SCC upholds prostitution-related convictions, after it declared relevant law unconstitutional

Two men convicted of living off the avails of prostitution have lost their appeals to have those convictions overturned by the Supreme Court of Canada, in a ruling that addressed for the first time how courts should treat crimes that are committed after the high court has declared a law unconstitutional but before that declaration takes effect.

In a 7/2 decision in R. v. Albashir, the Supreme Court found that a section of the Criminal Code which it had invalidated in an earlier judgment remained valid during the suspension period of the declaration of constitutional invalidity.

“The crux of the issue before the court was the effect of the suspended declaration of invalidity made in Bedford on the criminal prosecution of an offence subject to that suspended declaration,” Lara Vizsolyi, who represented the respondent Crown in the case, told Canadian Lawyer.

“The court’s answer is that the suspension in Bedford was, by necessary implication, prospective,” says Vizsolyi, a prosecutor for the Attorney General of British Columbia Criminal Appeals and Special Prosecutions office in Victoria. This means “that the law remained valid for the period of suspension and an accused person can be prosecuted for an offence committed prior to the expiry of the suspension regardless of when the prosecution is initiated or concluded.”

In its 2013 ruling in Canada (Attorney General) v. Bedford, the court had declared Canada’s prostitution laws to be unconstitutional, including section 212(1)(j), which made it a crime to live off the avails of prostitution. The declaration of invalidity did not take immediate effect but was suspended for one year in order to give Parliament time to change the law, which it did in 2014. The court did not say in its Bedford ruling whether the declaration of invalidity would apply retroactively or prospectively.

Tamim Albashir and Kasra Mohsenipour were found to have run a Vancouver “escort service,” or prostitution ring, between 2013 and 2016, which included the suspension period; they were charged in December 2016, after the suspension period had ended. The trial judge quashed the charges -- even though he found the accused factually guilty – because he found that the law had been unconstitutional at the time the crimes were committed, as per Bedford.

In entering convictions, however, the Court of Appeal for British Columbia found that the retroactive effect of a suspended declaration of invalidity is pre-empted by the passing of remedial legislation.

In Friday’s 7/2 Supreme Court judgment, Justice Andromache Karakatsanis, writing for the majority, noted that a retroactive declaration means the law is considered to have always been invalid, while a prospective declaration means the law is considered to be invalid only after the suspension period has ended and the declaration of constitutional invalidity has taken effect.

Since the purpose of the Bedford ruling -- which invalidated several sections of the Criminal Code concerning prostitution-related offences – was to protect the vulnerable against those who would exploit them, the majority of the court found that section 212(1)(j) of the Code was unconstitutional only after the suspension period had ended.

“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,” Justice Karakatsanis wrote.

“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.”

However, says Vizsolyi, “where a declaration of invalidity is made prospectively, a remedy under s. 24(1) remains available to those whom the law still applies.”

Section 24(1) of the Canadian Charter of Rights and Freedoms states that “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

Going forward, she says, “the Court has directed that any court declaring a law invalid, where the effect of the declaration is suspended, should be explicit about the temporal application of that declaration so as to avoid any confusion in its application.”

In dissenting reasons Justice Malcolm Rowe, also writing for Justice Russell Brown, found that the declaration of constitutional invalidity had, in fact, rendered section 212(1)(j) of the Criminal Code null and void, as if it never existed.

“I agree with Justice Karakatsanis that the legislation was not retroactive, and that the coming into force of s. 286.2 of the Criminal Code did not ‘pre-empt’ the retroactive effect of the declaration of unconstitutionality,” Justice Rowe wrote.

However, he continued, s. 286.2 of 2014’s Protection of Communities and Exploited Persons Act, which concerns material benefit from sexual services, “did nothing to cure the constitutional defect in s. 212(1)(j) as it existed in the past, and of course could do nothing to alter this Court’s declaration that s. 212(1)(j) is unconstitutional. As such, s. 212(1)(j) was unconstitutional at the time the appellants were found guilty, and the s. 212(1)(j) counts must accordingly be quashed.”

Joven Narwal, who represented the appellant Kasra Mohsenipour, calls the decision “a landmark Charter ruling” that “made clear that legislation is not immunized from challenge as accused persons can avail of a remedy to avoid the application of an unconstitutional law through section 24(1).”

However, he noted s. 52. (1) of the Constitution, which says “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.” Doctrinally, he says, this should mean “that once a law is declared unconstitutional it should be so for all time, to the point that it was never constitutional at its enactment.

“In my view, this ruling, while significant insofar as it clarifies that exemptions under section 24(1) are the route to a remedy to avoid conviction for an unconstitutional offence during the suspension period, it will provoke continued debate, academically and through jurisprudence, on both the issue of section 52(1) remedies and remedies for individuals charged with laws declared to be unconstitutional,” says Narwal, the Vancouver-based principal of Narwal Law LLP.

Narwal also notes that his client’s saga is not yet over, as there is a pending appeal to the B.C. appellate court over police misconduct in the case. A hearing date has not yet been set.