Is BDSM legal is Canada? Or is BDSM criminal sexual assault? The answer is that it depends. The law differs slightly in different provinces due to differences in binding common law in different jurisdiction. But the state of the law in Ontario, which will be our focus, is such that many examples of BDSM practice likely are criminal, even if both parties fully agree to engage in the acts.
BDSM is an acronym for Bondage Discipline/Domination Submission/Sadism Masochism and is used as a catch-all to describe a wide variety of activities.
There is nothing in the Criminal Code of Canada or the common law in Ontario that criminalizes BDSM per se. But there are two areas of the law that put a great deal of BDSM activity at risk of being criminal.
The first area of law to be aware of when considering the criminal risks of BDSM is the common law principle that no person can legally consent to bodily harm on themselves in the context of BDSM practice. This is particularly important to understand because the standard of what constitutes “bodily harm” has been set very low. In practice, a great deal of common BDSM likely is considered criminal.
The second is the area of law to be aware of is consent more generally as it relates to sexual assault allegations. The law is no different for BDSM sexual activities, but there is a lot to know about the intricacies of the law of consent because there are elements of BDSM practice that might compromise that which appears at first blush to be consensual sexual activity.
Consent to intentionally-caused bodily harm in the context of sexual activities is invalid. This means that two BDSM partners may both be 100% in favour of an act that causes some minor amount of bodily harm. But such an act would be criminal behaviour.
The rule derives from the common law. In 1991, the Supreme Court of Canada ruled in a case called R. v. Jobidon, [1991] 2 SCR 714 that in the context of a fist fight, while a person can consent to participate and be struck, they cannot consent to such an act if it results in bodily harm.
In 1995, the Ontario Court of Appeal decided that this rule applies equally to consensual sexual act that result in bodily harm: Regina v. Welch, [1995] O.J. No. 2859.
The Ontario Court of Appeal has since clarified that for the consent to be vitiated (i.e., made invalid), the bodily harm must be subjectively intended by the person applying the force: R. v. Zhao, 2013 ONCA 293.
This means that, in Ontario, the “bodily harm” must be more than incidental or even just reasonably foreseeable. If the person did not intend for the harm to be produced, the consent of the other party can remain valid.
The problem, however, is how minor the “harm” can be for the consent to be made invalid.
Presently, courts have been inclined to use the Criminal Code s. 2 definition of “bodily harm” as the level at which consent becomes impossible: “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”. This is a remarkably low standard. It criminalizes behaviour that cannot be justified as a matter of public policy.
It is important to note the “or”s in the definition. The harm does need to be more than transient and more than trifling. It does not need to be a hurt that also causes an injury. It is either/or. This means a consensual BDSM act could cause no injury and the hurt it causes be transient (i.e., not last any period of time) … but that act would still be criminal, if it interferes with the other person’s “comfort” in a way that is not “trifling”.
The requirement in Ontario that the bodily harm be subjectively intended to vitiate consent is of little comfort when the bar for bodily harm is set so low. One can imagine many common BDSM activities in which the intention of both parties is some minor level of discomfort that is more than trifling.
It may well be time for Parliament of the appellate courts to revisit this law. In the recent case of R. v. Pearson, 2025 ONSC 435 , the court signaled as much. This was a BDSM case defended by our firm, in which the judge commented that the present law appears to be out of step with contemporary norms and values surrounding consensual BDSM practice. However, because the accused in this matter was acquitted based on the law of BDSM as it currently stands, the judge was not required to rule on the appropriateness of changing the law. So the law on the legality of BDSM in Ontario remains for the time being.
The law of consent to sexual activity in general is no different, per se, as it relates to BDSM as compared to all other sexual acts. But there are some important principles to be aware of when considering the likelihood that any given BDSM act would be considered non-consensual even if it appears consensual. And even, sometimes, when both participants believe it is consensual.
You Cannot Consent to Sexual Activities in Advance
The law is clear in Canada that a person cannot consent in advance to sexual activity. That is, they must be consent in the moment the sexual assault is taking place. Open advanced communication in BDSM may be important, but it will not be enough on its own to count as the consent required to make a future BDSM sexual activity legal. The notion that a person can give blanket or specific advanced consent within a BDSM relationship to sexual activity is contrary to the criminal law.
This means first and foremost that both participants must, at the moment of the sexual activity, be capable of consenting. They cannot, for example, be unconscious. Therefore, even if both participants believe that they are both consenting to BDSM activity based on advanced consent to certain sexual acts while unconscious, that is not valid consent.
Because consent must be contemporaneous, that also means that it can be withdrawn at any time. If a BDSM participant is unable to communicate in real time the withdrawal of consent, this poses risks that one partner may no longer be consenting but is unable to communicate this. Advanced consent is no defence (in and of itself) if one person stops consenting partway through the act. When consent ends, that is a prima facie case of sexual assault.
Consent to BDSM Activities Must be Subjectively Held
It is also important to remember that consent is something that happens in the mind of the participants. This means that it is possible that a submissive partner, for example, appears by all indications to be consenting, but may not be.
If the second partner takes all reasonable steps to ensure both parties are consenting and receives what reasonably appears to be affirmative and ongoing consent, this may be a defence. But as a starting point, it is what is in the mind of the participants that matters. If one partner can honestly say “I did not want that act in that moment”, that makes the act – on its face – sexual assault. And the requirements to prove honest mistaken belief in communicated consent, while available for BDSM activities, can be a steep hill to climb. It is likely not enough to claim that the partner did not seem to object, or claims ahead of time that he or she wanted to engage in the act.
Put simply, the greater the risk of miscommunication during BDSM practice, the greater risk that there is no subjective consent but the act continues regardless … and the greater the risk that act may then be criminal despite best intentions by both parties.
Consent Cannot be Obtained through Threats or Fear
The Criminal Code makes clear that consent is not valid if it is obtained through fear or threats or otherwise induced. This brings some risk into the notion of a dominant-submissive sexual relationship.
Despite a mutual understanding about the dynamics of role-playing, there is no special carve-out in the law for BDSM: if the consent to the sexual act is obtained due to one partner’s fear of repercussions or fear of physical harm, that would vitiate consent and make the act criminal.
Again, it emphasized the importance of clear communication. If one person does not truly consent to the act, they must be able to communicate that so that the act does not take place.
Conclusion: Much of BDSM Practice is Likely Not Legal
The laws surrounding consent to sexual activity are complex to begin with. These issues become even more complex when it comes to the area of BDSM. The different dynamics of communication and communication to consent inherent to BDSM makes the law of consent in these situations a bit more challenging to navigate.
The reality of the situation is, however, is that even with the highest level of care and sensitivity to issues of consent, much of BDSM practice may be criminal regardless. The present state of the law in Ontario is at odds with what is practiced in bedrooms across the province. Any BDSM activity that intentionally causes harm that so much as interferes with the comfort of a partner in a way that is more than transient or more than trifling is criminal sexual assault. Or, rather, sexual assault causing bodily harm. Sexual assault causing bodily harm is a very serious criminal charge that is punishable by a maximum of 14 years in jail.
If you or somebody you know is charged with sexual assault relating to BDSM or is at risk of being so charged, it is important to speak to a lawyer with knowledge and experience in this particular area of criminal law.
Call Gold Law Criminal Defence at 416-999-8389 for a free consultation.
