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Under current Canadian law, an individual cannot consent to the infliction of bodily harm in the context of a sexual relationship. “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”. The definition includes psychological harm. What, then, becomes of the infliction of pain for sexual pleasure? Approximately 1.9 million Canadians engage in BDSM activities—that’s 5% of the population. Can they lawfully consent to being flogged, stapled ,spanked, or clamped?
This issue arose recently in R v Pearson, 2025 ONSC 435. The accused, Marcus Pearson, met the complainant, S.L., on a popular kink dating app, and the pair engaged in a wide range of BDSM activities in the Fall of 2018. On one occasion, Mr. Pearson asked S.L. to penetrate herself vaginally with the wide end of a baseball bat. When she failed to apply sufficient force, Mr. Pearson used his hands to slowly twist the bat and push it inside her. The relationship ended soon after, and the complainant reported Mr. Pearson to the police. He was charged with various sex-related offences including sexual assault causing bodily harm.
The issue at trial was whether S.L. had consented to the sexual activity and whether Mr. Pearson had intended to cause her bodily harm. S.L. testified that she had not consented, but the court rejected her testimony as unreliable and lacking credibility. There was likewise insufficient evidence to establish that Mr. Pearson had intended to cause bodily harm. He was acquitted of all charges.
Recognizing the broader issue at play, the trial judge went on to give a postscript on “BDSM and Social Value”. He noted that both the Crown and Defence had called experts on whether the law should be changed to exempt certain BDSM practices from the category of activities to which a person cannot consent to bodily harm. Defence presented the Crown expert with the example of spanking that leaves redness for several days, which the expert conceded was unworthy of a criminal sanction. Yet, as the trial judge pointed out, such conduct would meet the definition of bodily harm and warrant a sexual assault conviction with all its serious long-range repercussions.
The Defence also led evidence about the social benefits of BDSM, practiced commonly through the population, including mental health benefits and the expression of sexuality and identity. The judge noted that other socially valuable activities, such as mixed martial arts (MMA), remain unsanctioned. Yet an MMA fighter will intentionally inflict extreme injuries to win a fight—and for the public’s entertainment.
The Judge observed finally that both the English and Canadian Law Reform Commissions proposed to have Parliament enact legislation that recognized consent as a defence to an assault, except in cases of serious or long-term injuries. He also noted that 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. Having reviewed the expert evidence and public trends, the judge suggested that “perhaps it is time for Parliament or the appellate courts to consider the issue afresh.”
