A case by Brogan Sheehan brought against a client in small claims court over non-payment could have wider implications for prostitution laws across the country.DARREN CALABRESE/The Globe and Mail
A Halifax sex worker is fighting for her right to be paid in what her advocates say is the first case of its kind to be tested before a Canadian court and highlights the need to decriminalize sex work in this country.
On Jan. 26, 2022, Brogan Sheehan took an Uber to an upscale apartment building in downtown Halifax to provide companionship services to a man named Bradley Samuelson, according to court documents filed in Small Claims Court of Nova Scotia. Ms. Sheehan said she would provide sexual services at a rate of $300 per hour. Mr. Samuelson would pay a deposit when she arrived and the balance at the end of their time together.
“I was offering services. He was supposed to pay for them. I spent a certain number of hours there and he didn’t pay me,” Ms. Sheehan, 23, said during an interview at her Dartmouth apartment where she lives with her two cats.
“It’s a theft of services.”
Seven hours after Ms. Sheehan arrived, Mr. Samuelson gave her his bank card to withdraw money from his account, but the card didn’t work for her. Over text messages, he claimed she had used the wrong pin and froze his account. Later that day, after many texts back and forth, Mr. Samuelson finally paid her $300, leaving a balance of $1,800.
Mr. Samuelson argues in his statement of defence that a contract for sexual services is not enforceable in law because it’s an illegal contract. Alternatively, if the court finds the contract is legal, Mr. Samuelson said he will argue that the services Ms. Sheehan agreed to were not performed. Mr. Samuelson directed a request for comment to his lawyer, who did not respond to The Globe.
The case goes in front adjudicator Darrel Pink at Nova Scotia Small Claims Court in Halifax on Feb. 2.
Canada’s sex trade laws are not clear-cut. Purchasing sexual services is illegal. But sex workers cannot be criminally liable for selling their own sexual services. Bill C-36, the Protection of Communities and Exploited Persons Act, passed into law in October, 2014, under the Conservative government. It was intended to protect people who sell their own sexual services, prevent child-trafficking, and reduce the demand for prostitution.
But Ms. Sheehan’s lawyer and other advocates for decriminalizing sex work say it unjustly frames sex workers as being either criminals that need to be charged and brought to account in the criminal justice system, or as victims that need to be protected by criminal law.
“In my view and in Brogan’s view that’s a really limiting way to see sex workers. Another way to see sex workers is as contributors to our economy and taxpayers and people who are deserving of economic protection for the work that they do,” said Jessica Rose during an interview with The Globe.
The issue of non-payment for services cuts to the heart of one of the reasons sex work advocates have been fighting to decriminalize sex work. They believe sex workers should have access to the same benefits and protections afforded to people working in other industries, including recourse such as going to police or small claims court if a client fails to pay. “The fact that it’s undecided right now … sends a message that a client can just refuse payment with impunity,” Ms. Rose said.
On the Department of Justice website, the government says legalizing and regulating prostitution would result in more people being subjected to prostitution. “Prostitution allows men, who are primarily purchasers of sexual services, paid access to female bodies. Condoning a clearly gendered practice by legalizing and regulating it would demean and degrade the human dignity of all women and girls. The human body is a not a commodity to be bought and sold.”
Ms. Sheehan grew up in suburban Halifax in a middle-class household. Her parents separated when she was in the second grade. Since then, she says, she has constantly worried about money. There were times she went hungry and had no money to buy food.
She started thinking about sex work when she saw other teens posting online classifieds and talking about it on social media. While she says her marks in high school were in the high 90s and she had dreams of becoming a marine biologist, scarcity always loomed in the foreground. “Being independent financially has always been one of my number one priorities,” Ms. Sheehan said. “Sex work was always appealing to me because of that.”
Ms. Sheehan hopes her case will spark a greater conversation about decriminalizing sex work, and potentially provide other sex workers a form of recourse if a client refuses to pay. “It’s important to me that people who are interested in participating in sex work, they should be able to envision it in a safe way, not in a crack house, fighting for their lives,” she said, adding that she paid $10,000 in taxes last year.
The Canadian Alliance for Sex Work Law Reform, which represents 25 sex workers’ groups, sued the federal and provincial government of Ontario in 2021, challenging the constitutionality of the law. In October, the case appeared before the Ontario Superior Court of Justice.
Jenn Clamen, co-ordinator for the alliance, said the law criminalizes sex workers at every turn. “It really is criminalization itself that causes conditions of exploitation, not the work itself,” she said. “In this case, unpaid services is most definitely the theft of services and is a problem.”
Sex workers, especially those who are already targeted by authorities, like Indigenous, Black and migrant women, would never seek out assistance from law enforcement because they are working in the context of criminality, she added. “As long as police have a mandate to arrest clients, sex workers are always working in precarity,” said Ms. Clamen.
Minister of Justice David Lametti responded to a standing committee’s review in October 2022, saying the government will continue to study the issue and assess the impact of the law, examine ways to strengthen criminal law’s response to violence and exploitation, and support sex workers.
When asked about the status of this review, Department of Justice Canada spokesman Ian McLeod provided a statement saying the government recognizes that individuals can become involved, and remain involved, in the sex trade under very different circumstances. He said some are coerced into offering commercial sexual services, while others do so by choice.
“The government is very concerned about the safety of all persons engaged in the sex trade and is committed to taking into account the interests of all impacted groups,” Mr. McLeod wrote. “For that reason, the Government continues to monitor the impact of these reforms, including relevant Canadian case law and research, as well as international research.”
Right now, Ms. Sheehan has taken a step back from sex work. She is enrolled in an adult learning program at Nova Scotia Community College and working as a peer support worker for vulnerable women for the Elizabeth Fry Society and YMCA. Her focus is on advocacy work to keep children and sex workers from being exploited.
“I just want the future for sex workers to look more positive. I want there to be a difference between sex workers and victims of exploitation.”