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The Supreme Court of Canada in Ottawa.Adrian Wyld/The Canadian Press

The Supreme Court of Canada has upheld the convictions of two men arising from their operation of an escort service, settling a dispute over validity of the law when the offences took place.

In its 7-2 decision Friday, the high court said the Criminal Code provision under which the men were convicted was in effect at the time of the offences, despite having been found unconstitutional.

In a landmark 2013 decision, the Supreme Court declared the provision against living on the avails of sex work to be overbroad and in violation of the Charter of Rights and Freedoms. For instance, the law criminalized actions, such as working as a bodyguard, that could enhance the safety of sex workers.

However, the top court suspended the declaration of invalidity for one year, to end on Dec. 20, 2014, giving Parliament time to pass a new law, which it did before the suspension expired.

Kasra Mohsenipour and Tamim Albashir were convicted in 2018 of several offences related to their operation of an escort service in British Columbia, including living on the avails of sex work, during 2014.

The trial judge quashed the counts of living on the avails because of the Supreme Court’s earlier declaration of unconstitutionality, but the B.C. Court of Appeal overturned the decision and entered convictions for the men.

The Appeal Court said the “parasitic, exploitative conduct” of the two men could not be immune to criminal liability simply because it occurred during the suspended declaration of invalidity and the fact charges were laid afterward.

By imposing a suspension of its declaration of invalidity, the Supreme Court extended the life of the law, the Appeal Court said.

The men then took their cases to the Supreme Court of Canada.

In writing for the majority, Supreme Court Justice Andromache Karakatsanis said the purpose behind the suspension was to maintain the protection of vulnerable sex workers by avoiding the deregulation of sex work while Parliament crafted replacement legislation.

In light of that purpose, she concluded the declaration of invalidity became effective at the end of the period of suspension, making the men liable under the criminal provision for their conduct during the suspension period.

Justice Karakatsanis also stressed that someone whose charter rights are breached by a law declared to be unconstitutional is not left without remedy.

She noted that if an accused were charged with conduct that had no relation to the living on the avails offence – for example because they were a driver or bodyguard – a judge may find a breach of the person’s constitutional rights and grant an exception.

In this case, because the two men engaged in exploitative conduct that was always legitimately criminalized, such a remedy is not available to them, she said.

Justice Karakatsanis said she would expect courts in the future to explicitly explain the timing related to declarations of invalidity to avoid any confusion.

“Where the court has been explicit, it is unnecessary to consider the necessary implications of a suspension.”

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