QUICK TAKEAWAY
Materially Benefiting From Prostitution, according to Section s.286.2 (1) of the Criminal Code, is the act of profiting from selling sexual services to others. It's a crime that carries stiffer penalties if the sexual services involve someone under 18. However, exceptions exist for those selling their own services, and legitimate familial and business relationships are allowed under certain conditions. The prosecution must prove the accused profited from the sex worker's activities, and it's treated as a hybrid offence in Canadian courts, being prosecutable as a summary or indictable offence based on circumstances. Penalties can reach up to 10 years in prison or 14 years with a minimum of two years if the exploited individual is under 18.
Table of Contents:
What is Materially Benefiting from Prostitution?
Section 286.2 (1) of the Criminal Code makes it a crime to materially benefit from the sale of sexual servicesA sexual act that gratifies the person who receives it to others. Section 286.2 (2) provides harsher penalties if the person providing the sexual services is under 18. According to a Department of Justice (DoJ) document: Prostitution Criminal Law Reform: Bill C-36, the Protection of Communities and Exploited Persons Act, those who sell their own sexual services cannot be convicted of this offence if the only benefit they receive is from the sale of those services.
The Code also notes that if you live with or are habitually in the company of a person who provides sexual services for money, that is proof that you are receiving material benefit from those services. There are exceptions to this rule.
The DoJ document notes that those who sell their own sexual services can still have legitimate family and business relationships, such as:
- living arrangements (e.g., children, spouses, roommates);
- living with someone for legal or moral reasons (e.g., supporting a disabled parent); or
- a living arrangement that includes goods and services offered informally for fair value (e.g., babysitting or protective services)
However, none of these exceptions apply if a person benefiting from the person offering sexual services:
- used, threatened to use or attempted to use violence;
- abused a position of trust, power or authority;
- provided any intoxicating substances to encourage the sale of sexual services;
- engaged in conduct that would amount to procuring; or
- received the benefit in the context of a commercial enterprise that offers sexual services for sale.
What the Crown Must Prove
The Crown prosecutor must show that you benefited financially through the sexual services another person offered. Those services could be offered in a private residence or in strip clubs, massage parlours or through escort agencies. If you live with someone selling sexual services, the onus is on you to prove that you are not living parasitically off the money the sex worker makes.
Treated as a Hybrid Offence
Canadian courts deal with offences in two ways. Summary offences are for less serious crimes while indictable offences include murder, sexual assault and aggravated assault. The charge of benefiting materially from prostitution can be dealt with as a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, either as a summary convictionUsed for lesser offences or indictable offenceIndictable offences are more-serious criminal offences, depending on the circumstances.
Penalties for Materially Benefiting from Prostitution
If the charge of materially benefiting from prostitution is treated as an indictable offence the maximum penalty is 10 years in prison. Less severe sentences are given if the charge is prosecuted as a summary conviction. The charge of materially benefiting from the sexual services of someone under 18 years is always an indictable offence, with a maximum sentence of 14 years in prison and a minimum punishment of two years in jail.
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Ryan E. Durran - Barrister & Solicitor
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Glossary of Legal Terms
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Sexual services
An act that is sexual in nature and whose purpose is to sexually gratify the person who receives it.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
