N.S. sex worker going to small claims court over non-payment

A sex worker in Nova Scotia is pursuing a claim for non-payment of services in small claims court, in a case she and her advocates hope will help shift the conversation about sex work in Canada. 

The woman at the centre of the case said she spent an evening with a client in January 2022. Afterwards, she realized she wasn't going to be paid when the PIN for the bank card he'd given her to withdraw money didn't work. 

"It feels pretty humiliating to not get paid after providing so much for someone. And it's also frustrating that we don't have more protection," said Brogan, whom CBC News is only identifying by her first name for safety reasons, including that she is a survivor of human trafficking.

While non-payment for services was something she'd experienced before, Brogan said she saw this incident as an opportunity to fight for sex work to be treated the same as other forms of employment. 

"I'm very passionate about sex workers' rights as it is," she said.  

"And so when something happened to myself, not being paid, I saw an opportunity to do something about it, to show other people that they can also they have rights as sex workers."

'Sex workers need economic stability'

In Canada, sex workers are allowed to sell their services, but the Protection of Communities and Exploited Persons Act, passed in 2014, criminalizes aspects of that work — advertisement of sexual services or communicating about services in a public place, are offences, as well as the purchase of services.

This prevents sex workers from being able to easily create contracts for their services, as one cannot typically establish a contract in which one party is required to do something illegal, said Jessica Rose, a staff lawyer for the Elizabeth Fry Society of Mainland Nova Scotia who is representing Brogan.

"Sex workers need economic stability just like any other worker in Canada, and without being able to easily contract for their services, they're really at a disadvantage in terms of getting paid the money that they are owed by their clients," Rose said.

Rose said the professed intent of the laws around sex work is to protect sex workers from harm, and that could create a legal avenue for contracts between sex worker and client to be upheld.  

"Where it is in the sex worker's best interest to get paid for their work, it might be that we could argue that this kind of an illegal contract is still one that should be enforced, and that is what we will be arguing."

The claim has not yet been tested in court. The pre-hearing date for the case is July 13 via teleconference in Halifax. Multiple attempts to contact the defendant were not successful.

Issues go beyond contracts

The legislation dealing with sex work doesn't only create contract concerns, said Brogan.

The fact that purchasing of sexual services is illegal makes it challenging to verify the identity of clients or put other safeguards in place, she said.

"You have absolutely no idea who is walking through your door or whose door you're walking through, and chances are you won't find out unless something like this happens," Brogan said.

Meanwhile, prevailing attitudes — including among law enforcement — that non-payment or other forms of harm are inherent risks with sex work make it harder to seek help when issues do arise.

"It's more viewed as, 'Maybe you shouldn't have signed yourself up for it or something like that.' It has never been viewed as a workplace anything ... I've never had someone, other than a reasonable client, treat me like I'm actually working a regular job."

Sex work vs. exploitation

For Brogan, the distinction between sex work and sexual exploitation is clear.

"The difference is massive," Brogan said.

Brogan was trafficked when she was younger.

"You basically have no control over who you see, what you do, how much money you make," she said, adding that she feels more comfortable with what she does now.

"None of my money is going to anyone other than me. And that's the main thing for me, is that nobody else is benefiting from what I'm doing," Brogan said.

Emma Halpern, executive director of the Elizabeth Fry Society of Mainland Nova Scotia, said it's important for Canadians to recognize the difference.

"There are some very, very problematic ways in which sex is purchased in this country," Halpern said. "And certainly Brogan herself has experienced that and knows that that is very much not okay.

"But you can recognize that, and stand up against that and also say that there are also spaces in which a woman has the autonomy to make the choice to sell sex herself, and should be given the safety and the protections and the supports to do so as an employment opportunity like anything else."

Sex work debate continues

Halpern said as far as the Elizabeth Fry Society can tell from its own research, this civil suit is the first of its kind in Canada — but non-payment isn't a rare occurrence in sex work.

"I've heard many stories of women who are trying to make a safe, affordable living through sex work, and have found it very difficult for many of the reasons that Brogan has raised. I think there's still a long way to go from the perspective of our government in terms of making sex work a safe place for women."

In 2021, a coalition of 25 organizations urging law reform around sex work launched a constitutional challenge of the current legislation. The federal government countered the challenge and the initial date for that trial is set for late 2022. If successful, that challenge could see the law struck down.

"And then in that context, we would like to see sex work regulated the way other work is regulated and sex workers can create associations, and have contexts for accessing workers rights, and labour rights in general," said Jenn Clamen, national coordinator of the Canadian Alliance for Sex Work Law Reform.

As for Brogan, she said her experience is an example of why the legal regime around sex work needs to change — and why her rights as a citizen and a taxpaying worker need to be better protected.

"I think that a sex worker's rights need to be taken far more seriously," she said. "I think that it needs to be legalized in order for it to be safe."