The Suspension Period of s. 212(1)(j) of the Criminal Code: Can We Go Back in Time? - Shelly Neal

Suspension Period of s. 212(1)(j) of the Criminal Code[1]

The rise of the feminist movement and increasing prevalence of social justice issues, due to widespread information through social media, has led to a growing change in attitude toward the protections for sex trade workers. Traditionally, these workers have acted as a cultural thermometer in demonstrating society’s feelings towards women and shame in expressions of sexuality. As the world continues to change, so do the legal parameters around this longstanding form of work. In late 2021, the Supreme Court of Canada gave a powerful decision in the case of R. v. Albashir[2] indicating that not only do sex trade workers need continuing protections, but more importantly, that the suspension of certain Criminal Code[3] violations pertaining to sex work are for the vulnerable, not those who wish to exploit others. This begs the question: what are the temporal parameters of legislation suspensions? More specifically, when legislation is suspended, does its invalidity apply retroactively or prospectively?

The History of s. 212(1)(j)

The protection of sex trade workers in Canada received ample assistance in the landmark 2013 decision of R. v. Bedford.[4] In this case, three former sex workers sued the Attorney General of Canada for violations of their liberty rights under Section 7 of the Charter of Rights and Freedoms.[5] The group argued an infringement on their rights to security of the person based on the parameters found in s. 10,[6] s. 212(1)(j),[7] and s. 213(1)(c)[8] of the Criminal Code. The suspended provisions read:

(a) s. 210 makes it an offence to keep or be in a bawdy-house;[9]

(b) s. 212(1)(j) prohibits living on the avails of prostitution;[10]

(c) s. 213(1)(c) prohibits communicating in public for the purposes of prostitution.[11]

The court found s. 212(1)(j) or banning the monetary gain of sex work to be unconstitutionally overbroad because it criminalized non-exploitative actions that could enhance the safety and security of sex workers. An example of this was the criminalization of hiring legitimate bodyguards.[12] The declaration of this section's invalidity did not take immediate effect, but instead was suspended for one year allowing the Court to assess its standing. The Court did not explicitly state whether this declaration would apply retroactively or purely prospectively at the conclusion of the period of suspension.

Chief Justice Beverley McLachlin, writing for the majority in Bedford, deemed the women successful in proving that “The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice.”[13] This suspension was a huge win in safeguarding the future of female sex workers, but it did not legalize prostitution; as remarked by Justice Karakatsanis in the Albashir case, “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.”[14]

The importance of ensuring this suspension was prospective in nature was to protect against changing case decisions in the past while simultaneously impacting the future.[15] It also fulfilled the unwritten constitutional principle of the rule of law. As explained by author R. Sullivan in the text Statutory Interpretation, “There is a strong presumption against retroactive application of legislation because the rule of law requires that people be able to order their affairs in light of an established legal order.”[16] In Albashir, the major issue was whether the Bedford decision applied retroactively,[17] as it was not explicitly stated in the decision. The court sought to determine what the consequences of the decision were as it pertained to convictions.[18]

The Constitutional Elements

In Canada, The Constitution Act, 1982[19] is currently the most important legal document that courts and legislators alike must follow when implementing or deciding legal issues. Section 52(1) of The Constitution Act, more colloquially known as a supremacy clause, states, “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.”[20] According to Canada’s justice system, its purpose is to ensure that those granted a power to answer questions of law must do so following the Constitution, and anything outside of this boundary is not valid to the point it ceases to be consistent.[21] This was essential in this case, as s. 212(1)(j) was found to infringe on the Section 7 rights of sex trade workers and impeded their ability to protect themselves. Once this section was suspended for reassessment, it was found to be of no force or effect as per section 52(1).

Under section 24(1), or the Enforcement portion of the Charter of Rights and Freedoms,[22] “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.”[23] As such, the women in Bedford went to court to fight their Section 7 rights and the ability to protect themselves from the dangers of their jobs.

Both of these constitutional elements factored into the Albashir decision, as it explained why the defendants were not eligible to utilize the suspension found in Bedford but were still able to challenge their convictions.

The Case at Hand

In the British Columbia Court of Appeal decision of R. v. Mohsenipour,[24] the court summarized the history of the co-accused, Kasra Mohsenipour and Tamim Albashir, as previously convicted under s. 212(1)(j). The two men were running a commercial sex trade business and living off of the profits of prostitution.[25] The men appealed this conviction based on the temporal invalidity of this section of the code, as following the suspension of s. 212(1)(j) in the Bedford case which was granted by the B.C. Court of Appeal.[26] However, Justice Karakatsanis explained that:

The trial judge found the accused to be parasitic, exploitative pimps, but he quashed the charges against both accused for living on the avails of sex work. He reasoned that once the Bedford suspension expired, the offence was unconstitutional because suspended declarations under s. 52(1) of the Constitution Act, 1982, have a delayed retroactive effect — meaning that once the suspension expires, the law will have always been unconstitutional — unless it is clearly stated otherwise.[27]

This forced the court to consider the legal ramifications in suspending invalidity declarations and the temporal parameters around doing so.[28] It was important to the Supreme Court that this was not allowed to be utilized by those who were already exploiting those who had fought hard for minimal legal protection. The two defendants attempting to utilize this landmark decision are the people for whom the decision is meant to protect against. In a 7-2 decision, the Supreme Court found Mohsenipour and Albashir could not utilize the invalidity of the section and were liable for their conduct during the suspension period.[29]

The incredible circumstances for declaration of constitutional invalidity to be suspended were explained by Justice Karakatsanis:

In Ontario (Attorney General) v. G, 2020 SCC 38, this Court provided a framework for identifying those exceptionally rare cases where a declaration of constitutional invalidity should be temporarily suspended to permit the legislature to respond. A suspended declaration is only justified where a compelling public interest, grounded in the Constitution, outweighs the harms of temporarily maintaining the unconstitutional law.[30]

There was a clear and compelling public interest in the inability of sex workers to safely protect themselves, as they are easy targets for many dangerous members our society. However, the suspension was only to apply prospectively and not by those wanting to misuse it to avoid convictions.

Looking Forward

In the end, the importance of this ruling was the court sending a clear message and disallowing the suspects from continuing to profit from sex trade workers for whom the original suspension was meant to protect. Though the ability to empathize with this decision on a human level is very easy, is this just? It seems to follow a clear purpose of the law which is to protect moral Canadians and to ensure that those who aim to participate in criminal activity by stealing from others are not able to exploit the criminal justice loopholes. We need to ensure the wicked are unable to prey on the vulnerable. The Supreme Court also gave a very clear message as to whom these suspension measures were taken for and what happens after a law is deemed unconstitutional, but declaration has yet to take effect. The answer: this is not to be abused either prospectively or retroactively in time by those who have already taken too much. Looking forward and as reported by the CBC, there is a growing momentum toward the forming of advocate groups to help continue this legal momentum of decriminalizing aspects of prostitution in an effort to protect those who need it.[31] Hopefully, due to decisions like those found in Bedford and Albashir, the future holds a safer world for all sex trade workers.

[1] Criminal Code, RSC 1985, c C-46, s 212(1)(j). [2] R v Albashir, [2021] SCC 48. [3] Criminal Code, RSC 1985, c C-46. [4] R v Bedford, [2013] 3 SCR 1101. [5] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7. [6] Criminal Code, supra note 1 at s 210. [7] Ibid at s 212(1)(j). [8] Ibid at s 213(1)(c). [9] Ibid at s 210. [10] Ibid at s 212(1)(j). [11] Ibid at s 213(1)(c). [12] Albashir, supra note 2 at 18 para 3. [13] Bedford, supra note 4 at 1105 paras 2-3. [14] Albashir, supra note 2 at 19 para 6. [15] Ibid at 17 para 2. [16] R Sullivan, Statutory Interpretation, 3rd ed (2016) at 354. [17] Elizabeth Raymer, “Section of the Criminal Code remained valid during suspension period of declaration of invalidity” (19 November 2021), online: Canadian Lawyer Magazine <www.canadianlawyermag.com/practice-areas/criminal/scc-upholds-prostitution-related-convictions-after-it-declared-relevant-law-unconstitutional/361906> [perma.cc/7W2N-SFYW]. [18] Albashir, supra note 2 at 17 para 1. [19] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1988. [20] Ibid at s 52. [21] “Section 52(1) of the Constitution Act, 1982” (last modified 1 September 2021), online: Government of Canada <www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art521.html> [perma.cc/ GS6T-4UPZ]. [22] Constitution, supra note 19, s 24. [23] Ibid. [24] R v Mohsenipour, (2020) BCCA 160. [25] Ibid at 3 para 1. [26] Ibid at 25 para 94. [27] Albashir, supra note 2 at 18 para 5. [28] Ibid at 17 para 1. [29] Ibid at 71 para 124. [30] Ibid at 17 para 1. [31] Kate Dubinski, “Groups representing sex-trade workers launch legal challenge of Canada's prostitution laws” (30 March 2021), online: CBC News <www.cbc.ca/news/canada/london/sex-trade-legal-challenge-canada-1.5969798> [perma.cc/8E45-UNW].

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