Where a declaration of constitutional invalidity is suspended, the unconstitutional law can still ground a conviction for acts that took place during the period of suspension




Laws Affected by Suspended Declarations of Constitutional Invalidity Can Still Ground a Conviction as Long as the Conviction Does Not Prejudice the Rights of the Accused In R. v. Albashir, 2021 SCC 48, the Supreme Court of Canada examined whether individuals who commit a criminal offense after the offense has been declared constitutionally invalid, but during the period of suspension of the declaration of invalidity, can be convicted of the offense. The majority of the SCC (two justices dissenting) held that the answer depends on whether the declaration (or any remedial legislation) has retroactive or purely prospective application. If the declaration is purely prospective, the application could ground a conviction under these circumstances. Background In Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, the SCC declared s. 212(1)(j) of the Criminal Code, R.S.C. 1985, c. C-46, (the “Code”) which prohibited living on the avails of sex work, to be unconstitutional. This declaration did not take immediate effect – the declaration was suspended for one year to allow the legislature time to craft new laws governing sex work that would pass constitutional muster.The law was declared invalid on December 20, 2013, but the suspension of the declaration of invalidity ran until December 20, 2014. On December 22, 2016, (after the suspended declaration of invalidity expired,) the appellants were charged under s. 212(1)(j) of the Code for acts that took place during the period of suspension.The appellants argued that the appellants could not be charged under an unconstitutional law. Trial Decision At trial the appellants were found to be “parasitic, exploitative pimps”; however, the trial judge quashed the charges because the judge found that the Crown could not initiate proceedings against the accused for acts committed during the suspension of invalidity after the suspension ended (para 5). British Columbia Court of Appeal Decision The British Columbia Court of Appeal allowed the Crown’s appeals, set aside the trial judge’s order and entered convictions on each count (para 5). Appeal to the Supreme Court of Canada The accused appealed the decision of the BCCA. The key issue before the SCC was whether an individual who committed an offense prior to the expiry of the suspension could be convicted once the suspension expires and the declaration takes effect (para 1). Majority’s Ruling The Majority ruled that the Bedford suspension required the declaration to operate prospectively. Accordingly, the appellants could be tried and convicted under s. 212(1)(j) after the declaration took effect. The SCC dismissed the appeals and affirmed the appellants’ convictions. Reasoning The SCC explained that judicial declarations of invalidity are generally immediate and retroactive; however, this does not mean they are necessarily so. In some cases, compelling public interests outweigh the continued violation of Charter rights, courts may suspend a declaration of invalidity (para 43).In determining whether a declaration must logically operate retroactively or purely prospectively, courts should look to the purpose of the suspension. 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. If retroactivity would undermine that purpose, the declaration must apply purely prospectively (para 52).In the cases of s. 212(1)(j) of the Code, the purpose animating the suspension 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. 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 (para 72).However, the Court noted that this does not mean that a person could be convicted of s. 212(1)(j) in violation of their Charter rights. During the suspension, the law remains valid and can ground legal convictions; however, no one should be convicted of the offense if its unconstitutional overbreadth violates their rights (para 71). An accused who could demonstrate that their personal rights were prejudiced by the constitutional infirmity could seek relief under s. 24(1) of the Charter, provided that their conduct did not undermine the public interests the suspension was designed to protect (para 72).In this case, the appellants engaged in exploitative and parasitic conduct, the exact conduct that was always legitimately criminalized. Therefore, a s. 24(1) Charter remedy was not available to them. The majority dismissed the appeal and upheld the conviction (para 73).

April 14, 2022
R. v. Albashir, 2021 SCC 48