BDSM in Canada is 50 shades of legal grey

With the help of the Fifty Shades of Grey phenomenon, bondage, domination and sadomasochism have hit the mainstream.

Yet the practice of BDSM  is largely misunderstood and falls into a legal grey zone.

Under current Canadian law a person cannot consent to physical harm, says University of Toronto law professor Brenda Cossman, though there are a few obvious exceptions.

Activities that are seen to have broad social value are considered acceptable, which is why many sports allow participants to hit and hurt other participants. Boxing and hockey are good examples of this.

Tattooing, piercing and other kinds of body modification are also accepted because they are seen to have cultural value.

But BDSM isn't given the same legal consideration as sports or body-mods.

"Bodily harm is defined as something that interferes with the health and comfort of a person that is more than transient or trifling," says Cossman. "So someone being whipped and there are bruises left, that would fall under the definition of bodily harm -- so it would be assault causing bodily harm."

Initial consent

In Canada, even if the adults participating consent to BDSM-related activity, the courts have ruled that the initial consent is vitiated by the fact that there was physical harm involved.

In 1995, the Ontario Court of Appeal ruled in a case called R. vs. Welch that, even if the victim had consented, "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."

For her part, Cossman argues that the law has no business in the bedrooms of the nation if the activity between adults is clearly consensual.

"I want to draw a big fat red line between consent and non-consent, and that if the intimate activity is consensual I want the criminal law out," she says.

The 'kinky' people

While statistics measuring sexual practices are hard to come by, the loose consensus is that about one in 10 people in North America have at one time or another engaged in some form of BDSM activity -- from spanking or tying up a partner, to whipping or full body suspension.  

The Kinsey Institute, at Indiana University, has reported that one in 20 adults regularly engage in BDSM.

BDSM educator and PhD student Andrea Zanin points out that law enforcement generally doesn't busy itself "targeting the kinky people." She underscores that for any kind of sex, and for BDSM in particular, communication and ongoing consent are key.

"For me, consent is a basic," says Zanin. "Consent is 'do you want to do X?' and if the answer is 'yes', that's consent.

"But that's a starting point in BDSM and sex in general," she says. "It's important to have a 'yes' that's not just a technical agreement, but a 'yes' that's informed, 'yes' that is enthusiastic and, ongoing, a 'yes' that is competent."

Cossman adds that the case law around consent to harm within a BDSM context is subject to change. It may well take another court case to sort out where the legal grey zone ends.

CBC Radio: Ideas

What we're allowed to consent to under Canadian law is deeply fraught territory. It gets especially complex when the question of sex enters the equation. Ideas producer Nicola Luksic explores what we can and cannot consent to under the eyes of the law in her two-part radio documentary, Consent to Harm. Listen to Part 1, covering sports and body-modification. Listen to Part 2 covering activities such as BDSM on Feb. 26 at 9 p.m., or stream it here.