“Consent for the purposes of sexual assault is defined in s. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question”. This suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind.  As discussed below, this Court has also interpreted this provision as requiring the complainant to consent to the activity “at the time it occur[s]” (Ewanchuk, at para. 26).”

Thus, the lines of sexual assault in their basic written form are seemingly clear: if you do not consent at any point during sexual activity but it is forced upon you – the act of sexual assault has been committed and the issue would turn to whether the offender had the mens rea or intent to commit the assault. However, when we dig a little deeper into the realm of sexual assault causing bodily harm, the tides shift and consent becomes a much more complex and contentious issue.

For argument’s sake, let us pretend the Police have charged Mr. Ghomeshi with sexual assault causing bodily harm. From his Facebook post, we can predict Mr. Ghomeshi would claim the complaint resulted from “sexual practices that are mutually agreed upon, consensual, and exciting for both partners.” Though that may be true in the eyes of Mr. Ghomeshi, Canadian jurisprudence is looking at a very different picture.

The intentional infliction of bodily harm is off limits.

Though to an extent it is true that exploring one’s sexual preferences is a right (noting obvious exclusions such as beastiality, pedophilia, non-consensual sex, etc.), BDSM can at times fall into a forbidden territory when physical harm arises from consensual sexual activity. The law hinges upon the aggressor’s intention. In essence, if it were proven that Mr. Ghomeshi intended any resulting harm from consensual acts of BDSM (i.e., bruising, etc.), the consent of the person whom the harm was inflicted upon is rendered null because intentional bodily harm vitiates consent. The Ontario Court of Appeal in R v Zhao outlined the test for determining what constitutes sexual assault causing bodily harm , all steps requiring proof beyond a reasonable doubt, to be as follows:

1. The accused intentionally applied force to the Complainant
2. 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
3. The intentional application of force in circumstances of a sexual nature caused bodily harm
4. 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
5. If the intent is not proven, the court must consider whether complainant did not consent to the intentional application of force

The court in Zhao went on to state in paragraph 108 of the decision:

“…consent is not vitiated in all circumstances of sexual assault causing bodily harm, but instead only in those circumstances where bodily harm was intend and in fact caused. Where the accused did not intend to cause bodily harm, consent is available as a defence, if bodily harm is inadvertently caused.”

In other words, Mr. Ghomeshi’s claims of consent or potentially, mistaken belief in consent, is a valid defence to the charge of sexual assault casing bodily harm if and only if the he lacked the subjective intent to cause bodily harm to the alleged victims.

What about sports and violence? Or, bodily harm and “social value”

There are obvious and necessary exceptions to this broad and over-reaching rule of vitiated consent in cases of assault causing bodily harm. It is unfathomable that a professional boxer could justifiably make a formal complaint to Police about the black eye he received fighting in last night’s match. This very point has been expressly decided by the courts; specifically, the Supreme Court of Canada concluded in R v Jobidon:

“Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game.  Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile.”

The court’s majority determined that some forms of intentionally applied force will clearly fall within the scope of the rules of the game, and will therefore readily ground a finding of implied consent, to which effect should be given.  On the other hand, very violent forms of force which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent.

These exceptions center around the “social value” of the assaultive activity. In the case of Jobidon, public fist-fights and brawling were reasonably viewed as being contrary to the public interest in situations where adults begin to “willingly cause harm to one another without good reason.”

Applying this rationale to the notion of BDSM, one can conceivably make policy-based arguments centering around the belief that there is an  inherent social value in legalizing the infliction bodily harm during sexual acts where there exists the explicit and continuous consent of all parties. This is particularly true given the present era’s celebration of sexual expression and freedom. On the other hand, the lines become a much blurrier shade of grey when one attempts to balance this freedom of expression and right to explore sexual preferences with the potential for increased risk of harm and violation of bodily integrity facing parties, especially historically vulnerable groups, engaging in BDSM.

It is not just about factual consent (assuming that is true), it’s also about what the law tolerates.

Though Mr. Ghomeshi’s sexual preferences are indeed his own, he did issue a public statement via Facebook in which he voluntarily admits his participation in consensual “unsavory aggressive acts in the bedroom” and that his “tastes in the bedroom may not be palatable to some folks. They may be strange, enticing, weird, normal, or outright offensive to others.” Though this post does not lend detailed and graphic images of sadistic violent sexual acts, it does lend a reasonable inference that Mr. Ghomeshi engages in some forms of BSDM, which by definition is sexual gratification that in some cases includes the intentional infliction of pain. Furthermore, the Toronto Star has written that active police investigation of Mr. Ghomeshi’s alleged assaults has yielded graphic videos that potentially depict what Mr. Ghomeshi refers to as “consensual bruising.” If a court were to find that Mr. Ghomeshi did intend said bruising, they would likely brush aside his current defence claims of “consent” as consent in that context simply does not exist in Canada.

In an attempt to paint a clearer picture of both an intellectually and ethically challenging issue, Canadian law in a sense states that even if one desires a wound, one cannot legally consent to that wound. This giving and taking of painful, sadistic sex, consensual or not, creates a major paradox that cannot seemingly balance the desires of sexually progressive and liberal persons “consenting” to harmful sadistic acts with the law’s desire to protect vulnerable persons and society in general from physical harm.

Nonetheless, it creates quite the conundrum for those practicing consensual BDSM, given that under the Criminal standard it may be legal to engage in aggressive, painful sexual acts – as long as you are not leaving an intentional mark.