Restriction on Publication
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.
Reasons for Decision
Carter J.
Overview
1Caning. Flogging. Nipple Clamping. Stapling. Choking. Slapping. The parties agreed to engage in these BDSM activities as part of their sexual relationship. On one occasion, a baseball bat was inserted into the complainant’s vagina. She testified that she did not consent to this.
2This case presents issues that are in some ways straightforward and in others more complex. The issue of a complainant’s subjective consent to sexual activity arises frequently in these courts and is largely determined by findings with respect to that person’s credibility and reliability. Whether the complainant here consented to having the baseball bat placed in her vagina hinges on these findings. Having consent vitiated for public policy reasons is far less common. Can a person consent to being flogged? Caned? Clamped? There is little guidance in the jurisprudence as to when vitiation should occur in the context of the BDSM world.
3S.L. separated from her husband in August 2018. That same month she downloaded a kink dating app. She advertised as a “sub” (submissive partner) looking for a “dom” (dominant partner). She found what she was looking for in Marcus Pearson, a Toronto businessman.
4The two arranged to meet in Cornwall on September 28, 2018, at a Best Western Hotel. Over the next several days they engaged in a series of BDSM activities, including caning, flogging and nipple clamping. Mr. Pearson also stapled one of her breasts, which began to bleed. The activity stopped so they could attend to the injury.
5After their first weekend together, the two continued to communicate. She told him the weekend went perfectly. The relationship was formalized with a “master/whore” contract, which he sent to her. It set out certain directives, rules and responsibilities that guided the relationship.
6They met again in early November 2018, this time at a condo in Toronto. Once again, they engaged in multiple BDSM activities. On this occasion though, the use of a baseball bat was introduced. Mr. Pearson wanted S.L. to penetrate herself vaginally with the wide end of the bat. He applied lubricant. However, when S.L. failed to apply sufficient force, Mr. Pearson laid hands on the bat and applied force both directly and then in a twisting motion and pushed it inside of her. She testified that she did not consent to this.
7Their next in-person meeting was in December 2018. They met at a hotel in Kingston. In addition to flogging, caning and nipple clamping, Mr. Pearson choked S.L. She testified that as a result, she became unconscious. He testified that she did not. In addition, she testified that he slapped her a number of times. Their relationship ended shortly after that.
8Selected video clips of certain activities that took place on each of the three meetings were entered as an exhibit at trial.
9At the commencement of trial, an application for particulars was brought. The Crown agreed to the following:
- Count 1 – sexual assault causing bodily harm: stapling, caning, choking (Cornwall)
- Count 2 – sexual assault with a weapon: stapling, caning (Cornwall)
- Count 3 – sexual assault causing bodily harm: caning, vaginal insertion of a baseball bat, choking (Toronto)
- Count 4 – sexual assault with a weapon: caning, vaginal insertion of a baseball bat (Toronto)
- Count 5 – sexual assault causing bodily harm: choking, striking with hand (Kingston)
10As a result, flogging and nipple clamping are not encompassed in any of the counts.
Position of the Parties
11The Defence submits that BDSM practice ought not to fall under the category of activities to which a person cannot consent to bodily harm. This would require a change in the common law. In the alternative, it is argued that the Crown has not proven its case based on the current law for the following reasons.
12First, the Crown cannot prove lack of subjective consent beyond a reasonable doubt and even if they could, they cannot disprove honest mistaken belief in communicated consent beyond a reasonable doubt. Second, Mr. Pearson was not in a position of authority vis-à-vis S.L. and even if he was in a position of authority, he did not abuse that authority. Finally, the Crown cannot prove on the record of this trial that bodily harm was caused by any of the charged conduct and even if they could, they cannot prove beyond a reasonable doubt that Mr. Pearson subjectively intended that bodily harm.
13The Crown submits that the charged activities were either not consented to, or such consent as may have existed was vitiated through the inequitable power dynamic and/or the intended and caused bodily harm. The facts are straightforward insofar as there is no dispute that the accused caned, flogged, stapled and forced a bat into the complainant’s vagina. According to the Crown, the question is whether Mr. Pearson gets to do that with impunity.
14The Crown argues this case is not about BDSM as a lifestyle or a sexual practice. This case is about whether or not the law of the land survives and that we, as a society, repudiate physically harming one another for our own pleasure. This case is about maintaining the guardrails that have been decades in the making and are the best system we have for protecting the vulnerable where they are most vulnerable: in private.
Legal Principles
Overarching Principles
15The Crown must prove the essential elements of each offence beyond a reasonable doubt.
16On the one hand, probable or likely guilt is insufficient. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
17A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
The Offences
18The test to determine sexual assault causing bodily harm is set out in the Court of Appeal for Ontario decision of R. v. Zhao, 2013 ONCA 293, at para. 107:
- The jury must be satisfied beyond a reasonable doubt that the accused intentionally applied force to the complainant.
- 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.
- The jury must be satisfied beyond a reasonable doubt that the intentional application of force in circumstances of a sexual nature caused bodily harm.
- 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.
- 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.
19For sexual assault with a weapon, the test is slightly modified. Steps 1 and 2 are the same. Steps 3, 4 and 5 require the Crown to prove that the complainant did not consent to the sexual force, that the accused knew that the complainant did not consent to the sexual touching and a weapon was involved.
20The Criminal Code, RSC 1985, c C-46 sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the complainant subjectively consented, or whether the evidence establishes the "voluntary agreement of the complainant to engage in the sexual activity in question" under s. 273.1(1) of the Criminal Code. Consent is not blanketly applied to all activities. Consent must be given for each individual act.
21If the complainant subjectively consented, or the court has a reasonable doubt about the lack of subjective consent, the second step is to consider whether there are any circumstances that may vitiate the complainant’s apparent consent. No consent is obtained where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority: Criminal Code, s. 273.1(2)(c). The section addresses the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship and by the misuse of the influence vested in the accused by virtue of that relationship. An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent, but not meaningful, consent to sexual activity: R. v. Lutoslawski, 2010 ONCA 207, para 12.
22Aside from the statutory vitiation of consent, the common law recognizes that there is no consent when the accused intentionally inflicts bodily harm. In order to vitiate consent, the Crown must prove the bodily harm was both caused and intended by the accused. Bodily harm is defined in s. 2 of the Criminal Code 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.” Bodily harm includes psychological harm. The loss of consciousness can also constitute bodily harm sufficient to vitiate consent: R. v. Kelly, 2024 ONCJ 143, paras 146-148.
The Credibility and Reliability of Witnesses
23Credibility and reliability are different. Credibility has to do with a witness’ veracity, reliability with the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately (i) observe; (ii) recall; and (iii) recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability. A credible witness may give unreliable evidence: R. v. H.C., 2009 ONCA 56, para 41.
24As noted by Finlayson J.A. in R. v. Stewart, 18 O.R. (3d) 509 at p. 517:
We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.
25The Court of Appeal for Ontario has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor of the accuracy of a witness’ testimony. Demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes and the artificiality of and pressures associated with a courtroom. Although a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, reliance on demeanour must be approached cautiously. Importantly, a witness’ demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. Hemsworth, 2016 ONCA 85, paras 44-45.
26One of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions: R. v. A.M., 2014 ONCA 769, para 12.
27Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: A.M., at para 13.
28In addition, testimonial assessment is largely based on inductive reasoning and the particular circumstances of the case: it requires the trier of fact to make assessments based on probable interpretations of the evidence. It therefore necessarily depends on the life experience a trial judge brings to their task, which, in turn, informs the common-sense inferences they draw from what they see before them. Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment. Trial judges will naturally rely on “ungrounded” assumptions about human behaviour in their testimonial assessments and thereby draw on factors that lie outside the immediate record. The judicial function entitles them to do so without requiring extrinsic evidence to support each and every one of their conclusions: R. v. Kruk, 2024 SCC 7, paras 71-75.
29A trier of fact is entitled to accept some, none or all of a witness’ testimony.
30When an accused testifies, the principles from the Supreme Court of Canada decision in R. v. W.(D.), [1991] 1 S.C.R. 742 apply. If I accept the evidence of the accused, I am to acquit. Even if I do not accept the evidence of the accused, if it raises a reasonable doubt, I am to acquit. Finally, even if the evidence of the accused does not raise a reasonable doubt, if the Crown has failed to prove all of the elements of the offence beyond a reasonable doubt, I must acquit.
Analysis
31I will conduct my analysis with the law as it currently stands. At the conclusion of the decision, I will make some remarks about the arguments advanced regarding whether the law should be changed such that certain BDSM practices ought not to fall under the category of activities to which a person cannot consent to bodily harm. Although such remarks are unnecessary to the disposition of this matter, I will do so because the Crown and Defence each called an expert on the subject and provided extensive submissions.
32With respect to my analysis, I will begin with some overall credibility and reliability findings regarding S.L. and Mr. Pearson, following which I will discuss whether the Crown has proven that S.L. did not subjectively consent to any of the sexual activity. Next, I will address the arguments about the vitiation of consent based on an abuse of authority. Finally, the issue of bodily harm will be reviewed.
33Ultimately, it is my conclusion that the Crown has failed to prove Mr. Pearson’s guilt on any of the counts beyond a reasonable doubt.
Credibility and Reliability
34Mr. Pearson gave his evidence in a straightforward manner. It was internally consistent. No prior inconsistencies were put to him. There was no objective external evidence to contradict his version of events. In short, he was credible, and his testimony was reliable.
35The thrust of the Crown’s cross-examination was to highlight the limitation of his testimony on certain live issues, in particular, on the issue of whether he intended bodily harm. To a degree, it was successful. He agreed he intended to cause S.L. pain. Indeed, that was the very point of the activities they engaged in. During cross-examination, Mr. Pearson testified that bodily harm is the same thing as injury, which he considered to be “open gaping wounds, broken bones, and that type of thing”. He confirmed he tried to avoid gaping wounds and broken bones. In re-examination, he clarified that he never intended to leave marks that lasted for several days or more. I would note that whether a mark lasts for several days is not the test for bodily harm. The test for bodily harm is whether any hurt or injury to a person interferes with the health or comfort of the person and is more than merely transient or trifling in nature. Even on Mr. Pearson’s own evidence, there is room to find that he intended bodily harm.
36In addition, Mr. Pearson gave evidence about what S.L. did and said on each occasion they engaged in BDSM activities, but he could not testify about what was going on in her mind at the relevant times.
37As a result, even though I accept his evidence, it does not automatically lead to an acquittal on all counts.
38Turning to the testimony of S.L., I note that it was highly problematic. It was riddled with the types of difficulties that often lead a trier-of-fact to reject a witness’ evidence—poor recollection, failure to answer questions properly, inconsistencies and contradiction by objective, independent evidence. Nor were these difficulties peripheral. They often went to the very heart of the allegations.
39S.L. was not able to recall portions of what happened on each of the three occasions in which they engaged in BDSM activities. This was primarily due to the fact that she was intoxicated by alcohol to some degree at the time. During this period of her life, she was a high functioning alcoholic. She drank before and during each session. Because she was a high functioning alcoholic, however, she agreed that Mr. Pearson might not have been able to notice the signs of intoxication. The Crown has not advanced an argument that she was too intoxicated to consent.
40The number of times S.L. was not able to recall portions of what happened during her testimony are too numerous to catalogue in these reasons. A few examples will suffice.
41During examination-in-chief, she had trouble remembering how the first Cornwall evening started because it was “a little bit blurry”. The first thing she recalled happening was caning. When asked if she remembered anything else she replied that she did not. It was only when Crown counsel put other activities to her—stapling and nipple clamping—that she was able to give evidence about them.
42When asked about Toronto, S.L. testified that Mr. Pearson struck her shortly after she arrived. Quite naturally Crown counsel followed up by asking her how he hit her. Her answer was that she did not remember. This was particularly problematic. How could she testify with certainty that she was hit when she was not able to offer any evidence as to how?
43On another occasion, the following exchange took place during cross-examination:
Q. Okay, it’s sometimes, and I’ll speak generally, sometimes after a scene with Marcus, during the break, you would debrief on how that scene went, right?
A. Not specifically, I don’t recall, no.
Q. Okay, so you don’t recall?
A. I don’t believe I can answer that.
Q. I’m sorry?
A. I don’t believe I can answer that.
Q. Because – why can’t you answer that?
A. Because it’s a whole lot of fuzzy.
44Another problematic aspect of her evidence were the internal inconsistencies. Whether this was due to her lack of recall I cannot say. Once again, I will provide a few examples.
45Initially she testified that the first meeting in Cornwall was only one night. Later she gave evidence that it was two. This inconsistency even seemed to catch Crown counsel by surprise.
46During examination-in-chief, she created the impression that she had not fully consented to the stapling. She said it was something she wasn’t sure about. She testified that Mr. Pearson asked her in the hotel room about it and she did not say no.
47S.L. was then asked if she wanted him to use the stapler. Her answer was she was concerned for her safety. She was asked the question again. This time she answered that she wanted to please him. Ultimately, she testified that she said she would be willing to try it.
48In cross-examination, she agreed that she was not surprised he brought the stapler out. In fact, she agreed that she specifically brought a bowl to the hotel room for the purposes of sterilizing the staples. Her evidence on this issue evolved dramatically over the course of her time in the witness box.
49On at least one occasion, S.L.’s evidence was contradicted by independent, objective evidence. S.L. claimed that when Mr. Pearson suggested she buy and bring a bat to their next session, she explicitly expressed non-consent to the use of the bat. (Though she agrees that she herself, following the conversation and explicit rejection, then proceeded to then purchase the bat, bring it to Toronto and bring it up to the condo.) She then described a vivid scene in which she had just used her safe word to attempt to extract herself from BDSM activities. While she was unsuccessfully attempting to recover, Mr. Pearson re-started. She was still in such an emotional state that she was non-verbal. In this state, he brought her to the bed. He repeatedly demanded that she “put on a show” for him by inserting the bat into her vagina. It was at this point that the incident with the bat occurred. Afterwards, she went to sleep.
50On cross-examination, she was confronted with metadata from the video taken of the bat incident. It showed that the incident had occurred the following morning. She ultimately agreed that the bat incident did not happen the night she used her safe word. As I will come to later, this inconsistency seriously undermines her evidence regarding the bat incident. It also affects the reliability of her testimony more generally.
51The manner in which S.L. testified was also problematic. She frequently did not answer questions directly, even when asked multiple times. In almost all cases, there was nothing confusing about how the questions were worded. On one occasion, the court intervened. As can be seen from the following passage, it was to no avail:
Q. Okay, you agree with me that you throughout your relationship with Marcus wanted to please him, right?
A. I know that that is what I did. My actions were to please him, and I did so.
Q. Right, you wanted, as you said, you wanted to make sure that he remained interested in you, correct?
A. I did those things.
Q. Sorry?
A. I, I did the things that he had asked of me.
Q. Right, because you wanted him to remain interested in the relationship, right?
A. I wanted to follow the instructions that I was given.
Q. Right, for the purpose of making sure that he remains interested in the relationship, right?
A. I did what I was asked to.
Q. Okay, we’ve already talked....
THE COURT: He is asking you if you did it because you wanted to stay in the relationship, so it’s just yes or no on that?
A. I did, I did the things that I was asked to do, yes.
52Sometimes, S.L. would ask for clarification, even when the questions were not difficult. Other times, she simply refused to answer. When it was put to her during cross-examination that she wanted to engage in BDSM activities, she replied that she did not feel comfortable answering that question. Then there is this exchange, which I have taken directly from the transcript:
Q. Okay, well I can rephrase. I’m going to suggest that you said yesterday that you agreed to some BDSM acts because you were afraid that he would lose interest in you if you didn’t show yourself to be experimental in BDSM, is that fair?
A. I don’t think initially there was a fear of losing him.
Q. Is that not what you said yesterday?
(...EXTENDED PAUSE AWAITING WITNESS’ ANSWER...)
53No answer ever came.
54Finally, aspects of her evidence about the nature of their relationship were implausible.
55S.L. repeatedly testified that she only engaged in certain BDSM activities in order to please Mr. Pearson. The tenor of her evidence was that she herself was not interested in BDSM. She just wanted to be in a caring relationship. Despite this evidence, she agreed in cross-examination that she met Mr. Pearson on a kink app where she specifically advertised as a “sub”. It makes no sense that she would do so unless she was interested in at least some BDSM activities. If she were only interested in a caring relationship, there were other apps or websites she could have gone on. Nor does it make sense that she went to the first meeting only to please Mr. Pearson. They had just met on the website and barely knew one another.
56It was also S.L.’s evidence that she felt beholden to Mr. Pearson throughout their relationship and was concerned about what would happen if she did not agree to engage in certain activities. Sometimes she testified that she feared he would end the relationship, other times she suggested a concern for her safety. In cross-examination, however, she agreed that she had refused to do certain activities and no issues arose. She also agreed that he had never threatened her and that they lived in different cities. She provided no rational basis for any concern for her safety.
57Ultimately, she ended the relationship. He was understanding. He did not try to keep it going. The text exchange was made an exhibit. The tone of the messages does not support the notion that she felt beholden to him or that she feared him. I would further note that her testimony about the breakup was at odds with the content of the messages.
58While I cannot say that S.L. deliberately lied, I find that her evidence is completely unreliable. On any factual issue that is in dispute, I place no weight on it. That, however, does not end the matter. As previously indicated, a number of video clips were taken of the BDSM activities. Those clips are at least some evidence that is potentially relevant to the issues of consent and bodily harm.
Subjective Consent
59S.L. testified that she agreed to engage in all the activities except the insertion of the baseball bat. While she provided various reasons for agreeing, those reasons are only potentially relevant to the issue of whether consent was vitiated. That issue will be dealt with later in these reasons.
60At this point in the analysis, the trier of fact is concerned only with the complainant’s perspective. The approach is purely subjective. As succinctly put by the Crown, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent—plain and simple.
61As noted above, I found S.L.’s evidence wholly unreliable. I cannot accept her testimony that she did not subjectively consent to the activity in question. It is important to note that one of the reasons for rejecting her evidence was the fact that her testimony with respect to the bat incident was at odds with the video evidence.
62This brings me to the next point. Despite rejecting her evidence, I can still consider the video itself on the issue of consent. I have reviewed the clip of the bat incident carefully. It does not show how it began nor how it ended. While it appears that she may have been in discomfort at some points, there is nothing in the video itself that makes it obvious she is not consenting. In addition, Mr. Pearson testified that the activity was consensual.
63Ultimately, I am unable to conclude beyond a reasonable doubt that S.L. did not consent to Mr. Pearson inserting the bat in her vagina and twisting it.
Abuse of a Position of Trust, Power or Authority
64The Defence submits that for the Crown to argue that consent was vitiated under s. 273.1(2)(c) of the Criminal Code, they must convince this court that a dominant BDSM partner is in a position of “authority” or trust as contemplated in that section. It is argued there is neither any precedent nor valid policy reason for expanding that category to include dominant BDSM sexual partners. No decisions in which this section of the Criminal Code was used in the context of a BDSM relationship were provided to me. That does not mean, however, that the section has no potential applicability. There are no “categories” set out in the provision on which to expand.
65That said, in his closing submissions the Crown conceded that if I found S.L.’s evidence to be unreliable, a conviction on this basis could not be sustained. I agree. While the master/whore contract, the videos and Mr. Pearson’s testimony provide some evidence of trust, power and authority elements in this BDSM relationship, the evidence falls far short of establishing that they were sufficient to establish the type of relationship contemplated by the provision or that Mr. Pearson abused his position.
66The Crown has failed to prove beyond a reasonable doubt that S.L.’s consent was vitiated by reason of s. 273.1(2) of the Criminal Code.
Bodily Harm
67The Crown further argues that consent is vitiated because Mr. Pearson intended to cause bodily harm and did so. As previously noted, the Crown particularized the activities in issue. Slapping, choking, caning, stapling and the insertion of the bat are covered by the counts. Flogging and nipple clamping are not. Given that there was testimony and/or video evidence of all the activities, it is critical to keep this distinction in mind.
68I will begin with the slapping and choking as these activities were not captured on video. S.L. testified that she was slapped many times during the Kingston meeting. She said her face felt sore but agreed that she suffered no other injury. She did not specify how long the soreness lasted. Mr. Pearson was not asked about the slapping by either counsel. Given the reliability concerns with S.L.’s evidence, I cannot find beyond a reasonable doubt that the slapping occurred. Even if I could, the evidence falls far short of establishing bodily harm.
69Both S.L. and Mr. Pearson testified that he choked her. I accept Mr. Pearson’s evidence that she did not lose consciousness as a result. There is no evidence of any other injury. A conviction cannot be entered on the basis of the allegations of choking.
70I turn now to the activities that were captured on video—stapling, caning and the insertion of a bat in the complainant’s vagina.
71In one of the video clips, Mr. Pearson can be seen putting a staple into S.L.’s breast. Blood begins to drip. He can be heard asking her if she likes it. While not conceding that this amounts to bodily harm, the Defence submits that Mr. Pearson did not intend to cause bodily harm. I agree. Both S.L. and Mr. Pearson testified that the bleeding was not supposed to happen. He mistakenly hit a vein. S.L. gave evidence that the staple was only in for a few minutes. It didn’t hurt when it went in. She didn’t feel anything. For the reasons previously articulated, I am unable to rely on S.L.’s evidence that she later discovered there was a dark colour when she was lactating. On this evidence, I am unable to find beyond a reasonable doubt that Mr. Pearson intended to cause bodily harm to S.L. by putting one staple in her breast.
72With respect to the bat, S.L. testified in examination-in-chief that after the insertion of it, she bled consistent with a large object being placed in her vagina. However, S.L.’s reliability in general and with respect to the bat incident in particular was badly compromised. S.L.’s claim that she was injured by the bat does not constitute sufficiently reliable evidence on its own to vitiate consent to this act. There is, however, the evidence of the video. At several points, S.L. appears to be in discomfort, possibly even in pain. Without some additional evidence though, either reliable evidence from her or expert evidence, I cannot be satisfied beyond a reasonable doubt that there is hurt or injury to her that interferes with her health or comfort and that is more than merely transient or trifling.
73Finally, there is the question of the caning. Once again, because of the unreliability of S.L.’s evidence, I cannot place any weight on it. That said, Mr. Pearson agreed that he caned her on numerous occasions. The video corroborates that. More importantly, there are injuries that are plainly visible when watching the video clips.
74The Defence submits that while the court can examine the photographs and videos to see the nature of the marks, the time it would take such injuries to heal is beyond the scope of judicial notice. It is a medical question. The Crown could have called an expert but did not.
75The law is clear that expert medical evidence is not required in all cases. In several of the clips, the sheer number and colour of the marks speaks volumes. While I may not be able to conclude that they are more than transitory, I have no difficulty in finding that they are more than trifling. That is all that the law requires.
76The real issue, however, is not whether bodily harm was caused, but how it was caused. The Crown made a decision to particularize the nature of the activities encompassed by the counts. Caning was included; flogging was not. This presents a problem. In cross-examination, S.L. confirmed that on each occasion, she was caned and flogged in the same spots. While she testified that both caused injuries that lasted for a week, I am uncertain as to whether she would be able reliably differentiate between the two, even if I did accept her evidence. To be clear, this is not a criticism of S.L. I am not sure anyone could. This problem would not have arisen if the Crown had included both activities in the counts.
77Some of the video clips show S.L. with red marks but do not show any activity. Were they caused by caning? Flogging? Something else? I cannot say. With respect to some of those clips, Mr. Pearson was asked if they came from a cane. He replied that he believed they came from a flogger. His evidence was not challenged on this point.
78In clip #14, Mr. Pearson can be seen caning her. Before the caning commences, there are visible red marks on her buttocks, upper thigh and hip. There is no reliable evidence as to what these marks came from. He applies the cane three times on each side of her body. She counts each one out. It is not possible to tell if any new red marks emerge from this caning or the level of pain she is experiencing.
79There is further evidence of caning in clip #18. S.L. is bent over the bed with her buttocks exposed. Red marks can be seen on her right buttock. There is no reliable evidence as to how they got there. They are not as extensive or deep in colour as ones that can be seen in other clips. Mr. Pearson strikes her with a cane more than 20 times. It is somewhat difficult to tell but it appears they may have caused a few new red marks. At times she appears to be sniffling. On one occasion after being struck, she lets out a slight audible gasp. In response to being struck, sometimes her voice wavers when she says, “thank you sir”. On the last two strikes her body moves slightly. While this is some evidence of discomfort and even pain, it is insufficient to establish beyond a reasonable doubt that there is hurt or injury to her that interferes with her health or comfort and that is more than merely transient or trifling.
Conclusion
80The Crown has failed to establish that S.L. did not consent to any of the charged conduct, that her consent was vitiated by operation of s. 273.1(2)(c) of the Criminal Code or that her consent was vitiated by reason of the fact that Mr. Pearson intentionally inflicted bodily harm. Verdicts of not guilty will be entered on all counts.
Postscript: BDSM and Social Value
81As discussed above, both the Crown and Defence advanced arguments and called experts regarding whether the law should be changed such that certain BDSM practices ought not to fall under the category of activities to which a person cannot consent to bodily harm. The issue is whether the law on consent to bodily harm as it currently stands reflects today’s social norms, practices and values or should be changed to do so. Although I need not decide the matter, I would note that the Defence has put forward a compelling case that the matter should, at a minimum, be re-examined.
82As the law stands now in Ontario, a person cannot consent to the infliction of bodily harm in the context of a sexual relationship. The standard of bodily harm is not a high one. Bodily harm is 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. I have emphasized the disjunctive nature of the definition—“hurt or injury”, “health or comfort”, “transient or trifling”—to demonstrate the wide spectrum of situations that are potentially captured.
83It will not be uncommon in BDSM to intentionally leave marks that would meet this definition. One such scenario was put to the Crown expert, Dr. Dominique Bourget. The following exchange occurred in cross-examination:
Q. Okay, so, I’ll give you a BDSM hypothetical where two people who are, have no mental health issues, they’re in a long serious relationship, have been married for 30 years, they engage in consensual spanking on the buttocks, that they both intend would leave some redness, which fades completely after about four or five days, okay? Is it your opinion your psycho(sic), you know, your, your, your expert opinion that under no circumstances should those people be allowed to engage in that behaviour?
A. No.
Q. Okay, in your opinion that would be something that people should be able to consent to based on all of your research?
A. Yes, that is something that, I, I, I don’t see, unless somebody has a concern that one of the partners does not have the capacity to consent, I do not see that the law would want to intervene in a situation like this.
Q. Sorry, or, or more correctly you don’t see, based on your clinical and research experience why that, why that should be prohibited by the law, is that fair?
A. Correct.
Q. Okay. And just to extend that a little bit further, if the same, that same couple, married couple engaged in spanking which left redness for seven or eight days, you’d have the same opinion, correct?
A. I have a, I have the same opinion, if there’s no – especially if there’s, neither of them complained about it to police.
Q. If both of them were consenting in other words, correct?
A. Exactly, if they were both consenting and not making a complaint because it went too far or there were other issues that – but I think that these are fair examples of, you know, a stable couple consenting activities and between the two of them in their, in their own bedroom.
84The Crown expert did not view the conduct in the hypothetical scenario as worthy of criminal sanction. And yet such conduct would almost certainly meet the definition of bodily harm. The result would be a conviction for sexual assault, with all of the serious repercussions that stem from that.
85In addition, the Defence led evidence about the social benefits of BDSM through Dr. Charles Moser, who is presently employed in the United States practicing internal medicine and sexual medicine. He has authored and co-authored a wide array of publications on BDSM, and other topics related to sexual conduct and has been previously qualified by courts in the United States and Canada as an expert in BDSM.
86According to Dr. Moser, approximately 5% of the population engages in BDSM to the point of recognizing and naming it as such. That would equate to approximately 1.9 million Canadians who would report engaging in BDSM in some form if queried. Dr. Moser further testified that over 50% of the general population at least engages in fantasies about BDSM behaviour.
87As for the value of BDSM, Dr. Moser noted the following:
a. Mental health benefits, personal growth, self-actualization, connection with partners and community, and therapeutic benefits including navigating trauma;
b. An understanding of the activities as a form of expression that can encompass physical, verbal, sexual, artistic, visual, poetic, social and political expression; and
c. Engagement representing an equally important part of participants’ identity as members of the LGBTQ+ community and general public view their sexual orientation and gender identity.
88These types of benefits were not considered by the Court of Appeal for Ontario in R. v. Welch, 25 O.R. (3d) 665 (C.A.). In fact, the court appeared to accept the general proposition that “hurting people is wrong” and that 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.”
89If this is so, one wonders why the much more extreme violence found in mixed martial arts (MMA) is not sanctioned. As pointed out by the Defence, in MMA, extremely serious injuries are intentionally caused to win a fight. Noses break. Bones break. It is not criminal assault if both parties consent to the activity. The vast majority of Canadians, surely, do not engage in this practice. Presumably, a minority of Canadians have no interest in watching that particular sport. Many will not understand how a fan watching such violence could be entertained. But some people derive some value from it.
90In light of the evidence of both the Crown and Defence expert in this case, a similar argument could be made for BDSM. A majority of Canadians do not engage in it. A sizable minority may not even fantasize about it. Many will not understand why anyone would want to engage in it. But again, some people derive some value from it.
91Of course, there are tricky issues about where the line should be drawn, just as there is in MMA. Those issues are not insurmountable, however. When Welch was decided, the English and Canadian Law Reform Commissions proposed to have Parliament enact legislation that recognized consent as a defence to an assault except where serious injuries result, with long-term consequences, and the American Model Penal Code proposed consent as a defence where the harm is "not serious" and the conduct and harm are reasonably foreseeable hazards of joint participation in a lawful activity. Although the proposals to Parliament were not accepted in England and Canada, some American states have adopted the Model Penal Code’s approach in their state criminal codes. By statute, these states require a higher level of bodily harm to result for consent to be vitiated. These states uphold the defence of consent where the bodily harm consented to is “not serious”, “not serious physical injury”, does not “jeopardize life or seriously impair health” or does not “endanger life” or “cause serious bodily injury”.
92The point is not that any one of these definitions should be adopted. Having acquitted Mr. Pearson on all counts, the issue is not squarely before me. The point is simply that perhaps it is time for Parliament or the appellate courts to consider the issue afresh.
Carter J.
Released: January 21, 2025