By The Staff The Canadian Press
Posted July 9, 2023
Emma Halpern, executive director of the Elizabeth Fry Society of Mainland Nova Scotia, says clients refusing to pay or underpaying is one of the greatest challenges faced by sex workers.
. THE CANADIAN PRESS/Andrew Vaughan. AV
In a legal decision described as the first of its kind in Canada, a Halifax sex worker successfully sued a client for nonpayment of services, but actors in the industry are conflicted about the ruling’s impacts.
Former sex worker Brogan Sheehan took Bradley Samuelson to small claims court after he didn’t fully pay her fee, which both parties had agreed to beforehand. Samuelson argued that the agreement was invalid because it is illegal to purchase sexual services, but court adjudicator Darrel Pink said the contract could still be enforced and awarded Sheehan $1,800.
Sex work remains criminalized in Canada, but a 2014 law removed criminal penalties for people, like Sheehan, who sell sexual services. Paying for sex, however, remains illegal.
Sheehan’s lawyer, Jessica Rose, says she and her client wanted to expose the court to the “economic realities of doing sex work.” As well, Rose said they wanted to raise awareness about “what is needed as far as access to the civil justice system to ensure sex workers are treated fairly by their clients.”
“This type of issue had never been addressed before in court,” Rose said in a recent interview.
Emma Halpern, executive director of the Elizabeth Fry Society of Mainland Nova Scotia, says the decision empowers sex workers to seek legal remedies to enforce their contracts.
The decision also reflects a changing attitude within society and the law toward sex work, Halpern said. The public is beginning to understand the difference between “extremely harmful, predatory things like sex trafficking, and legitimate sex work by an adult who is a worker, pays taxes, has a business.”
As a response to the ruling, Halpern and Sheehan said they planned to hold workshops for sex workers to help them understand their legal rights.
But not everyone in the sex industry sees the court’s decision as a step forward. Real change will occur once politicians decriminalize sex work, said Sandra Wesley, executive director of Stella, a Montreal-based organization by and for sex workers.
The vast majority of sex workers, she said, won’t seek financial recourse via the court system because sex work is still criminalized in Canada. Going to court exposes a sex worker, and potentially everyone else she is associated with, to the justice system, Wesley said.
“Even if there’s a chance she can win, there’s always a risk of workplaces being shut down, police being alerted to the activity, being evicted, deported,” she said. “There are many consequences of being criminalized, even if we win in court.”
Wesley says the small claims court decision actually goes against the 2014 federal sex work law, called the Protection of Communities and Exploited Persons Act. That law emphasizes the importance of discouraging sex work and denouncing and prohibiting the purchase of sexual services “because it creates a demand for prostitution.”
Wesley says, “I hope the minister of justice and prime minister read the decision, read the law, and consider it’s time to change it.”
And while Pink’s decision says that both sides in the court case believe it is the first of its kind in Canada, a legal expert questions its importance on jurisprudence because the ruling was rendered in small claims court.
“The usual court hierarchy doesn’t apply,” said Wayne MacKay, professor emeritus at Dalhousie University’s law school. “Another small claims judge wouldn’t necessarily have to follow it, nor a
higher court.”
And while the decision doesn’t have a binding precedent, it could still influence other court rulings, he said.
“The message is out there,” MacKay said. “Sex work is work, legal work, and deserves to be treated like other legal work, and if people chose not to pay, they can get a remedy in small claims court.”
According to documents filed in Nova Scotia’s small claims court, Sheehan charged $300 an hour for her services, and spent seven hours with Samuelson on Jan. 26, 2022. But the next morning, when she attempted to take cash out of an ATM with his bank card, the transaction was denied. After several text exchanges, Samuelson eventually paid Sheehan $300, leaving $1,800 outstanding.
Pink’s decision, rendered in April, says public policy requires the courts “not to increase or contribute to exploitation of sex work, and thus favours a regime that gives aggrieved sex workers access to the civil courts when they have a civil claim.”
MacKay said the broader social impact of the novel decision may be more important than the technical, legal impact.
“One has to kind of admire the sex worker that decided to test the waters, see what small claims court would do, and succeeded,” he said. “That’s the way things change sometimes.”
Sheehan, who advocates for the decriminalization of sex work, said she wanted to pursue the case in court because she was a victim of human trafficking when she was a minor.
“I feel obligated to not leave things the way that they were,” she said.
This report by The Canadian Press was first published July 9, 2023.
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