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Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
Canadian criminal law has long placed limits on the harm a person can legally consent to. In the sexual context, Ontario courts have held for more than a decade that consent is irrelevant where an accused intentionally causes bodily harm, a threshold that captures any hurt or injury that is more than transient or trifling. In R. v. Ashi, 2025 ONSC 1326, released on February 27, 2025, Justice Chozik of the Ontario Superior Court of Justice concluded that this threshold no longer reflects Canadian social norms. Relying on expert evidence about the prevalence and practices of BDSM, and on the Alberta Court of Appeal’s decision in R. v. Barton, 2024 ABCA 34, the Court directed that the jury be instructed using a higher threshold of “serious” or “significant” bodily harm. The ruling is notable both for what it says about consent and for its willingness to depart from binding appellate authority.
01 • BACKGROUND
The accused faced a 13-count indictment for sexual assault and related sexual offences involving two complainants, with a jury trial scheduled for March 2025. The ruling concerned one anticipated allegation from 2016. The Crown expected the complainant to testify that she went with the accused to a basement to engage in sexual activity after a conversation about her wish to be “punished,” which may have touched on the limits of her consent. She was then allegedly blindfolded and restrained, struck repeatedly on the buttocks with a belt and a charging cable, and subjected to intercourse, all of which was video recorded, allegedly without her knowledge. She alleged that none of it was consensual and that she suffered extensive bruising and open wounds that caused discomfort for about a month.
The Court observed that a jury could find these injuries amounted to bodily harm without being “serious” or “significant.” That possibility made the governing threshold decisive, and the defence brought a pre-trial motion for directions on how the jury should be charged.
02 • THE LAW BEFORE ASHI
The foundation is R. v. Jobidon, [1991] 2 S.C.R. 714, in which the Supreme Court held, in the context of a fist fight, that consent is vitiated where adults intentionally apply force causing serious hurt or non-trivial bodily harm, unless the activity has recognized social value, as sports do.
In R. v. Welch (1995), 25 O.R. (3d) 665 (C.A.), the Court of Appeal applied that reasoning to sexual activity, describing sadomasochistic conduct as degrading and without social utility, and holding that a person cannot consent to the infliction of bodily harm in that setting. The effect was that any bodily harm during otherwise consensual sex rendered consent legally irrelevant.
R. v. Zhao, 2013 ONCA 293, narrowed Welch by requiring that bodily harm be both intended and caused before consent is vitiated, and Tulloch J.A. expressed doubt that Welch remained good law. Zhao nevertheless retained the threshold of “bodily harm” as defined in s. 2 of the Criminal Code, which R. v. Nelson, 2014 ONCA 853, confirmed includes psychological harm. Zhao set out a five-step jury instruction: if the jury finds the accused intentionally caused bodily harm in a sexual context, consent is irrelevant; if not, the jury must decide whether the Crown has proven the absence of consent.
Two recent Superior Court decisions set the stage for Ashi. In R. v. Wolters, 2023 ONSC 6731, a Charter challenge to Zhao failed. In R. v. Pearson, 2025 ONSC 435, Carter J. found it unnecessary to depart from Zhao but remarked that the defence had made a compelling case for change.
03 • THE ALBERTA APPROACH IN BARTON
In Barton, the Alberta Court of Appeal fashioned a new common law test. Consent to sexual activity is vitiated only where the activity causes significant bodily harm, meaning hurt or injury that interferes substantially with a person’s integrity, health or well-being, and excluding cuts or bruises that would normally heal within a few days. The accused must also have touched the complainant intending to cause such harm, being wilfully blind or reckless to it, or in circumstances where it was objectively foreseeable. The Court recognized that consensual BDSM, like other consensual sexual activity, has social utility, and rejected the idea that an intention to inflict pain should itself vitiate consent.
04 • THE EXPERT EVIDENCE
The defence called Dr. Peggy Kleinplatz, a clinical psychologist, certified sex therapist and professor in the University of Ottawa’s Faculty of Medicine, who was qualified on consent of the Crown. Her evidence described BDSM as widespread rather than marginal. She pointed to survey data from Quebec and New Brunswick showing substantial rates of participation in practices such as bondage and spanking, and to roughly 950,000 Canadian members of the online community FetLife. Many participants engage privately or do not identify their activities as BDSM at all.
She explained that BDSM is governed by the principle of “safe, sane and consensual,” with emphasis on negotiation, safe words and aftercare. Crucially, she drew a line between markings and harm. Bruising, minor lacerations and other marks, even ones lasting days or weeks, can be intended and valued by participants, sometimes carrying symbolic meaning. What falls outside legitimate practice is injury that goes beyond the superficial, trivial or transitory and requires medical intervention. She also acknowledged that consent violations occur, particularly among novices and new partners.
The Crown did not dispute that this evidence could properly inform the Court’s understanding of sexuality. It argued instead that Zhao adequately delineated tolerable and prohibited harm and remained binding.
05 • THE RULING
Justice Chozik accepted that Zhao bound the Court. Relying on Canada (Attorney General) v. Bedford, 2013 SCC 72, the Court held that a lower court may revisit binding precedent where there is a significant change in circumstances or evidence. The Court found that Dr. Kleinplatz’s evidence reflected a significant shift in understanding of BDSM that was simply not available when Welch and Zhao were decided, and that this met the Bedford threshold. The Court also drew on R. v. Pike, 2024 ONCA 608, for the proposition that the law must adapt as society changes.
The Court held that the Criminal Code definition of bodily harm sweeps in precisely the bruises and marks that may be the intended and desired result of consensual BDSM. Because bruising can qualify as bodily harm depending on factors such as its location, size, colour and duration, many of which are outside the accused’s control, the existing threshold creates unacceptable uncertainty about what is criminal. The Court found that BDSM has social value, including sexual expression, fulfilment and, for some, therapeutic benefit, and endorsed Carter J.’s comparison in Pearson to mixed martial arts, where far more serious injuries are lawfully inflicted by consent.
The Court declined the defence’s primary request to leave consent entirely to the jury, accepting that policy limits must remain and that no one should be able to consent to permanent injuries such as broken bones, maiming or disfigurement. Acknowledging that Parliament is better placed to set these limits, the Court nonetheless concluded that, in the interim, Barton‘s “significant” or “serious” bodily harm standard best matched the expert’s description of harm outside legitimate BDSM, and aligned with the “serious harm” line drawn in Jobidon and R. v. Paice, 2005 SCC 22.
The Court set out a modified version of the Zhao instruction. The jury must find that the accused intentionally applied force in circumstances of a sexual nature and that this caused serious bodily harm, defined as in Barton. Whether the injury was long-lasting, permanent or required medical attention are factors in assessing seriousness. If the accused intended to cause serious bodily harm, consent is irrelevant; if not, the jury must decide whether the Crown has proven the absence of consent.
06 • ASSESSMENT
Several features of Ashi merit attention.
Bedford concerned a Charter challenge, and the Court acknowledged it was not deciding a Charter issue here, instead drawing on Charter values to inform its reasoning. The question of whether a trial court may displace an appellate common law rule on the strength of new expert evidence, outside a constitutional challenge, is one that appellate courts may wish to address directly.
The ruling was made by a case management judge under s. 551.3 of the Criminal Code. It binds the trial in this case but does not bind other Superior Court judges, and it sits alongside Wolters, which upheld Zhao. Until the Court of Appeal revisits the issue, Ontario law in this area is unsettled.
The revised instruction raises questions of its own. Step (d) incorporates Barton‘s broader fault standard, including recklessness, wilful blindness and objective foreseeability, while step (e) refers to subjective intent alone. How a jury is meant to reconcile these steps may require clarification at trial.
The ruling does not suggest that the alleged conduct was lawful. The complainant’s position is that she did not consent at all. The effect of the ruling is narrower: if the jury is not satisfied that serious bodily harm was intended, the case turns on whether the Crown proves the absence of consent, which remains the central protection for complainants.
07 • CONCLUSION
R. v. Ashi marks a significant, if provisional, step in the evolution of consent law in Ontario. By adopting the Barton threshold, the Court moved the line at which the law overrides consent from any non-trivial injury to serious or significant harm, grounding that shift in expert evidence about how many Canadians actually practise and understand consensual BDSM. Whether that line holds will depend on appellate review or on Parliament, which the Court itself identified as the institution best placed to decide where the limits of consent in sexual activity should lie.
This post is a summary and commentary on a public court decision and is not legal advice. Anyone seeking advice about a specific matter should consult a criminal lawyer. Neuberger & Partners LLP, Criminal Lawyers Toronto.
