In R. v. C. A., 2011 ONSC 291 an Ontario trial judge acquitted an accused on a sex assault causing bodily harm charge where the complainant and accused had a long history of sadomasochistic activity. In this case the accused and complainant had lived together, and regularly engaged in sadomasochistic sex. This continued both before and after one such encounter where the complainant suffered from significant injury resulting in a vulvar hematoma. The complainant ended up spending two and a half days in the hospital. The relationship ended, at which time the complainant reported her injury to the police.

In acquitting the Accused, the trial judge was not satisfied that the sexual injury was foreseeable, given the pattern of rough sex which they habitually engaged in. The issue was a familar one in many bar fight cases – whether the complainant could consent to activity which resulted in injury.

Justice McDermid stated in the decision:

In Regina v. Welch (1995), 101 C.C.C. (3d) 216, this court held that the public policy considerations referred to in Regina v. Jobidon (1991), 66 C.C.C. (3d) 454 (S.C.C.) should be extended to vitiate the defence of consent to a charge of sexual assault causing bodily harm in circumstances involving sado-masochism and the deliberate infliction of pain.

In this case, the trial judge should have charged the jury on the included offence of sexual assault causing bodily harm in the following terms. First, the jury had to be satisfied beyond a reasonable doubt that the appellant assaulted the complainant. Second, the jury had to be satisfied that the assault took place in circumstances of a sexual nature such as to violate the complainant’s sexual integrity. Third, the jury had to be satisfied that the sexual assault caused bodily harm. Fourth the jury had to be satisfied that the appellant intended to inflict bodily harm upon the complainant. If the jury found that the appellant had intended to inflict bodily harm upon the complainant and that the complainant suffered bodily harm, the defence of consent was irrelevant. However if the jury was not satisfied beyond a reasonable doubt that the appellant intended to, and did, cause the complainant bodily harm, then it was necessary for the jury to decide whether they were satisfied beyond a reasonable doubt that the complainant had not consented.

12. In R. v. Quashie, where at trial the accused was convicted of sexual assault causing bodily harm, the court stated:13. However, I do not consider this to be such a case. There is no evidence that the sexual activity engaged in by the accused and the complainant involved sado-masochism or the deliberate infliction of pain. While it is true they engaged in role-playing involving domination and submission, there is no evidence of any intention by either party to inflict pain on the other for the sexual gratification of either party. The complainant testified that prior to January 15, 2007, she and the accused had never engaged in sexual behaviour that caused her pain. Nor could she recall any prior discussions about pain associated with their sexual interaction. On cross-examination, the accused agreed that pain as a sexual experience was not part of their sexual relationship. He also agreed that he did not cause her pain for his sexual gratification or vice versa. The accused said it was his intention to give the complainant pleasure, not pain.14. In R. v. Quashie, the position of the accused was that the complainant consented to the sexual activity that resulted in her bodily harm. The court stated:15. In order to vitiate consent, the Crown must prove that the accused intended to cause serious bodily harm and that such harm was in fact caused. More precisely, what the Crown must prove with respect to the accused’s intention is that a reasonable person, in the circumstances, would inevitably realize that the force the accused applied would put the complainant at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that the complainant suffered here; in other words, the Crown must prove objective foreseeability of the risk of bodily harm in general.

16. There is no question that the accused applied force to the complainant on the occasion in question in circumstances of a sexual nature and that in doing so he caused her bodily harm. However, I am not satisfied beyond a reasonable doubt that he intended to cause her bodily harm, nor, in the circumstances, am I satisfied that the risk of bodily harm in general was objectively foreseeable.

17. The complainant and the accused were engaging in sexual acts in which they had engaged many times before. I find that on the occasion in question the complainant consented to engaging in these acts with the accused, including being penetrated by the dildo. Naturally, she did not consent to being injured in the manner which occurred. In fact, the jurisprudence supports the conclusion that she could not in law have consented to the infliction of an injury as serious as the one she sustained, one which required surgery and a two and a half day stay in hospital. However, I accept the testimony of the accused that they had used the white dildo “many, many times before”. Therefore, I conclude that it was not reasonably foreseeable objectively that the repetition of this habitual activity would cause her bodily harm and find that the accused’s actions did not exceed the scope of the consent the complainant gave.

18. Moreover, I am not satisfied beyond a reasonable doubt that the complainant asked the accused to stop and that he refused to do so. He testified that this did not happen and that when the dildo slipped and she said “Ouch”, he asked her if she was “Okay” and that he acceded to her request not to use the dildo and that she consented to the continuation of their sexual activity without the dildo. I accept his testimony on this issue.

Accordingly, the accused was found not guilty.

Janine Benedet commented on this case, noting the following:

Here the trial judge helpfully restates the distinction that while the presence of serious bodily harm can vitiate consent, it does so only where the mens rea of the offence is satisfied, namely where the bodily harm is reasonably foreseeable. This prevents conviction for sexual assault or assault causing bodily harm where the contact was entirely consensual and the injuries accidental and unforeseeable. When this requirement is kept in mind, it should allay concerns that the reasoning in these cases unfairly circumscribes consensual sexual activity.

Another potential concern with this decision relates to the trial judge’s assessment of the complainant’s credibility. The complainant’s testimony here was not based on some notion of post facto vitiated consent because of injuries sustained in the sexual activity. Rather, it was based on her testimony that she said stop repeatedly and the accused did not stop. The details of their past sexual history were not relevant to the credibility of the complainant on this point.

The lack of a recent complaint, which influenced the trial judge, must similarly be approached with caution. This common law doctrine has been specifically abolished by s. 275 of the Criminal Code. The complainant’s decision to continue the relationship for some time after the injuries were sustained is not necessarily an indication that the acts were consensual. A woman may remain in an intimate relationship after being subjected to physical and/or sexual abuse for a variety of reasons. In some cases it may take a considerable time before the victim even realizes or admits to herself that she has been abused by someone in a position of trust. There were legitimate problems with the complainant’s credibility in this case that could have been relied on to find a reasonable doubt, without calling on more suspect reasoning of this kind.

I think Benedet’s comments are reasonable, in that this case is unlikely to be successfully applied for the proposition that mere delay in bringing a complaint creates doubt or, further, that past activity and consent in that activity will always be admitted into evidence. Don’t consider this an absolute defence…..The case is interesting nonetheless.