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Ruling could prompt change in bestiality law

Thursday, June 23, 2016 @ 8:00 PM | By Cristin Schmitz

Animal rights advocates say their recent loss at the Supreme Court adds new urgency to nearly two decades of failed legislative efforts to update Canada’s antiquated animal cruelty laws.

In a June 9 decision which drew international headlines, the top court ruled 6-1 that sexual activity, short of penetration, between humans and animals does not amount to the crime of “bestiality” — based on the “well-understood” centuries-old common law conception of the offence: R. v. D.L.W. 2016 SCC 22.

The Criminal Code has never defined bestiality. But “penetration has always been understood to be an essential element of bestiality,” Justice Thomas Cromwell explained in rejecting the B.C. Crown’s position that s. 160(1) of the code encompasses all sexual acts visited by humans on animals. (Lone dissenter Justice Rosalie Abella agreed with the Crown that bestiality covers all “sexually exploitative conduct” involving animals, pointing out that “penetration is physically impossible with most animals and for half the population.”)

The court’s decision — which came as a surprise to people who assumed all forms of human-animal sex are illegal — should spur Parliament to move quickly to amend the Criminal Code, said University of Alberta law professor Peter Sankoff, co-counsel with Camille Labchuk for the intervener Animal Justice. The animal rights advocacy group supported the Crown’s position.

“It’s obviously very concerning that the [majority’s] interpretation leaves animals vulnerable to sexual abuse that can be legally committed upon them,” Sankoff told The Lawyers Weekly. “There is actually a pretty vibrant little animal abuse community that will be very aware of this judgment, and quite thrilled by it. I know because I hear from them from time to time.”

The court gave animal rights advocates “quite a lot to build on,” he stressed.

“There is certainly more recognition from the judiciary than we’ve ever had that animal interests are worthy of protection,” he explained. “The majority made it clear that they can see that animal values are important — that it’s important to protect animals from sexual exploitation. They just said that the law didn’t do that…But at the same time there is no question that…it’s going to require parliamentary intervention to protect animals from this sort of harm, and I think it’s universally accepted that animals are deserving of [protection from] this sort of harm.”

A private member’s bill addresses the issue, but one month before the Supreme Court decided D.L.W., the Liberal government went on the record in the House of Commons stating it won’t support Liberal backbencher Nathaniel Erskine-Smith’s Bill C-246.

His proposed Modernizing Animal Protections Act would toughen the code’s animal cruelty provisions in several ways, including defining bestiality as any “sexual activity between a person and an animal.”

Calling parts of the bill “sensible and appropriate from a criminal law perspective,” Bill Blair, a parliamentary secretary for Justice Minister Jody Wilson-Raybould, nevertheless informed MPs the government will deal with animal cruelty reform as part of a promised “comprehensive review of the Criminal Code,” at an unspecified future date, that will include “broad consultation” with stakeholders, including hunters, anglers, ranchers, farmers and medical researchers — whose lobbyists successfully fought past reform initiatives.

Previous Liberal government bills proposing an overhaul of the animal cruelty provisions died on the order paper. Tabled by successive Chretien and Martin governments starting in 1999, the initiatives included widespread consultation and elicited huge popular support, but also encountered effective opposition from animal-use advocates. The failed legislative process dragged on for years.

“The bestiality change cannot wait,” Sankoff insisted. “It can’t wait three or four years.”

Department of Justice spokesman Ian McLeod said by e-mail “the government will take the time needed to review the D.L.W. decision, as well as all options to address any gaps in protection resulting from it. In the meantime, some of the conduct that the D.L.W. decision has stated would not be captured by the bestiality offences would still fall under the Criminal Code’s sexual assault and animal cruelty offences.”

The government won’t support Bill C-246 because it raises some complex issues that can’t be adequately addressed through the legislative process for private members’ business.

Justice Cromwell emphasized that expanding criminal liability is a job reserved solely for Parliament, not judges (Justice Abella didn’t dispute that well-established rule, but did not view the Crown’s interpretation of bestiality as an expansion of that crime’s scope).

However the majority acknowledged the “significant policy debates about what the focus of this sort of offence ought to be.” The “fundamental values at stake in this debate include the protection of vulnerable animals from the risk posed by improper human conduct and the wrongfulness of sexual conduct involving the exploitation of non-consenting participants,” Justice Cromwell said.

In dissent, Justice Abella noted “bestiality” first appeared in the Criminal Code in the context of 1955 amendments that reflected an increased societal recognition of the importance of protecting animal welfare. “It is hard to attribute to Parliament the inconsistent purpose that animal cruelty protection in the code would now cover all birds and animals,” but bestiality “would be limited to those animals whose anatomy permitted penetration,” she reasoned. “Continuing to impose the penetrative component of buggery on bestiality technically leaves as perfectly legal all sexually exploitative acts with animals that do not involve penetration. And this, in turn, completely undermines the concurrent legislative protections from cruelty and abuse for animals.”

Justice Cromwell vigorously disputed that all non-penetrative sex with animals is now “perfectly legal.” He pointed to code provisions protecting children and others which do not necessarily involve penetration: e.g. sexual interference (s. 151); sexual exploitation (s. 153); corrupting children (s. 172); and indecent acts (s. 173).

The majority went on to dismiss the Crown’s appeal of respondent D.L.W.’s acquittal for bestiality.

He was convicted at trial of numerous sex crimes against his two stepdaughters that he committed over a 10-year period while they were children and teenagers. However he was acquitted of bestiality last year, 2-1 by the British Columbia Court of Appeal, because the sexual abuse he inflicted on them, using the family dog, did not involve penetration.

The central legal dispute at the Supreme Court was whether penetration is an essential element of the offence dating back to the 1500s, which was historically known as sodomy or “buggery,” but was added to the Criminal Code under the rubric of “bestiality” in 1955.

The trial judge convicted, accepting the Crown`s position that penetration is no longer a necessary element of the offence, and that bestiality means sexual touching between a person and an animal.

The Court of Appeal reversed last year, holding that bestiality has a common law meaning that includes penetration, and that the legislative history did not show any parliamentary intent to depart from that.