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THE IMPACT OF DECLARATIONS OF INVALIDITY AND CHARGES LAID DURING A PERIOD THAT A DECLARATION HAS BEEN SUSPENDED

In R. v. Albashir, 2021 SCC 48, November 19, 2021, the accused were charged with the offence of living on the avails of sex work, contrary to section 212(1)(j) of the Criminal Code. The Supreme Court of Canada, in Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, had found this provision to be unconstitutional and void, but suspended the declaration of invalidity for one year. The accused were charged after the suspension expired, but the offences were alleged to have occurred during the one-year period of suspension.

The trial judge quashed the charges against both accused on the basis that once the Bedford suspension expired, the offence was unconstitutional. On appeal, the British Columbia Court of Appeal allowed the Crown’s appeals and entered convictions.  The accused appealed to the Supreme Court of Canada.

The appeals were dismissed.

The Supreme Court indicated that “[t]his 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”. The Court noted that “[r]etroactive 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” (at paragraph 2).  The Court also noted that in Bedford, it “did not explicitly state whether this declaration would apply retroactively or purely prospectively at the conclusion of the period of suspension” (at paragraph 3).

The Supreme Court held that 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” (at paragraph 6).

Conclusion:

The Supreme Court summarized its conclusion in the following manner (at paragraph 72):

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.