R. v. Mohsenipour

2020 BCCA 160 R. v. Mohsenipour

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Mohsenipour, 2020 BCCA 160 Date: 20200608 Docket: CA45121; CA45122 Docket: CA45121 Between: Regina Appellant And Kasra Mohsenipour Respondent - and - Docket: CA45122 Between: Regina Appellant And Tamim Albashir Respondent Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainants referred to in this judgment by the initials NV, KC and SC This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman The Honourable Madam Justice Bennett On appeal from: An order of the Supreme Court of British Columbia, dated January 29, 2018 (R. v. Albashir, 2018 BCSC 736, Vancouver Docket 27174). Counsel for the Appellant: L.A. Vizsolyi M. Dattilo Counsel for the Respondent, Kasra Mohsenipour: J. Narwal Counsel for the Respondent, Tamim Albashir: M.E. Sandford, Q.C. A.A. Tolliday Place and Date of Hearing: Vancouver, British Columbia December 10, 2019 Place and Date of Judgment: Vancouver, British Columbia June 8, 2020 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman Summary: Mr. Mohsenipour

and Mr. Albashir were convicted of several offences related to their operation of a commercial sex trade, including living on the avails of prostitution contrary to s. 212(1)(j) of the Criminal Code. However, the trial judge relied on the Supreme Court of Canada's decision in Canada (Attorney General) v. Bedford, 2013 SCC 72 to quash the s. 212(1)(j) counts despite his finding that the respondents were factually guilty. The Crown appeals. Held: Appeal allowed. The enactment of the new material benefit offence pre-empted the retroactive effect of the Court's suspended declaration of invalidity. Accordingly, the living on the avails of prostitution offence remained in force during the suspension period. The rule of law justifies its prosecution. The trial judge erred in quashing the subject counts. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Kasra Mohsenipour and Tamim Albashir were convicted of a number of offences related to their operation of a commercial sex trade, including living on the avails of prostitution, contrary to s. 212(1)(j) of the Criminal Code. The trial judge, despite finding factual guilt on all counts, quashed the s. 212(1)(j) counts as unconstitutional, relying on Canada (Attorney General) v. Bedford, 2013 SCC 72. The Crown appeals that decision. [2] In Bedford, the Court held that the living on the avails of prostitution provision, s.

212(1)(j), was overbroad and could not be saved under s. 1 of the Charter. The Court suspended the declaration of invalidity for a period of one year, to end on December 20, 2014, in order for Parliament to respond if it wished. [3] On December 6, 2014, Parliament enacted Bill C-36 in response to Bedford. Among other changes, it replaced s. 212(1)(j) with a new "material benefit" offence in s. 286.2. The provision largely mirrors its predecessor in substance but carves out a number of exceptions intended to address concerns over security of the person raised in Bedford. [4] This appeal raises a discrete legal issue: when can an individual be liable for criminal conduct pursuant to a law that has been declared unconstitutional? [5] It is my view that the judge fell into error when he quashed the counts. Counsel agreed that if the appeal was allowed, the appropriate remedy would be to enter convictions on both counts given the trial judge's findings of factual guilt. As the other convictions from the trial are under appeal, I would grant an extension of time as necessary to permit the respondents to appeal these convictions in order to join them with the outstanding conviction appeals. Background and trial decision [6] Mr. Mohsenipour, Mr. Albashir, and one Omar Alameddin headed an "escort" operation in which the complainants KC, SC, and NV provided sexual services to clients for

money while the men financed and orchestrated logistics. They rented the premises from which the complainants worked; arranged and paid for website advertisements; provided transportation, supplies, and security; and organized the time and place for meetings with prospective clients. Mr. Mohsenipour and Mr. Albashir collected the proceeds derived from the operation and paid the complainants after deducting their percentage of the profits. [7] Mr. Albashir contacted KC in 2014. He expressed an interest in becoming her pimp together with his partner Mr. Mohsenipour. They agreed to terms whereby KC would receive 40% of the monies paid for sexual services and Mr. Albashir would receive 60%. In exchange, Mr. Albashir would provide supplies, advertisements, transportation, security, a location, and clients. [8] In the ensuing years, KC worked at various locations in the Lower Mainland. At one point, the operation shifted to Edmonton for a short time. [9] Mr. Albashir was violent towards KC. On one occasion, he struck her in the face and caused a black eye. On another, he grabbed her by the throat, threw her to the ground, and placed his knee on her face. [10] KC complained to the authorities in April 2016. [11] SC had heard about Mr. Albashir through her relationship with KC. Eventually, she and Mr. Albashir met. They discussed the terms of an escorting arrangement and she began

taking clients immediately. Again, the respondents financed and organized all aspects of the operation. [12] After three weeks, SC wanted out of the business. She missed her family. She left the condominium supplied by the respondents and returned to her former home. Within a matter of days, and following multiple demands from the respondents, SC moved to a location in downtown Vancouver with KC and resumed escorting. [13] Like KC, SC worked at multiple locations in Vancouver between 2014 and 2016. She also moved to Edmonton for a period of time with the others. SC's relationship with the respondents was marked by the threat of violence, both physical and psychological. [14] SC provided a statement to the police in July 2016. [15] Offences involving a third complainant, NV, are not the subject of this appeal. [16] On December 22, 2016, the Crown charged Mr. Mohsenipour, Mr. Albashir, and Mr. Alameddin with 18 counts of prostitution-related offences, and one count of obstructing justice. Counts six and 13 alleged that the men lived on the avails of the prostitution of KC and SC, contrary to s. 212(1)(j), from March 15, 2014 to December 5, 2014, and May 15, 2014 to December 5, 2014, respectively. Mr. Mohsenipour and Mr. Albashir were also charged under s. 286.2(1), the new material benefit offence, for conduct committed after December 6, 2014--when the replacement provision came

into force. [17] Mr. Alameddin failed to appear at trial, but the Crown nonetheless proceeded against Mr. Mohsenipour and Mr. Albashir in his absence. Following the close of the Crown's case, Mr. Mohsenipour sought leave to apply to quash counts six and 13 on the indictment. [18] On January 29, 2018, Mr. Justice Masuhara issued oral reasons for judgment addressing the merits of the case as well as Mr. Mohsenipour's motion to quash. [19] He found Mr. Mohsenipour and Mr. Albashir factually guilty on all counts in the indictment. Regarding counts six and 13, he had little difficulty concluding that the men lived on the avails of the prostitution of KC and SC during the specified offence dates. He relied on the testimony of the complainants, the lack of evidence showing an alternate source of income for either accused, a statement by Mr. Albashir to the police, and "the regularity with which Mr. Albashir and Mr. Mohsenipour were together." [20] Notwithstanding the above findings, in his ruling on Mr. Mohsenipour's motion, the judge granted leave and quashed the two counts. It is this decision that forms the subject matter of the present appeal. Mr. Mohsenipour and Mr. Albashir have appealed from their convictions on the other counts in separate proceedings. [21] I now turn to the judge's reasons on the application to quash. Application to quash [22] Mr. Mohsenipour challenged the

ability of the Crown to pursue counts six and 13 on the basis that the Court in Bedford struck down the charging provision in those counts, s. 212(1)(j), and the charges were laid after the suspended declaration of invalidity expired. To enter convictions on those counts would, according to his argument, offend the rule that one cannot be convicted of an offence under an unconstitutional law: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at para. 38. [23] To recall, reasons in Bedford were issued on December 20, 2013, and the suspended declaration of invalidity ended December 20, 2014. The counts alleged that the conduct had been committed within that time frame--between March and December 5, 2014. [24] While acknowledging that the application came "very late in the day", Justice Masuhara granted leave and considered the merits. He began by framing the issue as follows: "to what effect, if any, does the suspended declaration of invalidity have on conduct committed during, and charges filed after the end of, the suspension period." [25] The judge interpreted Canada (Attorney General) v. Hislop, 2007 SCC 10 to stand for the proposition that a suspended declaration of invalidity, absent explicit language to the contrary, has retroactive effect. Moreover, he noted (at para. 345) that "[o]nce the suspension expires, the law will always have been unconstitutional", since the remedy

addresses the immediacy of retroactive effect, not retroactive effect itself. [26] He was not persuaded that the disjunctive "if" and "would" language in para. 92 of Hislop, (set out below), suggested that the passing of remedial legislation pre-empted the retroactive effect of a suspended declaration of invalidity. In so concluding, he relied on the Court's efforts in previous paragraphs to contrast purely prospective remedies with delayed retroactive remedies. Furthermore, the concern in Hislop with creating an immediate "vacuum" or "lacuna" before Parliament can act to replace an unconstitutional law leads to the inference that, in his interpretation, these may remain after Parliament has a chance to act. In his words, "[t]he choice belongs to Parliament": para. 347. [27] The judge then quoted a passage from Professor Hogg's constitutional law treatise, describing the effect of a suspended declaration of invalidity: A suspended declaration of invalidity is not to be confused with a prospective ruling. A suspended declaration of invalidity is delayed in coming into force, but if and when it comes into force it has the normal retroactive effect of a court order. It operates to invalidate the unconstitutional statute from the time of its enactment. Of course, a suspended declaration of invalidity will not come into force at all if during the period of suspension the competent

legislative body enacts corrective legislation that replaces the unconstitutional statute with one that is constitutional. It would seem to follow from the retroactive effect of a declaration of invalidity (including one that is suspended), that the corrective legislation would also have to be retroactive in its effect. [Emphasis in original.] P.W. Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters Canada, 2016) (loose-leaf updated 2017, release 1) at 40-13. [28] He proceeded to consider Bedford, noting that the Court had expressed concern for immediate invalidity and did not specify whether the declaration would have prospective application only. This inevitably meant, in his view, that once the suspension expired, s. 212(1)(j) was invalid ab initio. [29] The judge considered the cases relied upon by the Crown but did not find them to be of assistance. In particular, he distinguished R. v. Demers, 2004 SCC 46 on the basis that if Parliament--in that case--did not amend the challenged provisions before the suspension period expired, a regime remained in place to maintain jurisdiction against permanently unfit accused. He was of the view that in the case before him, nothing "remain[ed]" of the criminal process to maintain jurisdiction over the accused if the suspension period imposed in Bedford had ended. [30] The judge did not find support in R. v. McCrady,

2011 ONCA 820, a drug offence case, for the proposition that remedial legislation passed before the expiry of a suspension period means that the declaration of invalidity never comes into force. Similarly, he found that R. v. D'Souza, 2016 ONSC 2749 did not squarely address the issue of the retroactive effect of a declaration of invalidity. Both cases were distinguishable. [31] Finally, the judge considered the Crown's alternative argument that the Interpretation Act, R.S.C. 1985, c. I-21 [IA] revived s. 212(1)(j) such that the Crown could continue to initiate prosecutions under it. He found this reading to be untenable. [32] Justice Masuhara granted the application and quashed counts six and 13 on the indictment. The Crown subsequently appealed. Issues [33] There is only one issue to be determined in this appeal, that being whether the respondents could be convicted of an offence that was declared unconstitutional when the offence occurred during the suspension period. [34] While the Crown additionally challenged the decision of Masuhara J. granting leave to raise the issue at first instance, the Court concluded during oral submissions that there was no merit to that argument. I briefly address the issue below. [35] The Crown sought a ruling on whether Mr. Mohsenipour and Mr. Albashir would be permitted to raise a new issue on their conviction appeal. At the close of the oral

hearing, the Court declined to make a ruling, leaving the issue for the division of the Court hearing that appeal. Positions of the parties [36] The Crown submits that a suspended declaration will not come into force if constitutionally infirm legislation is repealed, repealed and replaced, or corrected. In other words, the retroactive effect of a suspended declaration of invalidity is pre‑empted by the enactment of remedial legislation. It relies on R. v. Ackman, 2017 MBCA 78, R. v. Stupak, 2018 ONSC 1867 and Hislop at paras. 91-92 to anchor its position. [37] This interpretation, it submits, accords with the purpose of suspending a declaration of invalidity--to avoid a legal vacuum and allow Parliament to remedy the provision. Accordingly, the trial judge erred in quashing the counts under s. 212(1)(j) since Parliament repealed and replaced the living on the avails provision before the declaration from Bedford came into effect. [38] The Crown further submits that criminal liability crystalizes the moment a valid law is contravened and may be pursued at any time thereafter. If charges cannot be sworn after a suspended declaration of invalidity ends, the effect would be the imposition of an artificial limitation date for, in this case, an indictable offence. Such a conclusion would incentivize the avoidance of detection, as charges could only be sworn within the timeframe of

the suspended declaration. [39] The Crown also submits, albeit to a less forceful degree, that s. 286.2, the new material benefit offence, has retroactive effect. Sections 43-44 of the IA are cited in support of this position. [40] Finally, and as noted above, the Crown submits that the trial judge erred in granting leave. [41] Mr. Albashir submits that the suspended declaration of invalidity in Bedford came into force on December 20, 2014, which had the effect of rendering s. 212(1)(j) a nullity ab initio. Charges sworn after December 20, 2014 for offences committed prior to that date therefore cannot stand since the suspension period expired and the provision became unconstitutional from the date of its enactment. To allow otherwise, he says, would be tantamount to extending the constitutionality of an offence found to be unconstitutional. He directs this Court to the historical treatment of charges under s. 159 of the Criminal Code (the former anal intercourse provision, since repealed). [42] For his part, Mr. Mohsenipour relies on the "direct" and "non-discretionary" language in s. 52 of the Constitution Act, 1982 to submit that once the suspended declaration of invalidity expired, no new prosecutions could be pursued under the old regime. This is because, as of December 20, 2014, s. 212(1)(j) had no force or effect--full stop. Parliament's enactment of remedial legislation

does not enter the calculus. From this view, allowing the appeal would "immunize legislation declared to be unconstitutional and allow for new prosecutions of unconstitutional offences after the expiry of the suspension." He acknowledges that his position necessarily implies that charges sworn and prosecuted by December 19, 2014 could withstand constitutional scrutiny, whereas charges sworn and prosecuted the next day could not. [43] Both Mr. Albashir and Mr. Mohsenipour submit that leave was not required to bring the application to quash. In the event that it was, the trial judge did not err in exercising his discretion to grant it. Standard of review [44] The issue raised on appeal involves a question of law alone and is to be reviewed on a correctness standard: Housen v. Nikolaisen, 2002 SCC 33 at para.

8. The decision in Bedford and Bill C-36 [45] To shed light on the context of the appeal, it is necessary to review what occurred in Bedford and thereafter. [46] In Bedford, the Court struck down several prostitution-related offences on the basis that they violated s. 7 of the Charter. The living on the avails provision (s. 212(1)(j)), in particular, was found to be overbroad as it deprived prostitutes of their security of the person in a manner unconnected to the law's objective. The effects of the provision extended beyond "pimps and the parasitic, exploitative conduct in which they engage": [142] The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails of provision is therefore overbroad. [47] Accordingly, s. 212(1)(j), alongside ss. 213(1)(c) and 210 (as it related to prostitution), were declared unconstitutional. [48] The Court then considered if the circumstances warranted a

suspension of the declaration of invalidity. While it was debatable whether immediate invalidity would pose a danger to the public or imperil the rule of law, it would render prostitution "totally unregulated" and be a matter of great concern to many Canadians. Conversely, allowing the constitutionally infirm provisions to remain in place would leave prostitutes "at increased risk for the time of the suspension": Bedford at paras. 167-168. Ultimately, the Court preferred the latter and suspended the declaration of invalidity for one year. [49] On June 4, 2014, approximately six months following Bedford, the Honourable Peter MacKay (then Minister of Justice and Attorney General of Canada) introduced Bill C-36 in the House of Commons. Entitled Protection of Communities and Exploited Persons Act[1] in its short form, the bill received Royal Assent on November 6, 2014 and came into force December 6, 2014, two weeks prior to the expiry of the suspension period imposed in Bedford. [50] Bill C-36 introduced a shift to prostitution laws. First, all prostitution-related offences were moved from Part VII of the Criminal Code, "Disorderly Houses, Gaming and Betting", to Part VIII, "Offences Against the Person and Reputation". As well, the amendments criminalized, for the first time in Canadian history, the purchase and advertisement of sexual services: see ss. 286.1 and 286.4. These

legislative changes reflected Parliament's newly minted stance towards prostitution as a sexually exploitative practice, fraught with risk, which disproportionately impacts women and girls. No longer would prostitution be viewed and treated as merely a public nuisance, as it had been in the previous iteration of the Criminal Code. [51] Bill C-36 repealed s. 212 and created the "material benefit offence" in s. 286.2. The provision largely attempts to respond to the constitutional infirmities relating to security of the person identified in Bedford. For instance, it carves out several exceptions (in s. 286.2(4)) for non-exploitative relations to persist despite one person receiving a material benefit from the commission of the purchasing offence in s. 286.1: Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit (a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived; (b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived; (c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or (d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is

derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good. [52] Notwithstanding the above relations, if a person receives a material benefit from the prostitution of others in any of the circumstances described in s. 286.2(5), he or she cannot avail themselves of any exceptions. These circumstances encompass a benefit received in the context of a commercial enterprise that offers sexual services for consideration (s. 286.2(5)(e)), which now serves as an aggravating sentencing factor: s. 286.2(6). Discussion Was leave required to bring the application to quash? [53] I will dispose of this issue quickly. It appears that the respondents brought a motion to quash the counts pursuant to s. 601(1) of the Criminal Code. Leave to bring such a motion is required under that section. More properly, they should have brought an application for a remedy pursuant to s. 24(1) of the Charter. Nothing turns on how the application was brought. However, s. 601(1) has no application to the motion brought before the trial judge. [54] Mr. Mohsenipour objected to the validity of the law under which the charges were laid. A motion of this nature implicates the jurisdiction of the court to proceed and may be brought at any time: R. v. DeSousa, [1992] 2 S.C.R. 944 at 953-954. As the Court discussed in DeSousa

(at 953-954), the temporal restrictions in s. 601(1) applicable to defective indictments are of no moment: The general rule with respect to attacking an indictment by reason of a defect in law is that a motion to quash the indictment for a defect apparent on the face thereof must be made before pleading. This rule is subsumed in the provisions of s. 601(1) of the Code, which requires the motion to be made before the plea, and thereafter only with leave of the court. The main purpose of the rule, and of s. 601(1) to the extent that it embodies the rule, is to ensure that defects curable by amendment are attacked before pleading, since if not cured by amendment they may be waived by a plea. [citations omitted.] The temporal requirement of moving before pleading has no application, however, to a motion to quash which questions the validity of the law under which the accused is charged Such a defect goes to the jurisdiction of the court to proceed with the charge and is not subject to the temporal restriction in s. 601(1). Such an application may be brought at any time. [55] While the trial judge and parties erroneously proceeded on the assumption that leave was required, again, nothing turns on the matter. Could the respondents be convicted of an offence that was declared unconstitutional when the offence occurred during the suspension period? The nature of s. 52 remedies [56] I

commence with a review of the supremacy clause and the nature of some of the remedies that may flow from it. 52. (1) 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. [57] Section 52(1) of the Constitution stipulates that any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. A court "may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in": Schachter v. Canada, [1992] 2 S.C.R. 679 at 695. Remedies may have retroactive or prospective effects: Schachter at 719. [58] Under the Blackstonian view of remedies, a declaration of invalidity pursuant to s. 52 operates back to the coming into force of the Charter, as if the impugned law never existed: Hogg at 58-2. This "declaratory approach" is anchored in strong principles of the separation of powers, which allocates the law-making function exclusively to legislatures. The judiciary merely applies existing law or rediscovers rules deemed to have always existed. A declaration of invalidity in this sense is thus fully retroactive, since the law is "discovered" to have never had force or effect: Hislop at paras. 83-84. [59]

The Supreme Court of Canada has historically endorsed the Blackstonian declaratory approach to s. 52 remedies. For example, in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, the Court emphasized the retroactive implication of finding every unilingual enactment of the Manitoba Legislature to be unconstitutional: 61 The conclusion that the Acts of the Legislature of Manitoba are invalid and of no force or effect means that the positive legal order which has purportedly regulated the affairs of the citizens of Manitoba since 1890 will be destroyed and the rights, obligations and other effects arising under these laws will be invalid and unenforceable. [60] Nevertheless, the Court has seen fit to allay the retroactive effect of s. 52 remedies in its development of constitutional law: Hislop at para.

88. The tools employed in this regard were recently canvassed by Justice Stromberg-Stein in Jaswal v. British Columbia (Superintendent of Motor Vehicles), 2016 BCCA 245: [47] In addition to the use of suspended declarations of invalidity, the Supreme Court has limited the retroactive effect of declarations of invalidity in different ways. For example, in Schachter at 720, the Court held that a retroactive remedy under s. 24(1) of the Charter will rarely be available in conjunction with a declaration of invalidity under s.

52. Other examples where the Court has limited the retroactive effect of a declaration of invalidity include: the qualified immunity rule explained in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13 at paras. 78‑79; the use of transition periods; the de facto doctrine; res judicata; and, the doctrine of necessity as explained in Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 766‑768. [61] A court may also, in certain circumstances, explicitly provide that a s. 52 remedy have prospective application only: see Hislop at paras. 96-103; see also Ref. re Remuneration of Judges of Prov. Court of PEI, [1998] 1 S.C.R. 3 at para. 18. [62] Judicial decisions are thus generally retroactive, but not necessarily so: Hislop at para. 86; Jaswal at para.

45. This can be contrasted with the presumptively prospective effect of legislation in the criminal context. As Professor Hogg has noted, new criminal offences or increased penalties for existing offences cannot be made retroactive due to ss. 11(g) and 11(i) of the Charter unless, in the unlikely event, s. 1 justification can be established. Suspended declarations of invalidity [63] Despite the mandatory language in s. 52 of the Constitution, a "complete declaration of invalidity can be a blunt and sometimes inappropriate remedy to deal with the complex and pervasive legislative product of the modern State": Kent Roach, Constitutional Remedies in Canada, 2d ed., loose-leaf (updated to October 2019, release 34), (Toronto: Thomson Reuters, 2017) at 14.50. For instance, striking down legislation will be inappropriate if doing so would result in a lacuna in the statutory regime prior to the applicable legislature having time to act: Demers at para.

57. Accordingly, courts have temporarily suspended declarations of invalidity to temper such effects, and to allow Parliament or provincial legislatures to step in and correct the constitutionally infirm provisions. [64] Any involved discussion on suspended declarations of invalidity must begin with Re Manitoba Language Rights. In that case, nearly all of Manitoba's legislation was found to be invalid since it had been enacted in English only, contrary to the constitutional dictates of the Manitoba Act, 1870. The Court considered that a declaration on its own would lead to a legal vacuum with "chaos and anarchy" to follow: Re Manitoba Language Rights at para.

83. Accordingly, the Court relied on the rule of law to temporarily preserve the constitutionally infirm laws until the Manitoba legislature could comply. The suspended declaration of invalidity as a remedial tool was thus created. [65] The Court issued reasons in Bilodeau v. A.G. (Man.), [1986] 1 S.C.R. 449 shortly after Re Manitoba Language Rights. The appellant was charged with speeding contrary to The Highway Traffic Act, R.S.M. 1970, c. H60, and summoned to appear in court pursuant to The Summary Convictions Act, R.S.M. 1970, c. S230. In his defence, he challenged the validity of the enactments on the basis that they had been printed and published in English only. Despite finding that the legislation was constitutionally invalid, the majority upheld his conviction on the basis of the rule of law: 13. In the present case, the very basis of the appellant's appeal from conviction is the invalidity of the statute under which he is convicted. The invalidity was raised as a defense to the charge, and the holding of the Provincial Court that the statute was valid was appealed to the Manitoba Court of Appeal and then to this Court. I do not believe that a trial judge can be said to be acting under colour of authority when the very ground for the defense is the invalidity of his authority and when his or her decision on this point is appealed. If a person is convicted under a statute which, on appeal from conviction, is deemed invalid, the conviction cannot be saved by invoking de facto authority on the part of the judge.

14. The conviction is, however, saved by the principle of rule of law. One of the manifestations of this principle with respect to the legal situation in Manitoba is stated in the Reference re Manitoba Language Rights, at p. 768: All rights, obligations and any other effects which have arisen under Acts of the Manitoba Legislature which are purportedly repealed, spent, or would currently be in force were it not for their constitutional defect, and which are not saved by the de facto doctrine, or doctrines such as res judicata and mistake of law, are deemed temporarily to have been, and to continue to be, enforceable and beyond challenge from the date of their creation to the expiry of the minimum period of time necessary for translation, re‑enactment, printing and publishing of these laws. Thus, the conviction of the appellant under the invalid Highway Traffic Act is enforceable pursuant to this Court's decision and order in the Reference re Manitoba Language Rights. [66] I note that Bilodeau has been characterized by the Court of Appeal for Ontario as an exception to the proposition in Big M Drug Mart Ltd., that "no one can be convicted of an offence under an unconstitutional law": see R. v. Clay (2000), 146 C.C.C. (3d) 276 at para. 56 (Ont. C.A.), aff'd on other grounds 2003 SCC 75. [67] Since the decision in Re Manitoba Language Rights, the suspended declaration of

invalidity has been used many times. For example, in R. v. Swain, [1991] 1 S.C.R. 933, provisions of the Criminal Code mandating trial judges to order strict custody for persons acquitted due to insanity were found to be contrary to ss. 7 and 9 of the Charter. Since a declaration of invalidity with immediate effect would have resulted in the release of all insanity acquittees--including those who may have posed a danger to the public--the Court imposed a six‑month period of temporary validity. [68] One year later, in R. v. Bain, [1992] 1 S.C.R. 91, the Court found that the "stand by" jury selection provisions in the Criminal Code permitted the Crown to obtain a jury that appeared favourable to its position. Accordingly, the majority held that the provisions offended an accused's right to a fair trial under s. 11(d) of the Charter and could not be saved under s.

1. To "avoid a hiatus" and allow Parliament to enact remedial legislation "if it consider[ed] it appropriate to do so", the declaration was suspended for six months: Bain at 104. [69] Shortly after reasons were issued in Bain, the Court released Schachter. In that case, the Court found that s. 32 of the (then in force) Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48 offended s. 15(1) of the Charter by creating unequal child care benefits between natural and adoptive parents. In discussing remedial discretion under s. 52 of the Constitution, Lamer C.J., writing for the majority, set out (at 719) the following situations justifying the imposition of a suspended declaration of invalidity: Temporarily suspending the declaration of invalidity to give Parliament or the provincial legislature in question an opportunity to bring the impugned legislation or legislative provision into line with its constitutional obligations will be warranted even where striking down has been deemed the most appropriate option on the basis of one of the above criteria if: A. striking down the legislation without enacting something in its place would pose a danger to the public; B. striking down the legislation without enacting something in its place would threaten the rule of law; or, C. the legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth, and

therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated. [T]he above propositions are intended as guidelines to assist courts in determining what action under s. 52 is most appropriate in a given case, not as hard and fast rules to be applied regardless of factual context. [70] Chief Justice Lamer described a suspended declaration as "a serious matter from the point of view of the enforcement of the Charter" that "allows a state of affairs to persist for a time despite the [Charter] violation": Schachter at 716. While the remedy necessarily engages the legislative process, its selection as the proper course should not be predicated on considerations for the respective roles of government: To delay nullification forces the matter back onto the legislative agenda at a time not of the choosing of the legislature, and within time limits under which the legislature would not normally be forced to act. This is a serious interference in itself with the institution of the legislature. The question whether to delay the application of a declaration of nullity should therefore turn not on considerations of the role of the courts and the legislature, but rather on considerations listed earlier relating to the effect of an immediate declaration on the

public. Schachter at 716-717. [71] Ultimately, Parliament repealed and replaced the impugned unemployment provision before the Court rendered its decision, leaving a declaration of invalidity unnecessary. [72] The Court in Hislop reaffirmed the principles set out in Schachter. At issue was the constitutionality of several remedial amendments to the Canada Pension Plan, R.S.C. 1985, c. C-8 made in the wake of M. v. H., [1999] 2 S.C.R.

3. A class action of same-sex survivors challenged the amendments as contrary to s. 15(1) of the Charter for being underinclusive. [73] The Court upheld the decisions below and found the provisions to be unconstitutional. In considering the appropriate remedy, LeBel and Rothstein JJ., for the majority, discussed (at paras. 81-108) retroactive and prospective Charter remedies, noting the following with respect to suspended declarations of invalidity: 90 In another type of situation, which arises more frequently, the Court has held that providing immediate and retroactive judicial remedies may be "inappropriate" when "doing so would create a lacuna in the regime before Parliament would have a chance to act": R. v. Demers, [2004] 2 S.C.R. 489, 2004 SCC 46, at para.

57. In such cases, the Court has temporarily suspended the declaration of invalidity of the unconstitutional legislation to avoid creating a "legal vacuum" or "legal chaos" before Parliament or the legislature has the opportunity to enact something in place of the unconstitutional legislation: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 ("Manitoba Language Rights Reference"), at p. 747; Schachter. In Schachter, this Court held that the suspended declaration of invalidity was appropriate when giving immediate retroactive effect to the Court's declaration of invalidity would (a) "pose a danger to the public"; (b) "threaten the rule of law"; or (c) "result in the deprivation of benefits from deserving persons", such as when the legislation was "deemed unconstitutional because of underinclusiveness rather than overbreadth": Schachter, at p. 719. [74] Justices LeBel and Rothstein provided additional guidance as to the effect of a suspended declaration of invalidity: 91 Like transition periods and other purely prospective remedies, the suspended declaration of invalidity is not fully consistent with the declaratory approach. By suspending the declaration of invalidity, the Court allows the constitutional infirmity to continue temporarily so that the legislature can fix the problem. In other words, the Court extends the life of a law which, on the Blackstonian view,

never existed. 92 Although if the legislature fails to comply with the Court's order within the period of suspension, the Court's declaration would apply retroactively, the purpose of a suspended declaration of invalidity can be to facilitate the legislature's function in crafting a prospective remedy. The temporal delay in striking down the law also has the effect of extending the life of an unconstitutional law. In such cases, to allow the claimants to recover concurrent retroactive relief would be at cross-purposes with the Court's decision to grant a suspended declaration of invalidity: Schachter, at p. 720. [75] The crux of this appeal rests on the relationship between a suspended declaration of invalidity and the passing of remedial legislation prior to the expiration of the suspension period, in the context of the criminal law. Analysis [76] A suspended declaration of invalidity is a court-created mechanism. Absent explicit language stating otherwise, the remedy generally has a delayed retroactive effect: Hislop at paras. 86, 89, and 161. However, as noted by the majority in Hislop at para. 91, a "suspended declaration of invalidity is not fully consistent with the declaratory approach [to constitutional remedies]" because it "extends the life of the law which, on the Blackstonian view, never existed." [77] The issue here is whether remedial legislation enacted prior to

the expiration of the suspension period pre-empts that retroactive effect. [78] Mr. Mohsenipour and Mr. Albashir take the view that the enactment of Bill C‑36 had an inconsequential effect on the suspended declaration of invalidity. Once it expired, charges under s. 212(1)(j) could no longer be sworn without offending the rule in Big M Drug Mart Ltd. Respectfully, I cannot agree. [79] I reproduce para. 92 from Hislop: Although if the legislature fails to comply with the Court's order within the period of suspension, the Court's declaration would apply retroactively, the purpose of a suspended declaration of invalidity can be to facilitate the legislature's function in crafting a prospective remedy. The temporal delay in striking down the law also has the effect of extending the life of an unconstitutional law. In such cases, to allow the claimants to recover concurrent retroactive relief would be at cross-purposes with the Court's decision to grant a suspended declaration of invalidity: Schachter, at p. 720. [Emphasis added.] [80] In my view, Hislop addresses the issue squarely. The majority clearly considered the effect of remedial legislation on a suspended declaration of invalidity. If the relevant legislature fails to enact constitutionally compliant laws before the suspension period expires, the declaration will come into effect and render the impugned provision(s) ab

initio. With or without legislative action, the norms of the Constitution are protected. [81] This interpretation was applied by the Manitoba Court of Appeal in Ackman. There, the Court considered the effect of Bedford on a conviction for living on the avails of prostitution. The appellant was charged during the suspension period for offences committed prior to Bedford's release, and his trial commenced after the suspension period ended. In applying for a stay under s. 24(1) of the Charter, he argued that during the course of his prosecution, the suspended declaration imposed in Bedford expired, thereby invalidating the Criminal Code provision under which he was charged. Justice Cameron, at para. 58, writing for the Court, upheld the conviction and concluded that the suspended declaration of invalidity did not take effect because Parliament had enacted corrective legislation in response to Bedford (s. 286.2 of the Criminal Code). [82] She went on to discuss the relationship between a suspended declaration of invalidity and the rule of law: [68] In my view, the issue involves the apparent conflict between two legal principles. The first principle is that an accused is entitled to any benefit of a change in the interpretation of the law provided that he or she is still in the system. [69] The argument in this case is that, since the suspension expired while the accused was still

in the system, he should be entitled to that benefit. [70] On the other hand, in Re Manitoba Language Rights, [1985] 1 SCR 721, the Court held that all Manitoba statutes enacted only in English were invalid. However due to the fact that "a legal vacuum" would be created with "consequent legal chaos" (at p 747) the statutes were "deemed to have temporary force and effect for the minimum period necessary" (at p 782). The effect of this ruling was to protect the then existing body of Manitoba laws, and all things done on the basis of past laws (at pp 781-82) until corrective legislation could be enacted. [71] At the time that it heard Re Manitoba Language Rights, the Court also heard Bilodeau v AG (Man), [1986] 1 SCR 449. That case involved an appeal by Mr. Bilodeau of a conviction for a provincial offence, in part, on the basis that the legislation pursuant to which he was convicted was only enacted in English. Several months after rendering its decision in Manitoba Language Rights, the Court held that, despite Mr. Bilodeau's challenge, the conviction was saved [72] Thus, despite the change in the law, Mr. Bilodeau's conviction was upheld under the rule of law because at the time that he was charged, the offence was valid [75] The purpose of the suspension was to avoid the creation of a situation wherein prostitution, including living on the avails of prostitution, would be

unregulated. The systematic staying of proceedings against persons who were validly charged, either before or during the suspension, on the basis that it ended while they were still in the system, would undermine this purpose. Thus, in my view, the rule of law operates to justify the continued prosecution of the accused in a manner similar to Bilodeau. [83] The Court dismissed the s. 24(1) application for a stay of proceedings. [84] To the extent necessary, the rule of law also justifies the prosecution of the offences since a valid regime was in place at the time of commission. The Court in Bedford explicitly preferred to avoid the deregulation of prostitution by extending the life of the impugned provisions for a period of one year. To gut the provisions of their enforceability for conduct committed during that period would run afoul of any such objective. The rule of law crystallized liability: see Bilodeau at para. 14; see also Ackman at para.

75. This does not offend the broad proposition in Big M Drug Mart Ltd. that "no one can be convicted of an offence under an unconstitutional law": Clay at para. 56. [85] Relatedly, the living on the avails provision struck down in Bedford did not distinguish between those who exploited prostitutes and those who increased their safety and security: Bedford at para.

142. The new material benefit offence in s. 286.2 sets out a range of exceptions to address, at least on a prima facie basis, those concerns. Critically, the gravamen of the offence remains the same: to "target pimps and the parasitic, exploitative conduct in which they engage": see Bedford at para. 137, citing R. v. Downey, [1992] 2 S.C.R.

10. In fact, receiving a material benefit in the context of a commercial enterprise that offers sexual services for consideration now serves as an aggravating sentencing factor: s. 286.2(6). [86] The parasitic, exploitative conduct engaged in by the respondents cannot be immune to criminal liability simply because it occurred during the suspended declaration of invalidity and for which charges were laid after. Mr. Mohsenipour and Mr. Albashir lived on the avails of prostitution when it was illegal to do so. That conduct continues to be illegal. By imposing a suspension of its declaration of invalidity, the Court extended the life of the law. [87] Nor are the respondents entitled to a constitutional exemption, which is what the remedy they seek would effectively amount to: see Bilodeau, Clay and Demers. [88] I also do not accede to the submission that the respondents should have been charged under the new material benefit offence since it "swept in" and retroactively filled the void created when the suspension ended. It is a bedrock principle of criminal law that an individual cannot be found guilty of an offence not known to law at the time of the act or omission. It is also a constitutional protection: s. 11(g) of the Charter. [89] The cases relied upon by Mr. Mohsenipour and Mr. Albashir involving the historical offence in s. 159 (anal intercourse, since repealed) are of

limited relevance. In those cases, specifically R. v. A.F. (1997), 101 O.A.C. 146 (C.A.), R. v. A.S. (1998), 113 O.A.C. 340 (C.A.) and R. v. Blake, 2003 BCCA 525, convictions under s. 159 were quashed on the basis that the provision had been declared unconstitutional by appellate courts across the country without challenge. In Blake, the Crown conceded that the charging provision could not withstand constitutional scrutiny. The Crown in A.S. conceded the same but also that the conviction could not stand. The Ontario Court of Appeal in A.F. simply quashed a conviction under s. 159 because it had declared the provision unconstitutional in an earlier case. There was never a suspended declaration of validity with respect to the legislation. [90] Accordingly, I am of the view that if a Criminal Code offence is contravened during a suspended declaration of invalidity, and the constitutionally impugned offence is replaced with remedial legislation within the period of the suspension, conduct captured by the former iteration of the offence is prosecutable. In other words, the retroactive effect of a suspended declaration of invalidity is pre-empted by the passing of remedial legislation. An interpretation to the contrary would lead to absurd results for the criminal law, including the creation of impunity for offences committed while the law is still valid. Conclusion [91] During the

suspension period of the declaration of invalidity imposed in Bedford, s. 212(1)(j) was constitutionally valid. The government proclaimed legislation that replaced that which was found to be unconstitutional by the Court. As a result, the declaration of invalidity never came into effect to render the provision a nullity ab initio. Thus, the trial judge erred in quashing counts six and 13. [92] I would therefore allow the appeal and enter convictions. [93] As agreed by the parties, I would impose a sentence for Mr. Albashir of two years' imprisonment on count six and three years' imprisonment on count 13, to be served concurrently with the sentence passed on the s. 286.2(1) counts (count eight and count 15). For Mr. Mohsenipour, I would impose a sentence of two years' imprisonment on count six and 30 months' imprisonment on count 13, to be served concurrently with the sentence passed on the s. 286.2(1) counts (count eight and count 15). [94] I would also grant an extension of time to appeal the convictions entered in counts six and 13 in order to join them with their outstanding conviction appeals. "The Honourable Madam Justice Bennett" I AGREE: "The Honourable Madam Justice Saunders" I AGREE: "The Honourable Mr. Justice Groberman" [1] The long title of Bill C-36 is An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts.