The Case of the Reasonable Hypothetical Sex Worker

Abstract: This article uses the first two constitutional challenges to three of Canada’s new criminal prostitution laws as case studies to critically consider the use of reasonable hypotheticals in evaluating the constitutionality of criminal offences enacted in an area of highly contested public policy. The reasonable hypothetical is a device originally used to allow courts to evaluate the constitutionality of mandatory minimum sentences based on the circumstances of a reasonable hypothetical offender, rather than those of the actual offender before the court. The reasonable hypothetical was extended to allow courts to evaluate the constitutionality of criminal offences based on the circumstances of a reasonable hypothetical accused, rather than those of the actual accused before the court. However, judges and scholars have raised concerns about the use of reasonable hypotheticals in evaluating constitutionality. These concerns generally fall within three categories: 1) the “air of unreality” where the question of cruel and unusual punishment does not arise on the facts of the case before the court; 2) the nature and scope of evidence that can or should be before the court in cases where the device is used; and 3) the appropriate remedy where an impugned law applies in a constitutional manner to the accused before the court but in an unconstitutional manner in hypothetical circumstances. I critically examine the first two constitutional challenges to some of Canada’s new criminal commodification offences with these critiques in mind, focussing on how the cases obscured the experiences of victims and complainants and adjudicated constitutionality based solely on hypotheticals and expert evidence, even when a factual foundation was available. I conclude that the concerns raised about the use of reasonable hypotheticals in evaluating constitutionality are clearly demonstrated by these cases and the different decisions reached by courts in these cases. If courts continue to consider proportionality in section 7 cases based on reasonable hypotheticals and expert evidence, I encourage them to address the concerns directly, including through increased reference to experiential or adjudicative fact evidence, renewed use of section 1 in section 7 cases, and meaningful attention to the just scope and effect of remedies.