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.