R. v. Albashir, 2020 BCCA 1602021 SCC 48 (39277) (39278)

“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.”

The SCC (7:2) dismissed the appeals.

Justice Karakatsanis wrote as follows (at paras. 3-9, 52-53, 70-72):

“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.

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.

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.

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.

The temporal application of a declaration is grounded in foundational constitutional principles and the presumptions to which they give rise.

 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.

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.


 

In sum, I agree with the Attorney General of Canada that the court should look to the purpose of a suspension in determining whether the declaration must logically operate retroactively or purely prospectively. The purpose of a suspension is to protect a compelling public interest that would be endangered by an immediate declaration to such an extent that it outweighs the harms of continuing the violation of Charter rights for a limited period: G, at para. 83. If retroactivity would undermine that purpose, the declaration must apply purely prospectively.

This Court has not always explained why a declaration is suspended, nor explained the temporal application of that declaration. G emphasized the importance of transparently explaining the reasons for suspending a s. 52(1) declaration: paras. 125-26 and 159. While those explanations will assist in deducing the necessary temporal implications of suspended declarations, I would expect courts in the future to explicitly state the temporal application of their s. 52(1) declarations to avoid any confusion. Where the court has been explicit, it is unnecessary to consider the necessary implications of a suspension.


 

Finally, while this Court has often stated that prosecutorial discretion is not a solution to a constitutionally defective situation, it is highly unlikely that the Crown would prosecute someone in the face of the Court’s determination that to do so would likely be a violation of their Charter rights: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 17; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 86. In the unlikely event that they do, a person in non-exploitative position can seek a s. 24(1) remedy.

In sum, the fact that the Bedford declaration was purely prospective does not mean someone will be convicted of s. 212(1)(j) in violation of their Charter rights. While the law remains valid and can ground legal convictions, no one should be convicted of the offence if its overbreadth violates their rights. However, where the conduct does not fall within the area of overbreadth identified by this Court, individuals may be charged, prosecuted, and convicted under s. 212(1)(j) for conduct that occurred while the law still governed. A suspended declaration of invalidity may be purely prospective where the purpose of the suspension requires such a temporal application. In Bedford, this 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. As the remedy was purely prospective, the appellants could be charged for their conduct prior to the declaration taking effect. Thus, an accused could be convicted for conduct caught by s. 212(1)(j) before the effective date of the declaration. However, an accused who could demonstrate that their personal rights were prejudiced by the constitutional infirmity could seek relief under s. 24(1), provided their conduct did not undermine the public interests the suspension was designed to protect.”