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Introduction
The Supreme Court of Canada (“SCC”) in R v Kloubakov, 2025 SCC 25 [Kloubakov] unanimously upheld the constitutionality of the material benefit offence (section 286.2) and procuring offence (section 286.3) in the Criminal Code, RSC 1985, c C-46 [Criminal Code] with respect to the security of the person under section 7 of the Canadian Charter of Rights and Freedoms [Charter]. Revisiting the issues in Canada (Attorney General) v Bedford, 2013 SCC 72 [Bedford], the SCC in Kloubakov affirmed that offences directed toward regulating the sex trade can withstand constitutional scrutiny as long as they are carefully drafted to target exploitation of sex workers, rather than sex workers themselves.
Facts
The accused persons, K and M, were drivers in a commercial sex operation. Their responsibilities included driving sex workers to meet clients, collecting all the money the sex workers earned, and transferring the money to the owners of the operation. Two complainants testified that they had met the owners in Quebec and were subsequently sent to Calgary to provide sexual services, at times to twelve customers a day. The owners had occasionally abused the complainants, with one complainant testifying that “she did not dare to say no” to the owners' demands (Kloubakov, paras 35-42).
K and M pleaded guilty to human trafficking with a sexual purpose and admitted to have received a material benefit derived from the sale of sexual services. They were charged with several sex trade offences under the Criminal Code, including the following offences, subject to constitutional review in this case (Kloubakov, paras 36-37):
- the material benefit offence (Criminal Code, section 286.2) and
- the procuring offence (Criminal Code, section 286.3)
Legislative Background
The history underlying Parliament's enactment of the material benefit offence and procuring offence begins with Bedford. A brief overview of Bedford is provided below.
The Court in Bedford struck down several offences relating to the sex trade
In Bedford, the SCC unanimously held that three offences relating to the sex trade violated section 7 and could not be saved under section 1 of the Charter:
- The “bawdy-house offence” (now repealed) was grossly disproportionate to its objective because the practical effect was to allow street sex work and out-calls but prohibit in-calls, even though street sex work and out-calls are materially more dangerous than in-calls (Bedford, paras 130-32).
- The “living on avails offence” (now repealed) was overbroad because it did not distinguish between those who exploit sex workers and those who increase their safety and security, such as legitimate drivers, managers or bodyguards (Bedford, paras 139-45).
- The “communicating offence” (now repealed) was grossly disproportionate to the objective of limiting nuisance caused by street sex work, because it deprived sex workers of the ability to screen customers for their personal safety (Bedford, paras 148-59).
Notably, McLachlin C.J. wrote for the Court that the ruling in Bedford does not preclude Parliament from regulating the sex trade as it remains a matter of great public concern. She highlighted that “few countries leave it entirely unregulated” (Bedford, paras 165-67).
Parliament enacted PCEPA in response to Bedford
In 2014, Parliament enacted Protection of Communities and Exploited Persons Act, SC 2014, c 25 [PCEPA] to amend the Criminal Code in response to Bedford. The PCEPA scheme created the material benefit offence and the procuring offence that are central to this appeal, among other sex trade offences. PCEPA mimics the Nordic Model that several European countries have adopted (Kloubakov, para 2). The material benefit sex trade offence “modernizes” the living on the avails of prostitution offence by including a complex exception scheme. The offence targets those who exploit sex workers but expressly excludes those who receive a material benefit from legitimate services provided to sex workers (Kloubakov, para 27). The procuring offence makes illegal procuring a person to offer sexual services but is not applicable to sex workers themselves (Kloubakov, paras 31-34).
Judicial History
The trial judge (2021 ABQB 960 and 2022 ABQB 21) held that the material benefit offence and procuring offences violated section 7 and could not be justified under section 1 of the Charter. The evidence at trial included testimony that 1) the PCEPA provisions are not clear about whether sex workers could legally take certain measures for their safety, 2) the PCEPA’s criminalization of purchasing sexual services makes screening clients more difficult, and 3) the PCEPA’s vagueness leads to the criminalization of agencies that enhance the safety of sex workers. The trial judge determined that the material benefit offence and procuring offence were overbroad by criminalizing conduct that could promote the sex worker’s safety. She declared the provisions invalid and stayed the proceedings against the accused accordingly (Kloubakov, paras 43-52).
The Court of Appeal of Alberta (2023 ABCA 287) held that the trial judge erred in applying an overbreadth analysis on conduct that the material benefit offence and procuring offence had not criminalized. Citing R v NS, 2022 ONCA 160 [NS] (released after the trial judgment in Kloubakov), the Court of Appeal held that the sex trade offences permit sex workers to hire personnel to protect their safety and security when selling their own sexual services. Therefore, the Court of Appeal ruled that neither offence violated section 7 of the Charter and restored the convictions (Kloubakov, paras 53-57).
The Supreme Court of Canada Decision
The SCC dismissed the appeal, unanimously ruling that the material benefit offence and procuring offence do not interfere with the security of sex workers, and, therefore, do not engage section 7 of the Charter. Accordingly, the Court did not proceed to the justification stage under section 1 of the Charter (Kloubakov, para 170).
The purpose and scope of the material benefit offence and procuring offence
The Court undertook the modern approach to statutory interpretation by determining the purpose and scope of the sex trade offences (Kloubakov, para 61). The Court concluded that the material benefit offence and procuring offence do not prevent sex workers from taking the safety measures identified in Bedford for the reasons that follow.
The purpose of the material benefit offence is to prevent third parties from profiting from the sex trade, while allowing sex workers to take the safety measures identified in Bedford. The Court highlighted, using language such as “third parties” that “profit from” or “encourage” sex work, that the offences' key objective is to exclude individuals or organizations that do not encourage sex workers to provide sexual services, such as legitimate landlords, drivers or bodyguards who are simply compensated for the services provided to sex workers (Kloubakov, paras 82-86).
Similarly, the purpose of the procuring offence is to target third parties who commercialize the sale of sexual services. The Court provided a detailed account of the proper interpretation of the scope of the offence. For example, the Court clarified that the procuring offence requires “active” involvement in the provision of another person’s sexual services, and not merely “passive” involvement that is sufficient to make out the material benefit offence (Kloubakov, para 114). The Court also highlighted the French word “proxénétisme” (“pimping” in English) should govern the statutory interpretation exercise because it provides a narrower description of the criminalized conduct (Kloubakov, para 115). As a result, activities such as providing advice to sex workers for their safety or renting a room to a sex worker do not fall within this offence (Kloubakov, para 119).
Section 7 of the Charter
Section 7 of the Charter provides that everyone has the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. Challenging legislation on grounds that it violates section 7 of the Charter involves two steps. First, the party challenging the legislation must show that the legislation interferes with, or has a negative impact on, the life, liberty or security of themselves or another person. Then, they must show that the deprivation is not in accordance with principles of fundamental justice (Kloubakov, para 137).
The Court held that the offences do not interfere with the security of sex workers because they do not prevent sex workers from hiring the services of third parties to mitigate the risks to their safety. Therefore, section 7 of the Charter is not engaged with respect to the security of sex workers. Responding to arguments that the legislation erroneously assumes the sex trade is inherently exploitative, the Court wrote that “the justification of the public policy goal of impugned legislation” is not relevant to the section 7 analysis. Rather, such underlying policy concerns come into play in the section 1 justification stage, which was not necessary to consider in this case (Kloubakov, para 154). The Court upheld the constitutionality of the modernized offences accordingly (Kloubakov, paras 146-55).
Analysis
It is apparent that, post-Bedford, Parliament has created a more cautious scheme to regulate the sex trade. Nonetheless, the decision in Kloubakov has received some criticism, such as the concern that the decision conflicts with the “lived realities of sex workers” (Dale Smith, Canadian Bar Association). There are two observations that, in my view, lend support to the Court’s unanimous ruling in relation to such concerns.
The first observation is that the accused, guilty of human trafficking with a sexual purpose, argued that the offences interfered with the Charter right to security of sex workers. This is unlike Bedford where sex workers had brought the Charter challenge themselves. It is well-accepted that an accused can challenge the constitutionality of the offence with which they are charged, regardless of whether they personally enjoy the Charter protections raised (R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), para 40). Despite this, it would have been unusual for the Court to strike down the offences on facts that reflect the exact mischief to which they are directed: exploiting sex workers. While a Charter analysis should not be confined to the factual record, this case presented a real-world scenario in which the legislation’s operation was consistent with one of its main purposes: “protect[ing] sex workers from the risks of violence, abuse, and exploitation” associated with the sex trade (Kloubakov, para 68).
The second observation is that Kloubakov does not exhaust the opportunity to constitutionally challenge the material benefit offence and procuring offence. In Kloubakov, the SCC restricted its analysis to sex workers' right to security, and declined to determine whether the laws deprive sex workers’ right to life or liberty, leaving that to other cases where the evidentiary record permits. The issue of the right to life was, at the time, pending before the Court of Appeal for Ontario on a more complete evidentiary record. Further, the Court did not make a conclusive determination on the deprivation of the right to liberty because, although it is “a highly contentious issue,” it was not explored in the courts below (Kloubakov, paras 156-69). Accordingly, Kloubakov does not preclude the voices of sex workers from being heard in a more conducive forum.
Conclusion
The Supreme Court of Canada in Kloubakov upheld the constitutionality of the post-Bedford material benefit offence and procuring offence found in sections 286.2 and 286.3 of the Criminal Code, respectively. The Court ruled that these provisions do not deprive sex workers of the right to security under section 7 of the Charter, but it remains to be seen whether the Court will revisit these provisions in relation to other Charter rights.
This article was edited by Chris Bai.