R v Albashir: Revisiting the Temporal Effects of the Bedford Decision

In R v Albashir 2021 SCC 48 [Albashir],  the Supreme Court (“The Court” or “SCC”) analyzed whether the declaration of invalidity in Canada (Attorney General) v Bedford, 2013 SCC 72 [Bedford] applied retroactively or prospectively. In Bedford, the Court ruled s. 212(1)(j) of the Criminal Code, RSC 1985 c C-46 [Criminal Code]—a provision that prohibited “living on the avails of sex work”—to be overbroad as it criminalizes both exploitative and non-exploitative acts (Bedford, para 140). In some cases, it is these non-exploitative acts that ensures the safety and security of sex workers (Bedford, para 142).

Since s. 212(1)(j) of the Criminal Code was inconsistent with the Charter, it was declared void (Albashir, para 11). Instead of immediately overturning the legislation, the Court suspended the declaration of invalidity for one year until Parliament enacted replacement legislation (Albashir, para 6). The issue the Court addressed in Albashir was whether convictions could be made under s. 212(1)(j) before the declaration of invalidity took effect. Put differently, did the Bedford declaration operate retroactively, or prospectively? Writing for the majority, Justice Karakatsanis found that the declaration applied prospectively, while Justices Rowe and Brown found that the declaration had a retroactive effect as of the date the suspension expired. 

The Appellants & Judicial History 

The appellants, Tamim Albashir and Kasra Mohsenipour, managed an “escort” business and oversaw all aspects of the operation (Albashir, para 13).  Accordingly, two years after the Bedford declaration took effect, the two were charged with multiple offences, one of which being s. 212(1)(j) of the Criminal Code (Albashir, para 13). Albashir and Mohsenipour were found to have engaged in this conduct during the one-year period of suspension, before the invalidity took effect (Albashir, para 13). At trial, a complainant testified that Albashir was violent towards her (Albashir, para 14). Another testified that Albashir had threatened to kill her son and Mohsenipour had “pointed a gun at her and threatened to kill her” (Albashir, para 14). In light of these testimonies, Justice Masuhara of the Supreme Court of British Columbia found that Albashir and Mohsenipour were the “controlling and abusive pimps” that the living on the avails provision worked to curtail (Albashir, para 15).

Despite finding that Albashir and Mohsenipour contravened s. 212(1)(j), Justice Masuhara held that declarations of invalidity under s. 52(1) have a “delayed retroactive effect” unless the Court states otherwise (Albashir, para 13). Referencing Canada (Attorney General) v Hislop 2007 SCC 10 [Hislop], Justice Masuhara found that “once the suspension expires, the law will always have been unconstitutional” (Albashir, para 17). As such, Justice Masuhara quashed the convictions against Albashir and Mohsenipour. Justice Masuhara’s decision showed deference to the principle that no one should be convicted under an unconstitutional law (Albashir, para 19).

British Columbia Court of Appeal 

The Crown successfully appealed to the British Columbia Court of Appeal (“BCCA”). The BCCA found that since the Bedford declaration of invalidity had not come into force, the declaration could not be applied retroactively (Albashir, para 18). This is because Parliament enacted remedial legislation in the form of s. 286.2 of the Criminal Code before the suspension ended (Albashir, para 18). The BCCA accepted the argument that suspended declarations operate retroactively in cases where the legislature does not replace the legislation during the suspension. However, when Parliament steps in and enacts legislation, “the retroactive effect of a suspended declaration of invalidity is pre-empted” (Albashir, para 18).  Since Parliament enacted remedial legislation before the suspension period ended, the BCCA held that Justice Masuhara should have found Albashir and Mohsenipour guilty as per s. 212(1)(j) (Albashir, para 18). Albashir appealed to the SCC.

Looking Back, Looking Forward, or Something Else? 

At the SCC, Albashir argued that the law was nullified from the outset given Parliament did not have the right to enact an unconstitutional law in the first place (Albashir, para 19). Similarly, Mohsenipour argued that, because the Court did not articulate whether the legislation was explicitly prospective, it must have applied retroactively (Albashir, para 19). Mohsenipour’s argument was aligned with the presumption that judicial remedies are thought to be retroactive unless otherwise explicitly stated (Albashir, para 41). 

The Crown contended that Parliament stepped in and enacted legislation two weeks before the suspension ended. Thus, the declaration of invalidity did not take effect and charges under s. 212(1)(j) remained valid (Albashir, para 21). This was the decision the BCCA had accepted. As an intervener, the Attorney General of Canada argued that the declaration was purely prospective because it would have been counter to the SCC’s purpose for a suspension to allow a retroactive declaration (Albashir, para 22). In coordination with principles of constitutional interpretation, this argument was the linchpin for the majority’s decision.

Prospective Application of the Declaration

Justice Karatkatsanis for the majority agreed with the Attorney General of Canada and held that the declaration operated prospectively, and as such, Albashir and Mohsenipour could be convicted under s. 212(1)(j) (Albashir, para 25). Citing the temporal nature of judicial remedies, Justice Karakatsanis examined the declaration of invalidity under s. 52(1) and remedies under s. 24(1). Section 52(1) of the Constitution Act, 1867  holds that any law inconsistent with the Constitution is of no force and effect, whereas s. 24(1) provides judicial remedies to those whose rights under the Canadian Charter of Rights and Freedoms [Charter] have been violated. 

Much of the Court’s decision revolved around the application of unwritten constitutional principles. Three constitutional principles apply when a Charter right is violated: constitutionalism, the rule of law, and the separation of powers (Albashir, para 27). Applied to the facts at hand, the rule of law dictates that individuals should be able to operate with clear knowledge of an “established legal order.” With regard to s. 212(1)(j), it was unclear as to whether the declaration would be applied retroactively because the Court in Bedford was not explicit (Albashir, para 35). Those charged under s. 212(1)(j) were left to do the guesswork. Nonetheless, there is a general presumption that declarations of invalidity apply retroactively, but this does not mean that they need to be retroactive (Albashir, para 43). Hislop is the leading authority on when to issue a prospective remedy, a remedy that is not intended to be applied retroactively. In that case, the Court outlined a list of non-exhaustive factors to consider when deciding if a prospective remedy is appropriate. This list included fairness to the litigants, good faith government reliance, and whether a remedy would “unduly interfere with the allocation of public resources” (Albashir, para 45). 

A New Exception to the General Rule 

Justice Karakatsanis found that, in addition to the existing Hislop guidelines for prospective remedies, another exception to the presumption of retroactivity was needed to enforce suspended declarations of invalidity. She reiterated that suspended declarations will be issued “when government demonstrates that compelling public interests, grounded in the constitution, outweigh the continued breach of constitutional rights and require that the legislature have an opportunity to remedy the constitutional infirmity” (Albashir, para 46).  Accordingly, in these specific situations, a retroactive application of the declaration could “frustrate the purpose” of the declaration’s suspension all together (Albashir, para 46). 

While the Court was apt to introduce a new condition that justified a prospective judicial remedy, it is difficult to see how in this circumstance the litigants were afforded any certainty as to acceptable conduct under s.212(1)(j) given there was a lack of explicit wording in Bedford. Thankfully, the Court was not naïve to this inequity. Addressing the uneven impact of the prospective application (whereas those charged with conduct that did not contravene s.212(1)(j) could still be prosecuted), the majority held that individuals charged could seek an individual remedy under s. 24(1) (Albashir, para 69). This would be possible in situations where individuals charged acted as “legitimate driver’s or bodyguards” for sex workers or whose conduct could be captured under unconstitutional overbreadth (Albashir, para 71). Given that Albashir and Mohsenipour were found by the trial judge to engage in conduct that was not unconstitutionally captured under s. 212(1)(j) and did, in fact, undermine the public interest, a s. 24(1) remedy would not be available to them. 

The Temporal Effects of a Declaration of Invalidity

Justices Rowe and Brown would have applied the declaration retroactively, although they agreed with Justice Karakatsanis that the BCCA’s “pre-emptive enactment” approach was flawed. In providing guidance for future courts, they provided four possible temporal effects of a declaration of constitutional validity: an immediate retroactive declaration of invalidity, a suspended retroactive declaration of invalidity, an immediate prospective declaration of invalidity, and a prospective declaration of invalidity with a suspension (Albashir, para 85). Justices Rowe and Brown urged the Court to consider these four temporal effects and further distinguished between repealing a criminal law and declaring it void ab initio. Under the former, a charge can be laid after the legislation is repealed (Albashir, para 102). Under the latter, convictions are prohibited even if acts were committed before the declaration (Albashir, para 103). Justices Rowe and Brown found s. 212(1)(j) void ab initio, but their distinction between repealing a criminal law and declaring it void ab initio again pushes the Court to use more explicit language in future decisions. Taking a litigant focused approach, they articulated that litigants need to know what the law holds for them, and that lower courts should not have to engage in guesswork. This argument is especially persuasive given the high cost to litigants and prolonged nature of legal proceedings.  

While Justices Rowe and Brown distinguish the four temporal effects of a declaration of constitutional validity, they do not offer a road map as to when a particular remedy is best suited. In the future, it would be helpful if the Court specified not only the temporal effect of a declaration of invalidity, as Rowe and Brown articulated, but why they have chosen that effect. This would afford litigants a better understanding of the Court’s reasons, and further supplement the jurisprudence regarding declarations of invalidity. 

Looking forward, Karakatsanis tasked future courts “to explicitly state the temporal application of their s. 52(1) declarations to avoid any confusion” (Albashir, para 53).  Albashir is a reminder that sometimes the Court needs to go back to the drawing board to reexamine exactly what they meant in previous decisions. While this case may leave some unsettled by the guesswork involved, with directions from the highest court to use clear and precise wording, it is likely this misstep will not be made again. 

Perhaps most importantly, this case is a welcomed step in the right direction for protecting the lives of sex workers. It was important for the SCC to issue a suspended declaration of invalidity in Bedford because a reading down of s.212(1)(j) held potential to alter the scheme altogether (Albashir, para 56). While the declaration was suspended, sex workers remained partially protected versus the alternative of no protection all together. This would have been the unsavoury result should the declaration of invalidity had applied retroactively. Instead of accepting temporary injustice and allowing sex workers to go unprotected, the Court stepped in and remedied the situation to afford sex workers at least partial protection.  Individuals can anticipate that the Court will continue to uphold the rule of law and pursue equality in decisions released in the new year.