CHAPTER 3: THE FORGING OF PUBLIC POLICY AND DEVELOPING SOCIAL
3.3 Canadian Perspective
3.3.1 Overview
73 that emanates in actual bodily harm from the sadomasochistic relationship may successfully satisfy the defence nestled within the section where the participants have actively involved themselves within the depicted practice. Secondly, the accused must satisfy that the activity did not occur in non-consensual sexual penetration, or harm, between the participants. A consensual sadomasochistic encounter that is induced by the material available to the public has the possibility of allowing for the exemption of a prosecution by a court, based on the exemptions contained within section 66 (A2). However, if the appropriate English court applies the principles of Brown, public policy considerations would not allow for such a defence to be valid, based on the harm being morally divergent to a civilised society.
Evidentially, England’s growing judicial archives of legal literature relating to consensual sadomasochism stands as monolith point of considering public policy’s role in this legal niche of consensual harm. The once champion judicial stance of Brown, implementing facets of public policy to prosecute consensual sadomasochism, appears to be challenged as legislation and social awareness itself have emerged to outline the very nature of consensual sadomasochism in a flurry of accessible forms and current public prerogatives.
74 engaged in consensual brawls.368 This arrives at a definitive peak of what is viewed as safe consensual physical activity whilst interpreting the nature of the harm caused as being that which the doctrine of public policy shall not condone. Thus, even genuine consent to actual bodily harm may be vitiated where public policy triumphs with a greater societal call.369 The common law position of applying policy considerations to nullify consent where the harm administered is ‘beyond transient and trifling’ appeared to be a harm-driven inquiry by the court.370
The early application of public policy within the criminal law jurisprudence of Canadian law proves to be akin with the English Law’s stance. Individual autonomy to engage in such fist fights are balanced against the compelling public interests of safety and security against said harm. Steed categorically divides the factors of inquiry raised by the majority in Jobidon into four brackets within public policy,371 which are assessed in light of the ‘public interest’ and
‘societal norms’ perspective.372 Steed, interpreting the majority of Jobidon, observes:
(1) ‘The social uselessness of fights.373’
(2) ‘The concern that fights lead to larger breaches of the peace.374’ (3) ‘The importance of deterring fist fights.375’
(4) ‘The moral need to discourage intentional hurting.376’
The first policy consideration exists in congruency with the English Law’s stance of a ‘social utility’ for the consensual physical practice that brings actual bodily harm. Where such an activity lacks a social usage, Jobidon clearly entrenches that public policy finds no good reason in permitting a practice that causes serious bodily injury amongst consenting adults.377
The second policy consideration projects that the judiciary implants the doctrine of public policy to ensure that public disarray, in the form of the breach of the public peace, does not
368 Attorney General's Reference (No 6 of 1980) [1981] QB 715.
369 R v Jobidon 1991 2 SCR 714.
370 E.R. Steed ‘When yes means no an examination of the distinction between genuine consent and acquiescence’ (1997) 110.
371 Ibid.
372 Ibid at 121.
373 Ibid.
374 Ibid at 122.
375 Ibid.
376 Ibid.
377 Ibid.
75 occur in the wake of activities that may bring serious bodily injury and harm to the public domain.
The third policy consideration stressed the importance of the paternalistic approach that the judiciary will take in limiting the individual autonomy of the consenting adults to such activities by applying public policy to deter against consensual fistfights that serve no social utility.
Lastly, the final policy consideration focuses on a moral need, which is intrinsic within the public, to discourage intentional hurting amongst the members of the public. This consideration ripples across the pond of the Canadian perspective in determining that which the public views as ‘moral’, empowering a court to uproot activity that brings a ‘moral’ harm, or threatens the sanctity of public morality and integrity. The same consideration of preventing against moral harms was raised in R v Brown, however, that being the identification of a compelling justification for public policy’s limitation of individual autonomy; even where the harm practiced is branded as ‘immoral’. The majority in Jobidon contended that civilised societies are embedded within the understanding that the intentional causing of actual bodily harm, or greater,378 is contradictory to the morals of the society and such is not only supported by the common law but also drawn upon within the Canadian Criminal Code itself.379
Jobidon effectively expresses that public policy did not recognise apparent consent to bodily harm as a form of effective consent in relation to the harm that is caused.380 This stretched an over-arching branch of State paternalism that limits individual autonomy to private and/or personal activities, in order to instil a consensus regarding the manner in which individuals should be treated within the public domain. The Canadian Law Reform Commission, in its 1984 working paper titled ‘Assault,381’ explicitly outlines that one’s consent will not be valid where ‘serious bodily harm’ arises from the consensual practice.382
The case of R v Welch serves as the penultimate precedent (for its current timeframe) in assessing consensual sadomasochism in Canadian law.383 Here, the considerations of public
378 See section 14 of the Criminal Code of Canada, R.S.C. 1985 C. 46 that reflects a similar policy consideration in preventing the extent of consent to 'moral harms' such as the causing of death.
379 Steed ‘When yes means no an examination of the distinction between genuine consent and acquiescence’
(1997) 123.
380 R v Jobidon (1991) 2 SCR 714.
381 Law Reform Commission of Canada "assault, working Paper 38" (1984).
382 Ibid at 7, 24.
383 R v Welch (1995) 25 OR (3d) 665.
76 policy played a decisive role in the court’s approach in prosecuting the sadomasochistic actions of the accused. This sparks the ignition of the possible restriction of autonomy once more by the application of public policy and the methodology of a criminal court in prosecuting consensual sexual violence that brings actual bodily harm.
The court in Welch applied a ‘Social Utility principle’, which attempted to ascertain whether the private sadomasochistic actions had any place within the public domain as an exemption to prosecution. The court followed Jobidon’s majority viewpoint in light of public policy, interpreting the harm caused from the sadomasochism to be against public morality and found no ‘good reasons’ for consensual sadomasochism, arising in actual bodily harm, to be tolerated by public policy considerations.
Where lawful sporting injuries occur, even if such injury parallels the bodily harm caused in Welch, public policy may be justified in permitting such an injury as lawful, as the sport is recognised with a measure of social acceptance.384 So too is mere hurting a consideration of relaxation to the Law Reform Commission of Canada and such is permitted as a defence of consent to said harm that occurs in this form.385 Public policy perspectives of Canada at the time of Welch focused greatly on the causing of actual bodily harm, or serious bodily harm, as being an invalidator of consent to such activity. This, once again, highlights the similarity to English law where the general benchmark for a prosecution of said harm is the materialisation of actual bodily harm.
However, the Ontario Court in Welch was alive to the nature and context of the severe harm, assessing its advent by the root practice between the individuals to determine whether such may fall within an exemption to the considerations of public policy.386 A therapeutic surgery is within public’s interest to permit the causing of severe harm, without liability for the surgeon, bolstering the social utility prevalence of the act itself, along with the policy considerations of the Law Reform Commission in differentiating between permitted and outlawed practices of consensual bodily harm.387 The nature of the actual bodily harm that was administered upon the complainant in Welch could not uphold consent to actual bodily harm,388 as the accused had
384 The Law Reform Commission of Canada "Assault: Working Paper 38" 30.
385 Ibid at 29.
386 Ibid.
387 Ibid.
388 R v Welch (1995) 25 OR (3d) 665.
77 not acted in a manner of a recognised social purpose,389 or practice, to the policy considerations of the public.
Public policy’s applicability in Welch did not attempt to add consensual sadomasochism that brought actual bodily harm into an exemption category and the court noted that:
‘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.390’
Welch itself instils state paternalism over individual autonomy by promoting that public interest wishes to preserve social order, preventing the spread of violence and injury and forming compelling viewpoints of the public peace.391 The perspective of violence inflicted for sexual gratification was considered as a moral harm within the Canadian public; affecting the sanctity of the human body and sufficient for the Ontario court to utilise public policy as a sledgehammer in eradicating the defence of consent to actual bodily harm from the practice.392 Therefore, the common law authorities and the statutory powers did not permit sadomasochism to elude the reach of the considerations of public policy and sought to eradicate sadistic behaviour within Canada, especially when tied to sexual activity.