A contract is a contract: Halifax lawsuit shows why sex workers need legal protections

Illustration: HR Law Canada
By Meredith Ralston, Mount Saint Vincent University

A sex worker in Halifax has successfully sued a client who refused to pay for her services. The defendant had tried to argue that because purchasing sex work is illegal in Canada, denying payment was not fraud because a contract cannot be enforceable.

However, the court found in favour of the sex worker. The case sets a historic precedent for sex workers to be able to enforce contracts for sexual services, even if paying for sex in Canada is illegal.

This case demonstrates that a contract is a contract. As court adjudicator, Darrell Pink wrote:

“If civil aspects of federal tax law are applied to sex workers regarding their business earnings, as they are for all businesses, then the full range of legal principles applicable to a business, including the law of contract, apply to sex workers, along with the remedies for a breach of commercial or contractual obligations.”

If sex workers have to pay taxes and have all the other burdens of business and employment, then surely their contracts have to be honoured as well.

Flawed legal system

The ruling also demonstrates how fundamentally flawed Canada’s asymmetrical sex work laws continue to be. The Protection of Communities and Exploited Persons Act (PCEPA) was brought in by the Conservative government in 2014. It makes it legal to sell sex, but illegal to pay for sex. This means the law still ensures that sex work itself is in a grey area of criminality.

Being in that grey area means sex workers are at a disadvantage when they have been the victim of a crime or defrauded. It is this grey area that allowed the defendant in this lawsuit to claim there was no contract because his activity is illegal.

However, the adjudicator ruled that the client had accepted the sex worker’s terms. “What was agreed upon was the payment of $300 per hour for the time the claimant spent with the defendant.” The sex worker stayed approximately seven hours and was therefore owed $2,100. At the time, the client paid her only $300 but has since paid her the remainder.

Sex workers stereotyped

The contents of this particular contract might surprise some people who are not aware of the lived realities of many sex workers, particularly escorts. Sex workers are often all portrayed as survival sex workers who are desperate and victimized. Trafficking is a serious issue and does occur in Canada, however, the majority of sex workers in the western world do sex work voluntarily.

I interviewed about thirty escorts as part of my research on sex work in North America. Far from being victims, as assumed by Canada’s current laws, the escorts I interviewed had agency, made good money and wanted sex work for consensual adults to be decriminalized fully. They argued laws on prostitution make their lives harder because their so-called “victimhood” is based on a false dichotomy.

As Lucy, an escort from the U.S. midwest, stated:

“I think the unfortunate part of the public perception of sex work is based on two factors and that’s what they see sensationalized either through the trafficking stories and the horrific stories of women or children, you know, being forced to do things against their will or the glamorized, sensationalized, high dollar, hottie, call girl specials, exposes or scandals with politicians… And those are the spectrums, the bottom end and the high end of it, and there’s this huge area in between that we never see.”

Lucy has many ways of ensuring her agency, safety and payment. She has strict protocols about potential clients. Most are regulars and she has a rigorous screening process involving the client’s personal and credit card information.

“I plan in advance and if somebody calls me out of the blue and wants to get together for a date, I don’t accommodate those types of clients… From a liability standpoint, I feel that it’s less likely to have problems with law enforcement if I am scheduling in advance and making them schedule in advance, send me a deposit, that kind of stuff, because most of the time law enforcement is looking for desperate low hanging fruit and they’re looking for people who are going to make mistakes in their screening and usually that’s done at the last minute.”

Notice that her main worry is law enforcement. That was also a common concern among other sex workers I interviewed. Because sex work is in a legal grey area, sex workers do not feel they can go to the police when there is a violent or fraudulent client and they worry about police officers themselves.

As another escort I interviewed, Amanda, explained:

“Two plainclothes police officers called me and another girl to their hotel room, they had adjoining rooms. I had sex with the first person and then they said, ‘hey, you know, you can make an extra couple hundred dollars if you want to switch.’ So we switched and then we were both arrested afterwards. That is illegal… you don’t get to have sex and arrest me, that’s such a violation of my human rights. But it happens all the time.”

Decriminalization

Many scholars have argued in favour of decriminalizing adult, consensual sex work. However, the federal Liberals (who argued against PCEPA while in opposition because the act replicated the harms of previous laws struck down by the Supreme Court) have little incentive to support decriminalization because of the vocal opposition of anti-prostitution activists.

There is also little incentive for change because the public only hears the litany of negative stereotypes about sex work. As Lucy said:

“We’re conducting adult business behind closed doors in the privacy of our own bedrooms and it’s nobody else’s business. But beyond that, because of the stigma of it, of course we’re also not allowed to talk about it. So even for those of us that have a great working experience… there’s not a lot of opportunities or outlets for us to talk about that publicly with people that are not involved in sex work itself and talk about that honestly. And so no one hears those stories.”

Stories like those of Lucy and Amanda need to be told so that sex workers’ rights to bodily autonomy and their right to work are respected. This case will hopefully encourage the government to revise Canada’s prostitution laws to allow all workers the same rights and protections, including sex workers.

Meredith Ralston, Professor of Women’s Studies and Political Studies, Mount Saint Vincent University

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