Protection of Communities and Exploited Persons Act (S.C. 2014, c. 25)
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Assented to 2014-11-06
Protection of Communities and Exploited Persons Act
S.C. 2014, c. 25
Assented to 2014-11-06
An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts
SUMMARY
This enactment amends the Criminal Code to, among other things,
(a) create an offence that prohibits purchasing sexual services or communicating in any place for that purpose;
(b) create an offence that prohibits receiving a material benefit that derived from the commission of an offence referred to in paragraph (a);
(c) create an offence that prohibits the advertisement of sexual services offered for sale and to authorize the courts to order the seizure of materials containing such advertisements and their removal from the Internet;
(d) modernize the offence that prohibits the procurement of persons for the purpose of prostitution;
(e) create an offence that prohibits communicating — for the purpose of selling sexual services — in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre;
(f) ensure consistency between prostitution offences and the existing human trafficking offences; and
(g) specify that, for the purposes of certain offences, a weapon includes any thing used, designed to be use or intended for use in binding or tying up a person against their will.
The enactment also makes consequential amendments to other Acts.
Preamble
Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it;
Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity;
Whereas it is important to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children;
Whereas it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution;
Whereas it is important to continue to denounce and prohibit the procurement of persons for the purpose of prostitution and the development of economic interests in the exploitation of the prostitution of others as well as the commercialization and institutionalization of prostitution;
Whereas the Parliament of Canada wishes to encourage those who engage in prostitution to report incidents of violence and to leave prostitution;
And whereas the Parliament of Canada is committed to protecting communities from the harms associated with prostitution;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Protection of Communities and Exploited Persons Act.
R.S., c. C-46CRIMINAL CODE
Marginal note:1995, c. 39, s. 138(1)
2. The portion of the definition “weapon” in section 2 of the Criminal Code after paragraph (b) is replaced by the following:
and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will;
3. Subsection 7(4.1) of the Act is amended by replacing the reference to “212(4)” with a reference to “286.1(2)”.
4. Subsection 150.1(5) of the Act is amended by replacing the reference to “212(2) or (4)” with a reference to “286.1(2), 286.2(2) or 286.3(2)”.
5. (1) Paragraph 161(1.1)(a) of the Act is amended
(a) by replacing the reference to “173(2) or 212(1), (2), (2.1) or (4) or” with a reference to “173(2),”; and
(b) by replacing the reference to “273, 280 or 281” with a reference to “273 or 279.011, subsection 279.02(2) or 279.03(2), section 280 or 281 or subsection 286.1(2), 286.2(2) or 286.3(2)”.
(2) Subsection 161(1.1) of the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):
(d) an offence under subsection 212(1) (procuring), 212(2) (living on the avails of prostitution of person under 18 years), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years) or 212(4) (prostitution of person under 18 years) of this Act, as it read from time to time before the day on which this paragraph comes into force.
Marginal note:1993, c. 46, s. 3(1); 2005, c. 32, ss. 8(1)(F) and (2)
6. (1) Subsection 164(1) of the Act is replaced by the following:
Marginal note:Warrant of seizure
164. (1) A judge may issue a warrant authorizing seizure of copies of a recording, a publication, a representation or any written material, if the judge is satisfied by information on oath that there are reasonable grounds to believe that
(a) the recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is a voyeuristic recording;
(b) the publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene or a crime comic, as defined in section 163;
(c) the representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is child pornography as defined in section 163.1; or
(d) the representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is an advertisement of sexual services.
Marginal note:2005, c. 32, s. 8(3)
(2) Subsections 164(3) to (5) of the Act are replaced by the following:
Marginal note:Owner and maker may appear
(3) The owner and the maker of the matter seized under subsection (1), and alleged to be obscene, a crime comic, child pornography, a voyeuristic recording or an advertisement of sexual services, may appear and be represented in the proceedings to oppose the making of an order for the forfeiture of the matter.
Marginal note:Order of forfeiture
(4) If the court is satisfied, on a balance of probabilities, that the publication, representation, written material or recording referred to in subsection (1) is obscene, a crime comic, child pornography, a voyeuristic recording or an advertisement of sexual services, it may make an order declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct.
Marginal note:Disposal of matter
(5) If the court is not satisfied that the publication, representation, written material or recording referred to in subsection (1) is obscene, a crime comic, child pornography, a voyeuristic recording or an advertisement of sexual services, it shall order that the matter be restored to the person from whom it was seized without delay after the time for final appeal has expired.
Marginal note:2005, c. 32, s. 8(4)
(3) Subsection 164(7) of the Act is replaced by the following:
Marginal note:Consent
(7) If an order is made under this section by a judge in a province with respect to one or more copies of a publication, a representation, written material or a recording, no proceedings shall be instituted or continued in that province under section 162, 163, 163.1 or 286.4 with respect to those or other copies of the same publication, representation, written material or recording without the consent of the Attorney General.
(4) Subsection 164(8) of the Act is amended by adding the following in alphabetical order:
“advertisement of sexual services”
« publicité de services sexuels »
“advertisement of sexual services” means any material — including a photographic, film, video, audio or other recording, made by any means, a visual representation or any written material — that is used to advertise sexual services contrary to section 286.4.
Marginal note:2005, c. 32, s. 9(1)
7. (1) The portion of subsection 164.1(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Warrant of seizure
164.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds to believe that there is material — namely, child pornography as defined in section 163.1, a voyeuristic recording or an advertisement of sexual services as defined in subsection 164(8) or data as defined in subsection 342.1(2) that makes child pornography, a voyeuristic recording or an advertisement of sexual services available — that is stored on and made available through a computer system as defined in subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to
Marginal note:2005, c. 32, s. 9(2)
(2) Subsection 164.1(5) of the Act is replaced by the following:
Marginal note:Order
(5) If the court is satisfied, on a balance of probabilities, that the material is child pornography as defined in section 163.1, a voyeuristic recording or an advertisement of sexual services as defined in subsection 164(8) or data as defined in subsection 342.1(2) that makes child pornography, the voyeuristic recording or the advertisement of sexual services available, it may order the custodian of the computer system to delete the material.
Marginal note:2005, c. 32, s. 9(3)
(3) Subsection 164.1(7) of the Act is replaced by the following:
Marginal note:Return of material
(7) If the court is not satisfied that the material is child pornography as defined in section 163.1, a voyeuristic recording or an advertisement of sexual services as defined in subsection 164(8) or data as defined in subsection 342.1(2) that makes child pornography, the voyeuristic recording or the advertisement of sexual services available, the court shall order that the electronic copy be returned to the custodian of the computer system and terminate the order under paragraph (1)(b).
Marginal note:2012, c. 1, s. 21
8. Paragraph 171.1(1)(a) of the Act is replaced by the following:
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
Marginal note:2012, c. 1, s. 22(1)
9. Paragraph 172.1(1)(a) of the Act is replaced by the following:
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
Marginal note:2012, c. 1, s. 23
10. Paragraph 172.2(1)(a) of the Act is replaced by the following:
(a) under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2) with respect to another person who is, or who the accused believes is, under the age of 18 years;
Marginal note:2004, c. 15, s. 108
11. (1) Subparagraphs (a)(xxxv) to (xxxviii) of the definition “offence” in section 183 of the Act are repealed.
(2) The definition “offence” in section 183 of the Act is amended by adding the following after subparagraph (a)(lii):
(lii.1) 286.1 (obtaining sexual services for consideration),
(lii.2) 286.2 (material benefit from sexual services),
(lii.3) 286.3 (procuring),
(lii.4) 286.4 (advertising sexual services),
12. (1) The definition “prostitute” in subsection 197(1) of the Act is repealed.
(2) The definition “common bawdy-house” in subsection 197(1) of the Act is replaced by the following:
“common bawdy-house”
« maison de débauche »
“common bawdy-house” means, for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons;
Marginal note:1997, c. 16, s. 2; 2005, c. 32, ss. 10.1(1) and (2)
13. Section 212 of the Act and the heading before it are repealed.
Marginal note:R.S., c. 51 (1st Supp.), s. 1
14. The heading before section 213 of the Act is replaced by the following:
Offences in Relation to Offering, Providing or Obtaining Sexual Services for Consideration
Marginal note:R.S., c. 51 (1st Supp.), s. 1
15. (1) The portion of subsection 213(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Stopping or impeding traffic
213. (1) Everyone is guilty of an offence punishable on summary conviction who, in a public place or in any place open to public view, for the purpose of offering, providing or obtaining sexual services for consideration,
Marginal note:R.S., c. 51 (1st Supp.), s. 1
(2) Subsection 213(1) of the Act is amended by adding “or” at the end of paragraph (a), by striking out “or” at the end of paragraph (b) and by repealing the portion after paragraph (b).
(3) Section 213 of the Act is amended by adding the following after subsection (1):
Marginal note:Communicating to provide sexual services for consideration
(1.1) Everyone is guilty of an offence punishable on summary conviction who communicates with any person — for the purpose of offering or providing sexual services for consideration — in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre.
16. Section 274 of the Act is amended
(a) by striking out the reference to “212,”; and
(b) by replacing the reference to “272 or 273” with a reference to “272, 273, 286.1, 286.2 or 286.3”.
Marginal note:1997, c. 30, s. 1
17. (1) The portion of subsection 278.2(1) of the English version of the Act before paragraph (a) is replaced by the following:
Marginal note:Production of record to accused
278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
(2) Paragraph 278.2(1)(a) of the Act is amended
(a) by striking out the reference to “212,”; and
(b) by replacing the reference to “272 or 273” with a reference to “272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3”.
Marginal note:1997, c. 30, s. 1
(3) Subsection 278.2(1) of the Act is amended by adding “or” at the end of paragraph (a) and by replacing the portion after paragraph (a) with the following:
(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.
Marginal note:2005, c. 43, s. 3
18. Paragraphs 279.01(1)(a) and (b) of the Act are replaced by the following:
(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
(b) to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case.
Marginal note:2010, c. 3, s. 3
19. Sections 279.02 and 279.03 of the Act are replaced by the following:
Marginal note:Material benefit — trafficking
279.02 (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 279.01(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
Marginal note:Material benefit — trafficking of 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 279.011(1), 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.
Marginal note:Withholding or destroying documents — trafficking
279.03 (1) Everyone who, for the purpose of committing or facilitating an offence under subsection 279.01(1), conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person’s identity or immigration status — whether or not the document is of Canadian origin or is authentic — is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.
Marginal note:Withholding or destroying documents — trafficking of person under 18 years
(2) Everyone who, for the purpose of committing or facilitating an offence under subsection 279.011(1), conceals, removes, withholds or destroys any travel document that belongs to another person or any document that establishes or purports to establish another person’s identity or immigration status — whether or not the document is of Canadian origin or is authentic — 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 one year.
20. The Act is amended by adding the following after section 286:
Commodification of Sexual Activity
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note:Material benefit from sexual services
286.2 (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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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 and liable to imprisonment for a term of not more than 18 months.
Marginal note: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.
Marginal note: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.
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