The short answer is: it depends.
While there is no law in Canada that prohibits BDSM, many BDSM activities could be criminal, even if everyone involved has agreed to the activities. In particular, two main legal principles can make BDSM activities criminal in Canada:
- A person cannot legally consent to another person intentionally causing them bodily harm.
- Consent must be continuous, freely given and contemporaneous with the act.
This blog will explore those principles in the BDSM context.
What is BDSM?
BDSM refers to the practices of Bondage and Discipline; Dominance and Submission; and Sadism and Masochism. It generally relates to a wide range of sexual activity involving role-playing in one of the BDSM practices. BDSM practices may encompass physical restraint through bondage, sensory deprivation activities such as blindfolding, explicit verbal or physical expressions of dominance and submission, and corporal punishment such as spanking and flogging.
A Person Cannot Consent to Bodily Harm in Canada
In Canada, a person cannot consent to bodily harm, even if that person genuinely and freely agrees to the harm. This section will review that principle and the definition of “bodily harm” as they apply to BDSM. (Bodily harm related to medical surgeries, stuntmen, or sporting activities is not discussed.)
The principle that a person cannot consent to bodily harm in Canada was articulated in R. v. Jobidon, a 1991 case from the Supreme Court of Canada. The court held that non-trivial bodily harm in the course of a fist fight negates consent. In other words, two people can consent to a fist fight but not to bodily harm in the course of that fist fight.
In B.C., the courts have extended this principle to the context of sexual assault, holding that the intentional infliction of bodily harm vitiates consent during otherwise consensual sexual activity. People cannot consent to the intentional infliction of bodily harm in the course of sexual activity. This means that it is legal to participate in BDSM, so long as the participants are consenting and do not intentionally inflict bodily harm on one another.
This law has legal implications for BDSM practitioners because the definition of bodily harm in Canadian criminal law is very broad. Section 2 of the Criminal Code of Canada defines bodily harm as:
Any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.
What constitutes bodily harm is a low threshold. Even minor bruises, welts, or redness can meet the definition for bodily harm. Some BDSM practices may involve intentional bodily harm. Those practices would thereby be illegal. For example, two people may agree to flogging with the intention that it leaves welts on the skin. That activity would be criminal because the welts are bodily harm, and the intentional infliction of bodily harm negates any consent given by the parties. Sexual activity without consent is sexual assault.
While this has been the law for many years, at least one judge has expressed concern about this principle in the BDSM context. In the recent case of R. v. Pearson, a 2025 case of the Ontario Superior Court of Justice, the judge highlighted an example involving a married couple engaging in spanking:
[81] As discussed above, both the Crown and Defence advanced arguments and called experts regarding whether the law should be changed such that certain BDSM practices ought not to fall under the category of activities to which a person cannot consent to bodily harm. The issue is whether the law on consent to bodily harm, as it currently stands, reflects today’s social norms, practices and values or should be changed to do so. Although I need not decide the matter, I would note that the Defence has put forward a compelling case that the matter should, at a minimum, be re-examined.
[82] As the law stands now in Ontario, a person cannot consent to the infliction of bodily harm in the context of a sexual relationship. The standard of bodily harm is not a high one. Bodily harm is defined as any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. I have emphasized the disjunctive nature of the definition—“hurt or injury”, “health or comfort”, “transient or trifling”—to demonstrate the wide spectrum of situations that are potentially captured.
[83] It will not be uncommon in BDSM to intentionally leave marks that would meet this definition. One such scenario was put to the Crown expert, Dr. Dominique Bourget. The following exchange occurred in cross-examination:
Q. Okay, so, I’ll give you a BDSM hypothetical where two people who are, have no mental health issues, they’re in a long serious relationship, have been married for 30 years, they engage in consensual spanking on the buttocks, that they both intend would leave some redness, which fades completely after about four or five days, okay? Is it your opinion your psycho(sic), you know, your, your, your expert opinion that under no circumstances should those people be allowed to engage in that behaviour?
A. No.
Q. Okay, in your opinion, that would be something that people should be able to consent to based on all of your research?
A. Yes, that is something that, I, I, I don’t see, unless somebody has a concern that one of the partners does not have the capacity to consent, I do not see that the law would want to intervene in a situation like this.
Q. Sorry, or, or more correctly you don’t see, based on your clinical and research experience why that, why that should be prohibited by the law, is that fair?
A. Correct.
Q. Okay. And just to extend that a little bit further, if the same, that same couple, married couple engaged in spanking which left redness for seven or eight days, you’d have the same opinion, correct?
A. I have a, I have the same opinion, if there’s no – especially if there’s, neither of them complained about it to police.
Q. If both of them were consenting in other words, correct?
A. Exactly, if they were both consenting and not making a complaint because it went too far or there were other issues that – but I think that these are fair examples of, you know, a stable couple consenting activities and between the two of them in their, in their own bedroom.
[84] The Crown expert did not view the conduct in the hypothetical scenario as worthy of criminal sanction. And yet such conduct would almost certainly meet the definition of bodily harm. The result would be a conviction for sexual assault, with all of the serious repercussions that stem from that.
In the scenario before the court, a married couple of 30 years would be guilty of sexual assault if they engaged in spanking intended to leave redness. Although the court’s commentary was not binding or law-making, the court took the time to highlight this example as an application of the criminal law that may not accord with modern, Canadian values and sensibilities.
Consent Laws Are Strict and Complicated
The rules around sexual consent in Canada apply to everyone, but some specific issues come up more often in BDSM. This is a review of those specific issues and is not an exhaustive list of the rules surrounding consent.
1. Consent Cannot be Given in Advance
Consent must be given at the time of the sexual activity. Section 273.1(1.1) of the Criminal Code states:
Consent must be present at the time the sexual activity in question takes place.
Saying “yes” in advance is not consent at the time. Signing a BDSM contract in advance is not consent at the time. Even if someone says earlier that they are okay with being tied up or spanked later, they must still consent at the time the sexual activity takes place. For example, if two people agree on Monday that one person will be tied up with a scarf on Friday, Canadian law still requires active consent at the time of the activity. The couple must confirm consent at the time the sexual activity takes place.
2. Consent is Continuous and Ongoing
Consent may be withdrawn at any time. If a person withdraws their consent and the sexual activity continues, that may be sexual assault. For example, if during a BDSM activity one person says “stop” or otherwise indicates their non-consent, the other person must stop, even though they had just agreed to the activity minutes or seconds earlier. The earlier agreement does not mean that the activity can continue; consent can be withdrawn at any time.
A person must also be capable of withdrawing their consent at any time. In the case of R. v. J.A., a 2011 decision of the Supreme Court of Canada, the court held that individuals have the right to change their minds at any point during sexual activity. This means that there is no consent where a person is incapable of withdrawing their consent. For example, even if one person agrees to briefly lose consciousness during the course of sexual activity, and agrees to any sexual activity that occurs while that person is unconscious, that person is not capable of withdrawing their consent while unconscious and, therefore, there is no legal consent. In other words, sexual activity with someone who is unconscious is unlawful, even if that person agrees to sexual activity while unconscious.
3. Consent Cannot Be Forced Or Made On Behalf of Someone Else
Consent given under duress or out of fear of violence is not real consent. Section 265(3) of the Criminal Code states:
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
BDSM practices may involve relationships with significant power imbalances or intense role-playing. If one participant consents to an activity out of a fear of violence or because of violence, real or threatened, then there is no legal consent. Additionally, consent cannot be given on behalf of another person. For example, a husband cannot give consent on behalf of his wife, and a role-playing “master/mistress/dominant” cannot give consent on behalf of their “slave/submissive.”
Conclusion
The law surrounding sexual assault in Canada is complex. BDSM practices can make things even more complicated.
Moreover, a charge of sexual assault can be prosecuted years after it was alleged to have occurred. Sexual assault is a criminal offence that may be prosecuted indictably, and there is no limitation period in Canada for indictable criminal offences.
If you or someone you know is being investigated for sexual assault, it is important to speak to an experienced lawyer. The lawyers at Filkow Law are frequently retained for their expert advice in all aspects of a sexual assault case, including consent and bodily harm.
