Legal action update 4: Our first win!

Photo by Bill Oxford on Unsplash

After waiting since our day in (virtual) court in December 2020, we were excited to finally receive a decision regarding our motion for anonymizing our affidavits this past week. Even better: the judge ruled in our favour! Justice Favreau of the Ontario Superior Court of Justice granted an anonymization order, which means that the names of the strippers who submit affidavits for our judicial review will be redacted in court documents made available to the public, and will be replaced with initials that are not the initials of their legal names. As explained in Legal Action Update 2, strippers face significant risks if their identities are made publicly available. The court was satisfied that we “demonstrated risk of harm that is more than speculative and more than embarrassment or humiliation” (WSTS v. Ontario 2021, para. 29), referring in particular to the risks of reprisal from management, as well as loss of mainstream/square employment or employability and risk of negative attention from child protection authorities, both of which are informed by stigma.

In addition to acknowledging the risks posed by stigma, and the fact that anonymizing the affidavits will allow us to move forward with the judicial review, the decision also has some other exciting elements worth highlighting. The first is the recognition of the increased risk of exposure posed by the internet. The Crown counsel for Ontario had referred to a 2005 decision, Adult Entertainment Association of Canada the Nuden v. Ottawa, in which an anonymity order was being sought for 45 strippers who wanted to file affidavits under the name Jane Doe. The judge in AEAC v. Ottawa (2005) declined to grant strippers anonymity on the basis that “it is apparent from many of these affidavits that the performers are single and without family connections and many do not reside in Ottawa” (para. 15), concluding, “There is at least a reasonable possibility that some of the forty-five (45) performers who have filed Jane Doe affidavits could properly identify themselves without risking any of the adverse consequences referred to in the affidavit of “C.D”” (para. 16) – the one affidavit referencing risks posed by stigma. But, in 2021, Justice Favreau agreed that the internet has changed the privacy landscape considerably since 2005, at which time “the proposed affiants’ ties to Ottawa may have seemed relevant. However, in 2021, as argued by Work Safe, the internet greatly diminishes the relevance of geography in determining the risks of public identification. Once the strippers’ names are made public, as a matter of common sense and logic, that information is available to the world” (WSTS v. Ontario 2021, para. 26).

It’s important to note that AEAC v. Ottawa (2005) was a challenge to the city’s proposed new bylaws that was brought forward by a group of strip club owners. As a result, only one of the 45 affidavits in that case highlighted the importance of anonymity, articulating the risk of stigma in terms of implications for strippers’ children and family connections. In turn, the judge concluded that “the risk of embarrassment or the existence of a legitimate privacy interest will not justify an anonymity order or a publication ban, nor will potential harm that is merely speculative” (AEAC v. Ottawa 2005, para. 16). In contrast, as a group of workers, we are undertaking the present judicial review in large part to force management to improve occupational health and safety practices we find woefully inadequate. Because we are instructing our counsel directly – in contrast to AEAC v. Ottawa (2005) in which it was the strip club owners who had hired legal counsel – we were able to provide more expansive examples of how strippers are affected by stigma and the risks it poses, including the risks it poses to our income and employability. In other words we were able to speak to stigma as a labour issue. In turn, the decision acknowledged that we are bringing forward a matter of public interest, and in so doing recognized stripping as work: “what is at stake is access to the court on matters involving the livelihood and safety of strippers. Employment and the ability to work safely are matters integral to personal autonomy” and are thus “matters of public interest” (WSTS v. Ontario 2021, para. 20).

Perhaps another example of how times have changed since 2005 is that, in AEAC v. Ottawa, a local newspaper had intervened to oppose the anonymity order, however no media appeared to participate in our hearing, despite being given notice of our application, which is standard practice when a publication ban is being sought. This is consistent with our experience with the media over the last few months insofar as most journalists respect our requests for anonymity in interviews (we refuse interviews with those who would not allow pseudonyms).

Another element of the decision we are excited about is a footnote on the first page stating that our counsel advised the judge that we prefer to be referred to as strippers; the decision then goes on to refer to the strippers throughout. We want to make it clear that we had, indeed, specified that this is how we would like to be described – it’s what we call ourselves and each other; it is the term we use most in our daily lives; and it is not a euphemism or trying to be classier or more polite. We – the strippers! – are excited by the prospect of the courts using this term going forward in the judicial review because it respects our autonomy to define our work in our own terms.

Finally, we are excited by the potential future implications of this decision. The law works through precedent, and this decision set a new precedent in recognizing the risks of stigma in the contemporary context of the internet and how it affects daily life and privacy, and in granting strippers anonymity on this basis. We hope this will prove useful in future legal actions brought forward by sex workers, who will be able to refer to the Work Safe Twerk Safe v. Ontario decision to argue that they, too, deserve the protection of anonymity to prevent stigma and its various and significant implications.

In short, we are excited that the decision on our motion for anonymity acknowledges the self-knowledge and self-protection strategies of marginalized communities.

Now, we move forward with the judicial review. The anonymization decision took three months, so it may be a long haul going forward, but we hope strippers, other sex workers, and allies will continue to follow and support our legal action. Our GoFundMe is still needed and ongoing, so please donate if you haven’t yet or pass the link along to your contacts or through social media if you already have.

Thanks, as always, to our lawyer Naomi Sayers for arguing on our behalf in court, as well as to her co-counsel Christopher Folz – we could not have made it so far without them, and we are excited to continue the judicial review without risking outing our affiants and exposing them to the risks detailed above.

Cases cited

 Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100 

Adult Entertainment Association of Canada the Nuden v. Ottawa (City), 2005 ONSC 16571

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