Court File and Parties

COURT FILE NO.: CR-22-5550 DATE: 2023-11-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – DANNY WOLTERS AND JACOB MENARD (Co-Accused with Rinaldo Longo and Dylan Wolters) Applicants

Counsel: Emily Bala, Jennifer Holmes and Filareti Perivolaris, for the Respondent Crown Bobby Russon, for the Applicant Wolters Benjamin Strickland, for the Applicant Menard

HEARD: November 14, 15 and 18, 2023.

DECISION ON A CONSTITUTIONAL QUESTION

THOMAS, J. :

[1] The applicants are charged along with two co-accused with gang sexual assault, assault with a weapon, unlawful confinement, choking and administering a drug to commit sexual assault.

[2] The applicants bring a notice of constitutional question in the following form:

The Applicant questions the validity of the common law principle that a person cannot consent to the intentional affliction of bodily harm while performing sexual acts that of Bondage, Discipline, Domination, Submission, Sadism, and Masochism (“BDSM”).

Further, the Applicant questions the validity of the common law principle that acts of BDSM are not part of a generally approved social purpose, such that a person cannot consent to the intentional affliction of bodily harm while performing sexual acts that fall under the umbrella of BDSM.

Background

[3] The applicants have elected trial by judge and jury and so it is appropriate for me to determine the constitutional questions in order to properly instruct the jury on the law to be applied to the facts they find, and in addition, to allow the accuseds that same opportunity.

[4] On the record before me, I am able to find the following facts for the purpose of informing these applications:

1. At the time of the conduct in question on April 19, 2020, the complainant was a 17-year-old female who went to meet one of the accused.
2. Some or all of the accused variously engaged in sexual activity, including oral, vaginal and anal sex with the complainant.
3. The complainant was struck with a paddle and a heated butterknife by one or more of the co-accused. The heated knife caused second and third degree burns to her breast and buttocks.
4. The accused applicants maintain that these acts were BDSM sexual activity.
5. The accused maintain that the complainant consented to all the sexual activity. The Crown’s position is that she did not subjectively consent to any activity and further that she lacked the capacity to consent due to intoxication.

Expert Evidence

[5] The applicants called Dr. Charles Moser to provide expert opinion evidence in the area of BDSM (Bondage, Discipline, Domination, Submission, Sadism, and Masochism).

[6] Dr. Moser holds a B.Sc. in Physics, a Masters in Social Work, a Ph.D. in Human Sexuality and a degree as a Medical Doctor with an internship in internal medicine, all granted by American Universities. He is presently employed in San Francisco, practicing internal medicine and sexual medicine.

[7] Dr. Moser has authored and co-authored a wide array of publications on BDSM and other topics related to sexual conduct, many of which were peer-reviewed. He has been previously qualified by Courts in the United States and Canada as an expert in BDSM.

[8] After a voir dire and with the consent of the Crown, I qualified Dr. Moser as an expert in BDSM, Sexual Health, Sexual Paraphilia, Kinks, Sexual Orientation, Sexual Identity and Gender Identity.

[9] It is apparent that the applicants provided the evidence of Dr. Moser to support the assertions that BDSM is commonly practiced and has a valid solid purpose, and that BDSM is an entrenched and immutable human quality and a form of expression.

[10] Dr. Moser’s evidence included nine individual opinions set out below:

Opinion #1: BDSM activities can be a form of expression, that can encompass physical, verbal, sexual, artistic, visual, poetic, social and political expression.

Opinion #2: BDSM practitioners are no more likely to engage in unwanted violence than practitioners of non-BDSM sex; rather, it is generally believed that because of the focus on consent and communication, they are less likely to.

Opinion #3: BDSM activities are widely practiced. The results vary greatly depending on the sample, the wording of the questions, and options presented.

Opinion #4: There is a subset of BDSM practitioners who enjoy being burnt or branded, and who enjoy burning or branding others; common areas are buttocks, thighs, and pubis.

Opinion #5: People who engage in BDSM activities view their engagement as an equally important part of their identity as members of the LGBTQ+ community view their sexual orientation. Some argue that BDSM is a sexual orientation and more important than the other sexual identities they have.

Opinion #6: People who engage in BDSM activities view their engagement as an equally important part of their identity as members of the LGBTQ+ community view their gender identity.

Opinion #7: BDSM activities have significant social value to the people who practice them. it is comparable to the social value of many sexual acts (heterosexual or homosexual), a sign of commitment, satisfaction, closeness, etc.

Opinion #8: BDSM activities have significant social value to the people who observe them. in a similar way to why explicit media, romance novels, video games, or contact sports are popular for people.

Opinion #9: Many elements of BDSM do not involve any potential for physical harm. These include the concepts of obedience, direction, asking permission, dominant and submissive communication.

[11] I accept that Dr. Moser has a deep knowledge of BDSM, Sexual Health and Paraphilias. I take from his evidence that BDSM is practiced widely by an undetermined percentage of the adult population. Further, that the term BDSM captures a vast array of sexual activities and interests, some of which involve the infliction of pain and physical harm, while many do not. The most common aspect in BDSM is the erotization of a power exchange between participants.

[12] I also accept Dr. Moser’s evidence that some in the BDSM “community” view their commitment to BDSM as their sexual orientation.

[13] Dr. Moser’s evidence provided a generalized view of the practice of BDSM, particularly in the United States. His supporting studies most often relied upon surveys of the organized BDSM community in the United States, and therefore were of limited value in assessing the practice of BDSM. The majority of participants choose to refrain from participating in semi-public activities and member organizations and elect to practice their form of BDSM in private settings.

[14] Dr. Moser authored an article entitled “Differentiating sexual violence from BDSM (The Journal of Sexual Medicine, 2023, 20, 1233-1233). The premise of the article being that BDSM cannot be sexual violence as it is, by definition, consensual. The article suggests that participants will not become involved in the criminal or civil justice system unless their activities lack consent. This is, of course, not the law in Canada.

[15] When asked specifically about burns and branding, Dr. Moser said that a small percentage of those practicing BDSM get sexual pleasure from the pain and markings left by these activities. His opinion is that this type of conduct is not sexual violence as long as there is consent. When pressed, he agreed there must be a line drawn where the consent of the participant is not enough and where what he suggested was the social value of BDSM is overborne by the nature and consequences of the act. Although I find that it is unclear where Dr. Moser placed that line. He spoke of those who fantasized amputations and participated in castration as examples of the extreme end of the BDSM spectrum.

[16] I find Dr. Moser’s testimony to be of assistance in my task. I have been assisted by the information regarding the broad spectrum of BDSM activities as it informs my perspective on the common law which grounds this decision. Based on this expert evidence, most BDSM sexual practices remain unaffected by the common law of this country and by my decision here.

Positions of the Parties

The Applicants

[17] The applicants seize on the language in R. v. Jobidon, [1991] 2 SCR 714. In Jobidon, the Supreme Court of Canada considered bodily harm as a consequence of a fist fight. At pages 29 and 32, the Court said:

Foremost among the policy considerations supporting the Crown is the social uselessness of fist fights. As the English Court of Appeal noted in the Attorney General's Reference, it is not in the public interest that adults should willingly cause harm to one another without a good reason. There is precious little utility in fist fights or street brawls. These events are motivated by unchecked passion. They so often result in serious injury to the participants. Here it resulted in a tragic death to a young man on his wedding day.

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. In this regard the holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite.

[18] The applicants argue that BDSM is widely practiced including the consensual infliction of bodily harm. It is their position that the law as it exists marginalizes a significant (although unquantified) portion of the public. They suggest a determination here of positive social value will move the needle forward in the law, much as the decision in Bedford v. Canada (Attorney General), [2013] 3 SCR 1104 allowed the evolution of the legal parameters of prostitution.

[19] It is the applicants’ position that the common law, as it considers bodily harm in the BDSM context, has never had the kind of expert evidence heard by me. They argue that as it exists, the common law offends Charter principles captured by s. 2(b) (freedom of expression), s. 7 and s. 15, and cannot be saved by s. 1.

The Crown

[20] The Crown argues that my decision here must focus on the task at hand. It cannot be rendered untethered from the facts of the case before me and that there is no room in this argument for a social policy discussion.

[21] The Crown suggests that the issue for me is simply whether I am bound by the decision of the Court of Appeal in R. v. Zhao, 2013 ONCA 293, unless I find the common law rule confirmed in Zhao is unconstitutional and must be modified to comply with the Charter.

[22] The Crown says there is no constitutional right to inflict bodily harm in consensual sexual activity and the law does not offend any Charter right.

[23] The Crown states that a determination by me of the social value of BDSM activities does not resolve the issue here, nor does it allow me to ignore the binding precedent in Zhao.

[24] For the reasons set out below, I agree with the Crown’s position and would dismiss the applications before me.

The Common Law

[25] As mentioned, in 1991 the Supreme Court in Jobidon considered a manslaughter conviction for a participant in a consensual fist fight. The Court reviewed the long-standing position of the common law that there were limits to consent in the case of the intentional infliction of bodily harm in a fight.

[26] The Supreme Court offered the following guidance at pages 31 and 32 of Jobidon:

The policy preference that people not be able to consent to intentionally inflicted harms is heard not only in the register of our common law. The Criminal Code also contains many examples of this propensity. As noted above, s. 14 of the Code vitiates the legal effectiveness of a person's consent to have death inflicted on him under any circumstances. The same policy appears to underlie ss. 150.1, 159 and 286 in respect of younger people, in the contexts of sexual offences, anal intercourse, and abduction, respectively. All this is to say that the notion of policy-based limits on the effectiveness of consent to some level of inflicted harms is not foreign. Parliament as well as the courts have been mindful of the need for such limits. Autonomy is not the only value which our law seeks to protect.

Some may see limiting the freedom of an adult to consent to applications of force in a fist fight as unduly paternalistic; a violation of individual self‑rule. Yet while that view may commend itself to some, those persons cannot reasonably claim that the law does not know such limitations. All criminal law is "paternalistic" to some degree -- top-down guidance is inherent in any prohibitive rule. That the common law has developed a strong resistance to recognizing the validity of consent to intentional applications of force in fist fights and brawls is merely one instance of the criminal law's concern that Canadian citizens treat each other humanely and with respect.

Finally, it must not be thought that by giving the green light to the common law, and a red light to consent to fights, this Court is thereby negating the role of consent in all situations or activities in which people willingly expose themselves to intentionally applied force. No such sweeping conclusion is entailed. The determination being made is much narrower in scope.

The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor's apparent consent to an adult's intentional application of force in a fight would also be negated.) This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.

Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as "any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature".

[27] In R. v. Welch (1995), 101 C.C.C. (3d) 216, the Court of Appeal considered the rule in Jobidon in the context of a conviction for sexual assault causing bodily harm. Welch said that when he tied the complainant to a bed and beat her breasts and buttocks with a belt while penetrating her anally with an object that left her bleeding, he was engaged in consensual sado-masochistic sex.

[28] The Court said the following at pp. 19 and 20:

In my view, however, the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined by s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm. Specifically, the majority in Jobidon recognized that consent may be a defence to certain activities such as rough sporting activities, medical treatment, social interventions, and "daredevil activities" performed by stuntmen, "in the creation of a socially liable cultural product". Acts of sexual violence, however, were conspicuously not included among these exceptions.

While the circumstances of this case are not as distasteful as the facts in the House of Lords decision of Brown, they are nevertheless disturbing. The sadistic sexual activity here involved bondage (the tying of the victim's hands and feet) and the intentional infliction of injury to the body and rectum of the complainant. The consent of the complainant, assuming it was given, cannot detract from the inherently degrading and dehumanizing nature of the conduct. 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.

[29] In R. v. Amos, the Court of Appeal considered the circumstances of anal intercourse resulting in injury. In Amos, the Court refrained from vitiating consent, finding the injury was not inflicted intentionally, but also stating it was not a “socially unacceptable” act. (Amos, para. 3).

[30] In R. v. Quashie, [2005] O.J. No. 2694, Justice Gillese, writing for the Court of Appeal, considered consent in the context of vaginal sex causing significant vaginal injuries. Drawing on the Supreme Court of Canada decision in R. v. Paice, 2005 SCC 22, Justice Gillese refined the decision in Welch and at para. 57 of Quashie said:

[57] Based on the authorities, in my view, it was an error for the trial judge to fail to instruct the jury that in order for bodily harm to vitiate consent, they had to find both that the appellant had intended to inflict bodily harm on the complainant and that the appellant had caused her bodily harm.

[31] That brings the discussion to the Court of Appeal decision in R. v. Zhao, 2013 ONCA 293. Zhao is presently the law on this issue in this Province and I must find Zhao’s determination of the circumstances of vitiating consent in a sexual activity to be unconstitutional if the applicants are to be successful.

[32] In Zhao, it was alleged that the accused pinned down the complainant, began to strangle her and forced his groin into hers, ultimately causing widespread bruising and post traumatic stress disorder. Justice Tulloch, as he then was, writing for the Court, agreed with the decision of Gillese, J.A. in Quashie. I have set out para. 94 below along with the Court’s proposed jury instructions in these cases set out at para. 107:

[94] Gillese J.A. noted that the trial judge in this case had made the same mistake as the judge in Paice. That is, he had required that the jury find that bodily harm was caused, but had not instructed them that they must also find that the resulting harm was intended. At para. 57, Gillese J.A. held that

[I]t was an error for the trial judge to fail to instruct the jury that in order for bodily harm to vitiate consent, they had to find both that the appellant had intended to inflict bodily harm on the complainant and that the appellant had caused her bodily harm. [Emphasis added.]

[107] I do recognize that the articulation in the above guidance uses the term "assault" in the first three steps. In my view, Gillese J.A.’s decision tree must be read as a whole. That is, the term "assault", viewed in context, must be taken to mean nothing more than an intentional application of force. It cannot logically mean absence of consent, given the nature of the other steps to be followed. To suggest otherwise is to misconstrue what Gillese J.A. intended. With this clarification, the test can be broken down as follows:

1. The jury must be satisfied beyond a reasonable doubt that the accused intentionally applied force to the complainant.
2. The jury must be satisfied beyond a reasonable doubt that the intentional application of force to the complainant took place in circumstances of a sexual nature such as to violate the complainant's sexual integrity.
3. The jury must be satisfied beyond a reasonable doubt that the intentional application of force in circumstances of a sexual nature caused bodily harm.
4. If in addition to the above three criteria, the jury is satisfied beyond a reasonable doubt that the accused intended to inflict bodily harm upon the complainant (a subjective criterion), then consent is irrelevant, and the accused would be found guilty of sexual assault causing bodily harm.
5. If the jury is not satisfied beyond a reasonable doubt that the accused intended to cause the complainant bodily harm, then they would need to go on to consider whether they are satisfied beyond a reasonable doubt that the complainant did not consent to the intentional application of force by the accused.

[33] It is important to note that Zhao makes no mention of considerations of social value, but rather focusses solely on the subjective intention to cause bodily harm and the presence of the achieved bodily harm.

[34] The Court of Appeal has continued to apply the law as determined by Zhao in the subsequent decisions of R. v. Nelson, 2014 ONCA 853; R. v. Graham, 2019 ONCA 347, and R. v. D.K., 2020 ONCA 79. All of the above decisions consider bodily harm as occasioned by sexual activity.

[35] In R. v. A.E., 2021 ABCA 172, the Alberta Court of Appeal adopted the Ontario position when considering a conviction for sexual assault with a weapon. In R. v. A.E., three accused slapped a 17-year-old complainant, punched her vagina and violated her with an electric toothbrush causing vaginal tears and bleeding. The Court of Appeal of Alberta set out its position on the issue of consent in those circumstances at paras. 127-129:

[127] So if the activity involves pursuing sexual gratification, when that pursuit involves a person being subjected to assaults by persons intending to cause bodily harm and bodily harm results, the personal interest of the individuals involved must yield to the societal interests which are challenged by such behaviour. And if the activity in question involves pursuing nothing more than the thrill of gratuitous violence, as it did in this case, then all the more reason that individual freedom and autonomy ought to yield to societal interests.

[128] Such societal interests would include, at the very least, avoiding unnecessary bodily harm and state medical intervention and expense. But the more important societal interest being challenged here is the interest society has in encouraging civilized behaviour and respect for security of the persons of others. As the Supreme Court said in Jobidon, at page 764, “[t]he sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight.” Surely, if the sanctity of the human body militates against the validity of consent to bodily harm inflicted in a fistfight, it should equally militate against the validity of consent to bodily harm inflicted during sexual activity.

[129] As the law now stands, when a sexual assault is subjectively intended to cause bodily harm, and when bodily harm as defined by the Code results, consent is not an available defence. That is, consent is not obtained. Consent cannot be given. And the Crown need not prove the absence of consent.

The Charter

[36] The applicants claim that the decision in Zhao offends freedom of expression as guaranteed by s. 2(b) of the Charter. They offer the evidence of Dr. Moser that BDSM participants on both ends of the conduct are creatively expressing themselves in a way that provides sexual gratification and personal satisfaction. As mentioned earlier, Dr. Moser defines sexual violence as only occurring in the absence of consent.

[37] There is an admission here of the striking of the complainant’s bare breast and buttocks with a heated butter knife. The photos of the resulting burns speak for themselves. This conduct is, at its essence, violent behaviour.

[38] The Supreme Court of Canada in Irwin Toy Ltd. v. Québec, [1989] 1 SCR 927 at p. 470 and R. v. Khawaja, 2012 SCC 69 at para. 70, set out below, made it clear that violence did not qualify as a protected form of expression.

[70] This Court’s jurisprudence supports the proposition that the exclusion of violence from the s. 2(b) guarantee of free expression extends to threats of violence: Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 28; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 107; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 588. As this Court held in Greater Vancouver Transportation Authority, “violent expression or threats of violence fall outside the scope of the s. 2(b) guarantee” (para. 28 (emphasis added)). It makes little sense to exclude acts of violence from the ambit of s. 2(b), but to confer protection on threats of violence. Neither are worthy of protection. Threats of violence, like violence, undermine the rule of law.

[39] When considering s. 2(b), it must be remembered that the common law does not prohibit all forms of BDSM as potential forms of expression, but rather only where there is intended bodily harm and bodily harm results.

[40] This position has been supported in Ontario in numerous decisions (R. v. Watter, 2022 ONCJ 581; R. v. R.W., 2020 ONCJ 148; R. v. Evans, unreported, aff’d on other grounds, 2023 ONCA 365; R. v. Strong, 2021 ONSC 1906).

[41] The conduct that is in issue in this case cannot be protected as expression pursuant to s. 2(b) of the Charter.

Section 7

[42] It is clear that the common law principle examined here impacts the liberty of the applicants as they face possible imprisonment. The applicants claim the principle also impacts their s. 7 liberty and security interests. They argue that commitment to BDSM amounts to sexual orientation and the common law therefore interferes with their physical and sexual identity.

[43] I accept the position of the Crown that the right to liberty and security does not allow an individual the freedom to do whatever they like even if it is part of an accepted sexual practice.

[44] In R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571, the Supreme Court of Canada considered the s. 7 right in the context of possession of marijuana. The Court said the following at paras. 86, 87 and 124:

86 While we accept Malmo-Levine’s statement that smoking marihuana is central to his lifestyle, the Constitution cannot be stretched to afford protection to whatever activity an individual chooses to define as central to his or her lifestyle. One individual chooses to smoke marihuana; another has an obsessive interest in golf; a third is addicted to gambling. The appellant Caine invokes a taste for fatty foods. A society that extended constitutional protection to any and all such lifestyles would be ungovernable. Lifestyle choices of this order are not, we think, “basic choices going to the core of what it means to enjoy individual dignity and independence” (Godbout, supra, at para. 66).

87 In our view, with respect, Malmo-Levine’s desire to build a lifestyle around the recreational use of marihuana does not attract Charter protection. There is no free-standing constitutional right to smoke “pot” for recreational purposes.

124 Putting aside, for the moment, the proper approach to the appropriateness of imprisonment (which, as stated, we think should be addressed under s. 12 rather than s. 7), we do not accept the proposition that there is a general prohibition against the criminalization of harm to self. Canada continues to have paternalistic laws. Requirements that people wear seatbelts and motorcycle helmets are designed to “save people from themselves”. There is no consensus that this sort of legislation offends our societal notions of justice. Whether a jail sentence is an appropriate penalty for such an offence is another question. However, the objection in that aspect goes to the validity of an assigned punishment — it does not go to the validity of prohibiting the underlying conduct.

[45] The Court in Malmo-Levine considered the “harm principle” and while deciding it was not a principle of fundamental justice, recognized that the avoidance of harm was nevertheless a valid state interest. (Malmo-Levine, para. 130).

[46] In Malmo-Levine and in R. v. Butler, [1992] 1 S.C.R. 452, a case dealing with the constitutionality of the prohibition against obscene materials, the Supreme Court was only concerned with a “risk” of harm. Here, I am focussed on the prohibition of actual harm that is not “transient or trifling”.

[47] To show an infringement of s. 7, the applicants also need to show that the common law in question negatively impacts fundamental justice.

[48] Again, the law as represented by the decision in Zhao prohibits only those acts in a sexual setting where there is a subjective intention to cause bodily harm, and that level of harm results. Not all BDSM acts are prohibited and the subjective intent of the accused is a mandatory requirement to vitiate consent.

[49] The common law in issue does not offend the rights protected by s. 7 of the Charter.

Section 15

[50] Consideration of s. 15 requires the use of a two-step test as described in para. 28 of R. v. Sharma, 2022 SCC 39, [2022] S.C.J. No. 39:

[28] The two‑step test for assessing a s. 15(1) claim is not at issue in this case. It requires the claimant to demonstrate that the impugned law or state action:

(a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and

(b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage (R. v. C.P., 2021 SCC 19, at paras. 56 and 141; Fraser v. Canada (Attorney General), 2020 SCC 28, at para. 27; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19‑20).

[51] As to step 1, the applicants argue that BDSM amounts to sexual orientation, an accepted analogous ground, and that the common law discriminates on the basis of sexual orientation.

[52] Dr. Moser expressed an opinion that those who are committed to BDSM have entrenched interest established at an early age. He said that, for some, this sexual interest rises to the level of sexual orientation. There are no judicial findings at present establishing BDSM as sexual orientation. I am not prepared to make that finding in this matter, relying upon the opinion of Dr. Moser that “some” BDSM practitioners may consider it their sexual orientation.

[53] In addition, I note the caution against recognizing expanded analogous grounds discussed by the Supreme Court of Canada at para. 13 of Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203:

13 What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 — race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.

[54] I find I do not have the evidence to decide that the attraction of a BDSM lifestyle amounts to “immutable or changeable only at unacceptable cost to personal identity”. Dr. Moser’s evidence does not allow me to find that an attraction to BDSM rises to the profound level of personal identity as in the case of homosexuality.

[55] Further, I accept the Crown’s position that the common law is not discriminatory. It targets only conduct that is meant to cause bodily harm and does. Its application affects all forms of sexual activity, not just BDSM.

[56] In R. v. Hancock, 2000 BCSC 1581, the Court rejected a s. 15 argument that masochists were discriminated against because of their sexual preference. In Hancock, the victim had died as a result of the injuries inflicted by a number of individuals where the victim requested the abuse. In dismissing the s. 15 argument, Justice Edwards considered the social cost of the conduct:

[63] The defence argument is, in effect, that the sexual activities of masochists have social value which is more compelling than that of fist fights and that criminalizing these activities by taking away the defence of consent to the bodily injuries inherent in them amounts to discrimination against masochists on the basis of their sexual orientation or preference contrary to s. 15 of the Charter.

[65] A fundamental constitutional value is expressed in s. 12 of the Charter which provides “Everyone has the right not to be subjected to cruel or unusual treatment or punishment.” This section prohibits the state from inflicting cruel and unusual treatment on people, reflecting a societal abhorrence of violence and the view that the state cannot suppress violence by committing violence. It would be perverse, and undermine the constitutional value expressed in s. 12, if s. 15 of the Charter were interpreted so as to permit people to inflict cruel and unusual treatment on one another for consensual masochistic or sadistic gratification.

[66] The response that masochists do not subjectively view their activities as cruel or unusual and that these activities do no harm to the wider society, ignores the insidious effect that societal acceptance of injurious violence as normal would have. If such violence is not condemned as criminal and wrong and is practised with impunity, society and individuals become inured to it. That occurred in this case. The accused, who claimed they did not enjoy their participation in various scenarios with Davis, became inured to his pain to the point they were unable to appreciate that he had been seriously, indeed fatally injured on January 2, 1999. To them, the scenario was routine, to Davis it was fatal.

[67] In Welch, the Ontario Court of Appeal cites with apparent approval the article “Is Hurting People Wrong” by William Wilson in The Journal of Social Welfare & Family Law (London: Sweet & Maxwell, 1992) which includes the following:

... a fundamental building block of our moral society is the social taboo against the infliction of injury on another. Remove this building block and not only do sensibilities stand to be damaged but, over time, perhaps our very commitment to the sanctity of life. To reduce this fundamental moral issue to an issue about the presence or absence of consent may be to miss what is really at stake, namely our humanity, as presently conceived. If sadism is allowable, if consented to, then it is consent rather than moral conviction which polices the barrier between a society of would-be sadists and the kind of society most of us would like to inhabit.

[68] … The law does not accept the view that any injury or indignity, no matter how risky or degrading, may be inflicted on a consenting victim for sexual or other gratification.

[57] Further, I have no evidence of a historical disadvantage or the affects of disadvantage such as those the Supreme Court considered in R. v. Sharma, 2022 SCC 39, [2022] S.C.J. No. 39.

[58] There is no infringement of s. 15 of the Charter.

Section 1

[59] Considering my findings above, I do not consider it necessary to provide detailed reasons on the application of s. 1 of the Charter. Suffice it to say in considering the purpose and effect of the common law principle in Zhao, it is rationally connected to a pressing and substantial purpose, that is the protection of the public from infliction of bodily harm in sexual practices.

[60] It impairs any Charter right no more than is reasonably necessary in that it achieves a public policy objective and vitiates consent only in specifically limited BDSM activities where bodily harm is intended and results.

[61] Finally, it is proportionate in its salutary and deleterious effects as it is restricted to a defined level of deliberate injury as defined by s. 2 of the Criminal Code. That is bodily harm as 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”.

[62] In Butler, the Supreme Court found that the obscenity legislation offended freedom of expression protected by s. 2(b) of the Charter but was saved by s. 1. The Court found that the section of the Criminal Code was aimed at preventing harm to society, a moral objective valid under s. 1 of the Charter. Again, Butler dealt only with a threat of harm, not actual harm. The issue before me is the prevention of actual harm.

Conclusion

[63] Having found the common law principle in Zhao constitutional, I come back to the accepted facts in the case before me. I am rightly confined by the terms of these allegations. It is not appropriate or desirable for me to suggest forms of injuries to BDSM practitioners where subjective consent is not vitiated. Those suggestions would do nothing to assist in this case.

[64] As I have set out earlier, the Supreme Court in Jobidon expressed that policy–based limits on individual autonomy “are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and the justification for it”. (Jobidon, p. 766).

[65] Importantly, the Supreme Court has declined to rule on what circumstances might vitiate consent in sexual activity as the cases before them did not require it. (R. v. J.A., 2011 SCC 28, para. 21; R. v. Barton, 2019 SCC 33, para. 180-182; R. v. A.E., 2022 SCC 4, para. 5).

[66] The common law principle as questioned in the notice of constitutional question is valid. The applications are dismissed.

Justice Bruce G. Thomas Released: November 28, 2023.

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – DANNY WOLTERS AND JACOB MENARD (Co-Accused with Rinaldo Longo and Dylan Wolters) decision on a constitutional question Thomas, J. Released: November 28, 2023.