The Legality of Kink: Canada
Is kink or BDSM legal in Canada?
Canada’s Criminal Code offers little guidance to a clear answer of whether kink & BDSM are legal, but has created legal boundaries around concepts like obscenity and consent.
Canadians still face obstacles to comprehensive sex education and sexual rights, as outlined by Action Canada, a charitable organization whose mission includes “advancing and upholding sexual and reproductive health and rights in Canada and globally.” Despite this, Canada permits sex and swingers clubs in every province making it much more accepting of sexual expression than its southern neighbour, the United States.
A number of historic court cases have influenced the ways in which Canada’s legal system addresses sex, consent, and one’s sexual preferences and orientation.
“Obscene Matter” and the Community Standards Test in Canada
Since its creation in 1892, the Canadian Criminal Code has addressed “obscene matter”, specifically in the context of morality.
The original definition of what constituted obscene matter was based on the Hicklin Test, a decades-old legal mechanism used by England since 1857. This test argued that the obscenity of given content could be defined by the likelihood it had to “to deprave and corrupt those whose minds are open to such immoral influences”, though an explicit definition of “obscene” wasn’t incorporated into the Code until 1959.
Just two years after the US Supreme Court defined obscenity, Canada amended its Criminal Code to define ‘obscene matter’ as
any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence. (s163.8)
Mirroring the United States, the Supreme Court of Canada refined its definition by applying community standards in the 1963 case, Dominion News & Gifts Ltd. v. The Queen. The Supreme Court made an important distinction from the United States however, stating that
“In applying the definition in the Criminal Code, we must determine what is obscene by Canadian standards, regardless of attitudes which may prevail elsewhere, be they more liberal or less so."
As cases were heard in continuing years, Canadian community standards came to also include a test of tolerance, but not in terms of what individual Canadians might find tolerable to see. Rather, it was a test of what Canadians could not abide because it would go against agreed upon standards of Canadian society (1985, Town Cinema Theatres Ltd).
R. v Butler (1992) later tied community standards to the harm of women (and sometimes men) through the distribution of porn. The Court determined that the standard of tolerance is determined by the likelihood of harm.
In 2018, repeals to section 163 of the Code omitted selling, advertising, or publication of materials related to abortion or miscarriage, as well as any that represented a means for restoring sexual virility or STD/STIs.
One of the legal grey areas in section 163 relates to public exhibitionism, specifically of “a disgusting object or an indecent show.” Exhibitionists and voyeurs alike should keep this in mind when planning events or other engagements that may potentially run counter to current legal community standards in Canada.
Consent to Harm in Canadian Law
Canadian kinksters should be aware that under current law, a person cannot consent to bodily harm.
This means engaging in S&M activities, rough sex, or anything that might leave a mark on the body of you or your partner, means you run the risk of facing legal repercussions if you’re brought to court. What’s more, you may also face sexual assault charges.
In 2013, the Ontario Court of Appeals outlined a test for determining sexual assault causing bodily harm in R v Zhao. These all hinge on intention.
The accused intentionally applied force to the Complainant
The intentional application of force to the complainant took place in circumstances of a sexual nature so as to violate the complainant’s sexual integrity
The intentional application of force in circumstances of a sexual nature caused bodily harm
If the accused intended to inflict bodily harm upon the complainant, then consent is irrelevant, and the accused is found guilty of sexual assault causing bodily harm
If the intent is not proven, the court must consider whether complainant did not consent to the intentional application of force
Exceptions exist to these rules, the most notable being professional sports. For example, boxers may mutually consent to harming one another, as the Supreme Court holds such things to be in alignment with public interest and community standards.
When the use of societal norms and standards are used to structure laws, it’s no surprise that BDSM and kink would fall outside of such values.
Legal Precedents Involving BDSM
R. v Welch (1995)
This case is one of only a handful in Canadian legal history that address sexual activities involving giving or receiving pain.
In this appeal, a 46-year old woman testified to being tied up at the appellant’s residence where he beat her and sexually assaulted her through forced penetration of her vagina and rectum. It was her position that these things were done without her consent.
Whilst the appellant did not deny the actions that had taken place, he did claim that everything he had done was not only consented to, but asked of him and indeed encouraged by the woman. Though the court ultimately recognized that this was not a mutually consensual encounter, the more wide-reaching decision was that even if it had been, it would have been illegal:
“Although the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour.”
Such a ruling sets a significant setback for both sides of the slash.
Those who consent to being hurt have their autonomy removed by the decisions of the court, which are based on social morals and not on individual freedom as the law argues. D-types must likewise be willing to be labeled as sexual predators in any cases that involve mutual consent.
As we’ll see in the next case, even mutual consent is not a valid legal defence, though the case itself has a number of issues.
R. v. JA (2011)
This case addressed the concept of granting advance consent to sex while unconscious, specifically in the context of breath play (erotic asphyxiation).
The background facts of this case tell of a female partner (K.D.) and her male partner (J.A.) who engaged in kink activities on a regular basis. At trial, K.D. testified that she and J.A. had engaged in erotic asphyxiation, during which J.A. had strangled her until she lost consciousness. It was in that period of unconsciousness that J.A. had inserted a dildo into her anus.
K.D. claimed at trial that she had consented to every activity, but this was contrary to her police statement, which claimed that the anal penetration had been non-consensual.
Whilst there is absolutely an argument to be made that the court should have looked more closely at why her testimony changed, the focus of this case was more on whether or not a person can legally consent to sexual activity before it occurs, specifically in a period of unconsciousness.
The decision in this case was a resounding “no”, as the court determined that unconsciousness negated any previous expressions of consent.
Overall, kinky Canucks should bear in mind that BDSM activities come with legal risks as well as physical ones.
The positive flipside is that Canada is largely a sex-positive and welcoming country for sexual exploration.
Across every province, Canada is full of sex and BDSM clubs, events, and playspaces.
Laws may exist, but it’s clear that Canadians don’t seek to be defined by them.
