A Supreme Court of Canada decision to dismiss the Application for Leave to Appeal (ALA) of a Niagara-region woman seriously imperils the legal and equality rights of exotic dancers, paid companions, escorts, and sex-trade workers across Canada.
On November 8, 2012, the Supreme Court of Canada announced its decision to not hear the appeal of Ms. Vassel in regard to the decision of Superior Court Justice Lococo in a civil lawsuit brought by Mr. Paul Dagenais against Ms. Vassel in 2010-11 in Welland, Ontario. Judge Lococo had ruled that the preponderance of the evidence presented in court supported the claim of Mr. Dagenais that Ms. Vassel had borrowed at least $125,000 from him over a period of several months. Judge Lococo ordered Ms. Vassel to pay $135,245 to Mr. Dagenais to compensate him for this alleged loan as well as accrued interest and legal costs. Ms. Vassel subsequently appealed the decision to the Court of Appeals of Ontario, which refused to overturn it.
In her ALA to the Supreme Court of Canada, Ms. Vasselargued that the ruinous judgment against her in this case involved grievous errors in law and established “a dangerous precedent allowing a trial judge, animated by apparent subjective bias against a defendant, to render a judgment that attenuates the long-standing principles that the burden of proof rests with the plaintiff rather than the defendant and that the balance of probabilities standard is the sole standard of proof in common law and all civil proceedings.” Ms. Vassel also argued that “the attenuation of these principles implicit in the trial judge’s decision in this case has wide-ranging and patently unjust implications, opening the way to a proliferation of frivolous and malicious lawsuits targeting defendants belonging to groups or occupations deemed to be ‘morally suspect’ by segments of the larger community.”
Ms. Vassel’s ALA contained a detailed analysis of Justice Lococo’s “Reasons for Judgment,” the court proceedings, and the brief Court of Appeals statement upholding theLococo decision. This analysis demonstrates that the judge’s errors in law and lapses in logic were likelyattributable to subjective bias against Ms. Vassel as a “black female exotic dancer” and that “the decisive factor in shaping his decision in the case stemmed most probablyfrom a prejudicial attitude toward [her] occupation as an exotic dancer and sometime paid companion of male ‘customers’.”
Ms. Vassel maintains that the Superior Court judge had a legal and ethical obligation to resist any influence on his judicial reasoning of prejudicial attitudes and stereotypes that are widespread in the community regarding exotic dancing, an occupation that is legal in Canada and governed by specific provincial and municipal regulations.A careful reading of Justice Lococo’s “Reasons for Judgment” suggests that he not only failed to acknowledgethe existence of such prejudicial attitudes, and their bearing on this case, but that he also allowed such attitudes to inform his interpretation of the evidence and his final judgment.
Ms. Vassel has consistently denied borrowing any money from Mr. Dagenais. She estimates that, over the entire period of their involvement, he had given her approximately $10,000, all of which was paid by way of compensation for her time and companionship, both inside and outside the Sundowner Gentlemen’s Club in Niagara Falls.
In rendering his judgment, Judge Lococo stated that he “preferred” the evidence of Mr. Dagenais over that of Ms. Vassel. While acknowledging that Mr. Dagenais had failed to produce any written loan agreement signed by Ms. Vassel, that his testimony was often muddled, hard to follow and inconsistent with well-established evidence, and that Ms. Vassel’s evidence, by contrast, had been clear, straight-forward and free of inconsistencies, the Superior Court justice nevertheless accepted the “thrust” of Dagenais’ account while rejecting Ms. Vassel’s. He also displayed little hesitation or circumspection in effectively ordering Ms. Vassel to liquidate her modest assets to compensate Mr. Dagenais for “loans” that she insists were never made.
Mr. Dagenais passed away in 2011. Since the initiation of the lawsuit, Ms. Vassel has suffered increasing financial hardship. Lacking sufficient funds to retain an attorney, she was obliged to prepare her ALA to the Supreme Court with the assistance of friends.
The decision of the Supreme Court of Canada to deny her aLeave to Appeal deprives Ms. Vassel of her last juridicalavenue to fight an unjust judgment that raises many serious issues of national public importance. In effect, the Courthas dismissed a challenge to what is a precedent-settinginfringement on the fundamental rights of a vulnerable woman, working in a socially stigmatized occupation, to equal protection under the law– a principle enshrined in Canada’s Charter of Rights and Freedoms and one that isegregiously compromised by the Lococo judgment.