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R. v. Pearson, 2025 ONSC 435
BDSM and the Limits of Criminal Law
A Toronto businessman was acquitted on five counts of sexual assault after a judge found the complainant’s evidence wholly unreliable — and called on Parliament to reconsider whether the law on consensual bodily harm still reflects modern values.
Ontario Superior Court of Justice · Justice Carter · January 21, 2025
Joseph Neuberger, Michael Bury and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
| THE FIVE COUNTS | |
|---|---|
| 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, bat insertion, choking (Toronto) |
| Count 4 | Sexual assault with a weapon — caning, bat insertion (Toronto) |
| Count 5 | Sexual assault causing bodily harm — choking, striking with hand (Kingston) |
Note: Flogging and nipple clamping — activities both parties agreed were consensual — were excluded from the counts entirely.
01 • BACKGROUND
In the summer of 2018, a recently separated woman downloaded a kink dating app and advertised as a submissive partner. She connected with Marcus Pearson, a Toronto businessman, and the two arranged to meet at a Cornwall hotel in late September of that year. Over three in-person meetings — in Cornwall, Toronto, and Kingston — the couple engaged in an agreed-upon regime of BDSM activities, including caning, flogging, nipple clamping, and stapling. A dispute arose over one particular act: the insertion of a baseball bat, which the complainant testified she did not consent to. She also alleged she was choked to the point of unconsciousness in Kingston.
02 • THE LEGAL FRAMEWORK
Justice Carter set out the two-stage consent analysis required under the Criminal Code. First, did the complainant subjectively agree to the activity in question? Consent must be given for each individual act — there is no blanket consent. Second, even where subjective consent exists, was it vitiated? Consent may be rendered illusory where an accused abuses a position of trust, power, or authority (s. 273.1(2)(c)), or — under the common law — where the accused both caused and intended bodily harm. Bodily harm is defined broadly: any hurt or injury interfering with health or comfort that is more than merely transient or trifling in nature.
THE BODILY HARM THRESHOLD
For counts alleging sexual assault causing bodily harm, the Crown faces an additional hurdle. Where the accused subjectively intended to cause bodily harm, consent is irrelevant — a conviction follows regardless of what the complainant agreed to. Where such intent cannot be proven, the Crown must fall back on establishing lack of consent in the ordinary way.
03 • THE CREDIBILITY PROBLEM
“Her evidence is completely unreliable. On any factual issue that is in dispute, I place no weight on it.”
— Carter J.
The case turned almost entirely on the complainant’s credibility, and the findings were damaging. Justice Carter identified pervasive and serious problems: poor recollection attributable to alcohol use at each session (the complainant acknowledged being a high-functioning alcoholic), internal inconsistencies on material issues, and at least one instance where her evidence was squarely contradicted by objective video metadata.
The most striking example involved the bat incident. The complainant testified that the insertion occurred the same night she used her safe word — a vivid and emotionally charged account. Cross-examination revealed that the video metadata placed the bat incident the following morning, after a night’s sleep. She ultimately conceded the point. That single inconsistency, Carter J. found, “seriously undermines her evidence regarding the bat incident” and affected the reliability of her testimony more broadly.
Pearson, by contrast, gave evidence in a straightforward manner, internally consistent and uncontradicted by any external evidence. While Carter J. found room — even on Pearson’s own testimony — to infer that he intended to cause pain, that was not the same as intending bodily harm in the legal sense.
04 • THE ACQUITTALS: COUNT BY COUNT
On subjective consent, Carter J. found the complainant’s evidence wholly unreliable and rejected it. Reviewing the video of the bat incident independently, nothing in the footage made it obvious that the complainant was not consenting, and Pearson testified the activity was consensual. The court was unable to conclude beyond a reasonable doubt that consent was absent.
On vitiation through abuse of authority, the Crown’s own closing conceded the point: without reliable evidence from the complainant, this ground could not be sustained. Carter J. agreed. Whatever power dynamics existed in the BDSM relationship, the evidence fell well short of the statutory threshold.
On bodily harm, the analysis proceeded activity by activity:
| ACTIVITY-BY-ACTIVITY ANALYSIS | |
|---|---|
| Slapping | Unrecorded and unsupported by reliable evidence — could not be established. |
| Choking | Pearson’s evidence that the complainant did not lose consciousness was accepted; no other injury was established. |
| Stapling | Both witnesses agreed the bleeding was accidental — the Crown could not prove Pearson intended the resulting harm. |
| Bat insertion | The complainant’s evidence of bleeding was unreliable, and the video alone was insufficient without expert or reliable witness evidence to establish harm above the transient-or-trifling threshold. |
| Caning | The closest question. Videos plainly showed red marks — more than trifling. But caning and flogging (a non-charged activity) were applied to the same body areas. The Crown’s decision not to particularize flogging created an insurmountable evidentiary gap: no reliable basis to attribute the injuries to caning rather than flogging. |
VERDICT · Not guilty on all five counts. The Crown failed to establish lack of consent, vitiation of consent, or that Pearson intentionally inflicted bodily harm on any of the particularized acts.
05 • THE POSTSCRIPT: A CALL FOR REFORM
Perhaps the most significant aspect of the decision is Carter J.’s extended postscript — technically unnecessary to the disposition — on whether the current law on consent to bodily harm in BDSM contexts still reflects contemporary social norms.
The Defence called Dr. Charles Moser, a specialist in sexual medicine, who testified that approximately 5% of Canadians — roughly 1.9 million people — engage in BDSM to the point of naming it as such, and that over half the general population engages in BDSM fantasies. He identified mental health benefits, personal growth, community, and therapeutic value in BDSM practice, characterizing it as an expression of identity comparable in significance to sexual orientation or gender identity for participants.
The Crown’s own expert, Dr. Dominique Bourget, conceded in cross-examination that consensual spanking between long-term partners — leaving redness lasting four or five days, or even seven or eight — should not be criminally prohibited. And yet, under the current definition of bodily harm, such conduct would almost certainly meet the legal threshold, rendering a sexual assault conviction technically available.
“Perhaps it is time for Parliament or the appellate courts to consider the issue afresh.”
— Carter J.
Carter J. drew an uncomfortable analogy with mixed martial arts. In MMA, parties intentionally inflict serious injuries and consent is a complete defence. The same logic, Carter J. suggested, could apply to BDSM. The decision surveys legislative proposals from the English and Canadian Law Reform Commissions and American Model Penal Code approaches adopted in some US states — all of which would require a higher threshold of injury before consent is vitiated.
06 • SIGNIFICANCE AND TAKEAWAYS
The acquittal in R. v. Pearson rests on orthodox grounds — unreliable complainant evidence, evidentiary gaps in the particulars, and an inability to prove intended bodily harm beyond a reasonable doubt. There is nothing extraordinary in those findings.
What is notable is the decision’s frank acknowledgment that the substantive law may be out of step with reality: a law that could, in principle, criminalize the consensual bedroom activities of nearly two million Canadians without any distinction between consensual kink and genuine assault.
Whether Parliament, or the Ontario Court of Appeal, takes up Carter J.’s invitation remains to be seen. For now, R. v. Pearson stands as the most detailed examination of the consent-to-bodily-harm problem in a BDSM context yet produced by an Ontario Superior Court, and a significant marker for counsel and courts navigating this area.
Subsequent Citation: The Pearson decision was positively cited in R. v. Ashi, 2025 ONSC 1326 (CanLII), which determined at para. 120 that “there is social value to BDSM play. It is a form of sexual expression for many different people, regardless of whether they are involved in and identify part of a wider BDSM community. The intentional infliction of pain and bodily harm can be part of the sensual and erotic experience, that may be fulfilling sexually and emotionally meaningful for those who participate in it. Criminalizing it is not fair.”
READ THE FULL DECISION HERE: R. v. Pearson, 2025 ONSC 435
Case Commentary | R. v. Pearson, 2025 ONSC 435 | Ontario Superior Court of Justice | January 21, 2025
This commentary is a summary and analysis of a publicly available judicial decision. It is intended for informational purposes only and does not constitute legal advice.
