Canadian Law Isn't BDSM-Friendly

Last week, to the joy of British media, activists staged a public face-sitting event to mock the UK's new porn censorship laws. Face-sitting, female ejaculation, spanking, aggressive whipping, and penetration by any object "associated with violence" are no longer allowed in online pornography, leading critics and consumers of filth to conclude the new law targets female pleasure and BDSM.

It turns out Canada isn't so tolerant of BDSM either. While our laws don't single out any specific sex acts for eradication, they're not exactly friendly to violent porn, pro-dommes or consensual flogging either.

Our Criminal Code deems porn obscene if crime, horror, cruelty, or violence is a dominant characteristic. Canadian customs agents have the right to seize smut they deem distasteful. If you pay to get spanked, technically you're paying for sex, and the new Bill C-36, which targets sex work, has that on lockdown. And as for everyday BDSM, Canadians can't legally consent to serious bodily harm.

Miztress Tia's clients want her to spank them until they cry, and the professional dominatrix obliges. "They're asking me, so as far as I'm concerned, if you're asking me to do something, it's consensual," she said. "I ask, 'Well, what do you know about this? Do you know the risks?'"

Every aspect of the pain she inflicts is carefully planned in advance. "This is all consensual. It's talked about, it's discussed. What will you agree to? How hard can I hit you? If I break skin, is that OK?"

She uses a traffic light system of safe words: green means go, red means stop, and yellow is a caution—"OK, I enjoy the spanking, but that last one was a little too much."

But no matter how carefully planned, it's not legally possible to consent to the infliction of bodily harm "unless the accused is acting in the course of a generally approved social purpose when inflicting the harm," the Ontario Court of Appeal ruled in 1995.

BDSM doesn't count, the court decided. Even if consent to bodily harm—flogging with a belt, in this case—was given, this "could not 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," the court found.

This somewhat antiquated interpretation of consent leaves Miztress Tia in a legal bind, and Canada's new law governing sex work further ties her hands. She decided to suspend her business recently as a result of Bill C-36, which criminalizes her clients for soliciting a spanking.

"Am I considered a sex worker if I'm not penetrated by a penis?" she mused.

Tia is also toying with the idea of appearing in domme porn with other women, but she would need to be careful there, too. According to our law, "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene."

Possession of obscene porn "involving violence or cruelty intermingled with sexual activity" is not protected by free speech and the owner could be slapped with a massive fine, as in this 1992 case. Customs agents can also confiscate BDSM porn at the border.

That said, kinksters shouldn't worry too much about fines or jail time for watching BDSM porn or consensually whipping their partners. Yes, there are enforceable laws on the books against violent porn and BDSM sex, but law professor Karen Busby, who has researched this area of law, says the courts haven't prosecuted these cases since before the internet came into existence.

"Theoretically, police could prosecute for BDSM activity if it caused bodily harm, like candling or burning or cutting or whipping," she said. "In theory they could prosecute, but they haven't. In theory they could prosecute for BDSM imagery, but they're not. And Canada Customs is still on the books, and they could seize materials, but they don't."

There are a few exceptions. Erotically asphyxiating your partner is illegal and highly likely to be prosecuted, Busby notes. Not only could it result in death, but it's also difficult, if not impossible, to establish ongoing consent while preventing oxygen from reaching your partner's brain.

"You've got to have a way of withdrawing consent," she explains. "You've got to have clear, ongoing consent, and of course if you've got something as sophisticated as a traffic light signal then you're fine. The simple way of saying it is, you've got to be able to say no."

And to answer Miztress Tia's question of whether whipping constitutes sex work—yes, it does. The courts have previously prosecuted BDSM in the sex trade, Busby says. "If I was a betting woman, I would say they would do it again in the future."

The way Canadian law applies to BDSM is almost as ridiculous as the UK's new porn laws and should be adjusted, pro-domme Tia believes. "It goes back to what happens in the bedroom is none of the government's damn business," she says.

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