No ‘air of reality’ to BDSM defence in sex assault case

Michael Sheldon Gairdner loses appeal after claiming sex acts with victim were consensual

A man who was found guilty of sexual assault after engaging in bondage and sado-masochism with a woman has lost an appeal of his conviction.

Michael Sheldon Gairdner invited the woman, who cannot be identified due to a publication ban, back to his home, where the pair had consensual sex for several hours.

He claimed that he told her he was into BDSM (bondage, discipline and sado-masochism), sexual activities where one partner is submissive while the other is dominant.

But he did not have a specific discussion with her about BDSM activity and there were no ground rules or “safe” words discussed for what then followed, some of which was captured on video by him.

On the video recording, she can be heard asking him to stop and help her and saying, “Are you going to kill me?’ and “Get the f--off me.”

In February 2015, a B.C. Supreme Court jury found Gairdner guilty of one count of sexual assault causing bodily harm and one count of choking to overcome resistance.

On appeal, he argued that the trial judge, B.C. Supreme Court Justice Ronald McKinnon, erred in not allowing him to put before the jury the defence that he had an honest, but mistaken belief that the victim had consented to sex after finding that there was no “air of reality” to that defence.

Gairdner claimed that despite the fact that the complainant had implored him to stop, it was all part of the BDSM role play, where “no means yes, yes means no.”

The Crown argued that the evidentiary underpinning of Gairdner’s belief in consent, where everything is consensual no matter what the other party says or does, could not confer an “air of reality” to the defence, an argument McKinnon accepted.

Gairdner argued on appeal that the trial judge improperly stepped into the role of the jury by deciding that the accused did not take reasonable steps to determine whether the complainant was consenting.

But a three-judge panel of the B.C. Court of Appeal concluded that McKinnon made no legal errors in his finding on the consent issue.

In his ruling, B.C. Court of Appeal Justice John Savage noted that Gairdner did not say there was a conversation that established rules and boundaries to the activities that followed such that no could mean yes.

Savage also noted the courts have found that the definition of consent requires the complainant to provide active consent throughout every phase of the sexual activity.

“In my view, under these circumstances, the appellant’s purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent and aggressive contact and his testimony that he thought ‘no means yes’ provides him no defence as the appellant’s belief amounts to a mistake in law,” said Savage.

McKinnon made no error in finding the evidence was not reasonably capable of supporting the defence of honest, but mistaken belief in consent, he added in dismissing the appeal.

Justice Pamela Kirkpatrick and Justice Gail Dickson agreed with Savage.