Paradigms of Prostitution: Revisiting the Prostitution Reference

The author contends that it is impossible to evaluate the strength of the legal claims concerning the constitutional validity of the criminal law of prostitution without recognizing directly, and choosing among, the multiple paradigms of prostitution that frame these arguments. A “paradigm”, or way of understanding prostitution in its social context, is usually adopted without scrutiny, by judges or scholars, in ways which often predetermine the legal result. The issue is not merely what paradigm of prostitution is more accurate – an important evidentiary question – but whether the outcome of a constitutional challenge is affected if the paradigm animating the legislation (Parliament’s paradigm) is not the “right” one.

The author briefly summarizes the paradigms of prostitution that appear in public and legal discourse, before reviewing the various reasons for judgment in the Prostitution Reference case decided by the Supreme Court of Canada in 1990. Only Justice Wilson explicitly recognized the existence of these paradigms and their importance to the legal outcome. Her reasons suggest she was troubled by the hypocrisy of the criminal law of prostitution but fell into the trap of assuming that prostitution must be normalized in order to show respect for prostituted women. The author argues the same false correlation underlies two ongoing court challenges to prostitution laws in Ontario and British Columbia. A better approach is to recognize prostitution as a practice of sex inequality that requires an asymmetrical legal response.