Sex worker wins in Nova Scotia court, but verdict leaves sex industry in conflict

HALIFAX – In a legal decision described as the first of its kind in Canada, a Halifax sex worker successfully sued a client for non-payment of services, but industry actors disagree on the ruling’s ramifications.

Former sex worker Brogan Sheehan sued Bradley Samuelson in small claims court after he failed to pay her compensation in full, which was agreed upon in advance by both parties. Samuelson argued that the agreement was void because it is illegal to purchase sexual services, but bailiff Darrel Pink said the contract could still be enforced and awarded Sheehan $1,800.

Sex work remains a criminal offense in Canada, but a 2014 law abolished criminal penalties for people, like Sheehan, who sell sexual services. However, paying for sex remains illegal.

Sheehan’s attorney, Jessica Rose, says she and her client wanted to expose the court to the “economic realities of sex work.” Rose also said they wanted to raise awareness about “what it takes in terms of access to the civil justice system to ensure that sex workers are treated fairly by their clients.”

“Issues like this had never been dealt with in court before,” Rose said in a recent interview.

Emma Halpern, executive director of the Elizabeth Fry Society of Mainland Nova Scotia, says the decision will allow sex workers to seek legal remedies to enforce their contracts.

The decision also reflects changing attitudes 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 an employee, pays taxes, owns a business.”

In response to the ruling, Halpern and Sheehan said they plan to hold workshops for sex workers to help them understand their legal rights.

But not everyone in the sex industry sees the court ruling as a step forward. Real change will happen once politicians decriminalize sex work, said Sandra Wesley, executive director of Stella, a Montreal-based organization of and for sex workers.

The vast majority of sex workers, she said, will not seek financial recourse through the courts because sex work is still a criminal offense in Canada. Going to court exposes a sex worker — and potentially anyone else she’s dealing with — to the justice system, Wesley said.

“Even if there’s a chance she wins, there’s always the risk of workplaces being closed, the police alerted to the activity, evicted or 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, 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 Justice Minister and Prime Minister read the decision, read the law and consider it’s time to change it.”

And while Pink’s decision says both parties to the lawsuit believe it’s the first of its kind in Canada, a legal expert questions its importance for jurisprudence because the ruling was made in a small claims court.

“The usual judicial hierarchy doesn’t apply,” said Wayne MacKay, professor emeritus at Dalhousie University’s law school. “Another small claims court may not necessarily follow it, nor will a higher court.”

And while the decision has no binding precedent, it could still influence other court decisions, he said.

“The message is out there,” MacKay said. “Sex work is work, legal work, and deserves to be treated like any other legal work, and if people choose not to pay, they can seek redress in small claims court.”

According to documents filed with the Nova Scotia 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 withdraw money from an ATM with his bank card, the transaction was refused. After several text exchanges, Samuelson finally paid Sheehan $300, leaving $1,800 outstanding.

Pink’s decision, taken in April, said public policy requires the courts “not to increase or contribute to the exploitation of sex work, thus favoring a regime that allows aggrieved sex workers access to civil courts when they have a civil have progress.”

MacKay said the wider social impact of the new decision may be more important than the technical, legal impact.

“You have to have a little admiration for the sex worker who decided to test the waters, see what the small claims court would do, and it succeeded,” he said. “That’s how things change sometimes.”

Sheehan, who advocates for the decriminalization of sex work, said she wanted to take the case to court because she was a victim of human trafficking as a minor.

“I feel obligated not to leave things as they were,” she said.

This report from The Canadian Press was first published on July 9, 2023.

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This story was produced with the financial support of the Meta and Canadian Press News Fellowship.

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