Bill C-36 Analysis In Detail Part 3: Advertising

The government is playing some very subtle games with the language in C-36.  In some respects, the language is ridiculously broad (e.g. the undefined nature of "sexual services"), in other areas they are getting remarkably specific.

Advertising sexual services286.4 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 and liable to imprisonment for a term of not more than 18 months. 

Immunity — material benefit and advertising286.5 (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. 

The implication here is that a prostitute can advertise their own services, this is somewhat more generous than I had initially expected.  But, because of the other aspects of the law, this still ends up smelling like a form of entrapment.

Okay, an individual is allowed to advertise their services (so, no, your local Sun newspaper isn't likely to go bankrupt from a lack of advertisers), but you aren't, apparently, supposed to actually purchase those services:

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 imprisonment for a term of not more than 18 months and 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. 

If this smells a little fishy to you, there's a good reason for it.  It is.  In today's world of mass surveillance, how much do you think it's going to take for the government to designate any phone or email address associated with "sexual services" as something to monitor and simply start grabbing any and all traffic related to that address/phone number?  (Hint:  It isn't difficult at all, and I suspect that the "anti-bullying" bill (Bill C-26) before parliament would allow them to do so without a warrant and still use the evidence against you in a court of law)

What's the net effect of this?  Fundamentally, it means that although someone can advertise sexual services, anybody "procuring" those services is subject to significant criminal penalties.  Under the surveillance capabilities today, it's almost impossible not to have any "communication for procurement" to be monitored except in isolated, private places.  In other words, creepy places where the "johns" can assert control and dominance through violence or the threat of it.

Because of the undefined (and therefore, presumably broad) wording of "sexual services", I wonder how this will play out for sex shops, BDSM dungeons and other businesses which cater to various sexual appetites that aren't necessarily prostitution per se.  Because a lot of those exist as legal businesses, separate from their owners and with employees, one is left wondering just how it is that those businesses will be able to advertise themselves without the owners being charged under these laws?

While I'm sure that this will make people like MP Joy Smith ecstatically happy, driving sex underground doesn't really solve any of the issues associated with prostitution as identified in Bedford.  (Ms. Smith is the same twit who wants to block all porn on Canada's internet)  There are aspects of this legislation which certainly start to create a blanket ban on any and all sexuality, and in particular the discussion of that sexuality.  These blanket proscriptions create interesting problems not only for prostitutes, but for others who are working in the sex industry, or work with sexual minorities of one sort or another for any reason.

One thing we already know from experience is that driving it underground won't address the very real and legitimate safety and security of the person issues that the Bedford decision raises.

Bill C-36: Analysis In Detail - Part I

The biggest pieces of Bill C-36 are well described elsewhere in the media, and there isn't any real surprise to it.  The Harper Government has more or less just resurrected the old environment.  

As with all such things the devil is in the details.  The odd little lines where the government changes clauses about without really talking about it.

For example, consider the following from the First Reading text:

3. Subsection 7(4.1) of the Act is amended by replacing the reference to “212(4)” with a reference to “286.1(2)”.

So, referring to the criminal code, Subsection 7(4.1) reads as follows right now:

Offence in relation to sexual offences against children
(4.1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1, 172.2 or 173 or subsection 212(4) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. *emphasis added

What exactly is subsection 212(4) of the Criminal Code?  In context, in the current criminal code, S212 in general is offences related to the "procurement" of prostitute's services.  In particular 212(4) is related to underage prostitutes:

(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.

This is being replaced with a reference to S286.1(2).  That's a fair distance away from the current Criminal Code provisions related to prostitution.  In fact, it's in a whole other part of the Criminal Code which this legislation amends.  At present, S286 reads:

286. In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused. 

Once Bill C-36 is passed, it will read:

286. In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused. 

Commodification of Sexual Activity

Obtaining sexual services for consideration 

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 imprisonment for a term of not more than 18 months and 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 services286.2 (1) 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(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.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.Procuring286.3 (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 services286.4 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 and liable to imprisonment for a term of not more than 18 months.Immunity — material benefit and advertising286.5 (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. 

This is an important change, and one that is both subtle and infuriating.  Sections 280-286 deal with abduction scenarios - particularly those involving underage victims.  The government has wedged a bunch of prostitution related discussion into S286, and in doing so is implicitly arguing that prostitution is clearly and directly linked with abduction and human trafficking.

Are you concerned yet?  You should be.  The Harper Government is muddying the legal waters here considerably, and there are potentially serious consequences to these changes.  First of all, the assumption that lies under this is questionable indeed.  To assert that there is an undeniable link between underage prostitution and child abduction is questionable at best.

Further, although S280-S286 appears to largely be intended to deal with abduction of youth scenarios, the amendments to S286 appear to be broad, involving more than scenarios which involve youth, which fundamentally perverts the intended application of S286.

I suspect that in part the government's intention in burying this in S286 is to create a bit of a legal shield for this portion of their legislation.  It clearly reiterates much of what used to be covered in the previous legislation, and thus creates the same hazards for sex workers in general.  By attaching to the sections on youth abduction, the Harper Government is clearly hoping that they will be able to make the case that these provisions should stand because they are "intended to protect youth".

Not only does it provide them with a shield in court, but they can accuse any opposition amendments of "not being willing to protect children".  Which is complete nonsense, but then again, so are most of the criminal justice laws that this government has passed.

The Harper Government - Slimy.  Dishonest. Unethical.