Vitiating Consent for Sexual Assault Causing Bodily Harm: Should Jobidon Apply to Sexual Activities?

Abstract

The Court in R v Jobidon held that consent to participate in a fist fight between adults is vitiated once bodily harm follows as a result of the fist fight. Jobidon’s ruling fundamentally altered the defence of consent to assault. This paper critiques the extension of Jobidon to sexual assault in the context of BDSM in R v Welch on multiple grounds. First, the paper shows that there are complexities in applying Welch’s ruling, which have led to confusions in jurisprudence surrounding: (a) the mental state of the assailant causing bodily harm; (b) the addition of psychological harm as a bodily harm to the scope of the ruling in question; and (c) the characterization of the sexual activity in question as degrading or dehumanizing. Second, the paper challenges the Court’s reasoning in Welch on three grounds. First, characterizing a sexual activity as degrading to show that it is not worthy of protection by the law is subjective. Instead, the courts should assess the interests of sexual minorities. Second, the Court’s comparison of sex with sport was inappropriate in finding the former containing insufficient social utility as opposed to the latter. Third, irrespective of political philosophy, the Court’s ratio was contrary to the letter of law pursuant to section 9 of the Criminal Code by effectively creating a new law. This paper advocates for legal reform in Jobidon and applying it to sexual assault. The paper positions that Parliament has already taken steps to criminalize high-risk sexual activities such as asphyxiation under section267(c) of the Criminal Code.