A Nova Scotia sex worker is filing a non-payment lawsuit in small claims court in a case where she and her advocates will help change the conversation about sex work in Canada.
The woman at the center of the case said she spent an evening with a customer in January 2022. She subsequently realized she would not be paid when the bank card PIN he had given her to withdraw money was not work.
“It feels quite humiliating not to be paid after you’ve provided so much for someone. And it’s also disappointing that we don’t have more protection,” said Brogan, who CBC News identified only by her first name for safety reasons, including that she is a survivor of human trafficking.
Although not being paid for services is something she’s experienced before, Brogan said she sees 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 the rights of sex workers as they are,” she said.
“So when something happened to me, not being paid, I saw an opportunity to do something about it, to show other people that they too can have rights as sex workers.”
“Sex workers need economic stability”
In Canada, sex workers are allowed to sell their services, but the Protecting Communities and Exploited Persons Act passed in 2014 criminalizes aspects of this work – advertising sex services or communicating services in a public place are also crimes like buying of services.
That prevents sex workers from being able to easily create contracts for their services because you usually can’t enter into a contract where one party is required to do something illegal, said Jessica Rose, a staff attorney at the Elizabeth Fry Society of Mainland Nova Scotia, which Brogan represents.
“Sex workers need economic stability just like any other worker in Canada, and without being able to easily contract for their services, they are really at a disadvantage in terms of getting the money owed to them by their clients,” said Rose .
Rose said the stated intent of sex work laws is to protect sex workers from harm, and that could create a legal avenue to enforce sex worker-client contracts.
“Where it is in the best interests of the sex worker to be paid for their work, it may be that we can argue that this type of illegal contract should still apply and that is what we will argue.”
The claim has yet to be tested in court. A preliminary hearing date in the case is July 13 via teleconference in Halifax. Numerous attempts to contact the defendant were unsuccessful.
The problems go beyond contracts
Legislation dealing with sex work doesn’t just create problems with contracts, Brogan said.
The fact that purchasing sexual services is illegal makes it difficult to verify customers’ identities or put other safeguards in place, she said.
“You have absolutely no idea who’s walking through your door or whose door you’re walking through, and chances are you won’t know unless something like this happens,” Brogan said.
Meanwhile, prevailing attitudes—including among law enforcement—that nonpayment or other forms of harm are inherent risks of sex work make it difficult to seek help when problems arise.
“It’s more like, ‘Maybe you shouldn’t have signed up for that or something.'” It’s never been seen as a workplace… I’ve never had anyone other than a reasonable customer treat me like I actually work a normal job.”
Sex work versus exploitation
For Brogan, the distinction between sex work and sexual exploitation is clear.
“The difference is huge,” Brogan said.
Brogan was a victim of trafficking 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’s more comfortable with what she’s doing now.
“None of my money is going to anyone but me. And that’s the most important thing to me is that no one 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 that sex is bought in this country,” Halpern said. “And certainly Brogan has been through this herself and knows it’s not good.
“But you can recognize that and challenge that and also say that there are also spaces where a woman has the autonomy to make the choice herself to sell sex and she should be given the safety and protection and support to do that so as a job opportunity as anything else.”
The sex work debate continues
Halpern said that 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 is not uncommon in sex work.
“I have heard many stories of women trying to make a safe and affordable living through sex work and finding it very difficult for many of the reasons Brogan outlined. I think there’s still a long way to go from our government’s perspective in terms of making sex work a safe place for women.”
Emma Halpern is the Executive Director of the Elizabeth Fry Society of Mainland Nova Scotia. (Steve Lawrence/CBC)
In 2021, a coalition of 25 organizations pushing for sex work law reform launched a constitutional challenge to the current law. The federal government has opposed the challenge, and the initial date for that trial is set for late 2022. If successful, that challenge could lead to the law being overturned.
“And then in that context we would like to see sex work regulated in the way other work is regulated and sex workers being able to form associations and have a context to access workers’ rights and labor rights in general,” said Jen Klamen, 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 taxpayer need to be better protected.
“I think the rights of prostitutes should be taken much more seriously,” she said. I think it should be legalized to be safe.
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