Joven Narwal was counsel on R. v. Albashir & Mohsenipour, a landmark constitutional ruling from the Supreme Court of Canada which addressed for the first time the effect of being charged with an offence declared unconstitutional. In its ruling, the Court clarified that legislation is not immunized from challenge when there is a suspended declaration of invalidity; an accused person can avail of a remedy to avoid the application of the unconstitutional law through Section 24(1) of the Charter.

Interviewed by Canadian Lawyer Magazine, Joven Narwal commented as follows:

Joven Narwal, who represented the appellant Kasra Mohsenipour, calls the decision “a landmark Charter ruling” that “made clear that legislation is not immunized from challenge as accused persons can avail of a remedy to avoid the application of an unconstitutional law through section 24(1).”

However, he noted s. 52. (1) of the Constitution, which says “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.” Doctrinally, he says, this should mean “that once a law is declared unconstitutional it should be so for all time, to the point that it was never constitutional at its enactment.

“In my view, this ruling, while significant insofar as it clarifies that exemptions under section 24(1) are the route to a remedy to avoid conviction for an unconstitutional offence during the suspension period, it will provoke continued debate, academically and through jurisprudence, on both the issue of section 52(1) remedies and remedies for individuals charged with laws declared to be unconstitutional,” says Narwal, the Vancouver-based principal of Narwal Law LLP.

Narwal also notes that his client’s saga is not yet over, as there is a pending appeal to the B.C. appellate court over police misconduct in the case. A hearing date has not yet been set.

To read the full article, visit Canadian Lawyer Magazine