Section 286.1 of the Criminal Code is part of the new prostitution laws in Canada. It makes it an offence to obtain for consideration, or communicate with anyone for the purpose of obtaining for consideration, the sexual services of a person. The provision criminalizes the purchasing of sexual services but not the selling. It was enacted in 2014 in response to the Supreme Court of Canada’s decision in Bedford to strike down a number of prosititution-related prohibitions.
Subsection (1) creates the basic offences, which may be prosecuted summarily, or by indictment, and which stipulate escalting minimum penalties for subsequent offences.
Subsection (2) creates an aggravated form of the same offence with a minimum sentence of imprisonment, which is committed where the person providing the sexual services is under the age of 18. The mandatory minimum jail sentence is six months. Section 150.1(5) of the Criminal Code provides that it is not a defence to charge under s. 286.1(2) that the accused believed the complainant was 18 years old or more at the time of the offence unless the accused took all reasonable steps to ascertain the complainant’s age.
The Crown must proved that there is “consideration” for the sexual services. For example, a gift given after an sexual encounter may not amount to consideration.
