R. v. Albashir

R. v. Albashir
Collection
Supreme Court Judgments
Date
2021-11-19
Neutral citation
2021 SCC 48
Report
[2021] 3 SCR 531
Case number
39277, 39278
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
British Columbia
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information: 39277, 39278
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Albashir, 2021 SCC 48, [2021] 3 S.C.R. 531
Appeals Heard: May 14, 2021 Judgment Rendered: November 19, 2021 Dockets: 39277, 39278
Between:
Tamim Albashir Appellant
and
Her Majesty The Queen Respondent
And Between:
Kasra Mohsenipour Appellant
and
Her Majesty The Queen Respondent
- and -
Attorney General of Canada, Attorney General of Ontario and Attorney General of Quebec Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 73)
Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Côté, Martin and Kasirer JJ. concurring)
Dissenting Reasons: (paras. 74 to 124)
Rowe J. (Brown J. concurring)
Tamim Albashir Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Kasra Mohsenipour Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada,
Attorney General of Ontario and
Attorney General of Quebec Interveners
Indexed as: R. v. Albashir
2021 SCC 48
File Nos.: 39277, 39278.
2021: May 14; 2021: November 19.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Declaration of invalidity — Temporal nature of declaration of invalidity — Supreme Court of Canada in Bedford declaring void offence of living on avails of sex work and suspending declaration of invalidity for one year — Accused charged after expiry of suspension period for committing offence of living on avails of sex work while declaration suspended — Trial judge quashing charges on basis that offence was unconstitutional when committed — Court of Appeal holding that remedial legislation enacted by Parliament prior to expiry of suspension period pre‑empted retroactive effect of declaration of invalidity — Whether provision prohibiting living on avails of sex work retroactively invalid such that it cannot ground conviction for offence committed prior to declaration taking effect — Canadian Charter of Rights and Freedoms, s. 24(1) — Constitution Act, 1982, s. 52(1) — Criminal Code, R.S.C. 1985, c. C‑46, s. 212(1)(j).
In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, the Court found s. 212(1)(j) of the Criminal Code, which prohibited living on the avails of sex work, to be unconstitutionally overbroad because it criminalized non-exploitative actions that could enhance the safety and security of sex workers. The Court declared this offence to be inconsistent with the Charter and hence void. The declaration of invalidity did not take immediate effect but rather was suspended for one year. The Court did not explicitly state whether this declaration would apply retroactively or purely prospectively at the conclusion of the period of suspension. Two weeks before the suspension expired, the former s. 212(1)(j) was replaced with a new provision that prohibits obtaining a material benefit from sexual services but exempts legitimate, non‑exploitive conduct. Parliament did not state whether the amendments were to apply retroactively or prospectively.
About two years after the declaration took effect, the accused were charged with numerous offences arising out of an escort operation. Some of the offences occurred during the one-year period of suspension, resulting in charges under s. 212(1)(j). The trial judge found the accused to be parasitic, exploitative pimps, but he quashed the charges against both accused for living on the avails of sex work. He reasoned that once the Bedford suspension expired, the offence was unconstitutional because suspended declarations under s. 52(1) of the Constitution Act, 1982, have a delayed retroactive effect — meaning that once the suspension expires, the law will have always been unconstitutional —, unless it is clearly stated otherwise. The Court of Appeal allowed the Crown’s appeals and entered convictions on the counts of living on the avails of sex work. It held that the Bedford declaration never came into effect because the legislature enacted remedial legislation during the suspension, which pre‑empted the retroactive effect of the suspended declaration of invalidity.
Held (Brown and Rowe JJ. dissenting): The appeals should be dismissed.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: In light of the purpose animating the suspension of the declaration of invalidity in Bedford, the presumption of retroactivity of a declaration of invalidity is rebutted by necessary implication. The purpose of a suspension must be considered in determining whether the declaration must logically operate retroactively or purely prospectively. In Bedford, the Court’s remedy was purely prospective, because the purpose of the suspension — avoiding deregulation that would leave sex workers vulnerable — would be frustrated by a retroactive remedy. Accordingly, the accused could be charged and convicted, after the suspension expired and the declaration took effect, for committing the offence of living on the avails of sex work under s. 212(1)(j) during the suspension period. Because they engaged in exploitative and parasitic conduct, the exact conduct that was always legitimately criminalized, a remedy under s. 24(1) of the Charter is not available to them.
When legislation violates a Charter right, three foundational constitutional principles guide the interpretation of constitutional remedies: constitutionalism, the rule of law, and the separation of powers. To determine an appropriate remedy, a court must consider not only the principle of constitutional supremacy in s. 52(1) of the Constitution Act, 1982, but also the entitlement of the public to the benefit of legislation, as well as the different institutional roles that courts and legislatures are called to play. These foundational principles also establish strong — but rebuttable — presumptions that legislation is prospective and judicial declarations are retroactive.
There is a strong presumption against retroactive application of legislation because the rule of law requires that people be able to order their affairs in light of an established legal order. In the instant case, in the absence of retroactive legislative intent either explicitly or by necessary implication, the strong presumption that legislation is prospective is not challenged. Whereas the rule of law dictates a presumption that legislation is prospective, the inverse is true for judicial remedies. The basic role of courts to decide disputes after they have arisen requires that judicial decisions operate (at least ordinarily) with retroactive effect.
When a court makes a s. 52(1) declaration of invalidity, the same presumption of retroactivity arises. A retroactive declaration changes the law for all time, both reaching into the past and affecting the future: the law is deemed to have been invalid from the moment of its enactment. However, many fundamental principles that are essential to Canada’s constitutional system curtail the retroactive reach of judicial remedies. For example, the doctrine of res judicata and the de facto and qualified immunity doctrines balance the generally retroactive nature of judicial remedies with the need for finality and stability. When the declaration is purely prospective, the law was valid from its enactment but is invalid once the declaration takes effect.
The presumption of retroactivity can be rebutted explicitly or by necessary implication. The rare circumstances and constitutional considerations that warrant a suspension of a declaration of invalidity can justify an exception to the retroactive application of declarations where necessary to give effect to the purpose of the suspension. When retroactivity would defeat the compelling public interests that required the suspension, the presumption is rebutted and the declaration must apply purely prospectively. Courts in the future should explicitly state the temporal application of their s. 52(1) declarations to avoid any confusion.
The purpose animating the suspension in Bedford was to avoid the deregulation of sex work (thus maintaining the protection of vulnerable sex workers) while Parliament crafted replacement legislation. In light of that purpose, the declaration of invalidity was purely prospective, effective at the end of the period of suspension. A retroactive declaration would have rendered the regulatory system of criminal offences that was maintained by the suspension entirely unenforceable once the suspension expired, undermining the protection of the vulnerable victims that was at the root of the finding of unconstitutionality. Conversely, prospective application is far more consonant with the purpose of the Bedford suspension and more protective of sex workers’ rights.
When a s. 52(1) declaration is prospective, a person whose Charter rights are breached by the law declared to be unconstitutional is not left without a remedy. A prospective declaration does not deprive people of individual remedies and would not contravene the principle that nobody may be convicted of an offence under an unconstitutional law. Where the compelling public interests that required suspending the declaration would not be undermined and when additional relief is necessary to provide an effective remedy in a specific case, s. 24(1) is a flexible vehicle that can be combined with s. 52(1). The findings of unconstitutionality by the court can operate retroactively in individual cases, giving remedial effect to both ss. 24(1) and 52(1). Following the findings of Bedford, if an accused is charged with conduct that bears no relation to the purpose of the living on the avails offence — for example because they were a legitimate driver or bodyguard — an application judge may find a breach of that accused’s s. 7 rights and grant a s. 24(1) remedy.
Per Brown and Rowe JJ. (dissenting): The declaration of invalidity in Bedford had retroactive effect as of the date the suspension expired, rendering s. 212(1)(j) of the Criminal Code void ab initio. Remedial legislation did nothing to cure the constitutional defect in s. 212(1)(j) as it existed in the past, and could do nothing to alter the Court’s declaration that s. 212(1)(j) is unconstitutional. As such, s. 212(1)(j) was unconstitutional at the time the accused were found guilty, and the s. 212(1)(j) counts must accordingly be quashed.
Ordinarily, constitutional declarations of invalidity are retroactive, and have immediate effect. This is the logical implication of s. 52(1) of the Constitution Act, 1982. The retroactive nature of constitutional declarations of invalidity also flows from the nature of judicial remedies generally. An immediate retroactive declaration of invalidity renders the law invalid from the date of the declaration, back to the date the law was enacted.
Although the Court recognized the predominance of the retroactive approach, it also recognized two important exceptions: prospective declarations and suspended declarations. Prospective declarations of invalidity apply only forward in time from the moment of the declaration, but do not render a law invalid back in time from the moment of its enactment, as though the law never existed. Suspended declarations of invalidity delay the moment when the effects of a declaration of invalidity, whether retroactive or prospective, become operative. When a retroactive declaration of invalidity is suspended, the law is treated as valid for the period of the suspension, but when the suspension period expires, it is as though the law had always been invalid. An immediate prospective declaration of invalidity renders a law invalid from the date of the declaration forward into the future, but not back into the past. The law was and remains valid from the date it was enacted until the date of the prospective declaration. A prospective declaration of invalidity with a suspension, often called a transition period, works in a similar way to an immediate prospective declaration, except that the declaration becomes effective only when the transition period ends.
Prospective declarations raise concerns, because they fail to address any past unconstitutional effects of a law. Similarly, suspended declarations of invalidity are deeply controversial, because they allow an unconstitutional state of affairs to persist, thereby posing a threat to the very idea of constitutional supremacy.
When a court issues a declaration of constitutional invalidity and intends that declaration to deviate from the traditional norm of retroactivity and immediacy, it must say so deliberately and explicitly, in order to avoid confusion. Only a clear statement that a declaration is prospective, suspended, or prospective with a transition period, will suffice, because of the strong presumption that constitutional declarations are retroactive and immediate. While prospective and suspended remedies are available, it must be borne in mind that they are not explicitly authorized by the text of s. 52(1). They are deviations from the traditional and widespread understanding of the role of the judiciary in which courts grant retroactive relief applying existing law or rediscovered rules which are deemed to have always existed.
Similarly, when a legislature enacts new legislation in order to correct the unconstitutional effects of a law during a period of suspension of invalidity, the temporal effect of the new law should be stated explicitly so as to avoid confusion. There is a strong presumption that laws are of prospective, and not of retroactive, effect. However, the presumption that legislation applies prospectively can be rebutted by either express words or necessary implication. Therefore, where a legislature wishes legislation to be retroactive, so as to avoid a legal gap that would arise when the period of suspension of invalidity of a retroactive declaration of invalidity expires, it should make this explicit in the legislation.
Suspending a retroactive declaration of invalidity can be an uneasy fit in the criminal law context, because criminal prosecutions take time. When an offence is declared void ab initio by a court, no one can thereafter be convicted of that offence, even for conduct that occurred prior to the declaration. This is because the offence will be deemed to have never existed and no one can be found guilty of an unconstitutional (and non‑existing) law. Accused persons can only be convicted of the offence during the brief window of the suspension. The suspension therefore accomplishes little, precisely because criminal prosecutions take time to move through the system.
The Court could have issued a prospective declaration in Bedford, but did not. Bedford did not say that the declaration was prospective, and retroactivity is the default position. The absence of any explicit justification for a prospective ruling weighs against interpreting a declaration as having a prospective effect only, especially in the criminal context, because of the general rule that no one should be convicted of an offence under an unconstitutional law. The potential for continued, active enforcement of an unconstitutional criminal law gives rise to rule of law concerns and weighs against imposing a declaration that is prospective only. It also weighs against interpreting an ambiguous declaration as prospective, after the fact. Accordingly, the declaration from Bedford had retroactive effect, as of the date the suspension expired.
Cases Cited
By Karakatsanis J.
Explained: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; considered: Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Bain, [1992] 1 S.C.R. 91; Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R. 13; referred to: R. v. Downey, [1992] 2 S.C.R. 10; R. v. Li, 2020 SCC 12, [2020] 1 S.C.R. 675; R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; R. v. Wigman, [1987] 1 S.C.R. 246; R. v. Thomas, [1990] 1 S.C.R. 713; Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; In re Spectrum Plus Ltd, [2005] UKHL 41, [2005] 2 A.C. 680; Johnson v. New Jersey, 384 U.S. 719 (1966); Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat, [2017] 3 M.L.J. 561; India Cement Ltd. v. State of Tamil Nadu, A.I.R. 1990 S.C. 85; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.
By Rowe J. (dissenting)
Schachter v. Canada, [1992] 2 S.C.R. 679; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721; Miron v. Trudel, [1995] 2 S.C.R. 418; R. v. Hess, [1990] 2 S.C.R. 906; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3; R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272; Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Campbell v. Campbell (1995), 130 D.L.R. (4th) 622; Acme Village School District (Board of Trustees of) v. Steele‑Smith, [1933] S.C.R. 47; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; R. v. Finta, [1994] 1 S.C.R. 701; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; R. v. Thomas, [1990] 1 S.C.R. 713; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(g), (i), 12, 24(1).
Constitution Act, 1867.
Constitution Act, 1982, s. 52(1).
Constitution of South Africa, s. 172(b).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 212(1)(j) [rep. 2014, c. 25, s. 13], 286.2.
Authors Cited
Blackstone, William. Commentaries on the Laws of England, Book I. Oxford: Clarendon Press, 1765.
Choudhry, Sujit, and Kent Roach. “Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies” (2003), 21 S.C.L.R. (2d) 205.
Côté, Pierre‑André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, vol. 5, 2nd ed. Toronto: Thomson Reuters, 1987 (loose‑leaf updated March 2021, release 2).
Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2021 (updated 2021, release 1).
Kuo, Ming‑Sung. “Between Choice and Tradition: Rethinking Remedial Grace Periods and Unconstitutionality Management in a Comparative Light” (2019), 36 U.C.L.A. Pac. Basin L.J.157.
Leckey, Robert. “The harms of remedial discretion” (2016), 14 Int’l J. Const. L. 584.
McLeod, Roderick M., et al. The Canadian Charter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences, vol. 4. Toronto: Carswell, 1983 (loose‑leaf updated August 2021, release 7).
Roach, Kent. Constitutional Remedies in Canada, 2nd ed. Toronto: Thomson Reuters, 2013 (loose‑leaf updated October 2020, release 36).
Roach, Kent. “Principled Remedial Discretion Under the Charter” (2004), 25 S.C.L.R. (2d) 101.
Sarna, Lazar. The Law of Declaratory Judgments, 4th ed. Toronto: Thomson Reuters, 2016.
Sharpe, Robert J., and Kent Roach. The Charter of Rights and Freedoms, 7th ed. Toronto: Irwin Law, 2021.
Sullivan, Ruth. Statutory Interpretation, 3rd ed. Toronto: Irwin Law, 2016.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
Traynor, Roger J. “Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility” (1977), 28 Hastings L.J. 533.
APPEALS from a judgment of the British Columbia Court of Appeal (Saunders, Groberman and Bennett JJ.A.), 2020 BCCA 160, 464 C.R.R. (2d) 272, 389 C.C.C. (3d) 163, [2020] B.C.J. No. 909 (QL), 2020 CarswellBC 1410 (WL Can.), setting aside Masuhara J.’s order quashing counts, 2018 BCSC 736, and entering convictions. Appeals dismissed, Brown and Rowe JJ. dissenting.
Eric Purtzki and Alix Tolliday, for the appellant Tamim Albashir.
Joven Narwal and Angela M. Boldt, for the appellant Kasra Mohsenipour.
Lara Vizsolyi and Janet Dickie, for the respondent.
Anne M. Turley, for the intervener the Attorney General of Canada.
Michael S. Dunn, for the intervener the Attorney General of Ontario.
Fiona Émond, for the intervener the Attorney General of Quebec.
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ. was delivered by
Karakatsanis J. —
[1] In Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, this Court provided a framework for identifying those exceptionally rare cases where a declaration of constitutional invalidity should be temporarily suspended to permit the legislature to respond. A suspended declaration is only justified where a compelling public interest, grounded in the Constitution, outweighs the harms of temporarily maintaining the unconstitutional law. This case requires us to determine the legal consequences of suspending declarations of invalidity of a criminal offence. In particular, can persons who commit that offence prior to the expiry of the suspension be convicted once the suspension expires and the declaration takes effect? The answer depends on whether the declaration (or any remedial legislation) has retroactive or purely prospective application.
[2] Retroactive declarations change the law for all time, both reaching into the past and affecting the future. Once the declaration takes effect, the law is deemed to have been invalid from the moment of its enactment. Conversely, when the declaration is purely prospective, the law was valid from its enactment but is invalid once the declaration takes effect.
[3] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, this Court found s. 212(1)(j) of the Criminal Code, R.S.C. 1985, c. C-46, which prohibited living on the avails of sex work, to be unconstitutionally overbroad because it criminalized non-exploitative actions that could enhance the safety and security of sex workers. By criminalizing, for example, legitimate bodyguards, the offence violated the rights of sex workers under s. 7 of the Canadian Charter of Rights and Freedoms. This declaration did not take immediate effect but rather was suspended for one year. The Court did not explicitly state whether this declaration would apply retroactively or purely prospectively at the conclusion of the period of suspension.
[4] Parliament enacted remedial legislation before the suspension expired. The former s. 212(1)(j) was replaced with a new provision that prohibits obtaining a material benefit from sexual services but exempts legitimate, non-exploitative conduct. The new legislation did not include any transitional or retroactive provisions.
[5] The appellants were found by the trial judge to be parasitic, exploitative pimps during the one‑year period of suspension, contrary to s. 212(l)(j). The prosecution proceeded after the suspension expired. The appellants successfully applied to quash the resulting charges at trial. The British Columbia Court of Appeal allowed the Crown’s appeals, set aside the trial judge’s order and entered convictions on each count. The appellants now ask this Court to set aside the Court of Appeal’s order and restore the trial judge’s order quashing the counts.
[6] I would dismiss the appeals and affirm the appellants’ convictions. The purpose animating the suspension in Bedford was to avoid the deregulation of sex work (thus maintaining the protection of vulnerable sex workers) while Parliament crafted replacement legislation. In light of that purpose, I conclude that the declaration of invalidity was purely prospective, effective at the end of the period of suspension. Thus, the appellants were liable under s. 212(1)(j) for their conduct during the suspension period, and could be charged and convicted under this provision even after the suspension expired.
[7] The temporal application of a declaration is grounded in foundational constitutional principles and the presumptions to which they give rise.
[8] As I shall explain, judicial declarations are presumptively retroactive but that presumption is rebutted when retroactivity would defeat the compelling public interests that required the suspension. However, this does not leave those who may be personally prejudiced by a Charter breach during the suspension without a remedy. Where the remedial declaration operates prospectively, the findings of unconstitutionality by this Court can operate retroactively in individual cases, giving remedial effect to both s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. Such a result respects the constitutional roles of both the legislature and the judiciary, ensures that the public and vulnerable persons maintain the protections of the criminal law, ensures that Parliament has the option to design a specific regime, and gives remedial protection to those whose Charter rights have been violated.
[9] As the Bedford declaration applied purely prospectively, the appellants could be charged and convicted after the suspension expired and the declaration took effect for committing the offence of living on the avails during the suspension period. Because the trial judge found them to be abusive and exploitative, it cannot be said that they were prejudiced by the constitutional infirmity identified in Bedford. I would dismiss the appeals.
I. Background
A. Bedford and Responding Legislation
[10] On December 20, 2013, this Court released its decision in Bedford. The Bedford applicants had challenged three provisions of the Criminal Code that criminalized various activities related to sex work. One of those provisions, the former s. 212(1)(j), criminalized living on the avails of sex work. While this offence was intended to prevent the exploitation of sex workers by “the person who lives parasitically off a [sex worker’s] earnings” (R. v. Downey, [1992] 2 S.C.R. 10, at p. 32; see also Bedford, at para. 142), it also prevented sex workers from accessing security-enhancing safeguards, such as drivers and bodyguards. The offence was therefore overbroad and a violation of the s. 7 rights of the sex workers that was not saved under s. 1 of the Charter: Bedford, at paras. 66-67, 142, 145 and 162-63.
[11] This Court declared the living on the avails offence, as well as the two other challenged offences, to be inconsistent with the Charter and hence void: Bedford, at para. 164. However, because “moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians”, the declaration of invalidity was suspended for a period of one year: Bedford, at paras. 167 and 169. The Court did not state whether this declaration was to operate retroactively or purely prospectively.
[12] Two weeks before the suspension expired, Parliament enacted remedial legislation, replacing the living on the avails offence with the offence of obtaining a material benefit from sexual services provided for consideration: Criminal Code, s. 286.2. The new offence includes a number of exceptions but they do not apply in abusive or exploitative situations: Criminal Code, s. 286.2(5). Parliament did not state whether the amendments were to apply retroactively or prospectively.
B. Supreme Court of British Columbia, 2018 BCSC 736 (Masuhara J.)
[13] About two years after the declaration took effect, the appellants, Tamim Albashir and Kasra Mohsenipour, were charged with numerous offences arising out of an “escort” operation. They managed practically all aspects of the operation — clients, service locations, advertising, supplies, and transportation.
[14] The trial judge found that the appellants were abusive towards the sex workers in their employ. One of the complainants, K.C., testified that Albashir was repeatedly violent towards her. The trial judge found that Albashir’s “use of violence for the purpose of controlling [K.C.’s] conduct was normalized”: para. 228. Another complainant, S.C., testified that Mohsenipour had pointed a gun at her and threatened to kill her, and that Albashir had threatened to kill her son.
[15] Thus, far from providing safety and security-enhancing services, on the trial judge’s findings the appellants were precisely the type of “controlling and abusive pimps” that were the legitimate targets of the living on the avails offence: Bedford, at para. 142.
[16] Despite that, the trial judge quashed the charges against both appellants for living on the avails of the sex work of K.C. and S.C. The trial judge found that both offences had been established by the Crown but he quashed the charges because, once the Bedford suspension expired, the offence was unconstitutional.
[17] The trial judge relied on this Court’s decision in Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, as saying that suspended s. 52(1) declarations have a “delayed retroactive effect”, unless the court clearly states otherwise: para. 345. Thus, “[o]nce the suspension expires, the law will always have been unconstitutional” and the effect of the Bedford suspension expiring was that “s. 212(1)(j) has always been invalid”: paras. 345 and 350.
C. Court of Appeal for British Columbia, 2020 BCCA 160, 389 C.C.C. (3d) 163 (Bennett J.A., Saunders and Groberman JJ.A. concurring)
[18] The British Columbia Court of Appeal allowed the Crown’s appeals. In the Court of Appeal’s view, Hislop stood for the proposition that a suspended declaration operates retroactively if the legislature fails to enact remedial legislation during the suspension. However, if the legislature does enact such remedial legislation then “the retroactive effect of a suspended declaration of invalidity is pre-empted”: para. 90. Therefore, the Bedford declaration never came into effect and the trial judge should not have quashed the counts.
D. Positions of the Parties
[19] Albashir submits that the trial judge was right to quash the charges because the Bedford declaration operated retroactively once the suspension expired. In his view, the “Blackstonian” theory posits that because the legislature never had authority to enact an unconstitutional law, a declaration of constitutional invalidity nullifies the law from the outset. A suspension is only a temporary limit on the retroactive effect of the declaration to give Parliament time to cure the constitutional defect. If the impugned provision is a criminal offence, nobody may be prosecuted for that offence once the declaration comes into effect because no one can be convicted of an offence under an unconstitutional law. Otherwise, the Crown could use the former s. 212(1)(j) to indefinitely prosecute anybody who was paid to provide legitimate security services to sex workers prior to the expiry of the suspension.
[20] Mohsenipour similarly argues that, unless expressly stated otherwise, declarations of invalidity have retroactive effect, including when they are suspended. It is then up to the legislature to determine how best to respond, whether through purely prospective or retroactive remedial legislation. As the Bedford declaration was not explicitly prospective, it must have applied retroactively, rendering s. 212(1)(j) void ab initio once the suspension ended.
[21] The Crown submits that because Parliament enacted remedial legislation, the Bedford declaration never came into force and those who committed the offence of living on the avails under s. 212(1)(j) prior to the remedial legislation may still be prosecuted for that conduct. To the extent that legitimate bodyguards, drivers, or accountants could also be prosecuted, s. 24(1) is sufficiently flexible to provide them a remedy. This remedy is not available to the appellants, however, because their exploitative conduct did not fall within the unconstitutional overbreadth of s. 212(1)(j).
[22] The intervener the Attorney General of Canada argues in favour of a different approach: that the Bedford declaration was prospective. This Court should take a purposive approach to the temporal application of suspended s. 52(1) declarations, looking to the purpose of the suspension to determine whether the declaration must logically operate retroactively or purely prospectively. The Bedford declaration must be purely prospective because the purpose of its suspension would be undermined by a retroactive declaration. This is because criminal offences during the suspension would be unenforceable unless a prosecution could be entirely disposed of before the suspension expired. In other words, a retroactive declaration would result in sex work being effectively unregulated during the suspension period — despite the very purpose of the suspension being to maintain the regulation of sex work.
II. Analysis
[23] For the reasons that follow, I agree with the Attorney General of Canada that the Bedford declaration operated prospectively. Accordingly, the appellants could be tried and convicted under s. 212(1)(j) after the declaration took effect.
[24] As a preliminary matter, the parties were invited to make submissions on whether this Court has jurisdiction to hear these appeals as of right. The parties all agreed that the reinstatement of quashed counts by the Court of Appeal was tantamount to the reversal of an acquittal. Because the factual guilt of the appellants was established at trial, I agree that a reversal on appeal would result in findings of guilt on the quashed counts. There needs to be at least one level of court that can review the questions of law arising from the convictions: R. v. Li, 2020 SCC 12, [2020] 1 S.C.R. 675, at para. 1, citing R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 38. For this reason, this Court has jurisdiction to hear these appeals as of right.
[25] The key issue on appeal is whether s. 212(1)(j) was retroactively invalid such that it could not subsequently ground a conviction. The answer to this turns on the temporal nature of judicial remedies. I will then consider the relationship between a declaration of invalidity under s. 52(1) and individual remedies under s. 24(1).
A. Temporal Nature of Remedies
[26] When a court makes a declaration of invalidity under s. 52(1), the temporal effect of that constitutional remedy is rooted in the nature of the remedy itself. Constitutional remedies must be purposively interpreted in their “proper linguistic, philosophic and historical contexts”: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344. They must also be interpreted in a “generous and expansive” manner that is sensitive to evolving circumstances: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 24; see also R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 52.
[27] When legislation violates a Charter right, three foundational constitutional principles guide the interpretation of constitutional remedies: constitutionalism, the rule of law, and the separation of powers (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (P.E.I. Judges Reference (1997)), at paras. 90-95; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 54; G, at paras. 153-59).
[28] Constitutionalism requires that all laws comply with the Constitution as the supreme law of Canada. Section 52(1) of the Constitution Act, 1982, reads:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
[29] This supremacy clause has existed in other forms since Canada’s original constitution, the Constitution Act, 1867: Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 482. The Canadian judiciary’s role in reviewing the constitutionality of legislation thus has a considerable history: P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 5:20. In Manitoba Language Reference, the Court explained that “[s]ection 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years”: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 746.
[30] When a court finds legislation to be inconsistent with the Constitution, it must consider not only the principle of constitutional supremacy in s. 52(1), but other — at times competing — constitutional imperatives to determine an appropriate remedy: K. Roach, “Principled Remedial Discretion Under the Charter” (2004), 25 S.C.L.R. (2d) 101, at pp. 105 and 111-13. In this way, courts are also guided in their remedial discretion by the principles of the rule of law and the separation of powers. They can take into account, for example, the entitlement of the public to the benefit of legislation, as well as the different institutional roles that courts and legislatures are called to play: G, at para 94. As LeBel and Rothstein JJ. stated for the majority in Hislop, “[t]he text of the Constitution establishes the broad confines of the supreme law, but it is up to the courts to interpret and apply the Constitution in any given context”: para. 114.
[31] Thus, despite the absolute language of s. 52(1), when a court exercises its remedial jurisdiction to grant a declaration of unconstitutionality, it has discretion to give the principle of constitutional supremacy immediate effect or to suspend the declaration for a given p