Robson Crim
Aug 15, 20226 min
Case and Relevant Criminal Code Section Discussion
The case of R v Albashir (“Albashir”) discusses how the courts should treat a crime that has been committed after the law has been deemed unconstitutional but before this declaration has taken effect.[1] Will the convictions be upheld even though the law has been deemed unconstitutional by the Supreme Court, but the convictions occurred during a suspension period given to change the law? Will these declarations be applied prospectively or is there a presumption that invalid laws are to be applied retroactively?[2] These are the difficult questions facing the Supreme Court in the case of Albashir. This case also addresses the continued importance of protecting sex workers, which I believe is important to Canadian society.
In the case of Canada (Attorney General) v Bedford, the Supreme Court of Canada declared that the laws of prostitution were unconstitutional.[3] This 2013 decision gave Parliament a one-year suspension period to change the law, which they did in 2014.[4] Notably, the court did not say whether this declaration would be applied prospectively or retroactively.[5] Included in the prostitution laws declared unconstitutional was section 212(1)(j). This provision of the Criminal Code stated that everyone who “lives wholly or in part on the avails of prostitution of another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.”[6] This specific section was found to be unconstitutional since it criminalized both exploitive and non-exploitive actions, the latter of which often enhanced the security and safety of sex workers in Canada, which is thus inconsistent with section 7 of the Canadian Charter of Rights and Freedoms that guarantees the right to life, liberty, and security of the person; the section was therefore void.[7] This is the specific section Mr. Tamim Albashir and Mr. Kasra Mohsenipour were charged and convicted under in 2019 due to the operation of a sexual escort service that occurred between 2013 and 2016.[8] This then raised the issue of whether individuals can be charged and convicted of an offence under the Criminal code after a suspension period has ended for offences committed during said period.
At trial, the judge stated that the law had been declared unconstitutional at the time of the offence, and thus, the charges were dropped.[9] A different decision was reached on appeal to the British Columbia Court of Appeal. This court discussed that the declaration of unconstitutionality was irrelevant because Parliament replaced the impugned section prior to the suspension period ending.[10] The accused then proceeded to appeal to the Supreme Court of Canada where the Court dismissed the appeal and affirmed that, “the accused could be charged and convicted, after the suspension expired and the declaration took effect, for committing the offence of living on the avails of sex work under s. 212(1)(j) during the suspension period.”[11]
Relevance
The discussion of prospective application instead of retroactive application is relevant to Canadian society. A retroactive declaration is used when the law is always considered to have been invalid, whereas a prospective declaration is used when the law will only be considered invalid after the suspension period has come to an end and the constitutional declaration of invalidity takes effect.[12] While the Supreme Court stated that there is a presumption that declarations of invalidity will be applied retroactively, this does not mean that they have to be, as exemplified in this case.[13] Justice Karakatsanis relied on the case of Canada (Attorney General) v Hislop (“Hislop”), which gave a list of non-exhaustive factors to consider when granting an exception to the general rule of retroactive application of declarations.[14] The factors covered in Hislop include “good faith government reliance, fairness to the litigants, and whether a retroactive remedy would unduly interfere with the allocation of public resources.”[15] Justice Karakatsanis then built upon this to give another exception to the retroactivity presumption in cases where the purpose of the suspension requires a prospective declaration.[16] Justice Karakatsanis added that “where the 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.”[17] In the case at hand, a retroactive application would frustrate the purpose of the legislation being suspended. This is because the legislation was deemed unconstitutional, as it was too broad in that it prevented sex workers from being able to have security-enhancing features and thus impacted their safety.[18] If a retroactive application had occurred, then the exploitative individuals the criminal justice system is concerned with would have had close to criminal immunity during this one-year suspension period, which would likely have led to very negative consequences.[19]
Commentary
A short discussion of current prostitution laws is also relevant here. Canada’s prostitution laws have constantly been evolving, coming to the point where we are now focusing on protecting sex workers and criminalizing the purchasers. Currently, sex work is legal in Canada, but it is illegal to solicit.[20] This thus results in sex work not being criminalized, but rather purchasers of sex facing the consequences. Having the laws focus on protecting sex workers rather than criminalizing them makes their job safer. For example, if they are dealing with a dangerous client, they would not have to worry about seeking help from law enforcement and sacrificing their safety to protect themselves from legal repercussions. Interestingly, in countries such as New Zealand where all acts of sex work have been legalized through the Prostitution Reform Act of 2003, a study showed that 64% of sex workers found it easier to turn away clients since the passing of this Act; furthermore, 57% of respondents said that they felt police attitudes towards them had changed in a positive way.[21] This is an important finding, as feeling the police have better attitudes towards sex workers may make them more likely to seek help when needed. Further, this attitude change can shift the focus from the sex worker being viewed as a criminal to the protection of their safety and well-being.[22]With this in mind, the protection of sex workers is important. It is known to be a dangerous profession for the workers, and thus, Canadian laws have started to reflect the need to protect these individuals.
The case of Albashir is an important step in protecting the lives and work of sex workers in Canada. By keeping the law valid during the suspension of this law, sex workers could retain criminal law protection against exploitive conduct rather than risking their security.[23] I believe it was important this law be given a prospective declaration rather than a retroactive one because a retroactive declaration would have put sex workers in a dangerous position during the one-year suspension period if the law had always been declared invalid. Further, the impugned provision in this case was one that was meant to protect sex workers; the reason it was found to be unconstitutional was because it was preventing sex workers from seeking protection such as bodyguards.[24] With this in mind, a prospective declaration was applied because this would allow the continued protection of the group of people the provision was supposed to protect. Decisions such as this one demonstrate the priority of the Courts to move the focus away from criminalizing sex workers, which I believe is a welcomed change in Canadian society. Thus, I conclude that the decision made in Albashir was correct and is an important one for Canada. This decision will have a positive impact on sex workers and their protection and will have an impact on other cases seeking prospective application of a law.
[1] R v Albashir, 2021 SCC 48 at para 1 [Albashir].
[2] Braelyn Rumble, “R v Albashir: Revisiting the Temporal Effects of the Bedford Decision” (22 December 2021), online: The Court <www.thecourt.ca/r-v-albashir-revisiting-the-temporal-effects-of-the-bedford-decision/> [perma.cc/YRZ7-JY24].
[3] Canada (Attorney General) v Bedford, 2013 SCC 72 at para 3 [Bedford].
[4] Ibid at para 169.
[5] Elizabeth Raymer, “SCC Upholds Prostitution-Related Convictions, After it Declared Relevant Law Unconstitutional” (19 November 2021), online: Canadian Lawyer <www.canadianlawyermag.com/practice-areas/criminal/scc-upholds-prostitution-related-convictions-after-it-declared-relevant-law-unconstitutional/361906> [perma.cc/8UPJ-3ZAW].
[6] Criminal Code, RSC 1985, c C-46, s 212(1)(j).
[7] Albashir, supra note 1 at para 3.
[8] Ibid at para 13.
[9] Ibid at para 5.
[10] Ibid at para 18.
[11] Ibid at summary para 4.
[12] Raymer, supra note 5.
[13] Albashir, supra note 1 at para 41.
[14] Ibid at para 45.
[15] Ibid.
[16] Ibid at para 46.
[17] Ibid.
[18] Ibid.
[19] Ibid at para 56.
[20] Canadian HIV/AIDS Legal Network, “Sex, Work, Rights” (1 November 2005), online (pdf): HIV Legal Network <www.hivlegalnetwork.ca/site/wp-content/uploads/2013/04/SWbooklet+-+ENG.pdf> [perma.cc/39FU-Z67G].
[21] Fraser Crichton, “Decriminalising Sex Work in New Zealand: its history and impact” (21 August 2015), online: Open Democracy <www.opendemocracy.net/en/beyond-trafficking-and-slavery/decriminalising-sex-work-in-new-zealand-its-history-and-impact/> [perma.cc/KL6W-W8KA].
[22] Ibid.
[23] Ibid at para 56.
[24] Ibid.