Advocating for Freedom & Equality in Health Care

Advocating for Freedom & Equality in Health Care

Do doctors have to change their religious belief and conscientious convictions upon the release of every Supreme Court decision? Do regulators have the ability to mandate - with statutory authority and punitive powers - that change in belief? Or in the face of a refusal to change, can regulators oblige doctors to practice against the very core of their ethical and moral standards?

A Dialogue on Religious Lawyering

A Dialogue on Religious Lawyering

“So three lawyers, a Catholic, an Evangelical, and a Mormon are sitting in a lounge over lunch when…” sounds like the start of a bad joke, but it’s exactly what happened at the University of Alberta as students, faculty, and local practitioners gathered to discuss the role of religion in the legal profession.

The Rule of Law and Religious Freedom

This article was written by CLF Associate Legal Counsel, John Sikkema, J.D., and originally appeared in the September 2016 edition of the Christian Legal Journal.

Any state-imposed limit on a constitutional right or freedom must be “prescribed by law”, according to section 1 of the Charter. This requirement stems from the principle of the “rule of law”, a principle that long precedes the Charter and is called foundational in the Charter’s preamble.

In this article, I argue that the rule of law has been neglected in recent years much to the disadvantage of Trinity Western University (TWU) in its ongoing litigation with three provincial law societies and that this principle should be brought to bear on the ongoing litigation. While previous articles in this Journal have examined the s. 2(a) religious freedom, 2(b) association, and s. 15 equality rights engaged in the TWU litigation, this article draws attention to the “prescribed by law” requirement of s. 1 and why CLF has raised it as an intervener.

The law societies’ rejection of TWU

Before TWU opened its doors, three provincial law societies formally resolved to reject a TWU law degree as satisfying their requirements for admission to the bar. In fact, after TWU obtained approval of its program from the Federation of Law Societies (FLS), two law societies—the Law Society of British Columbia (LSBC) and the Nova Scotia Barristers Society (NSBS)—changed their rules regarding how they recognize academic credentials for admission to articling and practice, in an apparent effort to ensure they had some legal basis for rejecting TWU despite the FLS’ approval.

In Ontario, the Law Society of Upper Canada (LSUC) already had in place a requirement that applicants for admission have a degree from an “accredited law school”, meaning simply “a law school in Canada that is accredited by the Society” (ByLaw 4, Part 3, s. 7). Its rules and bylaws do not provide any guidance on deciding whether to accredit a school. The LSUC voted in April 2014 to reject the accreditation of TWU’s law school. It has since defended the decision as reasonable in light of its statutory mandate to protect the public interest.

The LSBC, which formerly accepted a law degree from any Canadian common law faculty as satisfying its academic requirements, when it learned that TWU had applied to the FLS, passed Rule 2-27(4.1) (now Rule 2-54(3)). This Rule says that a law degree satisfies the LSBC’s academic requirements if it is obtained from an “approved” common law faculty. Further, the Rule states that a law faculty is “approved” if it meets FLS standards, but with a major caveat: “unless the Benchers adopt a resolution declaring that it is not or has ceased to be an approved faculty of law.” There are no further criteria. Following the adoption of the Rule, the LSBC (eventually[1]) resolved that TWU was not an approved law school.

The NSBS, which formerly required a law degree “from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada”, passed a regulation in 2014 stating it would be satisfied with “a Bachelor of Laws degree or a Juris Doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada for granting of such degree, unless Council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrolment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms or the Nova Scotia Human Rights Act.” This regulation was passed after the NSBS had resolved that “[TWU’s] Community Covenant is discriminatory and therefore Council does not approve the proposed law school at Trinity Western unless TWU either: exempts law students from signing the Community Covenant; or amends the Community Covenant for law students in a way that ceases to discriminate.”

Rule of law: authority and intelligibility

Rule of law means rule by written law as opposed to arbitrary power: “the exercise of all public power must find its ultimate source in a legal rule.”[2] In order to not run afoul of this principle, any act of a government body must (1) be authorized by law and (2) the law must be sufficiently clear, accessible, and precise so that people can conduct themselves in accordance with it. We can refer to these two “branches” of the rule of law with terms such as (1) vires, jurisdiction, and authority, and (2) intelligibility, clarity, and precision.

The question of vires is primary. Does the state official have statutory authority to act? Does the regulatory body have jurisdiction over the activity or parties it purports to regulate? Does the court or tribunal have jurisdiction over the subject matter of the case? If the answer is no, the act or decision of the government body in question is not authorized by law and is void.

The vires question has been raised in the TWU litigation in all three provinces. It arises at the outset. Does the law society’s enabling legislation authorize it to scrutinize TWU’s Community Covenant in deciding whether or not to recognize TWU degrees? The jurisdiction question was conclusive in the Nova Scotia Court of Appeal’s recent ruling[3] in TWU’s favour, in which the Court found that the Barristers Society lacked statutory authority to pass a regulation enabling it to make freestanding decisions on whether or not a university “unlawfully discriminates”. In Ontario and B.C., however, so far (we await the Court of Appeal ruling in B.C.) the courts have found that the law societies acted within their jurisdiction in scrutinizing the Covenant because they have a statutory mandate to protect the public interest, and accepting graduates of a school with such a policy supposedly raises public interest concerns.[4] 

But even if a government actor can point to a statutory provision as authority for its action, if its action limits a Charter right or freedom (which has been the finding of every court in the TWU litigation to date) it must also satisfy the “prescribed by law” standard of section 1 of the Charter, meaning that persons subject to that state actor’s authority must have sufficient information on how to conduct themselves in order to meet the applicable legal standards.[5] Whereas the question of vires or authority logically comes first, once it has been established that the state actor had authority to act and acted in a way that limits a Charter right or freedom, the onus is on the state actor to defend its action using section 1 of the Charter.

The neglected “prescribed by law” requirement

Ordinarily, the question of whether part of a statute, regulation, rule, or policy is sufficiently clear and precise is raised when the statute, regulation, rule, or policy itself is being challenged as violating the Charter. The prescribed by law requirement is often neglected in judicial review of administrative action under the legal framework set out by the Supreme Court of Canada in Doré (2012 SCC 12). Why? The Doré framework is designed for and applied to situations where an administrative decision is the cause of the limitation on Charter rights. The question addressed by the Doré analysis is whether the decision maker limited a Charter right in a manner proportionate to the advancement of a statutory objective. Doré was designed to overcome the difficulties of applying the more formal and formulaic Oakes analysis to administrative decisions (rather than statutory provisions, regulations, or rules)—decisions that may take many different forms and involve the discretionary weighing of many different factors.

The growth of the administrative state has been facilitated through legislation granting authority to administrative bodies to make discretionary decisions and to establish their own policies and rules to guide their decisions. In TWU’s case, the law societies had statutory authority to set academic requirements and to pass related rules. The question is whether they used that authority in a manner that was intelligible and predictable such that it satisfies the “prescribed by law” requirement. To the extent that the Doré framework has resulted in the neglect of this requirement and encouraged discretionary decision making unguided by accessible and precise standards, it is in need of correction.

The point of the “prescribed by law” requirement is that people should be able to know in advance how to conduct themselves (individually or corporately) in order to obey the law or satisfy the standards of a regulatory body and, if their rights are limited, to be able to decipher how and why their rights have been limited so that they can hold the government accountable.

If a group of co-religionists associate to form an institution for the purpose of studying law—to the level of academic excellence the statutory gatekeeper may legitimately require—while corporately committing to living in accordance with a religious ethic, what elements of their religious ethic can or cannot be included in the community’s code of conduct? What kinds of religious expression, if any, can a university support and still have its graduates accepted by the law societies? Might any explicit religiosity in a school make some people feel less welcome than others and, if so, is it permissible? Or if religious individuals who attend public universities wish to be admitted to the bar, can they know in advance whether or not and how their religious expression or membership in religious associations could impact their eligibility to join the bar?

Were the LSBC’s and LSUC’s decisions prescribed by law?

In order to be “prescribed by law”, the decisions of the law societies must be based on a statutory provision, regulation, or rule that places discernible limits on the discretion to determine a person’s (or group’s) eligibility for admission to the bar. As the SCC stated in Irwin Toy v Quebec (AG)[6], “where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no ‘limit prescribed by law’.”

After the LSBC learned that TWU had submitted a proposal for a new law school to the Federation of Law Societies, it might have passed a rule saying, for example, “A law degree obtained from a university that requires its students to abstain from lawful sexual activity shall not satisfy the academic qualifications required for enrolment in the admission program.” In that case, it would be clear to everyone what standard TWU’s law program failed to satisfy, the rule itself might have been subject to a Charter challenge, and the court might have conducted an Oakes analysis of the rule itself. Instead, the LSBC passed an open-ended rule that (on its face) appears to allow it to reject law degrees from any law school by a simple majority vote. The LSBC seems to believe this makes passing s. 1 scrutiny much easier. From a rule of law perspective, this is disconcerting. The LSUC likewise does not have any criteria governing whether or not it will accredit a school.

Allowing a law society to operate in such a manner jeopardizes the rights of those who are or wish to become licensed members. Making decisions affecting Charter rights based on open-ended, criteria-free rules or bylaws is fundamentally at odds with the rule of law, which protects rights and freedoms first by precluding plenary discretion. The rule of law is the first friend of fundamental freedoms. The rule of law requires intelligibility and predictability. Today, law societies claim that the allegedly discriminatory (though not unlawful) effect of TWU’s Covenant justifies rejecting TWU. Tomorrow, they might decide that TWU’s (or another school’s) hiring policy is problematic or that its faculty’s publications are offensive. Based on the LSBC’s Rule 4.1 and the LSUC’s ByLaw 4, it appears that any reason will do.[7]

The focus has been on the Covenant’s alleged discriminatory impact on LGBT students, but its alleged problems go beyond that. For example, the Ontario Divisional Court said TWU’s discrimination also extends “to women generally; to those persons of any gender who might prefer, for their own purposes, to live in a common law relationship rather than engage in the institution of marriage; and to those persons who have other religious beliefs.”[8] The implication of this passage seems to be that TWU might have to abandon much of its religious identity in order to please the law society. It isn’t clear at all, of course, how much TWU would have to change, and that is the problem.

Discretion, administrative guidelines, and the “prescribed by law” standard

We can compare TWU’s case with Bonitto v Halifax Regional School Board, in which a school principal prohibited the plaintiff from distributing tracts at a public school. The plaintiff in Bonitto argued that the principal’s decision was not prescribed by law. The Court found against the plaintiff on this point, because the principal’s discretion to (dis)approve materials was subject to a policy the School Board passed pursuant to its enabling legislation. The Board’s policy required the principle to consider a published list of factors respecting the potential impact of a given publication on the school environment. The Court noted that the legislation and the Board’s guidelines together were “sufficiently precise and accessible” to govern the principal’s discretion and therefore satisfied the “prescribed by law” requirement.

From this we can surmise that when legislation grants discretionary power to administrative bodies to make decisions affecting Charter rights and freedoms and to pass their own rules or policies to guide the exercise of their discretion, that those bodies must pass sufficiently precise rules in order to satisfy the “prescribed by law” requirement, if the enabling statute on its own does not provide a sufficiently precise standard.[9]

In TWU’s case, unless the law societies’ statutory duty to protect the public interest is interpreted as TWU argues it ought to be—as limited, in the context of deciding whether to recognize a law degree, to concerns regarding the degree holder’s character and competence—the standard of “public interest” must fail section 1 scrutiny. In another case, Ktunaxa Nation v British Columbia, Ktunaxa Nation does an fine job (in its factum on appeal to the Supreme Court of Canada) of explaining why this is so. Ktunaxa Nation, an Aboriginal First Nation, claims that the B.C. Minister of Lands, Parks, and Housing has violated its freedom of religion by granting permission to a developer to build on Crown land in which it claims a spiritual interest. The Minister has statutory power to dispose of Crown land when he considers it “advisable in the public interest”. Ktunaxa Nation does not challenge the validity of that statute, but argues that a decision based on that statute limiting its religious freedom cannot satisfy be considered prescribed by law because, as the Supreme Court has said, the public interest is “so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.”[10] The Court has also said that while vagueness can be used to attack a law directly, it can also be raised under s. 1 of the Charter (as CLF has done in its TWU interventions).[11]

In the LSBC’s case, rather than add guidance for exercising its discretion to establish requirements for admission to articling and practice under the Legal Profession Act, its Rule appears to attempt to broaden the LSBC’s discretion beyond that granted by its enabling statute. In Ontario, while the LSUC did not change its rules while TWU was seeking accreditation from the FLS, its existing bylaw saying simply that an accredited school is “a school accredited by the Law Society” is similarly vague. At least the NSBS passed a Regulation with a criterion: it could reject a degree from a school that “unlawfully discriminated”, the Regulation said—though the Court found this Regulation to be ultra vires.  From a rule of law perspective, the merit of the path that the NSBS took was that it attempted to actually set a standard, which could then be and was scrutinized.[12]

Publish and defend intelligible criteria

Vague rules may not ordinarily come under scrutiny, but where decisions are made based on such rules that have the effect of limiting Charter rights, the rules on which those decisions are based must satisfy a certain standard of intelligibility in order for the decision to pass s. 1 of the Charter.

Courts should avoid inadvertently encouraging law societies (or other regulatory bodies) to pass vague rules or policies to guide their decision making out of the belief that doing so makes it easier to prevent or withstand judicial review where their decisions infringe Charter rights and freedoms. People deserve to know in advance what factors are relevant to becoming eligible for admission to the bar. If that means passing a rule like the NSBS’ Regulation, fine. A law society’s criteria for admission to the bar should be intelligible and publicly available, and it should be prepared to defend them.

 

 

[1] The LSBC Benchers initially voted (on April 11, 2014) against a motion to deny approval of TWU notwithstanding the approval of the Federal of Law Societies. Later that year (September 26), the LSBC Benchers voted down another motion to reject TWU graduates, but approved a motion to put the question of whether to approve TWU to a referendum of LSBC members and to be bound by its outcome. The B.C. Supreme Court found that this amounted to an impermissible fettering of its discretion on the part of the LSBC: Trinity Western University v. The Law Society of British Columbia, 2015 BCSC 2326 at para 120.

[2] Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] SCJ No 75, [1997] 3 SCR 3 at para 10.

[3] The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59.

[4] If you are not up to date on the court rulings, check out TWU-related blog posts on our website: www.christianlegalfellowship.org.

[5] Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para 50.

[6] [1989] 1 SCR 927 [Irwin Toy].

[7] TWU has argued, sensibly, that the Court should interpret LSBC’ Rule by reading it in light of the LSBC’s authority to set “academic requirements” for entry to articling and the bar, which would make TWU’s non-academic policies not affecting the competence and character of its graduates irrelevant. A similar line of argument is advanced by TWU with respect to LSUC’s bylaw. Indeed, if an interpretation limiting the scope of the discretion a rule or bylaw grants is available and reasonable, the Court should adopt it. Alternatively, the Court could find that the rule or bylaw does not set intelligible limits on the LSBC’s discretion, meaning a decision to reject TWU graduates cannot be justified under s. 1 of the Charter if it is based on such a rule or bylaw.

[8] 2015 ONSC 4250, at para 104.

[9] With the growth of the administrative state and statutory grants of discretion, Paul Daly has suggested an obligation to add precision by adopting rules and guidelines as a solution to the post-Doré confusion in his working paper, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms”, November 2013, University of Ottawa Working Paper Series.

[10] R. v Sparrow, [1990] 1 SCR 1075, at 1113, cited in the Factum of the Appellant Ktunaxa Nation on appeal to the Supreme Court of Canada at para 95.

[11] R. v. Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at para 28, cited in the Factum of the Appellant Ktunaxa Nation on appeal to the Supreme Court of Canada at para 95.

[12] The standard set in NSBS’ Regulation was problematic because NSBS is not a human rights tribunal and cannot give itself power to make findings of human rights law violations, and because neither Nova Scotia human rights law nor the Charter applies to TWU.

 

Alberta creates "central coordination service" for euthanasia

John Sikkema and Derek Ross

The Alberta government is directing Albertans seeking information about “medical assistance in dying” (MAID) to contact Alberta Health Service’s “central care coordination service” or to initiate a discussion about medical assistance in dying with their family physician or specialist.

As for physicians in Alberta, a Ministerial Order requires that those who receive a request for MAID, but who decline “for reasons of conscience or religion to provide or to aid in providing [MAID]”, must ensure the patient has timely access to Alberta Health Service’s coordination service.

Thankfully, the government has decided against requiring physicians who conscientiously object to participating in MAID to provide “effective referrals” – that is, to find a physician who is known to be a willing MAID provider and to refer his or her patient to that other physician. Alberta’s system allows physicians who object to MAID to keep their patients. The initiative to find a MAID provider remains with the patient. As for the way the “coordination service” will operate, Alberta Health Services says its teams are available to discuss all end of life options, including MAID, and can connect patients with palliative care providers. We hope the goal is always to encourage “alternatives” to assisted suicide and euthanasia and we intend to look further into how the coordination service actually operates.

It is our view, however, as expressed in our submission to the Alberta government, that the provinces are not obligated to fund or facilitate medically assisted suicide or euthanasia, or to require anyone else to do so. The Carter decision simply rendered the complete criminal prohibition on such practices invalid.

Alberta’s adoption of the “central care coordination service” follows its public consultations on the issue of medically assisted suicide and euthanasia in March of this year, in which CLF participated. On May 27, Alberta Health released a report on these consultations entitled “What We Heard: Medical Assistance in Dying”.

“What We Heard” reports that 55% of people who completed its survey said physicians who do not wish to provide medical assistance in dying should refer to a physician who does, while 27% said the physician should refer to a resource that would provide information and the remainder either had no opinion or said the physician should not be required to provide any kind of referral.

CLF’s opposition to requiring effective referral for MAID is specifically cited in Alberta Health’s report. “On the matter of physician referral, opinions varied,” the report notes. It continues (page 10):

Some felt that physicians with moral or religious objections should not be compelled to make a referral to another physician or a third party.

“Provincial legislation should not require, and should preclude the College of Physicians and Surgeons of Alberta from requiring, physicians to provide effective referrals for PAD. The requirement to provide a referral would clearly and unjustifiably interfere with freedom of conscience because it forces physicians to participate in an act to which they are conscientiously opposed.” – Submission from Christian Legal Fellowship

The report is organized according the following subjects: eligibility for MAID, protections for vulnerable persons, administration of MAID, conscientious objection, reporting and monitoring, and palliative care.

Of course, federal law (Bill C-14) sets out the basic requirements for eligibility, safeguards, and reporting, but provincial law and policy play an important role in how MAID is provided in practice. Since the federal law does not contain any concrete protections for physicians or others against being required to provide or participate in MAID – though it says that “nothing in this Act affects the guarantee of freedom of religion” – provincial law and policy are especially important when it comes to freedom of conscience and religion.

CLF has urged provincial governments and medical regulatory bodies not to place the burden of ensuring that patients who want MAID get it on individual health care workers or even health care facilities. Alberta has avoided this by establishing a central information and coordination service. By contrast, the policies of the physicians’ colleges of Ontario (CPSO), Nova Scotia (CPSNS) and Saskatchewan (CPSS) currently require a physician to provide “effective referral” if he or she objects to providing what the patient requests. 

CPSO’s effective referral policy is currently the subject of a constitutional challenge, which CLF is monitoring closely. Alberta’s policy is an encouraging development and provides an important illustration of how freedom of conscience and religion can be accommodated.

Nova Scotia Court of Appeal rules in TWU's favour

On July 26, 2016, the Nova Scotia Court of Appeal issued its decision in the matter of Trinity Western University (TWU) and the Nova Scotia Barristers Society (NSBS). The Court of Appeal’s ruling upheld the decision of Justice Campbell in the Court below, in favour of TWU.

Justice Campbell ruled last year that the NSBS’ decision to not recognize law degrees from TWU’s proposed law school - despite that school satisfying the standards of the Federation of Canadian Law Societies - was made without legal authority and was an unjustified infringement of freedom of religion.

The Court of Appeal affirmed Justice Campbell’s conclusion on the former issue – that the NSBS had no legal authority to do what it did. However, the Court of Appeal did not address the issue of whether or not the NSBS unjustifiably infringed TWU’s or its students’ Charter rights or freedoms.

CLF intervened in this matter out of a concern for its implications for the freedom of lawyers and law students to associate on the basis of shared religious beliefs and ethical commitments. In its factum, CLF explained how the NSBS decision violates religious freedom and undermines the public interest in the process. CLF also argued that the NSBS improperly invoked the Charter as justifying its decision, effectively demanding conformity with its interpretation of the Charter from a religious institution which is not subject to the Charter

Background: NSBS’ resolution and regulation

By way of brief factual background, in 2014 the NSBS passed a Resolution saying that it would not approve TWU’s law school unless TWU excluded law students from its Community Covenant. After that Resolution passed, the NSBS amended its regulation governing what constitutes an approved law degree to say that if the NSBS Council “determines that the university granting the degree unlawfully discriminates in its law school admissions or enrollment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act”, then the University’s degree would not be a “law degree” in Nova Scotia. 

TWU successfully challenged both the Resolution and amended Regulation in the Nova Scotia Supreme Court. The NSBS appealed to the Court of Appeal.

The limits of NSBS’ jurisdiction

The Court of Appeal found that the NSBS did not have authority to pass a Regulation purporting to (retroactively) give itself the authority of a human rights tribunal to determine whether TWU had violated human rights law. 

The NSBS determined, as if it were a court or tribunal - but without the procedures of either - that TWU “unlawfully discriminates” based on laws that do not even apply to TWU. The Court found that not only did the NSBS lack the authority to make "freestanding determinations" of whether provincial human rights law had been violated, the process by which it did so “circumvents every step of [the Human Rights Act's] process.”

Even if the NSBS did act within its authority, however, the Court also unanimously concluded that TWU does not unlawfully discriminate, and that it was unreasonable for the NSBS to determine otherwise.

Individual students are "vital stakeholders"

The NSBS acknowledged TWU's graduates would be adequately prepared to article in Nova Scotia and no more likely than anyone else to discriminate in practice. The NSBS' stated concern was with TWU, not its graduates. The Court of Appeal confirmed Justice Campbell's finding that the NSBS' aim was to pressure TWU to change its policy. However, the NSBS' decision affects the would-be TWU graduate who is, as the Court says, "not Trinity Western's alter ego" but a "vital stakeholder in his or her own right."

Derek Ross, CLF's Executive Director and co-counsel in this intervention, comments: 

"In its haste to condemn what it characterized as a discriminatory admissions policy at TWU, the NSBS itself circumvented important human rights protections to which TWU and its students are entitled. The Court of Appeal's decision recognizes this, and serves as a reminder that the NSBS must be careful not to penalize individual graduates based on its views about TWU. Doing so would be difficult to justify under its statutory mandate to protect the public interest ‘in the practice of law’ because the TWU graduate, as the Court of Appeal notes, would have the same ability to practice law as the graduate of another school."

Deina Warren, who served as CLF's legal counsel in this intervention, adds:

"While the Court gives room to the NSBS to craft new regulations that would bring some or all aspects of the process for approving law degrees in-house, the scope of any new regulation must be limited to the public interest in the specific context of the practice of law. This makes the NSBS’ stated public interest concerns about diversity too broad. It is also a merely theoretical concern when compared to the real, tangible concerns of the TWU law graduate who is a ‘vital stakeholder’, and should be considered part of the diverse profession the NSBS aspires to support."

Other jurisdictions

TWU lost its appeal in the Ontario Court of Appeal last month and has announced that it will appeal to the Supreme Court of Canada. A decision of the British Columbia Court of Appeal is still pending. CLF intervened in both of those hearings also, and remains committed to defending the fundamental freedoms of religious lawyers and law students as matters progress.

To read the Nova Scotia Court of Appeal’s decision, click here.

To read CLF’s written submissions to the Nova Scotia Court of Appeal, click here.

The Supreme Court's Narrow Reading of "Bestiality"

Last month, in R v DLW (2016 SCC 22), a majority of 6 of 7 judges of the Supreme Court of Canada (SCC) ruled that the offence of bestiality in section 160 of the Criminal Code prohibits penetrative sex with an animal, but does not prohibit other kinds of sexual conduct with animals.

The Court did not declare a constitutional right to such conduct. The Charter of Rights and Freedoms played no role whatsoever in the decision. The issue was one of statutory interpretation: the legal meaning of the term “bestiality” as it was adopted into the Criminal Code in 1954 and further amended in 1987. While there have been bestiality convictions in Canada for non-penetrative sexual conduct with animals under section 160, it is misleading to describe the SCC’s DLW ruling as “legalizing bestiality”. The ruling did not reverse any SCC or appellate court precedent.

That said, the case raises important questions about how morality informs the meaning of terms used in the criminal law and whether the meaning of a term can evolve in light with social mores.

Legislative Background

The accused was charged under section 160(1) and (2) of the Criminal Code:

Bestiality

160 (1) Every person who commits bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Compelling the commission of bestiality

(2) Every person who compels another to commit bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Bestiality in presence of or by child

(3) Despite subsection (1), every person who commits bestiality in the presence of a person under the age of 16 years [formerly 14 years], or who incites a person under the age of 16 years [formerly 14 years] to commit bestiality,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Prior to 1955, the Code prohibited “buggery, either with a human being or with any other living creature”. In 1954 (coming into force in 1955), that provision was changed to prohibit “buggery or bestiality”. In 1987 (in force in 1988), this was separated into two separate offences, one prohibiting “anal intercourse” in certain circumstances, the other—now section 160, above—prohibiting “bestiality”.

Convicted at Trial

The facts of the case are disturbing. The victims of DLW’s abuse were his two step-daughters. DLW’s abusive actions were many and stretched over a period of years.

The accused in R v DLW was convicted at trial of sexual assault, sexual interference, invitation to sexual touching, sexual exploitation, making child pornography, possession of child pornography, and bestiality.

DLW was acquitted at trial on the charge of compelling a person to commit bestiality under s. 160(2) because his actions were found to not amount to compulsion. The Crown commented in its factum to the SCC that this finding was questionable, but did not challenge this finding on appeal. DLW was not charged under s. 160(3)—inciting a child to commit bestiality—because at the time of the offence the age of consent was 14 (since changed to 16), which was also the victim’s age at the time.

However, DLW was found guilty of bestiality under s. 160(1) as a party to the offence—as an aider and abettor of the offence—his step-daughter being the (uncharged) principal. The trial judge, while acknowledging the uncertainty around the legal meaning of the term bestiality, found that the conduct in this case fit within the meaning of that term, explaining:

[310]     … Physical harm is not an essential element of bestiality; that is because, like many sexual offences in the Code, the purpose of the bestiality provisions is to enunciate social mores. Those mores include deterring non-consensual sexual acts and animal abuse.

[311]     The legislature makes clear that Canadians view bestiality as a sexual crime. Section 160 must be read in a modern context. Sexual offences no longer require full penetrative acts to be committed. […]

[312]     In my view, “bestiality” means touching between a person and an animal for a person’s sexual purpose. This is reflected in the numerous guilty pleas entered on charges under s. 160 where the bestiality consists of an animal licking a person’s genitals. It is also consistent with the entire scheme of the Code, including the provisions under “Offences Tending to Corrupt Morals”, “Cruelty to Animals” and other provisions under “Sexual Offences”.

[…]

[314]    […] As stated in R. c. Ma.Gi., the theory that bestiality requires penetration is “frozen in time” (at para. 44). The Court pointed out that historically, sodomy and bestiality were treated in a similar manner, and at the same time, penetration was an essential element of rape. Those laws have been changed by significant reformation to the Code; for instance, sexual assault does not depend solely on contact with specific parts of anatomy: R. v. Chase, [1987] 2 S.C.R. 293 at 301. […]

[315]    It is clear that the interpretation of “bestiality” must reflect current views on what constitutes prohibited sexual acts.

[Emphasis Added]

The problem the trial judge’s approach raises is that it seems to suggest the legal meaning of “bestiality” can change with the times, without a definitive amendment. If judges could interpret terms in the Criminal Code based on “current views”, it would mean the law could change without Parliament’s involvement. While it used to be that new crimes were “created” in common law, it has long been a rule in Canada that there can be no common law crimes, except for contempt of court. As a rule, what is criminal is only that which is clearly spelled out as such in statutory law.

Conviction Overturned by Court of Appeal in Split Decision 

DLW appealed his conviction for bestiality. The sole issue on appeal was whether the offence of bestiality requires penetration. The Criminal Code used to prohibit “buggery either with a human being or any other living creature”—an offence which required penetration. In 1954, the phrase “either with a human being or any other living creature” was removed and “or bestiality” took its place. In 1988, two separate offences came into force, one for “anal intercourse” and the second for “bestiality”.

The majority (two out of three) of the British Columbia Court of Appeal ruled that bestiality requires penetration because the term “bestiality”, according to its reading, effectively stood in the place of the offence previously known as “buggery with an animal”. Buggery was understood to involve penetration. Had Parliament intended to expand the scope of the offence, then “clear and definitive language” would have been necessary to outlaw the activity in question, the majority reasoned.

The dissenting judge took a different view of the original meaning of the term. He reasoned that the 1954 amendment removed the penetration requirement implicitly by creating two separate offences: buggery and bestiality. If bestiality simply meant “buggery with an animal”, then the inclusion of “or bestiality” would be superfluous. The dissenting judge also reasoned that requiring penetration would lead to absurdity, since it would not prevent an adult from inciting a minor to have oral sex with an animal.

SCC Majority Upholds Court of Appeal Ruling 

The Crown appealed the Court of appeal ruling. The SCC heard the appeal on November 9, 2015.

Justice Cromwell, writing for the majority of 6 out of 7 judges, explained that the term bestiality had a clear legal meaning historically, that penetration has always been an essential element of the offence, and that the Court must not expand the scope of criminal liability through interpretation, though Parliament can do so by amendment if it so chooses. As a rule, courts will only conclude that a new crime has been created if the words used to do so are “certain and definitive” (para 59). By removing the phrase “either with a human being or with any other living creature” and introducing the term “bestiality”, Parliament was codifying the distinction between penetration with humans and penetration with animals that had already been established in the common law. This simple amendment, which was made in 1954 without any discussion in Parliament, did not constitute a clear expansion in the scope of the offence.

The majority further observed that the French version of the Criminal Code used the term bestiality already before 1954. Thus the amendment to the English version, in the majority’s view, “appears to be simply the substitution of a more precise legal term in the English version” (para 77). Furthermore: “The fact that no substantive change occurred in the French version of the offence [in 1954] leads us to conclude almost inevitably that the change in terminology in the English version was simply intended to give the offence a clearer, more modern wording which would be more consistent with its French equivalent” (para 96). The 1987 amendments, which separated bestiality into a separate section, did not add a definition to the term “bestiality” or otherwise establish that it had a different meaning than when that term was introduced into the English version of the Code in 1954.

Justice Abella Dissents

Justice Abella dissented. She reasoned that although bestiality was never defined in the Code, its addition in 1954 “must have been intended to mean something different from ‘buggery’”, otherwise, there was no reason to change the text of the provision. Like the dissent at the Court of Appeal, Justice Abella noted that no legislative term should be interpreted so as to render it “mere surplusage” (para 143). She agreed that the term was ambiguous and affirmed the principle that ambiguity should be resolved in favour of the accused where possible, but decided that the only sensible interpretation of the term would include the conduct at issue in this case.

Other amendments in 1954 to the Code’s animal cruelty offences, Justice Abella reasoned, reflected an increased recognition of the importance of animal welfare and expanded protection to all animals. Parliament’s purposes would have been inconsistent if the animal cruelty provisions applied to all animals as of 1955 (when the 1954 amendments came into force) but bestiality only applied to those animals with anatomy that permitted penetration. Justice Abella noted further that the 1987 amendments not only separated bestiality in to a separate section of the Code, but also made it an offence to compel the commission of bestiality or to commit bestiality in the presence of a child. Justice Abella concluded that “what Parliament must have intended was protection for children from witnessing or being forced to participate in any sexual activity with animals, period” (para 147).

On the issue of broadening criminal liability without “certain and definitive” legislative language, Justice Abella said that the absence of a requirement of penetration does not broaden the scope of the offence. Rather, the offence was always intended to prohibit sexual exploitation of animals and “[a]cts with animals that have a sexual purpose are inherently exploitative whether or not penetration occurs” (para 149).

The majority expressed concern that the trial judge’s interpretation of the bestiality offence “could have the effect of turning the victim into an offender” (para 8), but Justice Abella explained why the trial judge’s interpretation of the offence is not problematic, since “it is inconceivable that bestiality charges would ever be laid against someone in D.L.W.’s stepdaughter’s circumstances” (para 152). She did not want to engage in such conduct and was punished by her step-father for refusing or hesitating to do so.

Of course, reading “bestiality” narrowly, as the majority did, would do nothing to resolve the majority’s concerns about a victim appearing to be the principal in any case actually involving penetration. In fact, DLW had tried but failed to make his step-daughter have penetrative sex with an animal in this case. The majority’s concern here is a distraction from the issue of the meaning of “bestiality”. In any case, Justice Abella addresses this concern in the only sensible way by pointing out that the young victim clearly does not have the requisite mens rea in this case.

Animal Rights Group Interveners

The intervener Animal Justice, an organization dedicated to advancing the interests of animals in the law, became one of the only groups of animal welfare advocates to have made submissions on behalf of animals in any court in the country.

In its factum, Animal Justice argued that section 160 does not exist “exclusively to protect human morals” and had as one of its key objectives deterring the improper use of animals. It accepted that safeguarding children was also an objective of subsections 160(2) and (3). Animal Justice also argued that “[a]ny crime premised on immorality must reflect contemporary Canadian values relevant to the offence”, which in this case must include “the need to protect vulnerable animals” and “the wrongfulness of sexual conduct involving the exploitation of non-consenting participants.”

Public Morals

The trial judge believed that “the purpose of the bestiality provisions is to enunciate social mores” and tied this offence both to “Cruelty to Animals” offences and “Offences Tending to Corrupt Public Morals”. Canada’s precursor to the Criminal Code was An Act respecting Offences against Morals and Public Convenience (1886).

SCC Justice Abella noted in passing that the common law origins of the offence of buggery “were ecclesiastical, and emerged in full moral force from the Church’s hegemonic jurisdiction over sexual offences and its abhorrence for non-procreative sexual acts, which were condemned as being ‘unnatural’” (para 132).

Justice Cromwell for the SCC majority noted that some commentators have suggested our understanding of bestiality as an offence should move away from making public morals primary and towards seeing bestiality as a type of animal abuse (para 69). Justice Cromwell did not express an opinion on this matter, but simply noted that the discussion about how society’s views on bestiality today raise “important points of penal and social policy”, which are “matters for Parliament to consider, if it so chooses” (para 70).

For its part, the Crown relied most heavily in its factum on the protection of children as the legislative purpose that should inform the meaning and scope of the term “bestiality”. The 1987 amendments, the Crown noted, “were made as part of a legislative package designed to address the perceived gaps in the Criminal Code that dealt with child sexual abuse in order to protect children from all forms of sexual abuse.” The bestiality provision was, the Crown contended, modified in 1987 according to this underlying purpose. It therefore followed that reading the provision narrowly “would overlook the significant physical and psychological trauma to victims caused by sexual activities with animals other than by intercourse, and thus would not give full effect to the underlying purpose of the legislation.”

The Crown also argued that bestiality is an offence against social mores and must therefore be understood as prohibiting sexual acts between humans because such acts “offend fundamental social values of the community.” Furthermore, “Common sense suggests that [DLW’s] conduct in encouraging and facilitating his vulnerable young stepdaughter to have oral sex with the family dog is on an equal moral plane as if he had arranged for her to have penetrative sex with the family dog.” It would be absurd to acquit the accused for the former when he would obviously be liable under s. 160 for the latter.

The respondent (DLW) argued that the offence of bestiality is “addressed to the moral hygiene of persons”, but argued further that the offence in subsection 160(1)— “bestiality simpliciter” —is not aimed at “any purported harm to other persons or even the animals involved in the conduct.” While protecting children is clearly the purpose of subsections 160(2) and (3), that cannot by itself change the meaning of the term bestiality, the respondent submitted: “The appellant seeks to have this Court impermissibly shift the purpose of the offence of bestiality simpliciter in s.160(1) to one of preventing harm to children, and from that new, impermissible purpose to argue that the offence must be of broader scope than at common law and, possibly, under the 1954 amendments.”

As for the Crown’s argument that a narrow reading of bestiality leads to absurd results, the respondent said, “The appellant confuses absurdity with the appellant’s dissatisfaction with the scope of the offence. Just because an interpretation does not give the provision the scope that a party would like does not make it ‘absurd’.” A narrow interpretation would only be absurd if it rendered the provision pointless or futile, the respondent argued, and the SCC majority agreed: “There is nothing ‘absurd’ about protecting children from compulsion or exposure to this sort of sexual conduct [intercourse with an animal].”

Competing Interpretive Principles

On the one hand, the Crown called on the court to interpret the term “bestiality” in light of what it argued were the underlying purposes of section 160: prohibiting conduct that offends fundamental social mores and protecting children. On the other, the respondent (defence) argued that while the Crown may not be satisfied with the scope of the offence, bestiality had an accepted legal meaning that Parliament did not explicitly expand in its 1954 amendment when the term first became part of the English version of the Criminal Code.

Interestingly, the respondent also affirmed that bestiality was an offence against deeply held social values, rooted historically in the Church’s teaching that all intercourse besides vaginal intercourse between a man and woman was unnatural and immoral. The respondent noted that the SCC in 2003 mentioned bestiality as an example of “crimes that rest on their offensiveness to deeply held social values rather than on Mill’s ‘harm principle’.” The respondent used this to counter the Crown’s argument that the purpose of preventing harm to children supported a broad interpretation of “bestiality”. By agreeing that bestiality was about public morals but pointing out how, even so, the term historically had a legal meaning that was restricted to intercourse—a meaning Parliament is deemed to have known in 1954—the respondent countered the Crown’s argument that underlying social mores favour a broad interpretation.

What was missing was any substantive discussion of the wrongness of the conduct itself. The SCC majority hung its hat on the predominant legal understanding of the term at the time it was introduced, with any ambiguity being resolved in the accused’s favour. Justice Cromwell for the majority noted simply that commentators suggest moving away from a public morality perspective on this offence to a concern with animal abuse, but did not take any position on the matter. Justice Abella based her reading of the term on the objectives of protecting children and animals from abuse and harm.

The final outcome with respect to DLW is that he was not convicted of any crime for this particular act. That is an appalling outcome. People can be forgiven for wishing the SCC had focused on the result and resolved any ambiguity in the law in favour of a just and sensible outcome.

However, the SCC did reach its decision in this difficult case by applying important interpretive principles that give the accused the benefit of the doubt and limit the role of courts in defining criminal liability. And unlike some criminal cases involving the Charter, the Court did not create any constitutional hurdles for Parliament to work around when it comes to a legislative response. Parliament is free to enact a clear definition of the term.