The applicants, charged with gang sexual assault and other offences, brought a constitutional challenge to the common law principle that a person cannot consent to the intentional infliction of bodily harm during sexual acts, including BDSM.
They argued this principle, particularly as affirmed in R. v. Zhao, violated their Charter rights to freedom of expression (s. 2(b)), liberty and security of the person (s. 7), and equality (s. 15).
The court dismissed the application, finding that violence is not a protected form of expression, that the right to liberty does not extend to inflicting bodily harm, and that BDSM is not an analogous ground for discrimination under s. 15.
The court upheld the common law principle as constitutional and justifiable under s. 1 of the Charter.
