R. v. Albashir, 2021 SCC 48

SUPREME COURT OF CANADA

Appeals Heard: May 14, 2021 Judgment Rendered: November 19, 2021 Dockets: 39277, 39278

Between: Tamim Albashir Appellant and Her Majesty The Queen Respondent And Between: Kasra Mohsenipour Appellant and Her Majesty The Queen Respondent - and - Attorney General of Canada, Attorney General of Ontario and Attorney General of Quebec Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 73)

Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Côté, Martin and Kasirer JJ. concurring)

Dissenting Reasons: (paras. 74 to 124)

Rowe J. (Brown J. concurring)

Tamim Albashir Appellant

v.

Her Majesty The Queen Respondent

‑ and ‑

Kasra Mohsenipour Appellant

v.

Her Majesty The Queen Respondent

and

Attorney General of Canada,

Attorney General of Ontario and

Attorney General of Quebec Interveners

Indexed as: R. v. Albashir

2021 SCC 48

File Nos.: 39277, 39278.

2021: May 14; 2021: November 19.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

on appeal from the court of appeal for british columbia

Constitutional law — Declaration of invalidity — Temporal nature of declaration of invalidity — Supreme Court of Canada in Bedford declaring void offence of living on avails of sex work and suspending declaration of invalidity for one year — Accused charged after expiry of suspension period for committing offence of living on avails of sex work while declaration suspended — Trial judge quashing charges on basis that offence was unconstitutional when committed — Court of Appeal holding that remedial legislation enacted by Parliament prior to expiry of suspension period pre‑empted retroactive effect of declaration of invalidity — Whether provision prohibiting living on avails of sex work retroactively invalid such that it cannot ground conviction for offence committed prior to declaration taking effect — Canadian Charter of Rights and Freedoms, s. 24(1) — Constitution Act, 1982, s. 52(1) — Criminal Code, R.S.C. 1985, c. C‑46, s. 212(1)(j).

In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, the Court found s. 212(1)(j) of the Criminal Code, which prohibited living on the avails of sex work, to be unconstitutionally overbroad because it criminalized non-exploitative actions that could enhance the safety and security of sex workers. The Court declared this offence to be inconsistent with the Charter and hence void. The declaration of invalidity did not take immediate effect but rather was suspended for one year. The Court did not explicitly state whether this declaration would apply retroactively or purely prospectively at the conclusion of the period of suspension. Two weeks before the suspension expired, the former s. 212(1)(j) was replaced with a new provision that prohibits obtaining a material benefit from sexual services but exempts legitimate, non‑exploitive conduct. Parliament did not state whether the amendments were to apply retroactively or prospectively.

About two years after the declaration took effect, the accused were charged with numerous offences arising out of an escort operation. Some of the offences occurred during the one-year period of suspension, resulting in charges under s. 212(1)(j). 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. The Court of Appeal allowed the Crown's appeals and entered convictions on the counts of living on the avails of sex work. It held that the Bedford declaration never came into effect because the legislature enacted remedial legislation during the suspension, which pre‑empted the retroactive effect of the suspended declaration of invalidity.

Held (Brown and Rowe JJ. dissenting): The appeals should be dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: In light of the purpose animating the suspension of the declaration of invalidity in Bedford, the presumption of retroactivity of a declaration of invalidity is rebutted by necessary implication. The purpose of a suspension must be considered in determining whether the declaration must logically operate retroactively or purely prospectively. In Bedford, the 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. Accordingly, 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. Because they engaged in exploitative and parasitic conduct, the exact conduct that was always legitimately criminalized, a remedy under s. 24(1) of the Charter is not available to them.

When legislation violates a Charter right, three foundational constitutional principles guide the interpretation of constitutional remedies: constitutionalism, the rule of law, and the separation of powers. To determine an appropriate remedy, a court must consider not only the principle of constitutional supremacy in s. 52(1) of the Constitution Act, 1982, but also the entitlement of the public to the benefit of legislation, as well as the different institutional roles that courts and legislatures are called to play. These foundational principles also establish strong — but rebuttable — presumptions that legislation is prospective and judicial declarations are retroactive.

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. In the instant case, in the absence of retroactive legislative intent either explicitly or by necessary implication, the strong presumption that legislation is prospective is not challenged. Whereas the rule of law dictates a presumption that legislation is prospective, the inverse is true for judicial remedies. The basic role of courts to decide disputes after they have arisen requires that judicial decisions operate (at least ordinarily) with retroactive effect.

When a court makes a s. 52(1) declaration of invalidity, the same presumption of retroactivity arises. A retroactive declaration changes the law for all time, both reaching into the past and affecting the future: the law is deemed to have been invalid from the moment of its enactment. However, many fundamental principles that are essential to Canada's constitutional system curtail the retroactive reach of judicial remedies. For example, the doctrine of res judicata and the de facto and qualified immunity doctrines balance the generally retroactive nature of judicial remedies with the need for finality and stability. When the declaration is purely prospective, the law was valid from its enactment but is invalid once the declaration takes effect.

The presumption of retroactivity can be rebutted explicitly or by necessary implication. The rare circumstances and constitutional considerations that warrant a suspension of a declaration of invalidity can justify an exception to the retroactive application of declarations where necessary to give effect to the purpose of the suspension. When retroactivity would defeat the compelling public interests that required the suspension, the presumption is rebutted and the declaration must apply purely prospectively. Courts in the future should explicitly state the temporal application of their s. 52(1) declarations to avoid any confusion.

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, the declaration of invalidity was purely prospective, effective at the end of the period of suspension. A retroactive declaration would have rendered the regulatory system of criminal offences that was maintained by the suspension entirely unenforceable once the suspension expired, undermining the protection of the vulnerable victims that was at the root of the finding of unconstitutionality. Conversely, prospective application is far more consonant with the purpose of the Bedford suspension and more protective of sex workers' rights.

When a s. 52(1) declaration is prospective, a person whose Charter rights are breached by the law declared to be unconstitutional is not left without a remedy. A prospective declaration does not deprive people of individual remedies and would not contravene the principle that nobody may be convicted of an offence under an unconstitutional law. Where the compelling public interests that required suspending the declaration would not be undermined and when additional relief is necessary to provide an effective remedy in a specific case, s. 24(1) is a flexible vehicle that can be combined with s. 52(1). The findings of unconstitutionality by the court can operate retroactively in individual cases, giving remedial effect to both ss. 24(1) and 52(1). Following the findings of Bedford, if an accused is charged with conduct that bears no relation to the purpose of the living on the avails offence — for example because they were a legitimate driver or bodyguard — an application judge may find a breach of that accused's s. 7 rights and grant a s. 24(1) remedy.

Per Brown and Rowe JJ. (dissenting): The declaration of invalidity in Bedford had retroactive effect as of the date the suspension expired, rendering s. 212(1)(j) of the Criminal Code void ab initio. Remedial legislation did nothing to cure the constitutional defect in s. 212(1)(j) as it existed in the past, and could do nothing to alter the Court's declaration that s. 212(1)(j) is unconstitutional. As such, s. 212(1)(j) was unconstitutional at the time the accused were found guilty, and the s. 212(1)(j) counts must accordingly be quashed.

Ordinarily, constitutional declarations of invalidity are retroactive, and have immediate effect. This is the logical implication of s. 52(1) of the Constitution Act, 1982. The retroactive nature of constitutional declarations of invalidity also flows from the nature of judicial remedies generally. An immediate retroactive declaration of invalidity renders the law invalid from the date of the declaration, back to the date the law was enacted.

Although the Court recognized the predominance of the retroactive approach, it also recognized two important exceptions: prospective declarations and suspended declarations. Prospective declarations of invalidity apply only forward in time from the moment of the declaration, but do not render a law invalid back in time from the moment of its enactment, as though the law never existed. Suspended declarations of invalidity delay the moment when the effects of a declaration of invalidity, whether retroactive or prospective, become operative. When a retroactive declaration of invalidity is suspended, the law is treated as valid for the period of the suspension, but when the suspension period expires, it is as though the law had always been invalid. An immediate prospective declaration of invalidity renders a law invalid from the date of the declaration forward into the future, but not back into the past. The law was and remains valid from the date it was enacted until the date of the prospective declaration. A prospective declaration of invalidity with a suspension, often called a transition period, works in a similar way to an immediate prospective declaration, except that the declaration becomes effective only when the transition period ends.

Prospective declarations raise concerns, because they fail to address any past unconstitutional effects of a law. Similarly, suspended declarations of invalidity are deeply controversial, because they allow an unconstitutional state of affairs to persist, thereby posing a threat to the very idea of constitutional supremacy.

When a court issues a declaration of constitutional invalidity and intends that declaration to deviate from the traditional norm of retroactivity and immediacy, it must say so deliberately and explicitly, in order to avoid confusion. Only a clear statement that a declaration is prospective, suspended, or prospective with a transition period, will suffice, because of the strong presumption that constitutional declarations are retroactive and immediate. While prospective and suspended remedies are available, it must be borne in mind that they are not explicitly authorized by the text of s. 52(1). They are deviations from the traditional and widespread understanding of the role of the judiciary in which courts grant retroactive relief applying existing law or rediscovered rules which are deemed to have always existed.

Similarly, when a legislature enacts new legislation in order to correct the unconstitutional effects of a law during a period of suspension of invalidity, the temporal effect of the new law should be stated explicitly so as to avoid confusion. There is a strong presumption that laws are of prospective, and not of retroactive, effect. However, the presumption that legislation applies prospectively can be rebutted by either express words or necessary implication. Therefore, where a legislature wishes legislation to be retroactive, so as to avoid a legal gap that would arise when the period of suspension of invalidity of a retroactive declaration of invalidity expires, it should make this explicit in the legislation.

Suspending a retroactive declaration of invalidity can be an uneasy fit in the criminal law context, because criminal prosecutions take time. When an offence is declared void ab initio by a court, no one can thereafter be convicted of that offence, even for conduct that occurred prior to the declaration. This is because the offence will be deemed to have never existed and no one can be found guilty of an unconstitutional (and non‑existing) law. Accused persons can only be convicted of the offence during the brief window of the suspension. The suspension therefore accomplishes little, precisely because criminal prosecutions take time to move through the system.

The Court could have issued a prospective declaration in Bedford, but did not. Bedford did not say that the declaration was prospective, and retroactivity is the default position. The absence of any explicit justification for a prospective ruling weighs against interpreting a declaration as having a prospective effect only, especially in the criminal context, because of the general rule that no one should be convicted of an offence under an unconstitutional law. The potential for continued, active enforcement of an unconstitutional criminal law gives rise to rule of law concerns and weighs against imposing a declaration that is prospective only. It also weighs against interpreting an ambiguous declaration as prospective, after the fact. Accordingly, the declaration from Bedford had retroactive effect, as of the date the suspension expired.

Cases Cited

By Karakatsanis J.

Explained: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; considered: Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Bain, [1992] 1 S.C.R. 91; Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R. 13; referred to: R. v. Downey, [1992] 2 S.C.R. 10; R. v. Li, 2020 SCC 12, [2020] 1 S.C.R. 675; R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; R. v. Wigman, [1987] 1 S.C.R. 246; R. v. Thomas, [1990] 1 S.C.R. 713; Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; In re Spectrum Plus Ltd, [2005] UKHL 41, [2005] 2 A.C. 680; Johnson v. New Jersey, 384 U.S. 719 (1966); Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat, [2017] 3 M.L.J. 561; India Cement Ltd. v. State of Tamil Nadu, A.I.R. 1990 S.C. 85; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.

By Rowe J. (dissenting)

Schachter v. Canada, [1992] 2 S.C.R. 679; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721; Miron v. Trudel, [1995] 2 S.C.R. 418; R. v. Hess, [1990] 2 S.C.R. 906; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3; R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272; Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Campbell v. Campbell (1995), 130 D.L.R. (4th) 622; Acme Village School District (Board of Trustees of) v. Steele‑Smith, [1933] S.C.R. 47; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; R. v. Finta, [1994] 1 S.C.R. 701; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; R. v. Thomas, [1990] 1 S.C.R. 713; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(g), (i), 12, 24(1).

Constitution Act, 1867.

Constitution Act, 1982, s. 52(1).

Constitution of South Africa, s. 172(b).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 212(1)(j) [rep. 2014, c. 25, s. 13], 286.2.

Authors Cited

Blackstone, William. Commentaries on the Laws of England, Book I. Oxford: Clarendon Press, 1765.

Choudhry, Sujit, and Kent Roach. "Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies" (2003), 21 S.C.L.R. (2d) 205.

Côté, Pierre‑André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.

Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, vol. 5, 2nd ed. Toronto: Thomson Reuters, 1987 (loose‑leaf updated March 2021, release 2).

Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2021 (updated 2021, release 1).

Kuo, Ming‑Sung. "Between Choice and Tradition: Rethinking Remedial Grace Periods and Unconstitutionality Management in a Comparative Light" (2019), 36 U.C.L.A. Pac. Basin L.J. 157.

Leckey, Robert. "The harms of remedial discretion" (2016), 14 Int'l J. Const. L. 584.

McLeod, Roderick M., et al. The Canadian Charter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences, vol. 4. Toronto: Carswell, 1983 (loose‑leaf updated August 2021, release 7).

Roach, Kent. Constitutional Remedies in Canada, 2nd ed. Toronto: Thomson Reuters, 2013 (loose‑leaf updated October 2020, release 36).

Roach, Kent. "Principled Remedial Discretion Under the Charter" (2004), 25 S.C.L.R. (2d) 101.

Sarna, Lazar. The Law of Declaratory Judgments, 4th ed. Toronto: Thomson Reuters, 2016.

Sharpe, Robert J., and Kent Roach. The Charter of Rights and Freedoms, 7th ed. Toronto: Irwin Law, 2021.

Sullivan, Ruth. Statutory Interpretation, 3rd ed. Toronto: Irwin Law, 2016.

Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.

Eric Purtzki and Alix Tolliday, for the appellant Tamim Albashir.

Joven Narwal and Angela M. Boldt, for the appellant Kasra Mohsenipour.

Lara Vizsolyi and Janet Dickie, for the respondent.

Ranjan K. Agarwal and Érica Chabot, for the intervener the Attorney General of Canada.

Michael S. Dunn, for the intervener the Attorney General of Ontario.

Fiona Émond, for the intervener the Attorney General of Quebec.

The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ. was delivered by

Karakatsanis J. —

[ 1 ] In Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, 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. This 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.

[ 2 ] Retroactive 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.

[ 3 ] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, this Court found s. 212(1)(j) of the Criminal Code, R.S.C. 1985, c. C-46, which prohibited living on the avails of sex work, to be unconstitutionally overbroad because it criminalized non-exploitative actions that could enhance the safety and security of sex workers. By criminalizing, for example, legitimate bodyguards, the offence violated the rights of sex workers under s. 7 of the Canadian Charter of Rights and Freedoms. This declaration did not take immediate effect but rather was suspended for one year. The Court did not explicitly state whether this declaration would apply retroactively or purely prospectively at the conclusion of the period of suspension.

[ 4 ] Parliament enacted remedial legislation before the suspension expired. The former s. 212(1)(j) was replaced with a new provision that prohibits obtaining a material benefit from sexual services but exempts legitimate, non-exploitative conduct. The new legislation did not include any transitional or retroactive provisions.

[ 5 ] The appellants were found by the trial judge to be parasitic, exploitative pimps during the one‑year period of suspension, contrary to s. 212(l)(j). The prosecution proceeded after the suspension expired. The appellants successfully applied to quash the resulting charges at trial. The British Columbia Court of Appeal allowed the Crown's appeals, set aside the trial judge's order and entered convictions on each count. The appellants now ask this Court to set aside the Court of Appeal's order and restore the trial judge's order quashing the counts.

[ 6 ] I would dismiss the appeals and affirm the appellants' convictions. 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.

[ 7 ] The temporal application of a declaration is grounded in foundational constitutional principles and the presumptions to which they give rise.

[ 8 ] As I shall explain, judicial declarations are presumptively retroactive but that presumption is rebutted when retroactivity would defeat the compelling public interests that required the suspension. However, this does not leave those who may be personally prejudiced by a Charter breach during the suspension without a remedy. Where the remedial declaration operates prospectively, the findings of unconstitutionality by this Court can operate retroactively in individual cases, giving remedial effect to both s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. Such a result respects the constitutional roles of both the legislature and the judiciary, ensures that the public and vulnerable persons maintain the protections of the criminal law, ensures that Parliament has the option to design a specific regime, and gives remedial protection to those whose Charter rights have been violated.

[ 9 ] As the Bedford declaration applied purely prospectively, the appellants could be charged and convicted after the suspension expired and the declaration took effect for committing the offence of living on the avails during the suspension period. Because the trial judge found them to be abusive and exploitative, it cannot be said that they were prejudiced by the constitutional infirmity identified in Bedford. I would dismiss the appeals.

I. Background

A. Bedford and Responding Legislation

[ 10 ] On December 20, 2013, this Court released its decision in Bedford. The Bedford applicants had challenged three provisions of the Criminal Code that criminalized various activities related to sex work. One of those provisions, the former s. 212(1)(j), criminalized living on the avails of sex work. While this offence was intended to prevent the exploitation of sex workers by "the person who lives parasitically off a [sex worker's] earnings" (R. v. Downey, [1992] 2 S.C.R. 10, at p. 32; see also Bedford, at para. 142), it also prevented sex workers from accessing security-enhancing safeguards, such as drivers and bodyguards. The offence was therefore overbroad and a violation of the s. 7 rights of the sex workers that was not saved under s. 1 of the Charter: Bedford, at paras. 66-67, 142, 145 and 162-63.

[ 11 ] This Court declared the living on the avails offence, as well as the two other challenged offences, to be inconsistent with the Charter and hence void: Bedford, at para. 164. However, because "moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians", the declaration of invalidity was suspended for a period of one year: Bedford, at paras. 167 and 169. The Court did not state whether this declaration was to operate retroactively or purely prospectively.

[ 12 ] Two weeks before the suspension expired, Parliament enacted remedial legislation, replacing the living on the avails offence with the offence of obtaining a material benefit from sexual services provided for consideration: Criminal Code, s. 286.2. The new offence includes a number of exceptions but they do not apply in abusive or exploitative situations: Criminal Code, s. 286.2(5). Parliament did not state whether the amendments were to apply retroactively or prospectively.

B. Supreme Court of British Columbia, 2018 BCSC 736 (Masuhara J.)

[ 13 ] About two years after the declaration took effect, the appellants, Tamim Albashir and Kasra Mohsenipour, were charged with numerous offences arising out of an "escort" operation. They managed practically all aspects of the operation — clients, service locations, advertising, supplies, and transportation.

[ 14 ] The trial judge found that the appellants were abusive towards the sex workers in their employ. One of the complainants, K.C., testified that Albashir was repeatedly violent towards her. The trial judge found that Albashir's "use of violence for the purpose of controlling [K.C.'s] conduct was normalized": para. 228. Another complainant, S.C., testified that Mohsenipour had pointed a gun at her and threatened to kill her, and that Albashir had threatened to kill her son.

[ 15 ] Thus, far from providing safety and security-enhancing services, on the trial judge's findings the appellants were precisely the type of "controlling and abusive pimps" that were the legitimate targets of the living on the avails offence: Bedford, at para. 142.

[ 16 ] Despite that, the trial judge quashed the charges against both appellants for living on the avails of the sex work of K.C. and S.C. The trial judge found that both offences had been established by the Crown but he quashed the charges because, once the Bedford suspension expired, the offence was unconstitutional.

[ 17 ] The trial judge relied on this Court's decision in Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, as saying that suspended s. 52(1) declarations have a "delayed retroactive effect", unless the court clearly states otherwise: para. 345. Thus, "[o]nce the suspension expires, the law will always have been unconstitutional" and the effect of the Bedford suspension expiring was that "s. 212(1)(j) has always been invalid": paras. 345 and 350.

C. Court of Appeal for British Columbia, 2020 BCCA 160, 389 C.C.C. (3d) 163 (Bennett J.A., Saunders and Groberman JJ.A. concurring)

[ 18 ] The British Columbia Court of Appeal allowed the Crown's appeals. In the Court of Appeal's view, Hislop stood for the proposition that a suspended declaration operates retroactively if the legislature fails to enact remedial legislation during the suspension. However, if the legislature does enact such remedial legislation then "the retroactive effect of a suspended declaration of invalidity is pre-empted": para. 90. Therefore, the Bedford declaration never came into effect and the trial judge should not have quashed the counts.

D. Positions of the Parties

[ 19 ] Albashir submits that the trial judge was right to quash the charges because the Bedford declaration operated retroactively once the suspension expired. In his view, the "Blackstonian" theory posits that because the legislature never had authority to enact an unconstitutional law, a declaration of constitutional invalidity nullifies the law from the outset. A suspension is only a temporary limit on the retroactive effect of the declaration to give Parliament time to cure the constitutional defect. If the impugned provision is a criminal offence, nobody may be prosecuted for that offence once the declaration comes into effect because no one can be convicted of an offence under an unconstitutional law. Otherwise, the Crown could use the former s. 212(1)(j) to indefinitely prosecute anybody who was paid to provide legitimate security services to sex workers prior to the expiry of the suspension.

[ 20 ] Mohsenipour similarly argues that, unless expressly stated otherwise, declarations of invalidity have retroactive effect, including when they are suspended. It is then up to the legislature to determine how best to respond, whether through purely prospective or retroactive remedial legislation. As the Bedford declaration was not explicitly prospective, it must have applied retroactively, rendering s. 212(1)(j) void ab initio once the suspension ended.

[ 21 ] The Crown submits that because Parliament enacted remedial legislation, the Bedford declaration never came into force and those who committed the offence of living on the avails under s. 212(1)(j) prior to the remedial legislation may still be prosecuted for that conduct. To the extent that legitimate bodyguards, drivers, or accountants could also be prosecuted, s. 24(1) is sufficiently flexible to provide them a remedy. This remedy is not available to the appellants, however, because their exploitative conduct did not fall within the unconstitutional overbreadth of s. 212(1)(j).

[ 22 ] The intervener the Attorney General of Canada argues in favour of a different approach: that the Bedford declaration was prospective. This Court should take a purposive approach to the temporal application of suspended s. 52(1) declarations, looking to the purpose of the suspension to determine whether the declaration must logically operate retroactively or purely prospectively. The Bedford declaration must be purely prospective because the purpose of its suspension would be undermined by a retroactive declaration. This is because criminal offences during the suspension would be unenforceable unless a prosecution could be entirely disposed of before the suspension expired. In other words, a retroactive declaration would result in sex work being effectively unregulated during the suspension period — despite the very purpose of the suspension being to maintain the regulation of sex work.

II. Analysis

[ 23 ] For the reasons that follow, I agree with the Attorney General of Canada that the Bedford declaration operated prospectively. Accordingly, the appellants could be tried and convicted under s. 212(1)(j) after the declaration took effect.

[ 24 ] As a preliminary matter, the parties were invited to make submissions on whether this Court has jurisdiction to hear these appeals as of right. The parties all agreed that the reinstatement of quashed counts by the Court of Appeal was tantamount to the reversal of an acquittal. Because the factual guilt of the appellants was established at trial, I agree that a reversal on appeal would result in findings of guilt on the quashed counts. There needs to be at least one level of court that can review the questions of law arising from the convictions: R. v. Li, 2020 SCC 12, [2020] 1 S.C.R. 675, at para. 1, citing R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 38. For this reason, this Court has jurisdiction to hear these appeals as of right.

[ 25 ] The key issue on appeal is whether s. 212(1)(j) was retroactively invalid such that it could not subsequently ground a conviction. The answer to this turns on the temporal nature of judicial remedies. I will then consider the relationship between a declaration of invalidity under s. 52(1) and individual remedies under s. 24(1).

A. Temporal Nature of Remedies

[ 26 ] When a court makes a declaration of invalidity under s. 52(1), the temporal effect of that constitutional remedy is rooted in the nature of the remedy itself. Constitutional remedies must be purposively interpreted in their "proper linguistic, philosophic and historical contexts": R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344. They must also be interpreted in a "generous and expansive" manner that is sensitive to evolving circumstances: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 24; see also R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 52.

[ 27 ] When legislation violates a Charter right, three foundational constitutional principles guide the interpretation of constitutional remedies: constitutionalism, the rule of law, and the separation of powers (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (P.E.I. Judges Reference (1997)), at paras. 90-95; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 54; G, at paras. 153-59).

[ 28 ] Constitutionalism requires that all laws comply with the Constitution as the supreme law of Canada. Section 52(1) of the Constitution Act, 1982, reads:

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.

[ 29 ] This supremacy clause has existed in other forms since Canada's original constitution, the Constitution Act, 1867: Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 482. The Canadian judiciary's role in reviewing the constitutionality of legislation thus has a considerable history: P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 5:20. In Manitoba Language Reference, the Court explained that "[s]ection 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years": Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 746.

[ 30 ] When a court finds legislation to be inconsistent with the Constitution, it must consider not only the principle of constitutional supremacy in s. 52(1), but other — at times competing — constitutional imperatives to determine an appropriate remedy: K. Roach, "Principled Remedial Discretion Under the Charter" (2004), 25 S.C.L.R. (2d) 101, at pp. 105 and 111-13. In this way, courts are also guided in their remedial discretion by the principles of the rule of law and the separation of powers. They can take into account, for example, the entitlement of the public to the benefit of legislation, as well as the different institutional roles that courts and legislatures are called to play: G, at para 94. As LeBel and Rothstein JJ. stated for the majority in Hislop, "[t]he text of the Constitution establishes the broad confines of the supreme law, but it is up to the courts to interpret and apply the Constitution in any given context": para. 114.

[ 31 ] Thus, despite the absolute language of s. 52(1), when a court exercises its remedial jurisdiction to grant a declaration of unconstitutionality, it has discretion to give the principle of constitutional supremacy immediate effect or to suspend the declaration for a given period of time: G, at paras. 120-21. In rare circumstances, a compelling public interest will warrant a suspension, although this suspension must not last longer than is necessary for the government to address the constitutional infirmity: G, at paras. 132 and 135.

[ 32 ] In the face of unconstitutional legislation, s. 52(1) is not the only remedial provision in the Constitution Act, 1982. Section 24(1) may also provide a remedy:

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.

[ 33 ] Unlike a formal declaration under s. 52(1) that renders the legislation invalid, s. 24(1) is an entirely personal remedy that can only be invoked by a claimant alleging a violation of their own constitutional rights: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61.

[ 34 ] Thus, the principles of constitutionalism, the rule of law, and the separation of powers shape the remedial relief for legislation that is inconsistent with the Constitution. These foundational principles also establish strong — but rebuttable — presumptions that legislation is prospective and judicial declarations are retroactive.

[ 35 ] 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: R. Sullivan, Statutory Interpretation (3rd ed. 2016), at p. 354. As Professor Sullivan aptly puts it, when legislation is retroactive, "the content of the law becomes known only when it is too late to do anything about it": p. 354. Even so, the rule of law does not prohibit retroactive legislation. When they can do so within the confines of the Charter (for example, when it does not offend the protections of s. 11(g) or (i)), legislatures can decide how and when their laws will apply. It may thus be open to them to correct a constitutional infirmity retroactively.

[ 36 ] Choudhry and Roach posit that legislatures have internalized the principles underlying the presumption against retroactivity and are reluctant to enact retroactive legislation as a result: S. Choudhry and K. Roach, "Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies" (2003), 21 S.C.L.R. (2d) 205, at pp. 241-42. Especially when working with remedial legislation that is a direct response to a court's declaration of constitutional invalidity, I agree with those authors that it would be helpful for the legislatures to turn their mind to the temporal application of their laws and explicitly explain what provision will govern during the transitional period in order to provide certainty and clarity.

[ 37 ] No one in this case has argued that the remedial legislation was intended to be retroactive. Thus, in the absence of retroactive legislative intent either explicitly or by necessary implication, the strong presumption that legislation is prospective is not challenged.

[ 38 ] Whereas the rule of law dictates a presumption that legislation is prospective, the inverse is true for judicial remedies. Generally, legal determinations of this Court are effective immediately, and all courts are bound to apply this Court's decisions about the constitutional infirmities of legislation in outstanding matters before them. In this sense, this Court's decisions are retroactive, applying even to cases arising before the decision. As one author notes, "it is the basic role of courts to decide disputes after they have arisen. That function requires that judicial decisions operate (at least ordinarily) with retroactive effect": R. J. Traynor, "Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility" (1977), 28 Hastings L.J. 533, at p. 536, quoting P. Mishkin, "The High Court, The Great Writ, and the Due Process of Time and Law" (1965), 79 Harv. L. Rev. 56, at p. 60.

[ 39 ] When a court makes a s. 52(1) declaration of invalidity, the same presumption of retroactivity arises. The appellants say that this arises from the Blackstonian theory that judges do not create but merely discover the law so that a constitutionally invalid law is "invalid from the moment it is enacted": Hogg and Wright, at §58:1, quoting Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 28; see also W. Blackstone, Commentaries on the Laws of England (1765), Book 1, at pp. 69-70; Hislop, at para. 79.

[ 40 ] While the Blackstonian theory has been influential, it is no longer the primary rationale for the presumption of retroactivity of judicial declarations. The modern understanding is that courts are not merely discovering pre-existing legal truths but rather applying and giving effect to the Constitution: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155; Reference re Remuneration of Judges, 1998, at para. 10. The presumption of retroactivity therefore flows from the nature of judicial remedies, not from a fictional assertion that courts merely discover the law.

[ 41 ] The presumption of retroactivity of a declaration of invalidity is consistent with the principle of constitutional supremacy because it ensures that an unconstitutional law is treated as a nullity for all time. The retroactive effect of a declaration also ensures that the judiciary performs its role of providing relief to those whose rights were infringed by the unconstitutional law.

[ 42 ] However, the presumption of retroactivity is not absolute. Many fundamental principles that are essential to Canada's constitutional system curtail the retroactive reach of judicial remedies. For example, the doctrine of res judicata and the de facto and qualified immunity doctrines balance the generally retroactive nature of judicial remedies with the need for finality and stability: Hislop, at paras. 86, 94-99 and 101; G, at para. 121.

[ 43 ] However, that judicial declarations are generally immediate and retroactive does not mean they are necessarily so: Hislop, at para. 86. As I will explain, the rare circumstances and constitutional considerations that warrant a suspension of a declaration can also justify an exception to the retroactive application of declarations where necessary to give effect to the purpose of the suspension.

B. Temporal Nature of Suspended Declarations

[ 44 ] When compelling public interests outweigh the continued violation of Charter rights, courts may suspend a declaration of invalidity: G, at paras. 117 and 126. The tool of a suspended declaration was first developed in Manitoba Language Reference as a means of avoiding a legal vacuum, and has subsequently been used for various purposes: G, at paras. 100-107. A suspended declaration temporarily maintains the unconstitutional law in force to allow the legislature time to address the constitutional infirmity.

[ 45 ] In Hislop, this Court explained some circumstances where "judges may rule prospectively": para. 96. In these circumstances, the presumption of retroactivity is rebutted and a s. 52(1) declaration is purely prospective. Specifically, the Court recognized that a prospective declaration may be appropriate where there has been a "substantial change in the law" and where "the parties reasonably relied on the previous law": Hislop, at para. 96. The Court also recognized that the "interests of good administration and the orderly development of the law" may counsel prospectivity: Hislop, at para. 96.

[ 46 ] In my view, a suspended declaration of invalidity may provide another exception to the presumption of retroactivity where the purpose of the suspension, by necessary implication, requires a purely prospective declaration. When retroactivity would defeat the compelling public interests that required the suspension, the presumption is rebutted and the declaration must apply purely prospectively.

[ 47 ] The appellants suggest that concerns with self-defeating retroactive declarations can be alleviated by Parliament enacting retroactive remedial legislation. Ultimately, however, the choice of whether to enact retroactive remedial legislation and how to do so rests with Parliament, not the courts. Moreover, Parliament may be constitutionally constrained in its ability to make retroactive criminal legislation: Charter, ss. 11(g) and (i).

[ 48 ] Similarly, I cannot accept the proposition of the Court of Appeal and the Crown that remedial legislation can somehow amend a court's declaration or "pre‑empt" its retroactive effect. Remedial legislation enacted in response to a declaration of invalidity replaces the unconstitutional law with a new law going forward; it cannot retroactively change whether the old law was unconstitutional or alter the temporal application of the court's declaration.

[ 49 ] The appellants further submit that a declaration cannot be prospective unless the court explicitly directs. While such precision is strongly advised, this Court has rarely stated explicitly whether its declarations are prospective or retroactive: see, e.g., Choudhry and Roach, at pp. 214-18. Nevertheless, courts have been understood to issue prospective declarations by necessary implication.

[ 50 ] For example, in R. v. Brydges, [1990] 1 S.C.R. 190, this Court found that the right to counsel under s. 10(b) of the Charter includes the right to be informed of the existence and availability of legal aid and duty counsel: p. 211. Recognizing that police officers generally fulfilled their informational duties by reading from printed caution cards, the declaration was suspended for 30 days to allow police departments across Canada to prepare new caution cards that included information about legal aid and duty counsel: p. 217. The prospective application of this declaration is necessarily implied from the reason for the suspension. It would have defeated the purpose of the suspension to suspend the declaration because police officers could not realistically comply with the judgment for the next 30 days, only to then have the declaration apply retroactively to everybody detained in the previous 30 days.

[ 51 ] Suspended declarations invalidating legislation have also operated in this way. For example, in R. v. Bain, [1992] 1 S.C.R. 91, this Court held that the Crown's disproportionate right to use peremptory challenges and stand-asides violated the accused's right to a fair trial under s. 11(d) of the Charter. Given the potential consequences of invalidating the jury selection system immediately, the declaration of invalidity was suspended. The suspension in Bain implicitly recognized that trials proceeding during the suspension period could proceed under the existing process notwithstanding its constitutional infirmity.

[ 52 ] In sum, I agree with the Attorney General of Canada that the court should look to the purpose of a suspension in determining whether the declaration must logically operate retroactively or purely prospectively. The purpose of the suspension is the key indicator of the temporal application of the declaration: when retroactivity would defeat the compelling public interests that required the suspension, the presumption of retroactivity is rebutted and the declaration must apply purely prospectively.

[ 53 ] This Court has not always explained why a declaration is suspended, nor explained the temporal application of that declaration. G emphasized the importance of transparently explaining the reasons for any suspension and the conditions of the suspension. Going forward, courts should explicitly state the temporal application of their s. 52(1) declarations to avoid any confusion about whether their declarations are retroactive or prospective.

C. Temporal Nature of the Bedford Suspended Declaration

[ 54 ] This brings us to the temporal application of the Bedford declaration. Bedford represented a substantial change in the law, with this Court revisiting its conclusion in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (Prostitution Reference), and finding that the living on the avails offence was unconstitutionally overbroad. The declaration was suspended for one year. The Court did not explicitly state whether the declaration was retroactive or prospective.

[ 55 ] The Bedford suspension emanated from a concern about immediately leaving sex work entirely unregulated: para. 167. A retroactive declaration would have rendered the regulatory system of criminal offences that was maintained by the suspension entirely unenforceable once the suspension expired. The living on the avails offence would be deemed to have never existed, and any prosecution under this offence during the period of the suspension would be challengeable after the fact. An offence that could only be prosecuted if the prosecution was entirely completed within the 12-month suspension would provide scant protection for sex workers during the suspension period.

[ 56 ] Nor would a retroactive declaration have given effect to and vindicated Charter rights. The Bedford provisions were found unconstitutional because their overbreadth imperiled the security of sex workers. A retroactive declaration would effectively eliminate the very protections afforded to sex workers during the suspension, when they needed those protections most, and would also eliminate any deterrent effect of the criminal prohibition on those who sought to exploit sex workers during the suspension period.

[ 57 ] Conversely, prospective application is far more consonant with the purpose of the Bedford suspension and more protective of sex workers' rights. As Bedford intended, the status quo regulation could be enforced throughout the suspension to protect sex workers, while Parliament developed a superior regulatory regime. After the suspension expired, s. 212(1)(j) was no longer valid and could no longer be enforced, but convictions for conduct occurring prior to that date were still available.

[ 58 ] Given the purely prospective nature of the declaration in Bedford, the specific challenge in this case is to determine what happens to those who committed the Bedford offences prior to the expiry of the suspension. As I next explain, they are not left without any recourse.

D. Protection of Rights Under Prospective Remedies

[ 59 ] The appellants' submissions that the Bedford declaration must be retroactive emphasize the potential unfairness to accused persons charged for engaging in non-exploitative conduct under s. 212(1)(j) prior to the expiry of the suspension. I agree that if the Bedford declaration were purely prospective and there were no further safeguards, this could result in convictions under an unconstitutional law for some accused who were not engaged in the kind of exploitative conduct that was always legitimately criminalized. Accordingly, I must consider whether s. 24(1) of the Charter provides an individual remedy to those charged with such offences.

[ 60 ] The principle that nobody may be convicted of an offence under an unconstitutional law was described by this Court in Big M Drug Mart as a corollary to the supremacy of the Constitution: p. 313. It rests on the fact that constitutional invalidity flows from the principle of constitutional supremacy itself: ibid.

[ 61 ] It does not follow from Big M Drug Mart that s. 52(1) remedies must always be retroactive in the criminal law. First, the Big M Drug Mart principle has never been absolute: the doctrine of res judicata prevents courts from reopening settled matters even if a subsequent case establishes that the law was unconstitutional: Hislop, at paras. 86 and 94-99. Second, the principle from Big M Drug Mart that no person can be convicted of an offence under an unconstitutional law does not require that the s. 52(1) declaration itself be retroactive. The principle requires that a person not be convicted under an unconstitutional law, but this result can be achieved through a combination of ss. 52(1) and 24(1) even where the declaration is purely prospective.

Remedies Available Following a Prospective Declaration

[ 62 ] While s. 52(1) is the usual remedy against unconstitutional laws and s. 24(1) is "generally used" against unconstitutional acts, both can be combined to provide relief in cases where it is appropriate: Ferguson, at para. 61. In Hislop, for example, this Court combined a prospective declaration under s. 52(1) with a retroactive s. 24(1) remedy.

[ 63 ] Similarly, in G, this Court held that there was no rule against granting both a suspended s. 52(1) declaration and a retroactive s. 24(1) remedy. There are numerous examples in our jurisprudence of courts combining retroactive s. 24(1) relief with s. 52(1) declarations: see, e.g., R. v. Swain, [1991] 1 S.C.R. 933; R. v. Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; and R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.

[ 64 ] The same reasoning holds when the suspended declaration is prospective. This is because there is a conceptual distinction between the legal findings as to the constitutional validity of a law and the remedial consequences that flow from those findings. A court can find that a law was unconstitutional and grant a personal remedy under s. 24(1) even where the s. 52(1) declaration is purely prospective.

[ 65 ] A s. 52(1) declaration is simply the means by which a court with the jurisdiction to do so makes its findings on the constitutionality of a law opposable to the world, including government: Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, at paras. 79-80. In other words, a court's finding that a law is unconstitutional has retroactive effect even if the s. 52(1) declaration is purely prospective. The findings of unconstitutionality are thus available to support a s. 24(1) remedy.

[ 66 ] Generally, recourse to s. 24(1) will be limited so as not to undermine the compelling public interests that required suspending the declaration. A personal remedy that undermined compelling public interests would subvert the order from the court that required the suspension of the declaration in the first place. The key question is whether granting a s. 24(1) remedy in a specific case undermines the compelling public interests that required the suspension.

[ 67 ] Thus, s. 24(1) remedies may be available even during the period of suspension if the accused can demonstrate that conviction under the legislation found to be constitutionally infirm would be an abuse of process or would itself constitute a Charter violation: Ferguson, at para. 65. This reflects the principle that s. 24(1) is available to address violations of an individual's Charter rights.

[ 68 ] Applying this reasoning to this case, a person charged under s. 212(1)(j) for conduct prior to or during the suspension may seek an individual remedy under s. 24(1). Unlike Ferguson, in this case, the Court in Bedford did not rule out granting s. 24(1) relief. Whether the remedy takes the form of a stay of proceedings, acquittal, or otherwise depends on what would be "appropriate and just in the circumstances": Charter, s. 24(1).

[ 69 ] This risk may be mitigated through a personal remedy under s. 24(1). Following the findings of Bedford, if an accused is charged with conduct that bears no relation to the purpose of the living on the avails offence — for example because they were a legitimate driver or bodyguard — an application judge may find a breach of that accused's s. 7 rights and grant a s. 24(1) remedy. In that way, the findings of unconstitutionality from Bedford can be used to protect accused persons who were not engaged in the exploitative and parasitic conduct that was always the target of the offence, even though the s. 52(1) declaration is purely prospective.

[ 70 ] Finally, while this Court has often stated that prosecutorial discretion is not a solution to a constitutionally defective situation, it is highly unlikely that the Crown would prosecute someone for conduct — like legitimate security work — that the Court has already determined to be the constitutional infirmity of the offence.

[ 71 ] In sum, the fact that the Bedford declaration was purely prospective does not mean someone will be convicted of s. 212(1)(j) in violation of their Charter rights. While the law remains valid and enforceable during the suspension, those charged with offences that correspond to the constitutional infirmity identified by this Court — non-exploitative conduct — are protected by the combination of the s. 52(1) finding of unconstitutionality and s. 24(1) remedies.

III. Conclusion

[ 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. The Bedford declaration operated prospectively, effective at the end of the one-year period of suspension. As a result, the appellants were validly convicted of the offence of living on the avails of sex work under s. 212(1)(j) for exploitative and parasitic conduct during the suspension period.

[ 73 ] Because the appellants engaged in exploitative and parasitic conduct, the exact conduct that was always legitimately criminalized, a s. 24(1) remedy is not available to them. I would dismiss the appeals.

The reasons of Brown and Rowe JJ. were delivered by

Rowe J. —

I. Introduction

[ 74 ] The law relating to the suspension of declarations of invalidity has been bedeviled by a lack of doctrinal clarity. This, in turn, has given rise to sustained ad hockery. The first key question is when to suspend a declaration of invalidity. G provided welcome guidance on that question.

[ 75 ] In this case, we deal with a second key question: if a suspension of a declaration of invalidity is to be made, then how should it be structured and operate? Again, what is needed is doctrinal clarity, with clear guidance for courts and legislatures going forward.

[ 76 ] Applying this framework to the specific facts of this case, I agree with Justice Karakatsanis that the approach of the Court of Appeal for British Columbia is flawed. However, I part ways with Justice Karakatsanis on the appropriate outcome.

[ 77 ] While this Court in Bedford could have issued a prospective declaration of invalidity, on my reading, it did not do so. Therefore, the declaration of invalidity in Bedford rendered s. 212(1)(j) of the Criminal Code void ab initio. As a result, the appellants could not be convicted of an offence under a provision that was always unconstitutional. I would allow the appeals.

II. Legal Framework

A. Temporal Operation of Constitutional Declarations of Invalidity

[ 78 ] Ordinarily, constitutional declarations of invalidity are retroactive, and have immediate effect. Section 52(1) of the Constitution Act, 1982, provides that "any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." This means that unconstitutional legislation is void from the moment it was enacted — that is, it has never been valid law.

[ 79 ] The retroactive nature of constitutional declarations of invalidity also flows from the nature of judicial remedies generally. As this Court explained in Hislop, because courts generally decide disputes after they have arisen, judicial decisions presumptively have retroactive effect: para. 82. This retroactive effect extends to constitutional declarations of invalidity.

[ 80 ] In the criminal context, this is demonstrated by the fact that accused persons may defend themselves against convictions by arguing that the law under which they are convicted is unconstitutional. Where a court finds a criminal law unconstitutional, it cannot ground a conviction — even for conduct that occurred before the finding of unconstitutionality.

[ 81 ] This is borne out by this Court's case law. In Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, this Court explained that "[t]he invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court; it exists prior to and independent of any judicial pronouncement. The effect of a court declaration is thus merely to recognize a legal reality that already existed": para. 28.

[ 82 ] Many academics agree that retroactive and immediate declarations of unconstitutionality are the norm. According to Sujit Choudhry and Kent Roach, "[u]nder the Charter, retroactivity is the default position for invalidity declarations": Choudhry and Roach, at p. 214. Kent Roach similarly states that "[d]eclarations of invalidity are generally retroactive and immediate in their effect": K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at §14:180.

[ 83 ] The retroactive effect of declarations of invalidity can be limited by legal doctrines such as the de facto doctrine, res judicata, and the law of limitations (see G, at para. 121, citing Hislop, at paras. 86-101), but these are exceptions to the general rule.

[ 84 ] Although this Court recognized the predominance of the retroactive approach in Hislop, it also recognized two important exceptions: prospective declarations and suspended declarations. Prospective declarations apply only to future conduct and events; suspended declarations delay the effective date of the declaration. These two types of declarations, as well as the traditional immediate retroactive declaration, give rise to four possible combinations.

[ 85 ] When a declaration comes into effect (immediate or suspended) and what the temporal effect of the declaration is once it does come into effect (retroactive or prospective) are two separate questions. It is important to distinguish these two questions in order to reason clearly about the temporal effect of declarations of invalidity.

a) An immediate retroactive declaration of invalidity renders the law invalid from the date of the declaration, back to the date the law was enacted (or to the date the constitutional provision under which the law is declared invalid came into force).

b) A suspended retroactive declaration of invalidity does the same thing, but not until the suspension period expires: the law is treated as valid for the period of the suspension, but when the suspension period expires, it is as though the law had always been invalid.

c) An immediate prospective declaration of invalidity renders a law invalid from the date of the declaration forward into the future, but not back into the past. When there is a prospective declaration of invalidity, the law was and remains valid from the date it was enacted until the date of the prospective declaration.

d) A prospective declaration of invalidity with a suspension, often called a "transition period", works in a similar way to an immediate prospective declaration, except that the declaration becomes effective only when the transition period ends.

B. Guidance for Courts

[ 86 ] When a court issues a declaration of constitutional invalidity, it must consider the consequences of each option, craft a remedy that is appropriate in the circumstances, and be explicit about what it is doing. As I will explain, this is important both for the courts and for the legislature.

[ 87 ] Suspended declarations of invalidity are "deeply controversial, because they allow an unconstitutional state of affairs to persist, thereby posing a threat to the very idea of constitutional supremacy": G, at para. 88, citing R. Leckey, "The harms of remedial discretion" (2016), 14 Int'l J. Const. L. 584. They are only justified where a compelling public interest, grounded in the Constitution, outweighs the harms of temporarily maintaining the unconstitutional law: G, at paras. 117 and 126.

[ 88 ] In G, a majority of this Court endorsed a principled approach to determining when suspending a declaration of invalidity is appropriate. The government bears the onus of demonstrating that a compelling public interest exists that outweighs the benefits of the declaration taking immediate effect: G, at para. 129. The court must then consider whether the public interest relied upon by the government is actually threatened by an immediate declaration, and whether the harm associated with the continued violation of Charter rights is outweighed by the public interest: G, at paras. 130-35.

[ 89 ] In considering these factors, courts must have regard to the effect that a suspended or prospective declaration of invalidity will actually have in the particular case. For example, if suspending a declaration of invalidity of a criminal law means that criminal prosecutions may continue under the provision for an indefinite period beyond the suspension, then this must be weighed against the interests of the government in having the suspension.

[ 90 ] When a court does make a declaration of invalidity, and when a court intends that declaration of invalidity to be other than immediate and retroactive, it must say so deliberately and explicitly, in order to avoid confusion.

[ 91 ] First, only a clear statement that a declaration is prospective, suspended, or prospective with a transition period, will suffice, because of the strong presumption that constitutional declarations are retroactive and immediate.

[ 92 ] Second, too much guess work is involved in trying to infer what a court meant to do after the fact, given the array of remedial options available to courts, and the multiple kinds of declarations available. Litigants and courts should not have to puzzle over what a prior court might have meant in its declaration. Clarity is the path to predictability and the rule of law.

C. Guidance for Legislatures

[ 93 ] When a legislature enacts new legislation in order to correct the unconstitutional effects of a law during a period of suspension of invalidity, the temporal effect of the new law should be stated explicitly so as to avoid confusion.

[ 94 ] There is a strong presumption that laws are of prospective, and not of retroactive, effect (R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 10; see also Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at p. 282; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paras. 39-43).

[ 95 ] In the context of whether certain Criminal Code provisions were void for vagueness under s. 7 of the Charter, Lamer J. (as he then was) explained in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) the importance of individuals being able to foresee the legal consequences of their conduct:

It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by explicit legal standards . . . . [p. 1155]

[ 96 ] However, this presumption that legislation applies prospectively can be rebutted by either (1) express words, or (2) necessary implication, as in Campbell v. Campbell (1995), 130 D.L.R. (4th) 622, at p. 629: see Sullivan on the Construction of Statutes, at pp. 749-50; Acme Village School District (Board of Trustees of) v. Steele-Smith, [1933] S.C.R. 47, at p. 52.

[ 97 ] That said, retroactive criminal legislation could be expected to be challenged under s. 11(g) of the Charter. Section 11(g) of the Charter reads as follows:

Any person charged with an offence has the right . . . not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.

[ 98 ] Section 11(g) is "a limitation of the power of Parliament or a provincial legislature to create new offences with a retroactive application" or, in other words, it is "an authorization to create new offences so long as they are not retroactive": British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 69, citing R. v. Finta, [1994] 1 S.C.R. 701, at p. 870. Retroactive criminal legislation is therefore generally not available as a remedy for the legislature.

[ 99 ] However, authors Roach and Choudhry advance the position taken by the Crown and the Attorneys General that "[i]n terms of criminal and quasi-criminal laws, legislatures may understandably be unwilling to enact retroactive legislation and courts should resolve any retroactivity concerns themselves": Choudhry and Roach, at p. 242. I agree.

[ 100 ] Finally, I would also add a word on transitional provisions, which concern "temporal dimension of legal rules" (Côté, at p. 116). In general, "[t]ransitional provisions are enacted to catch the difficult cases that fall between the old law and the new": R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 748. Given the constitutional complexity that can arise at the intersection of new and old criminal law, legislatures should generally consider and address transitional issues explicitly when enacting legislation in response to a declaration of invalidity.

D. Suspending a Retroactive Declaration of Invalidity of a Criminal Law

[ 101 ] Suspending a retroactive declaration of invalidity can be an uneasy fit in the criminal law context, because criminal prosecutions take time. Complainants may take years to come forward, and criminal proceedings can take years from the time of the alleged offence to the time of conviction. In R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, for example, this Court considered offences that were alleged to have occurred decades before the proceedings were initiated.

[ 102 ] When an offence is repealed by the legislature, a charge may be laid after the repeal of a crime for an offence committed prior to the repeal, so the fact that criminal prosecutions take time is not, in itself, a problem:

At common law, the general rule is that an accused must be tried and punished under the substantive law in force at the time the offence was committed, rather than the law in force at any other time — the so-called contemporaneity principle: Poulin, at para. 21.

(See also Côté, at p. 149; Sullivan, at §25.44; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. (loose-leaf)), vol. 5, at para. 33:4150.)

[ 103 ] In contrast, when an offence is declared void ab initio by a court, no one can thereafter be convicted of that offence, even for conduct that occurred prior to the declaration. This is because the offence will be deemed to have never existed and no one can be found guilty of an unconstitutional (and non‑existing) law.

[ 104 ] This is why a suspended retroactive declaration of invalidity can be an uneasy fit in the criminal context: while accused persons can be convicted of the offence during the brief window of the suspension, as soon as the suspension expires and the retroactive declaration takes effect, the offence is deemed to have never existed. Criminal prosecutions, including those that began during the period of suspension, would have to be abandoned. Only those accused who happen to have been convicted and exhausted all avenues of appeal during the suspension period could remain convicted.

[ 105 ] Further, because criminal prosecutions take time, a suspension can have idiosyncratic effects. This is so for two reasons. First, it creates a somewhat arbitrary distinction between prosecutions that are completed during the period of suspension and those that are not yet complete when the suspension expires. While this distinction may not be entirely arbitrary from a rule of law perspective (because the law requires retroactive invalidity once the declaration takes effect), it can seem unfair.

[ 106 ] Second, suspended declaration of invalidity may create disparity on how the law is applied during the period of suspension throughout the country by police officers and Crown prosecutors. As Professor Leckey explains:

[a] declaration of invalidity might well intensify uncertainty in what was probably already a legal grey zone. That is, the criminal prohibition apt to succumb to constitutional attack likely no longer commands respect from those it targets, and an impending declaration might further undermine the law's authority. [pp. 596-97]

[ 107 ] Therefore, courts should consider whether this is the intended effect, and if not, select another remedy.

III. Application

[ 108 ] In Bedford, the Attorney General of Canada asked the Court to suspend any declaration of constitutional invalidity it might grant "so that Parliament has an opportunity to consider legislative responses to address the harms found to flow from the impugned provisions while maintaining some measure of protection for those involved in prostitution."

[ 109 ] The Attorney General of Canada did not, however, seek a prospective declaration. Nor did he invoke any of the considerations cited in Hislop as supporting a prospective declaration. Nor did he set out the type of analysis that Justice Karakatsanis now invites courts to conduct in order to conclude that a declaration should be prospective.

[ 110 ] In granting a suspended declaration of invalidity, McLachlin C.J. reasoned for the Court that "immediate invalidity would leave prostitution totally unregulated while Parliament grapples with these complex and sensitive issues" and that "it would not be in keeping with the matter's constitutional dimensions to simply order the provisions struck down and leave Parliament to scramble to fill the void": Bedford, at para. 167. No consideration was given to the temporal effect of the declaration; whether it was retroactive or prospective was never mentioned.

[ 111 ] This Court could have issued a prospective declaration in Bedford, but on my reading, it did not. First, Bedford did not say that the declaration was prospective and as I have explained above, a declaration that does not explicitly state that it is prospective should be treated as retroactive.

[ 112 ] Second, prospective declarations should be justified, and Bedford provided no justification. This Court stated in Hislop that "[a] substantial change in the law is necessary, not sufficient, to justify prospective application" (para. 96), and that other factors must also be considered including whether "parties reasonably relied on the previous law" and the "interests of good administration and the orderly development of the law" (ibid.). No such analysis was undertaken in Bedford.

[ 113 ] I am aware there are instances of this Court having interpreted declarations as purely prospective even where they were not explicitly stated to be so (Choudhry and Roach, at pp. 214-18). But two wrongs do not make a right: if those cases failed to clearly state that their declarations were prospective, they too were not in keeping with best practice.

[ 114 ] In R. v. Brydges, [1990] 1 S.C.R. 190, the Court, having found that the right to counsel includes the right to be informed of the existence of duty counsel and of the ability to apply for legal aid, ordered a "transition period" of 30 days within which the police could prepare proper cautions (pp. 211-12 and 217). No consideration was given to the effect of this transition period. In Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, at para. 20, however, the Court cited Brydges as an example of a prospective remedy — which might be taken as suggesting that a declaration can be prospective, even absent specific language to that effect.

[ 115 ] In my view, Brydges (and similar cases such as R. v. Bartle, [1994] 3 S.C.R. 173, and R. v. Feeney, [1997] 2 S.C.R. 13) are distinguishable from Bedford: those cases involved procedural rights, not substantive criminal offences. In the context of substantive criminal offences, the concern about convicting persons of an offence under an unconstitutional law is particularly acute, as that very prospect is what animates the general rule of retroactivity.

[ 116 ] Finally, prospective declarations are especially in need of justification in the criminal context, because of the general rule that no one should be convicted of an offence under an unconstitutional law. The potential for continued, active enforcement of an unconstitutional criminal law gives rise to rule of law concerns and weighs against imposing a declaration that is prospective only. It also weighs against interpreting an ambiguous declaration as prospective, after the fact.

[ 117 ] This Court found this point significant in R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599. Having found the mandatory victim surcharge unconstitutional under s. 12 of the Charter, in discussing whether to suspend the declaration, the Court explained:

. . . the rule of law will also not suffer the continued infliction of cruel and unusual punishment that cannot be justified in a free and democratic society. The mandatory victim surcharge violates s. 12 of the Charter. Suspending the declaration would mean imposing cruel and unusual punishment for months before the suspension period expires. [para. 82]

[ 118 ] While these statements were made in support of a point about the operation of res judicata that has no relevance here, the observation that the rule of law will not suffer the continued, active enforcement of a constitutional infirmity is apt. In the criminal context, where fundamental rights and liberty interests are at stake, the default is retroactivity, and to rebut that default, a clear statement or compelling justification is required.

[ 119 ] For these reasons, I understand the declaration from Bedford to have retroactive effect, as of the date the suspension expired.

[ 120 ] I agree with Justice Karakatsanis that the legislation was not retroactive, and that the coming into force of s. 286.2 of the Criminal Code did not "pre-empt" the retroactive effect of the declaration. The legislation operated prospectively, and did not cure the constitutional defect in s. 212(1)(j) as it existed in the past.

[ 121 ] This result is not entirely satisfying, because it means that the appellants, who were found factually guilty of exploitative conduct that does not seem to fall within the overbreadth identified in Bedford, are entitled to have their convictions quashed on a technicality. But, as I will explain, this is the appropriate result.

[ 122 ] However, while I acknowledge that the result is an unsatisfying one, especially for the victims of the appellants' crimes, I disagree with the Court of Appeal that it is "absurd" (2020 BCCA 160, at para. 57) or that my interpretation fails to give any effect to the Bedford suspension. The suspension had real legal effects. Prosecutions that were initiated and completed prior to the expiry of the suspension were valid. The suspension gave Parliament time to craft responsive legislation.

[ 123 ] My interpretation therefore does not undermine or fail to give any effect to the suspension ordered in Bedford. On the contrary, my interpretation gives full effect to the Bedford Court's clear choice: it ordered a suspension of the declaration of invalidity, and did not order a prospective declaration. The suspension was for a fixed period of one year, and when that year expired, so did any authority for criminal enforcement of s. 212(1)(j).

IV. Disposition

[ 124 ] I would therefore allow the appeals, set aside the convictions, and restore the order of the trial judge quashing counts 6 and 13 of the indictment.

Appeals dismissed, Brown and Rowe JJ. dissenting.

Solicitors for the appellant Tamim Albashir: Ritchie Sandford McGowan, Vancouver.

Solicitors for the appellant Kasra Mohsenipour: Narwal Litigation, Vancouver.

Solicitor for the respondent: Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Québec.