] Mr. Maldonado is charged with human trafficking, criminal harassment (2 counts), assault, assault with a weapon, forcible confinement, procuring sexual services for consideration, advertising sexual services and receiving material benefit from human trafficking. A judge-alone trial is scheduled to take place before me during the week of October 12, 2021.

[5] Count 7 on the Indictment alleges procuring a person to offer or provide sexual services for consideration, contrary to section 286.3(1) of the Criminal Code; and count 8 alleges advertising an offer to provide sexual services for consideration, contrary to section 286.4 of the Criminal Code. In these reasons, I shall refer to ss. 286.3(1) and 286.4 as “the impugned provisions”.

[6] Mr. Maldonado has applied for an order pursuant to section 52 of the Constitution Act, 1982 that the impugned provisions are inconsistent with the Constitution of Canada and are therefore of no force and effect.

III. ANALYSIS

A. The Post-Bedford Prostitution Criminal Legislation

[7] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, the Supreme Court of Canada struck down three prostitution-related offences.

[8] In response to the decision in Bedford, Parliament passed Bill C-36, the Protection of Communities and Exploited Persons Act, which received Royal Assent on November 6, 2014 and came into force on December 6, 2014. The new statutory scheme includes the following relevant sections of the Criminal Code related to sexual services for consideration:

• Section 286.1(1) (Obtaining sexual services for consideration) states that 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 an offence.

• Section 286.3(1) (Procuring) states that 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.

• Section 286.4 (Advertising sexual services) states that everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of an offence.

• Section 286.5(1)(b) (Immunity) states that no person shall be prosecuted for an offence under section 286.4 in relation to the advertisement of their own sexual services.

• Section 286.5(2) (Immunity) states that 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.

[9] The objective of Bill C-36 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. It 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: see R. v. MacDonald.

[10] This new legislative scheme criminalizes the purchase of sexual services for the first time in Canada, making prostitution itself an illegal practice. However, it expressly immunizes 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. Parliament acknowledged using this approach 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: see R. v. MacDonald.

B. The Shifting Legal Landscape

[11] Ordinarily, the applicant would bear the onus, on a balance of probabilities, of establishing that the impugned provisions are contrary to a right guaranteed under the Charter. If a provision is found to be contrary to a Charter-protected right, the onus shifts to the Crown to establish that the provision is justified under section 1. The parties appeared before me in March 2021 and stated that they had agreed to defer submissions on the constitutional application until after the evidence was completed.

[12] On April 21, 2021, in R. v. N.S., my brother Justice, Sutherland J., issued a decision on a parallel constitutional challenge. Sutherland J. ruled that sections 286.2, 286.3(1) and 286.4 violated section 7 of the Charter and were not saved by section 1 of the Charter. He declared the impugned sections immediately invalid and of no force and effect. He did not suspend the declaration of invalidity.

[13] On May 27, 2021, counsel brought Sutherland J.’s decision to my attention and made oral submissions. Pursuant to the Court of Appeal’s decision in R. v. Sullivan, counsel agreed that I should respect the earlier declaration of invalidity unless I concluded that Sutherland J.’s declaration was plainly the result of a wrong decision. If the Crown did not meet their onus to establish that declaration was plainly wrong, acquittals would be entered with respect to the impugned provisions and the trial would proceed on the rest of the charges: see 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. The Crown argued that the decision in R. v. N.S. is plainly wrong, whereas defence counsel submitted that it is not.

[14] After oral submissions were made, two further constitutional challenges were subsequently decided by other Superior Courts:

i. In R. v. MacDonald, my sister Justice, Gambacorta J., found Sutherland J.’s analysis to be plainly wrong, and further found that sections 286.2(1), 286.3(1) and 286.4 do not offend section 7 of the Charter.

ii. In R. v. Williams, my brother Justice, LeMay J., agreed with Gambarcorta J.’s reasoning and also found that R. v. N.S. was “plainly wrong”.

[15] I requested and received written submissions from counsel regarding these additional Superior Court decisions and how they should impact the analysis at this stage.

[16] The legal framework has changed since I heard oral submissions. The Crown no longer bears the onus of establishing that the decision in R. v. N.S. is plainly wrong because there are now conflicting decisions from Superior Courts regarding the constitutionality of the impugned provisions.

[17] The applicant now bears the onus of establishing that the impugned sections are unconstitutional. Faced with conflicting decisions by courts with concurrent jurisdiction over the subject matter of the section 52(1) application, I should follow the decision or decisions I find to be correct. I do not necessarily need to begin my analysis by considering whether any given precedent is plainly wrong: see R. v. Green, 2021 ONSC 2826 at para. 23; R. v. Craig, 2019 ONSC 6732 at para. 23.

C. Which Decision is Correct?

[18] The reasoning in R. v. N.S. does not persuade me that the impugned provisions are unconstitutional. Sutherland J.’s analysis is based on the premise that the new provisions “allowed” the sale of sexual services for consideration. Respectfully, I disagree with Sutherland J.’s findings on that issue.

[19] In R. v. MacDonald and R. v. Williams, the courts found that the decision in R. v. N.S. is plainly wrong. With great respect to Sutherland J., I agree with and adopt the reasoning in MacDonald and Williams. I find that the sale of sexual services for consideration is illegal, for the following reasons:

With the enactment of s. 286.1, Parliament criminalized both the purchase and sale of sexual services. In doing so, 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 sexual service. However, Parliament deliberately chose to provide immunity from prosecution to those who sell their own sexual services through the enactment of section 286.5, recognizing that they are victims of an exploitative industry, who need support and assistance, rather than blame and punishment: see R. v. McDonald, paras. 36-38.

It would not be necessary to provide immunity if it were not a crime. Parliament could have added a subsection stating explicitly that a person who provides sexual services for consideration does not commit an offence, but Parliament chose not to do that. It is implicit in section 286.5 that the seller of sexual services is guilty of the offence of obtaining sexual services, otherwise there would be no need to immunize them from prosecution: see R. v. McDonald, paras. 36-38.

The Ontario Court of Appeal decision in R. v. Gallone is binding authority. The Court in Gallone considered the Department of Justice Technical Paper that was tabled before the parliamentary committees, and found that the 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". In line with Parliament’s conceptualization of prostitution as exploitation rather than nuisance, the new legislative scheme "treats those who sell their own sexual services as victims who need support and assistance, rather than blame and punishment". The immunity provision in s. 286.5, as it applies to the prohibition on advertising in s. 286.4, supports this objective by shielding those who sell their own sexual services from prosecution should they advertise their own services.

The court in Gallone held that the immunity provision does not "legalize" the advertising of one's own sexual services, it simply exempts from prosecution those who advertise their own sexual services. The advertising is still unlawful. I find that Sutherland J. made a fundamental error by not following the binding authority in Gallone: see R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225 at paras. 92-94.

The specific language used by Parliament in section 286.5 states that “no person shall be prosecuted for”. The Criminal Code contains other phrases such as “no person commits an offence”, or “no person is criminally responsible”, or “no person is party to an offence”. Parliament chose language consistent with the criminalization of prostitution, while granting immunity to or exempting the seller from prosecution. The language of the immunity provisions shows that Parliament had a different intent when using that wording and implies that the act is otherwise prohibited. Sutherland J. failed to consider the construction of section 286.5 and words used in other sections of the Code: see R. v. McDonald, paras. 41-42.

[20] In R. v. N.S., Sutherland J. erroneously concluded that Parliament allowed the sale of sexual services, which represented a fundamental misunderstanding of the new provisions and undermined the balance of his conclusions.

[21] In addition, Sutherland J. stated that the purpose of the new legislation was “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.” (para. 52). However, as stated by the Court of Appeal in Gallone, the 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".

[22] An appropriate statement of the objective is critical to the proper overbreadth analysis: see R. v. Moriarty, 2015 SCC 55 at para. 26. Sutherland J.’s failure to correctly identify the objective of the legislation further undermines his conclusions.

[23] I decline to follow the reasoning in R. v. N.S., and I find that the decisions in MacDonald and Williams are correct.

IV. CONCLUSION

[24] For all of these reasons, I decline to follow the declaration of invalidity in R. v. N.S.. Mr. Maldonado shall stand trial on all charges on the Indictment.

[25] I have not received submissions on the s. 7 analysis and the hypotheticals. A full consideration of hypotheticals and an independent consideration of the constitutionality of the provisions will be conducted after trial with respect to the impugned provisions, as previously agreed by the parties.

Braid, J.

Released: August 31, 2021

COURT FILE NO.: CR-18-2531

DATE: 2021-08-31

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JULIO MALDONADO VALLEJOS

Ruling #1 on application

Braid, J.

Released: August 31, 2021

R. v. Maldonado Vallejos, 2021 ONSC 5809

Case Summary

RULING #1 ON APPLICATION

I. OVERVIEW

II. BACKGROUND

III. ANALYSIS

A. The Post-Bedford Prostitution Criminal Legislation

B. The Shifting Legal Landscape

C. Which Decision is Correct?

IV. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 4