Tamim Albashir v. Her Majesty the Queen

(British Columbia) (Criminal) (As of Right)


Constitutional law - Criminal law - Legislation - Declaration of invalidity - Living on avails of prostitution - Temporary suspension of declaration of invalidity - Parliament repealing and replacing legislation before expiration of suspended period - What is the effect of a suspended declaration of invalidity if Parliament repeals and replaces the legislation found to be constitutionally invalid prior to the expiry of the suspended declaration?


Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.


On December 22, 2016, the appellant, Mr. Albashir, was charged with several offences related to his operation of a commercial sex trade, including living on the avails of prostitution contrary to s. 212(1)(j) of the Criminal Code, R.S.C. 1985, c. C-46, between March 15 and December 5, 2014. Despite finding factual guilt on all counts, the trial judge quashed the s. 212(1)(j) counts on the indictment as unconstitutional, relying on Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. On December 20, 2013, in Bedford, the Court held that s. 212(1)(j) was overbroad and could not be saved under s. 1 of the Canadian Charter of Rights and Freedoms, but suspended the declaration of invalidity for a period of one year.

The British Columbia Court of Appeal allowed the Crown’s appeal and ordered that convictions be entered for the s. 212(1)(j) counts, finding that the trial judge fell into error when he quashed them. Since Parliament replaced s. 212(1)(j) with a new offence that 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 within the period of the suspension, conduct captured by the former iteration of the offence during the suspended declaration of invalidity is prosecutable. During the suspension period, s. 212(1)(j) was constitutionally valid. The retroactive effect of a suspended declaration of invalidity is pre-empted by the passing of remedial legislation: the declaration of invalidity never came into effect to render the provision a nullity ab initio.

Lower Court Rulings

January 29, 2018
Supreme Court of British Columbia

2018 BCSC 736, 27174
Counts 6 ans 13 (living on the avails of prostitution) quashed
June 8, 2020
Court of Appeal for British Columbia (Vancouver)

2020 BCCA 160 ;, CA45122 ;
Appeal allowed; convictions for living on the avails of prostitution entered