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He claimed they had a safe word to halt the game — “cabbage” — though neither had used it for years.

Under the law, both actual consent and an honestly mistaken belief in consent are defences to sexual assault charges.

An ‘initially conventional’ sexual relationship ‘became increasingly imaginative over time’

Trial was a “credibility contest” with only husband and wife as witnesses, the appeal court ruled, and the trial judge wrongly reasoned that whichever story he believed would automatically be the truth.

There is a “third option,” however, in which both versions are in doubt, the appeal court ruled. The trial judge’s reasoning also wrongly put the burden on the husband to prove consent, when it properly lay with the Crown to prove its absence.

The couple met in 1997, married in 2003, and had two children. An “initially conventional” sexual relationship “became increasingly imaginative over time,” the judges wrote. She expressed interested in bisexuality, and they tried bondage photography, an open relationship, and role playing of a dominant/submissive nature, with the husband dominant on every occasion but one.

Among their games was a teacher/student scenario, in which the husband “would find some aspect of his ‘student’s’ performance wanting and the complainant would try to remedy the situation with sexual favours,” the new ruling reads.

The wife testified that most of this behaviour was in the past, and denied “cabbage” was a safe word.

On the night in question, in February 2008, the husband allegedly grabbed his wife by the hair when she came to bed and said, in his dominant voice, “you want it, don’t you?” He testified that her reply of “no” was spoken in the submissive tone of their role play and thus, to him, “indicated consent,” the judges wrote.