Is it an offence to hire a sex worker to have sex with me?

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Is it an offence to hire a sex worker to have sex with me?

Yes, it is a criminal offence under section 286.1 of the Criminal Code to pay (using money or anything else of value) to obtain sexual services (in other words, to hire a sex worker), or to communicate with anyone for the purpose of hiring a sex worker. Here are some examples of how this crime could be committed:

• Hiring a sex worker by speaking directly with them.
• Hiring a sex worker by speaking with someone other than the sex worker.
• Making an offer to hire a sex worker.
• Agreeing to an offer to hire a sex worker.
• Hiring an undercover police officer for sex work (thinking they are a sex worker).
• Texting an undercover police officer that you think is a sex worker to hire them for sex work.
• Posting online that you are looking to hire a sex worker.
• Responding to an online post or advertisement for paid sexual services (to hire a sex worker).

It is also a crime to get paid (directly or indirectly) from sex work, but a sex worker who is paid for their own sexual services cannot be prosecuted for it because they are immune under section 286.5 of the Criminal Code.

What is the sentence for hiring a sex worker?

The maximum sentence for this crime is five years in prison by indictment and two years less a day in prison and a $5000 fine on summary conviction. (I explain the difference between summary and indictable offences in my FAQ: “What does an ‘election’ mean?”.)

This crime also carries mandatory minimum sentences that depend on where it was committed, whether or not it was the offender’s first conviction for this crime, and whether they were prosecuted summarily or by indictment. (I have a separate FAQ on mandatory minimum sentences.)

For example, if you committed the crime in public view or anywhere a minor can reasonably be expected to be (like a park, school, or church), it is not your first conviction for this crime, and you are prosecuted by indictment, then you will be fined at least $4000. But if you committed the crime in the privacy of your own home away from anywhere a minor can reasonably be expected to be, it is your first conviction for this crime, and you are prosecuted summarily, then the minimum fine is only $500. Of course, the actual sentence is up to the judge and will often be more than the mandatory minimum fine.

Is it an offence to hire a sex worker who is under 18?

Hiring or communicating for the purpose of hiring a sex worker who is under 18 is a different offence (under section 286.2 of the Criminal Code), even though people who are at least 16 can usually consent to sexual activity. (I have separate FAQ on the age of consent in Alberta and whether a minor can consent to having sex with an adult.)

This crime carries a maximum sentence of 10 years in prison. If the offender has already been convicted of this offence, then another conviction carries a minimum prison sentence of one year. There used to be a minimum 6-month prison sentence for committing this offence for the first time, but that was “struck down” for being unconstitutional, so it does not apply. (I discuss what this means this in my FAQ about mandatory minimum sentences.)

Other crimes often go along with this one, such as sexual interference with someone under 16, invitation of someone under 16 to sexual touching, or sexual exploitation of someone under 18. (I have separate FAQ on those crimes and other sexual offences against minors.) It is also a crime to arrange for someone to commit a sexual offence against a minor.

Is it a crime to hire a sex worker who turns out to be an undercover police officer?

Yes, the crime of hiring a sex worker or communicating to hire a sex worker is committed even if the sex worker you thought you were hiring was actually an undercover police officer. The police do this more often than you might think. However, if you find yourself in this situation, you may be able to argue that the police entrapped you. 

If a court finds that you were entrapped, then the case against you will be “stayed” (which basically means dropped), even though you committed the offence. This is because entrapment is an abuse of power that society and the law will not tolerate.

You were entrapped if the police did one of two things: (1) “induced” you to commit the crime, or (2) gave you an opportunity to commit the crime without “reasonable suspicion” that you were involved in or about to commit the crime (or a similar crime).

Inducement is the kind of police behaviour that may come to mind when you think of entrapment in American TV shows. The police induced you to commit the crime if they intentionally manipulated you to do it in a way that crossed the line. For example, imagine that an undercover police officer intentionally supplied you with alcohol and got you drunk, asked if you wanted to hire her to give you oral sex for money, spent 20 minutes convincing you to do so after you first said no, and then arrested you when you finally agreed to hire her. To convince you, she told you that her boss felt she was slacking and was withholding all of the money she had earned for the past week until she meets her “quota” for the day. She needed your business to meet her quota so that she could get paid. Without it, she and her young son would go without dinner yet again. Because her boss was cruel and determined to make sure that she was working for her money, a handout would not do – she had to work for it, and her boss would know if she was lying. Between the alcohol and this touching story, you finally agreed to hire her for oral sex. In this case, a judge may find that the officer “induced” you to commit the crime, meaning that you were entrapped.

The police can never induce someone to commit a crime and have them prosecuted for it, no matter what they know or suspect about that person. This is because we do not want our police creating crime that would not otherwise happen. The public would be shocked to know that the police would manipulate people like that, which would hurt the reputation of our justice system.

One way the police might provide you with an opportunity to commit a crime is by asking you a question to which answering yes is a crime. For example, if an undercover police officer acting as a drug dealer approached you and asked if you will sell them cocaine, they are giving you an opportunity to commit a crime because answering yes to that question is drug trafficking. (I have a separate FAQs on drug trafficking and the different kinds of drug offences). Similarly, if an undercover police officer acting as a sex worker asked you if you wanted to hire her for sex and you said yes, then she gave you an opportunity to commit the crime of communicating for the purpose of hiring a sex worker, even if no money or other valuable exchanged hands. The police can provide these crime opportunities, but only if they have reasonable suspicion.

The police have reasonable suspicion if (1) they sincerely believe that there is a reasonable likelihood that you are involved in or are about to commit a crime, and (2) that belief is based on something objective that can be used at trial. The police do not have to be certain in their belief, or even think that it is probably true, but the belief does have to be reasonable. Believing that you are involved in a crime because “anything is possible” is not enough. And the reason for the belief does not have to be perfect airtight evidence, but it does have to be something more than a gut feeling. For example, imagine that the police received a detailed tip from a confidential informant who is known to be reliable. The tip contains your full name and a description of what you look like, and says that you are hiring sex workers regularly on Friday nights at a specific street corner. The police go to that street corner and see you sitting there for forty-five minutes, just waiting, as the tip said you would be. If a police officer were to sincerely suspect that you are involved in purchasing sex work based on all of that information, then a judge would likely find that suspicion to be reasonable. Now imagine that the tip came from an anonymous crime stoppers user and all it contained was your name, address, and an allegation that you are “hiring prostitutes.” It is highly unlikely that the police would find that to be enough information for the police to form a reasonable suspicion that you are involved in criminal sex work purchasing.

The police do not need to have a reasonable suspicion before they even talk to you – just before they give you the opportunity to commit the crime. For example, imagine an undercover police officer acting as a sex worker approaches you at a bar, having no reasonable suspicion about you (or the bar), and asks if you “come here often.” You respond, “yeah, how much for a night with you?” In this case, a judge would likely find that you were not entrapped because you offered to hire her for sex work and she had not given you an opportunity to do so. Answering yes to “do you come here often” is not a crime, but asking a sex worker how much it costs to “spend the night with” her is. Now imagine that instead the officer started the conversation with, “you looking for some company tonight? I’m not cheap – $1500 for the night,” and you answered: “Yeah, I’m in.” In this case, the judge may find that you were entrapped because the officer, without having reasonable suspicion, asked you a question that led to you committing a crime just by answering yes. 

An undercover police officer giving someone an opportunity to commit a crime is not always shocking to society or harmful to the reputation of the justice system. In fact, many people believe that to be an important part of the job of police. It all depends on what information the police had beforehand. Police need to have reasonable suspicion before giving you an opportunity to commit a crime because society does not want police engaging in “random virtue testing.” For example, society’s confidence in the justice system would not be helped by undercover police officers opening up phone books and calling every number alphabetically, asking the person who answers is they would sell them drugs, or hire them for sex, and those people were criminally prosecuted for saying yes to the question. Another concern is that allowing the police to provide anyone with an opportunity to commit a crime without good reason would invite racist and other discriminatory police practices.