SUPREME
COURT OF CANADA
Citation: R. v. D.L.W., 2016 SCC 22, [2016]
1 S.C.R. 402
|
Appeal
heard: November 9, 2015
Judgment
rendered: June 9, 2016
Docket: 36450
|
Between:
Her Majesty The Queen
Appellant
and
D.L.W.
Respondent
- and -
Animal Justice
Intervener
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis,
Côté and Brown JJ.
Reasons
for Judgment:
(paras. 1 to 124)
Dissenting
Reasons:
(paras. 125 to 153)
|
Cromwell J. (McLachlin C.J. and Moldaver,
Karakatsanis, Côté and Brown JJ. concurring)
Abella J.
|
R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402
Her Majesty The Queen Appellant
v.
D.L.W. Respondent
and
Animal Justice Intervener
Indexed as: R. v.
D.L.W.
2016 SCC 22
File No.: 36450.
2015: November 9; 2016: June 9.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver,
Karakatsanis, Côté and Brown JJ.
on appeal from the court of appeal for british columbia
Criminal law — Bestiality — Elements of offence — Interpretation — Accused convicted of bestiality — Accused put
peanut butter on complainant’s vagina and had dog lick it off while he
videotaped — Whether term “bestiality” has well‑understood
legal meaning in common law and if so, whether Parliament intended to depart from
that meaning when that term was first introduced in English version of Criminal
Code — Whether penetration an essential element of
offence of bestiality — Criminal
Code, R.S.C. 1985, c. C‑46, s. 160 .
After
a 38‑day trial, D.L.W. was convicted of numerous sexual offences against
his two stepdaughters committed over the course of 10 years, including a single
count of bestiality. D.L.W. first brought the family dog into the bedroom with
the older complainant when she was 15 or 16 years old. He attempted to make the
dog have intercourse with her and, when that failed, he spread peanut butter on
her vagina and took photographs while the dog licked it off. He later asked her
to do this again so he could make a video. At trial, D.L.W. was found to have
done all of this for a sexual purpose. The trial judge was of the view that
bestiality in the Code means touching between a person and an animal for
a person’s sexual purpose and he concluded that penetration was not required.
The trial judge preferred to interpret the elements of bestiality so that they
would reflect the current views on what constitutes prohibited sexual acts. A
majority of the Court of Appeal allowed D.L.W.’s appeal against the bestiality
conviction and acquitted him of the bestiality count. The majority concluded that
the term “bestiality” had a common law meaning that included penetration as one
of its essential elements. The dissenting judge found that penetration was not
an element of bestiality and he would have dismissed the appeal.
Held
(Abella J. dissenting): The appeal should be dismissed.
Per
McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ.:
Since 1955, criminal offences in Canada (apart from criminal contempt) have
been entirely statutory. However, the common law continues to play an important
role in defining criminal conduct as defining the elements of statutory
offences often requires reference to common law concepts. Applying the
principles that guide statutory interpretation leads to the conclusion in this case
that the term “bestiality” has a well‑established legal meaning and
refers to sexual intercourse between a human and an animal. Penetration has
always been understood to be an essential element of bestiality. Parliament
adopted that term without adding a definition of it and the legislative history
and evolution of the relevant provisions show no intent to depart from the well‑understood
legal meaning of the term. Moreover, the courts should not, by development of
the common law, broaden the scope of liability for the offence of bestiality.
Any expansion of criminal liability for this offence is within Parliament’s
exclusive domain.
When
Parliament uses a term with a legal meaning, it generally intends the term to
be given that meaning. Words that have a well‑understood legal meaning
when used in a statute should be given that meaning unless Parliament clearly
indicates otherwise. A further consideration is the related principle of
stability in the law which means that absent clear legislative intention to the
contrary, a statute should not be interpreted as substantially changing the
law, including the common law. Parliament is deemed to know the existing law
and is unlikely to have intended any significant changes to it unless that
intention is made clear. While these interpretive principles are easy to state,
how they apply in particular cases may be controversial. Sometimes, the
controversy concerns the state of the common law when Parliament acted: in
other words, the debate is about whether the term used had a clearly understood
legal meaning when it was incorporated into the statute. In this case, the term
“bestiality” did have a clear legal meaning when Parliament used that term
without further definition in the English version of the 1955 Criminal Code .
Bestiality meant buggery with an animal and required penetration. It was clear
that to secure a conviction, the prosecution had to prove that penetration of an
animal, or, in the case of women, penetration by an animal, had occurred. This
was the state of the law when the Offences Against the Person Act, 1861
was enacted in England. The offence in substantially the same form was carried
over into the first English version of the Canadian Criminal Code in
1892 and continued to be in force until the offence called bestiality was
introduced into the English version of the Code in the 1955 revisions.
In
Canada, as in England, the early history of the offence shows that what was
commonly called “bestiality” was subsumed under the offences named sodomy or
buggery and that penetration was one of its essential elements. The English
language version of the Canadian statute simply provided that buggery with an
animal was an offence, but did not further define it. However, the French
version of “buggery . . . with any other living creature” being “bestialité”
shows that “buggery with an animal” and “bestiality” were the same thing. There
can be no serious dispute that the Canadian offence of buggery with an animal/la
bestialité in the 1892 Code, which continued to be in force until
the 1955 revisions, had a widely and generally understood meaning: the offence
required sexual penetration between a human and an animal. Parliament, by using that term without further definition, intended to adopt that
well‑understood legal meaning.
Parliament
did not explicitly or by necessary implication change the well‑understood
legal meaning of the term “bestiality” when it amended the Criminal Code
in 1955 and in 1988. There is no express statutory provision expanding the
scope of the bestiality offence and further, there is nothing in the
legislative evolution and history that supports any parliamentary intent to
bring about such a change by implication. The required clarity and certainty
are entirely lacking. Courts will only conclude that a new crime has been
created if the words used to do so are certain and definitive. This approach
not only reflects the appropriate respective roles of Parliament and the
courts, but the fundamental requirement of the criminal law that people must
know what constitutes punishable conduct and what does not, especially when
their liberty is at stake. The important questions of penal and social policy
involved in broadening the offence of bestiality are matters for Parliament to consider,
if it so chooses. Parliament may wish to consider whether the present
provisions adequately protect children and animals. But it is for Parliament,
not the courts, to expand the scope of criminal liability for this offence.
Absent clear parliamentary intent to depart from the clear legal definition of
the elements of the offence, it is manifestly not the role of the courts to
expand that definition.
The
English version of the Criminal Code did not use the term “bestiality”
until 1955, but the French version did. In the 1955 revision, the word “bestiality”
was first introduced into the English version of the Code and the
reference to “buggery . . . with any other living creature” was
deleted, but with no definition of either the term “buggery” or “bestiality”.
The text of the 1955 revision does not suggest that any significant change in
the law was intended. This appears to be simply the substitution of a more
precise legal term in the English version for the previous more general
expression. The absence of a statutory definition of either term is consistent
only with the intent to adopt the accepted legal meanings of both terms. Here,
there is no evidence that any substantive change was intended. The fact that no
substantive change occurred in the French version of the offence leads almost
inevitably to the conclusion 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. There is nothing in this
tweak to the English version of the Code to support the view that any
substantive change to the elements of the offence was intended. The text, read
in both of its official versions, the legislative history and evolution, all of
the commentators and the applicable principles of statutory interpretation
support the view that the 1955 revisions to the Code did not expand the
elements of bestiality and that penetration between a human and an animal was
the essence of the offence.
A
complete overhaul of sexual offences against the person in 1983 was followed by
the 1988 revisions which were focused on enhancing the protection of children
against sexual abuse. In 1988, among other things, the new legislation repealed
the former buggery offence and replaced it with the new offence of anal
intercourse and bestiality was given its own section. Through all of the many
changes, changes which included fundamental revisions of the definition of
several sexual offences and the repeal of others, the Code continued to
make bestiality an offence without further defining it. The fact that
Parliament made no change to the definition of bestiality in the midst of a
comprehensive revision of the sexual offences supports only the conclusion that
it intended to retain its well‑understood legal meaning. It defies logic
to think that Parliament would rename, redefine and create new sexual offences
in a virtually complete overhaul of the sexual offence provisions in 1983 and
1988 and yet would continue to use an ancient legal term with a well‑understood
meaning — bestiality — without further definition in order to bring about a
substantive difference in the law. The new bestiality offences added in the
1988 revision, while not changing the definition of the underlying offence,
added protections for children in relation to that offence.
Finally,
contrary to the dissent’s view, it does not follow that all sexually
exploitative acts with animals that do not involve penetration are perfectly
legal. There are other provisions in the Code which may serve to protect
children and others from sexual activity with an animal that does not
necessarily involve penetration.
Per Abella J. (dissenting): The common law origins
of the offence of “buggery with mankind or with any animal” were ecclesiastical
and emerged from the Church’s hegemonic jurisdiction over sexual offences and its
abhorrence for non‑procreative sexual acts, which were condemned as being
“unnatural”. The Church’s jurisdiction over sexual offences ended in 1533, but
censorious attitudes did not, and death remained the penalty for “the
detestable offence of buggery”. The question whether these acts were criminal
only when there was penetration is, however, far from clear.
At
no time was “buggery” ever defined by Parliament. Applying the principles of
interpretation requires reviewing related Criminal Code
provisions and the context in which the bestiality provision was first
introduced. In 1955, for the first time, the offence of “bestiality” was
expressly named as such in the English version of the Code. It too was
never defined. The addition of the offence of “bestiality” must have been intended to mean something different from “buggery” because if
the elements of bestiality and buggery were the same, the addition of
“bestiality” to the 1955 Code was redundant and there was no need to
change the provision from one prohibiting buggery, to one prohibiting buggery and
bestiality.
Amendments
in 1955 were also made to the Code’s animal cruelty offence to reflect
an increased recognition of the importance of protecting animal welfare by
expanding the category of birds and animals from only some, to all of them. It
is in this transformed legal environment consisting of more protection for more
animals, that the offence of “bestiality” first appeared. Whatever the common
law meaning of “buggery” with animals had been, the creation of a distinct
offence of bestiality in the same year that the animal cruelty provisions were
expanded to protect more animals from exploitative
conduct, reflected Parliament’s intention to approach the offence differently.
Parliament’s purposes would have been inconsistent if the animal cruelty
protection in the Criminal Code would now cover all birds and
animals, but the bestiality provision would be limited to those animals whose
anatomy permitted penetration. Requiring penetration for the offence of
bestiality, technically leaves as legal all sexually exploitative acts with
animals that do not involve penetration. This, in turn, completely
undermines the concurrent legislative protections for animals from cruelty and
abuse.
If
there was any doubt about what Parliament intended in 1955, its intention is
even clearer in light of the 1988 Amendments to the Code, when buggery
and bestiality were divided into two separate provisions. The offence of
“bestiality” was extended to include those who compelled its commission or who
committed it in the presence of a child. It is difficult to accept that
Parliament’s intention was to protect children from seeing or being made to
engage in sexual activity with animals only if it involved penetration.
Parliament must have intended protection for children from witnessing or being
forced to participate in any sexual activity with animals. This wider
protection for children can also be inferred from the other changes to the Code
in the 1988 Amendments, introducing the offences of sexual interference, sexual
exploitation, and invitation to sexual touching, all of which protected minors
and none of which required penetration. As a result, by 1988, the language,
history, and evolving social landscape of the bestiality provision lead to the
conclusion that Parliament intended, or at the very least assumed, that
penetration was not a necessary element of the offence.
The
absence of a requirement of penetration does not
broaden the scope of bestiality. It is more a reflection of Parliament’s common
sense assumption that since penetration is physically impossible with most
animals and for half the population, requiring it as an element of the offence
eliminates from censure most sexually exploitative conduct with animals. Acts
with animals that have a sexual purpose are inherently exploitative whether or
not penetration occurs, and the prevention of sexual exploitation is what the
1988 Amendments were all about.
Cases Cited
By Cromwell J.
Not
followed: R. v. M.G., 2002 CanLII 45200; referred to: United
Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; R.
v. Jobidon, [1991] 2 S.C.R. 714; R. v. A.D.H., 2013 SCC 28, [2013] 2
S.C.R. 269; Will‑Kare Paving & Contracting Ltd. v. Canada,
2000 SCC 36, [2000] 1 S.C.R. 915; Townsend v. Kroppmanns, 2004 SCC 10,
[2004] 1 S.C.R. 315; A.Y.S.A. Amateur Youth Soccer Association v. Canada
(Revenue Agency), 2007 SCC 42, [2007] 3 S.C.R. 217; R. v. Summers,
2014 SCC 26, [2014] 1 S.C.R. 575; Walker v. The King, [1939] S.C.R. 214;
Nadeau v. Gareau, [1967] S.C.R. 209; R. v. T. (V.), [1992] 1
S.C.R. 749; R. v. Cozins (1834), 6 Car. & P. 351, 172 E.R.
1272; R. v. Bourne (1952), 36 Cr. App. R. 125; Henry v. Henry,
[1953] O.J. No. 347 (QL); R. v. Wishart (1954), 110 C.C.C. 129; Marcotte
v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; Frey v.
Fedoruk, [1950] S.C.R. 517; R. v. McLaughlin, [1980] 2 S.C.R. 331; R.
v. McIntosh, [1995] 1 S.C.R. 686; R. v. Mabior, 2012 SCC 47, [2012]
2 S.C.R. 584; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. McDonnell,
[1997] 1 S.C.R. 948; Perka v. The Queen, [1984] 2 S.C.R. 232; Gralewicz
v. The Queen, [1980] 2 S.C.R. 493; R. v. Latimer, 2001 SCC 1, [2001]
1 S.C.R. 3; Paquette v. The Queen, [1977] 2 S.C.R. 189; R. v. Hibbert,
[1995] 2 S.C.R. 973; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687; Kirzner
v. The Queen, [1978] 2 S.C.R. 487; R. v. Jacobs (1817),
Russ. & Ry. 331, 168 E.R. 830; R. v. L.B., 2011 ONCA 153, 274
O.A.C. 365; R. v. E. (A.W.), [1993] 3 S.C.R. 155; R. v. Ruvinsky,
[1998] O.J. No. 3621 (QL); R. v. Poirier, C.Q. Chicoutimi, Nos. 150‑01‑001993‑923
and 150‑01‑002026‑921, February 2, 1993.
By Abella J. (dissenting)
R.
v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; Henry v. Henry, [1953]
O.J. No. 347 (QL); R. v. Wishart (1954), 110 C.C.C. 129; Marcotte
v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; R. v. Paré,
[1987] 2 S.C.R. 618; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R.
v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Chartrand, [1994]
2 S.C.R. 864; Reece v. Edmonton (City), 2011 ABCA 238, 513 A.R. 199; R.
v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Kelly, [1992] 2
S.C.R. 170; Attorney General of Quebec v. Carrières Ste‑Thérèse Ltée,
[1985] 1 S.C.R. 831; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R.
27; R. v. K.D.H., 2012 ABQB 471, 546 A.R. 248; R. v. J.J.B.B.,
2007 BCPC 426; R. v. Black, 2007 SKPC 46, 296 Sask. R. 289.
Statutes and Regulations Cited
Act for consolidating and amending the Statutes in England relative
to Offences against the Person (U.K.), 9
Geo. 4, c. 31, s. 18.
Act respecting Offences against Public Morals and Public Convenience, R.S.C. 1886, c. 157, s. 1.
Act respecting Offences against the Person, S.C. 1869, c. 20, s. 63.
Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.), s. 3.
Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 3 (Bill C‑15).
Act to amend the Criminal Code in relation to sexual offences and
other offences against the person and to amend certain other Acts in relation
thereto or in consequence thereof, S.C. 1980‑81‑82‑83,
c. 125 (Bill C‑127).
Acte for the punysshement of the vice of Buggerie (Eng.), 25 Hen. 8, c. 6 (rep. 1553; re‑en. 1562).
Bill 178, A Bill to Establish a Code of Indictable Offences and
the Procedure relating thereto (U.K.), 1878, s. 101(a) (1878
Draft Code).
Criminal Code, R.S.C. 1906, c. 146,
s. 202.
Criminal Code, R.S.C. 1927, c. 36,
ss. 202, 542(a).
Criminal Code, R.S.C. 1970, c. C‑34,
ss. 3(6), 154, 155.
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 4(5) , 8(3) , 9 , 151 , 153 , 159 , 160 , 172 , 173 , 179(1) , (2) , 445.1(1) (a).
Criminal Code, S.C. 1953‑54,
c. 51, ss. 3(6), 8, 147, 387(1)(a), 661.
Criminal Code, 1892, S.C. 1892,
c. 29, s. 174.
Interpretation Act, R.S.C. 1985,
c. I‑21, s. 45(2) , (3) .
Offences against the Person Act, 1861 (U.K.),
24 & 25 Vict., c. 100, ss. 61, 63.
Safe Streets and Communities Act,
S.C. 2012, c. 1, s. 15 .
Sexual Offences Act, 1956 (U.K.), 4
& 5 Eliz. 2, c. 69, s. 12(1).
Tackling Violent Crime Act, S.C. 2008,
c. 6, s. 54 .
Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 5 .
Authors Cited
2015 Annotated Tremeear’s Criminal Code,
by David Watt and Michelle Fuerst. Toronto: Carswell, 2014.
Ben‑Atar, Doron S., and Richard D. Brown. Taming
Lust: Crimes Against Nature in the Early Republic. Philadelphia: University
of Pennsylvania Press, 2014.
Boyle, Christine L. M. Sexual Assault. Toronto:
Carswell Co., 1984.
Brown, Desmond H. The Genesis of the Canadian Criminal Code
of 1892. Toronto: Osgoode Society, 1989.
Burbidge, George Wheelock. A Digest of the Criminal Law of Canada
(Crimes and Punishments). Toronto: Carswell & Co., 1890.
Cambridge Department of Criminal Science. Sexual Offences: A
Report of the Cambridge Department of Criminal Science. London: MacMillan
& Co., 1957.
Canada. House of Commons. House of Commons Debates,
vol. XVII, 1st Sess., 32nd Parl., August 4, 1982,
p. 20041.
Canada. House of Commons. Minutes of Proceedings and Evidence of
the Legislative Committee on Bill C‑15: An Act to amend the Criminal Code
and the Canada Evidence Act, No. 1, 2nd Sess., 33rd Parl.,
November 27, 1986, pp. 18-19.
Canada. House of Commons. Minutes of Proceedings and Evidence of
the Legislative Committee on Bill C‑15: An Act to amend the Criminal Code
and the Canada Evidence Act, No. 9, 2nd Sess., 33rd Parl.,
February 17, 1987, pp. 66‑67.
Canada. Law Reform Commission. Report 31. Report on Recodifying
Criminal Law, revised and enlarged edition of Report 30. Ottawa: The
Commission, 1987.
Canada. Law Reform Commission. Working Paper 10. Report on Sexual
Offences. Ottawa: The Commission, 1978.
Canada. Law Reform Commission. Working Paper 22. Criminal Law:
Sexual Offences. Ottawa: The Commission, 1978.
Canada. Royal Commission on the Revision of Criminal Code . Report
of Royal Commission on the Revision of Criminal Code: Reports of Special
Committee (Session 1952‑53) on the Bill No. 93 (Letter O of the
Senate) “An Act Respecting the Criminal Law”. Ottawa: Edmond Cloutier,
1954.
Coke, Edward. The Third Part of the Institutes of the Laws of
England: Concerning High Treason, and Other Pleas of the Crown, and Criminal
Causes. London: E. and R. Brooke, 1797 (first
published 1644).
Côté, Pierre‑André, avec la collaboration de Stéphane Beaulac
et Mathieu Devinat. Interprétation des lois, 4e éd. Montréal: Thémis, 2009.
Crankshaw’s Criminal Code of Canada, 7th
ed., by A. E. Popple. Toronto: Carswell Co., 1959.
East, Edward Hyde. A Treatise of the Pleas of the Crown,
vol. I. London: A. Strahan, 1803 (reprinted London: Professional
Books Ltd., 1972).
Eskridge, William N., Jr. Dishonorable Passions: Sodomy Laws
in America, 1861‑2003. New York: Viking, 2008.
Gigeroff, Alex K. Sexual Deviations in the Criminal Law:
Homosexual, Exhibitionistic, and Pedophilic Offences in Canada. Toronto:
University of Toronto Press, 1968.
Great Britain. Royal Commission appointed to consider the Law
relating to Indictable Offences. Report of the Royal Commission appointed to
consider the Law relating to Indictable Offences: with an Appendix containing a
Draft Code embodying the Suggestions of the Commissioners. London: George
Edward Eyre and William Spottiswoode, 1879.
Hale, Matthew. Historia Placitorum Coronae: The History of the
Pleas of the Crown, vol. I. London: E. and R. Nutt and
R. Gosling, 1736 (reprinted London: Professional Books Ltd., 1971).
Hale, Matthew. Pleas of the Crown: A Methodical Summary.
London: Assigns of Richard and Edward Atkyns, 1678 (reprinted London:
Professional Books Ltd., 1972).
Kenny’s Outlines of Criminal Law, 19th
ed., by J. W. Cecil Turner. Cambridge: University
Press, 1966.
Lagarde, Irénee. Droit pénal canadien. Montréal: Wilson et
Lafleur, 1962.
Lagarde, Irénée. Nouveau Code Criminel Annoté. Montréal: Wilson et Lafleur, 1957.
Manning, Mewett & Sankoff: Criminal Law, 4th ed., by Morris Manning and Peter Sankoff. Markham, Ont.:
LexisNexis, 2009.
Martin, J. C. The Criminal Code of Canada: With Annotations
and Notes. Toronto: Cartwright & Sons, Ltd., 1955.
Miletski, Hani. “A history of bestiality”, in Andrea M. Beetz
and Anthony L. Podberscek, eds., Bestiality and Zoophilia: Sexual
Relations with Animals. West Lafayette, Indiana: Purdue University Press,
2005, 1.
Murrin, John M. “‘Things Fearful to Name’: Bestiality in
Colonial America” (1998), 65:Supp. Pennsylvania History 8.
Niemoeller, A. F. Bestiality and the Law: A Resume of the
Law and Punishments for Bestiality with Typical Cases from Fifteenth Century to
the Present. Girard, Kansas: Haldeman‑Julius Publications, 1946.
Osborn, P. G. A Concise Law Dictionary, 4th ed. London:
Sweet & Maxwell, 1954, “buggery”.
Parker, Graham. “Is A Duck An Animal? An Exploration of Bestiality
as a Crime”, in Louis A. Knafla, ed., Crime, Police and the Courts in
British History. Westport, CT: Meckler, 1990, 285.
Russell, William Oldnall. A Treatise on Crimes and Misdemeanors,
5th ed., by Samuel Prentice. London: Stevens & Sons, 1877.
Smith, J. C., and Brian Hogan. Criminal Law. London:
Butterworths, 1965.
Stephen, James Fitzjames. A Digest of the Criminal Law (Crimes
and Punishments). St. Louis: F. H. Thomas and Co., 1878 (reprinted Littleton,
Colorado: Fred B. Rothman & Co., 1991).
Stephen, James Fitzjames. A General View of the Criminal Law of
England, 2nd ed. London: MacMillan and Co., 1890.
Stephen, James Fitzjames. A History of the Criminal Law of
England, vol. II. London: MacMillan and Co., 1883 (reprinted Buffalo,
N.Y.: William S. Hein & Co., 1983).
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th
ed. Markham, Ont.: LexisNexis, 2014.
Taschereau, Henri Elzéar. The Criminal Code of the Dominion of
Canada as amended in 1893, with Commentaries, Annotations, Precedents of
Indictments, &c., &c. Toronto: Carswell Co., 1893.
Taschereau, Henri Elzéar. The Criminal Law Consolidation and
Amendment Acts of 1869, 32‑33 Vict. for the Dominion of Canada, as
amended and in force on the 1st day of November, 1874, in the Provinces of
Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, and, on the 1st day of
January, 1875, in British Columbia, with Notes, Commentaries, Precedents of
Indictments, &c., &c., &c. Montréal: Lovell Printing and
Publishing Co., 1874.
Thomas, Courtney. “‘Not Having God Before his Eyes’: Bestiality in
Early Modern England” (2011), 26 The Seventeenth Century 149.
Tremeear’s Annotated Criminal Code: Canada, 6th ed., by Leonard J. Ryan. Toronto: Carswell Co., 1964.
Watt, David. The New Offences Against the Person: The Provisions
of Bill C‑127. Toronto: Butterworths, 1984.
APPEAL
from a judgment of the British Columbia Court of Appeal (Bauman C.J. and
Lowry and Goepel JJ.A.), 2015 BCCA 169, 371 B.C.A.C. 51, 636 W.A.C. 51, 325
C.C.C. (3d) 73, 20 C.R. (7th) 413, [2015] B.C.J. No. 773 (QL), 2015
CarswellBC 1025 (WL Can.), setting aside the conviction for bestiality entered
by Romilly J., 2013 BCSC 1327, [2013] B.C.J. No. 1620 (QL), 2013
CarswellBC 2238 (WL Can.). Appeal dismissed, Abella J. dissenting.
Mark K. Levitz, Q.C., and Laura Drake, for
the appellant.
Eric Purtzki and Garth
Barriere, for the respondent.
Peter Sankoff and Camille
Labchuk, for the intervener.
The judgment of
McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Côté and Brown JJ. was
delivered by
Cromwell J. —
I.
Introduction
[1]
Sixty years ago,
Parliament added an offence called bestiality to the English version of the Criminal
Code, S.C. 1953-54, c. 51, s. 147 (the “1955 revisions”), but did not
define its elements. Through successive ― and substantial ―
amendments to the sexual offence provisions of the Code, Parliament has
retained the offence of bestiality to the present day, but has never defined
it. The crime is in fact a very old one which, at various times in its history,
has also been referred to as a type of sodomy or buggery. But by whatever name
it has been known in its long history, sexual penetration has always been one
of its essential elements. Whether that is still the case under our present Code
is the question that divided the British Columbia courts and now comes to us on
appeal.
[2]
The appellant Crown
argues that bestiality no longer requires penetration, and is committed by
engaging in any sexual activity with an animal. This submission asks us, in
effect, to create a new crime. But that is not our role.
[3]
In Canada, there can be
no liability for common law crimes apart from criminal contempt of court: Criminal
Code, R.S.C. 1985, c. C-46, s. 9 . As a result, changes to the scope of
criminal liability must be made by Parliament; judges are not to change the
elements of crimes in ways that seem to them to better suit the circumstances
of a particular case: D. H. Brown, The Genesis of the Canadian Criminal Code
of 1892 (1989), at pp. 124 and 148. To accept the Crown’s invitation to
expand the scope of the crime of bestiality would be to turn back the clock and
re-enter the period before codification of our criminal law, a period when the
courts rather than Parliament could change the elements of criminal offences.
My colleague Justice Abella is of the view that accepting the Crown’s position
on this appeal would not widen the scope of bestiality. But of course it would.
That is the point of the Crown’s position. If the Crown’s proposed changes to
the elements of bestiality are to be made, they must be made by Parliament.
[4]
Like the majority of
the Court of Appeal, I conclude that penetration remains, as it has always
been, an essential element of the offence of bestiality. I would dismiss the
appeal.
II.
Outline of the Facts and Judicial History
[5]
This appeal relates
solely to the respondent D.L.W.’s conviction for a single count of bestiality.
That conviction was entered after a 38-day trial, at which the respondent was
also convicted of numerous other sexual offences against his two stepdaughters
committed over the course of 10 years: 2013 BCSC 1327. Both victims testified
that the respondent began sexually fondling them by the age of 12 and, by the
time they turned 14, he was forcing them to engage in oral sex and sexual
intercourse and encouraging them to perform sex acts with each other. He was
sentenced to a total of 16 years’ imprisonment. For the bestiality conviction
in relation to the older complainant, he received a sentence of two years to
run consecutively to sentences totalling 14 years imposed in relation to the
other offences: 2014 BCSC 43.
[6]
The trial judge, Romilly J., found
that the respondent first brought the family dog into the bedroom with the
complainant when she was 15 or 16 years old. He attempted to make the dog have
intercourse with her and, when that failed, he spread peanut butter on her
vagina and took photographs while the dog licked it off. He later asked her to
do this again so he could make a video. The judge found that the respondent did
all of this for a sexual purpose: 2013 BCSC 1327, at paras. 317-18 (CanLII).
[7]
Bestiality is not defined in the Criminal
Code, R.S.C. 1985, c. C-46 , which provides simply:
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.
The issue at trial
and both levels of appeal concerns whether penetration is an essential element
of the offence. If it is, the respondent must be acquitted as the alleged acts
did not involve sexual penetration.
[8]
The trial judge accepted the
Crown’s position that penetration is not required. In his view, bestiality in
the Code means touching between a person and an animal for a person’s
sexual purpose. Relying on R. v. M.G., 2002 CanLII 45200 (C.Q.), the
judge rejected the notion that the elements of bestiality were “frozen in
time”, preferring instead to interpret the elements of bestiality so that they
would “reflect current views on what constitutes prohibited sexual acts”:
paras. 314-15. He held that the respondent was a party to this offence because
he facilitated the complainant’s participation in bestiality by encouraging her
to do so and by using the peanut butter: para. 320. The judge also concluded
that the Crown had failed to prove that the respondent had compelled the
complainant to commit the offence: para. 326. In other words, the trial judge
in effect held that the complainant was the principal (but uncharged) offender
and the respondent was a party to the offence which the complainant had
committed. The Crown refers to this conclusion as “questionable” but it is
relevant to the legal issue we face in this appeal to consider that the Crown’s
position, if accepted, could have the effect of turning the victim into an
offender.
[9]
A majority of the Court
of Appeal (Goepel J.A. writing for himself and Lowry J.A.) allowed the
respondent’s appeal against the bestiality conviction and acquitted the respondent
of the bestiality count: 2015 BCCA 169, 371 B.C.A.C. 51. The majority concluded
that the term “bestiality” had a common law meaning that included penetration
as one of its essential elements. The legislative history of the offence in
Canada, the majority decided, did not show any parliamentary intent to depart
from that meaning. Bauman C.J.B.C., dissenting, would have dismissed the
appeal. He found that penetration was not an element of bestiality under the
Canadian offence brought into force in 1955. The Crown appeals to this Court
as of right by virtue of that dissent.
[10]
The only issue is
whether the majority of the Court of Appeal was wrong to conclude that
penetration is an essential element of the offence of bestiality in s. 160(1)
of the Code.
III.
Analysis
A.
The Parties’ Positions
[11]
The Crown’s position
is, first, that the term “bestiality” does not have a well-established and
well-understood meaning in common law. In the early days of Canada’s Criminal
Code , sexual activity with an animal was criminalized, in the English
version, as buggery, an offence which, in the Crown’s submission, related only
to anal intercourse, whether between humans or between a human and an animal.
Next, the Crown submits that when the term “bestiality” was first used in the English
version of the Code in the 1955 revisions, Parliament intended to
separate it from the common law conception of buggery and give it its own
meaning. Further, the argument goes that additional amendments to the Code
effective in 1988 show that Parliament must have assumed that the term “bestiality”
encompassed sexual activity of any kind between a human and an animal.
[12]
The respondent, on the
other hand, submits that when the term “bestiality” was introduced into the
English version of the Code in 1955, that term had a specific,
well-established and well-known legal meaning: vaginal or anal penetration
between a human and an animal. Parliament, when it employed the term without
further definition, must have intended its normal legal sense. None of the amendments
on which the Crown relies affected the definition of the elements of the
offence; Parliament simply continued to use the term without statutory
definition.
B.
The Analytical Approach
[13]
The debate in this
Court concerns whether the term “bestiality” has a well-understood legal
meaning in the common law and, if so, whether Parliament intended to depart
from that meaning when it used the word without further definition in the
English version of the Code. At the root of the issue, therefore, is the
question of how the common law and the statutory offences in the Code
interact. This is an important question of principle that has implications far
beyond this particular offence.
[14]
The common law “forms
an important and complex part of the context in which legislation is enacted
and operates and in which it must be interpreted”: R. Sullivan, Sullivan on
the Construction of Statutes (6th ed. 2014), at §17.1. Nowhere in our law
is this observation more apt than in relation to our Code.
[15]
As I mentioned at the
outset, criminal offences in Canada since 1955 have been entirely statutory
(with the exception of criminal contempt). However, the common law continues to
play an important role in defining criminal conduct. Defining the elements of
statutory offences often requires reference to common law concepts: United
Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p.
930. Those concepts continue not only to illuminate the definition of statutory
offences but also to give “content to the various principles of criminal
responsibility those definitions draw from”: R. v. Jobidon, [1991] 2
S.C.R. 714, at p. 736. Many of the “basic premises” of the criminal law
― the necessary conditions for criminal liability ― are left to the
common law: Law Reform Commission of Canada, Report 31, Report on
Recodifying Criminal Law (1987), at p. 17.
[16]
To take one obvious
example, the mental element of many crimes is not specified in the Code.
Yet, absent a contrary indication, Parliament is presumed to intend that
true crimes have a subjective fault component. This is presumed because
Parliament is taken to know that under the common law the act is not guilty
unless the mind is guilty (actus non facit reum nisi mens sit rea): see,
e.g., R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at paras. 20-23.
Of course, Parliament can provide otherwise, but where it does not, the common
law principle is applied.
[17]
The question of how the
common law interacts with statutory criminal law is not a new one. It is
addressed, for example, by several pages of Sir James Fitzjames Stephen’s A History of the Criminal Law of
England (1883), vol. II, at pp. 187-92. He concluded that there are four
main ways in which criminal statutes may relate to the common law. The statute
law may simply assume the continuing existence of some general principles and
definitions of certain crimes. The statutes, in some instances, provide that
some of those offences, aggravated or modified in particular ways, are subject
to special punishments. In other instances, the statutes create offences
unknown to the common law and, in a few cases, alter the principles and clarify
the definitions of the common law. Determining which of these sorts of
interactions applies in a particular offence is a matter of statutory interpretation.
[18]
A number of principles
guide statutory interpretation in this sort of case. The three most important
are these. First, when Parliament uses a legal term with a well-understood
legal meaning, it is presumed that Parliament intended to incorporate that
legal meaning into the statute. Second, any departure from that legal meaning
must be clear, either by express language or necessary implication from the
statute. Finally, apart from criminal contempt, there can be no liability for
common law crimes. Creating and defining crimes is for Parliament; the courts
must not expand the scope of criminal liability beyond that established by
Parliament.
[19]
As I will explain,
applying these principles leads me to the following conclusions. The term
“bestiality” has a well-established legal meaning and refers to sexual
intercourse between a human and an animal. Penetration has always been
understood to be an essential element of bestiality. Parliament adopted that
term without adding a definition of it and the legislative history and
evolution of the relevant provisions show no intent to depart from the
well-understood legal meaning of the term. Moreover, the courts should not, by
development of the common law, broaden the scope of liability for this offence,
as the trial judge did. Any expansion of criminal liability for this offence is
within Parliament’s exclusive domain. In short, this case falls within
Stephen’s first category: our Code assumes the continuing existence of
the common law definition of this crime.
C.
The Accepted Legal Meaning of “Bestiality”
(1)
Parliament Intends the Legal Meaning of Legal
Terms
[20]
When Parliament uses a
term with a legal meaning, it intends the term to be given that meaning. Words
that have a well-understood legal meaning when used in a statute should be
given that meaning unless Parliament clearly indicates otherwise. This principle
has been applied in a number of cases such as Will-Kare Paving &
Contracting Ltd. v. Canada, 2000 SCC 36, [2000] 1 S.C.R. 915, at paras.
29-30; Townsend v. Kroppmanns, 2004 SCC 10, [2004] 1 S.C.R. 315, at
para. 9; A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue
Agency), 2007 SCC 42, [2007] 3 S.C.R. 217, at paras. 8-23 and 48-49. Most
recently in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, the Court
noted that “Parliament is presumed to know the legal context in which it
legislates” and that it is “inconceivable” that Parliament would intend to
disturb well-settled law without “explicit language” or by “relying on
inferences that could possibly be drawn from the order of certain provisions in
the Criminal Code ”: paras. 55-56.
[21]
There is also the
related principle of stability in the law. Absent clear legislative intention
to the contrary, a statute should not be interpreted as substantially changing
the law, including the common law: see, generally, Sullivan, at §17.5; P.-A.
Côté, in collaboration with S. Beaulac and M. Devinat, Interprétation des
lois (4th ed. 2009), at paras. 1793 ff. This principle, if applied too
strictly, may lead to refusal to give effect to intended legislative change.
But it nonetheless reflects the common sense idea that Parliament is deemed to
know the existing law and is unlikely to have intended any significant changes
to it unless that intention is made clear: Walker v. The King, [1939]
S.C.R. 214, at p. 219; Nadeau v. Gareau, [1967] S.C.R. 209, at p. 218; R.
v. T. (V.), [1992] 1 S.C.R. 749, at p. 764. This principle is reflected in
ss. 45(2) and 45(3) of the Interpretation Act, R.S.C. 1985, c. I-21 ,
which provide that the amendment of an enactment does not imply any change in
the law and that the repeal of an enactment does not make any statement about
the previous state of the law.
[22]
While these
interpretative principles are easy to state, how they apply in particular cases
may be controversial. Sometimes, the controversy concerns the state of the
common law when Parliament acted: in other words, the debate is about whether
the term used had a clearly understood legal meaning when it was incorporated
into the statute. For example, that was the source of the disagreement between
the majority and minority in A.Y.S.A. More often, though, the difficult
issue is whether Parliament has indicated an intention to depart from the
accepted legal meaning.
[23]
Both of these types of
dispute arise in this case, and so I turn to the first question: Did the term “bestiality”
have a clear legal meaning when Parliament used that term without further
definition in the English version of the 1955 Code?
(2)
Bestiality Meant Buggery With an Animal and
Required Penetration
(a)
Introduction
[24]
The ancient offence of
sexual intercourse with an animal was, at various times, referred to as a type
of sodomy, a type of buggery and as bestiality. As we shall see, whatever it
was called, the offence required penetration.
[25]
The first Canadian
offence of buggery with an animal was taken almost word for word from the
English Offences against the Person
Act, 1861, 24 & 25 Vict.,
c. 100 (“1861 Act”), s. 61. The offence in substantially that form was
carried over into the first English version of the Canadian Criminal Code,
1892, S.C. 1892, c. 29 (“1892 Code”), and continued to be in force
until the offence called bestiality was introduced into the English version of
the Code in the 1955 revisions: s. 147. It follows that our starting
place in developing an understanding of the Canadian law is the English law
from which it derived.
(b)
English Offence
[26]
Although bestiality was
often subsumed in terms such as sodomy or buggery, penetration was the essence
― “the defining act” ― of the offence. It was clear that to secure
a conviction, the prosecution had to prove that “penetration of an animal, or,
in the case of women, penetration by an animal, had occurred”: C. Thomas, “‘Not
Having God Before his Eyes’: Bestiality in Early Modern England” (2011), 26 The
Seventeenth Century 149, at p. 153. This was true from at least the
mid-16th century: Thomas, at p. 154; see also A. F. Niemoeller, Bestiality
and the Law: A Resume of the Law and Punishments for Bestiality with Typical
Cases from Fifteenth Century to the Present (1946); and H. Miletski, “A
history of bestiality”, in A. M. Beetz and A. L. Podberscek, eds., Bestiality
and Zoophilia: Sexual Relations with Animals (2005), 1.
[27]
Originally under the
authority of the Church Courts, “buggery comyttid with mankynde or beaste”
became a felony in 1533: An Acte for the punysshement of the vice of
Buggerie (Eng.), 25 Hen. 8, c. 6. It was typically men who were prosecuted
for the crime because it was necessary to prove penetration to establish the
commission of the offence. Women were therefore “unlikely offenders”: Thomas,
at p. 158. There were nevertheless some prosecutions of women for the
offence and men were prosecuted for penetrating both male and female animals:
Thomas, at p. 158. Edward Coke described buggery as including carnal
knowledge (i.e. penetration) between a man or a woman and an animal: The
Third Part of the Institutes of the Laws of England: Concerning High Treason,
and Other Pleas of the Crown, and Criminal Causes (1797, first published
1644), at p. 59.
[28]
The statute from
Henry’s time was repealed in 1553 but reinstated in 1562 and remained in that
form until it was confirmed in 1828: An Act for consolidating and amending
the Statutes in England relative to Offences against the Person (U.K.), 9
Geo. 4, c. 31 (the “1828 statute”). That statute of 1828 clarified that
“actual Emission of Seed” was not an essential element of the offence, and
further that “carnal Knowledge” would be “deemed complete upon Proof of
Penetration only”: s. 18; see G. Parker, “Is A Duck An Animal? An Exploration of
Bestiality as a Crime”, in L. A. Knafla, ed., Crime, Police and the Courts
in British History (1990), 285, at pp. 292-93.
[29]
All of the other old
sources that I have reviewed confirm that penetration was an essential element
of the offence and that buggery with an animal was not restricted to anal
intercourse: see, e.g., M. Hale, Pleas of the Crown: A Methodical Summary (1678),
at p. 117; M. Hale, Historia Placitorum Coronae (1736), vol. I, at
p. 669; E. H. East, A Treatise of the Pleas of the Crown (1803), vol.
I, at p. 480. (I pause to note that, contrary to Justice Abella’s
understanding, there was no uncertainty about whether penetration was required.
Neither the Crown nor the dissenting judge in the Court of Appeal thought that
there was any lack of clarity about the fact that penetration was required
before the 1955 revisions.)
[30]
This was the state of
the law when the English 1861 Act was enacted. Under the title “Unnatural Offences”
and with the marginal note “Sodomy and Bestiality”, the 1861 Act
provided:
61. Whosoever shall be
convicted of the abominable Crime of Buggery, committed either with Mankind or
with any Animal, shall be liable, at the Discretion of the Court, to be kept in
Penal Servitude for Life or for any Term not less than Ten Years.
The 1861
Act in s. 63 also continued the 1828 clarifications that emission of
seed was not required but that penetration was.
[31]
The fifth edition of Russell
on Crime deals with the s. 61 offence under the heading “sodomy”, making it
clear that that term included buggery “with any animal”: W. O. Russell, A
Treatise on Crimes and Misdemeanors (5th ed. 1877), at p. 879. The author
goes on to state that the s. 61 offence “consists in a carnal knowledge
committed against the order of nature [i.e. per anum] by man with man;
or in the same unnatural manner with woman; or by man or woman in any manner
with beast”: ibid. (emphasis added). “[C]arnal knowledge” meant
penetration: ibid., at pp. 879-80. That penetration was required was
made explicit in the English 1878 Draft Code: s. 101(a). This is also
the case in the Draft Code appended to the Report of the Royal Commission
appointed to consider the Law relating to Indictable Offences (1879) (the “1879
Draft Code”), s. 144 (Appendix, at p. 95). That Draft Code tracked the language
of the 1861 Act by providing that “[e]very one shall be guilty of an
indictable offence . . . who commits buggery either with a human being or with
any other living creature”: ibid. The provision went on to specify that
the offence was complete upon penetration. In their commentary on the 1879
Draft Code, the Commissioners did not note any change from the previous law
with respect to the elements of the offence: pp. 21-22.
[32]
The requirement for
penetration is reflected in Sir James Fitzjames Stephen’s A Digest of the
Criminal Law (Crimes and Punishments) (1878), art. 168, at p. 115.
(Remember that since the 1828 statute, it had been clear that the “actual Emission of Seed” was not required and that
“carnal Knowledge” would be “deemed complete upon Proof of Penetration only”:
s. 18.)
[33]
The old case law is not
abundant, but what there is supports the view that penetration was an essential
element of the offence. In R. v.
Cozins (1834), 6 Car. & P. 351, 172 E.R. 1272, a case of bestiality with
a ewe, Park J. directed the jury that if there was penetration, even though
there had been no emission, the offence was complete.
[34]
This understanding of the offence
continued in England for many years. Later commentators are almost uniformly of the view that
buggery with an animal required penetration. I have already referred to Russell
on Crime. In 1957, in Sexual
Offences: A Report of the Cambridge Department of Criminal Science, at
p. 345, the director of the department, Leon Radzinowicz, commented on s. 12(1)
of the Sexual Offences Act, 1956 (U.K.), 4 & 5 Eliz. 2, c. 69, which
made it a felony for a person to commit buggery with another person or with an
animal. This section is virtually identical to the version of the offence found
in the 1861 Act and therefore to the English version of the Canadian
offence up until 1955. The report explains that
[t]he crime consists of carnal knowledge, or
sexual intercourse, by man with man per anum, man with woman per anum,
or man or woman with beast in any manner. The word ‘sodomy’ is frequently used
to indicate the offence when committed with mankind, and ‘bestiality’ when
committed with an animal. [p. 345]
[35]
The 1965 edition of the English criminal law treatise by
J. C. Smith and B. Hogan described the elements of buggery at common law as an
“intercourse per anum by a man with a man or woman; or intercourse per
anum or per vaginam by a man or a woman with an animal”: Criminal
Law (1965), at p. 321 (footnotes omitted).
[36]
The later case law is also
consistent with this view. In R. v. Bourne (1952), 36 Cr. App. R. 125,
in upholding convictions of a husband for aiding and abetting his wife to
commit buggery with a dog, Lord Chief Justice Goddard stated that “if a woman
has connection with a dog, or allows a dog to have connection with her, that is
the full offence of buggery”:
p. 128. The court noted that the offence was “commonly called bestiality”: p.
127.
(c)
Canadian Offence
[37]
In Canada, as in England, the
early history of the offence shows that what was commonly called “bestiality”
was subsumed under the offences named sodomy or buggery and that penetration
was one of its essential elements.
[38]
The English 1861 Act
was adopted, almost word for word, by the first English version of the Canadian
codification of the offence in 1869: An Act respecting Offences against the
Person, S.C. 1869, c. 20, s. 63. With the marginal note “[s]odomy and
bestiality”, the following offence appears:
63.
Whosoever is convicted of the abominable crime of buggery committed either with
mankind or with any animal, shall be liable to be imprisoned in the
Penitentiary for life, or for any term not less than two years.
[39]
The French version of
this provision, with the marginal note “[s]odomie” reads as follows:
63. Quiconque est convaincu du crime abominable de sodomie, commis soit
avec un être humain, soit avec un animal, sera passible de l’incarcération dans
le pénitencier pour la vie, ou pour un terme de pas moins de deux ans.
[40]
In 1874, Henri Elzéar
Taschereau (later a judge of this Court) published The Criminal Law
Consolidation and Amendment Acts of 1869, 32-33 Vict. for the Dominion of
Canada, with Notes, Commentaries, Precedents of Indictments, &c. He
confirms that the offence of sodomy or buggery with an animal is committed by
carnal knowledge by mankind or by womankind with “brute beast” and that “[a]s
in the case of rape, penetration alone is sufficient to constitute the
offence”: pp. 344-45. He also provides a model indictment for both buggery by a
human and for buggery with an animal, referring to the latter as bestiality: p.
345.
[41]
The 1869 provision,
with minor amendments in 1886, was incorporated into the first Canadian Criminal
Code in 1892: An Act respecting Offences against Public Morals and Public
Convenience, R.S.C. 1886, c. 157, s. 1; 1892 Code, s. 174. This
version of the offence remained in force until the 1955 revisions: Criminal
Code, R.S.C. 1906, c. 146, s. 202; Criminal Code, R.S.C. 1927, c.
36, s. 202. It is worth noting that while the English version continued to
refer to “buggery . . . with any other living creature”, the French version
used the word “bestialité” to express this part of the English version
of the offence. The word “bestialité” has been used consistently since
the 1886 Act and in all French versions of the Code since 1892. The
English version read:
174. Every one is guilty of an indictable offence and liable to
imprisonment for life who commits buggery, either with a human being or with
any other living creature.
[42]
The French version was as follows:
174. Est coupable d’un acte criminel et
passible d’emprisonnement à perpétuité, celui qui commet la sodomie ou la
bestialité.
[43]
As in England, the English
language version of the Canadian statutes simply provided that buggery with an
animal (i.e. “any other living creature”) was an offence, but did not further
define it. However, the French version equivalent of “buggery . . . with any
other living creature” being “bestialité” shows that buggery with an
animal and bestiality were the same thing. Thus, the use of these legal words without statutory
definition puts this provision into Stephen’s first category of how the statute
and the common law interact: the statute assumes “in the reader a previous
knowledge . . . of the common law definitions of certain crimes which
the Act punishes but does not define”: J. F. Stephen, A General View of the
Criminal Law of England (2nd ed. 1890), at p. 109; see also Stephen, A History of the Criminal Law of England, at pp.188-91. Professor Sullivan refers to this legislative
technique as “incorporation”: a legal term (in this case, buggery with an
animal/la bestialité) is incorporated into the legislation with
the legislative intent that it will continue to bear its common law meaning (§17.1).
[44]
Sources just before and
contemporaneous with the 1892 Code confirm that this offence
required penetration.
[45]
Before the 1892 Code,
George Wheelock Burbidge defines the crime of sodomy, in part, as consisting of
carnal knowledge (i.e. sexual penetration) of any animal: A Digest of the
Criminal Law of Canada (Crimes and Punishments) (1890), at p. 161 (art.
213). After the Code, H. E. Taschereau’s 1893 annotated Criminal Code
(i.e., commentaries, annotations and precedents on the 1892 Code)
states in relation to the buggery with an animal offence found in s. 174 that
“[a]s in the case of rape, penetration alone is sufficient to constitute the
offence”: The Criminal Code of the Dominion of Canada as amended in 1893,
with Commentaries, Annotations, Precedents of Indictments, &c. (1893),
at p. 117.
[46]
The pre-1955 case of Henry
v. Henry, [1953] O.J. No. 347 (QL) (C.A.), is also consistent with the view
that penetration was required. The court said that “there was penetration to
some extent, and even if the penetration was to a very slight degree, the
offence of bestiality would be thereby committed”: para. 2. In R. v.
Wishart (1954), 110 C.C.C. 129 (B.C.C.A.), the court relied on the English
decision of Bourne, which I have referred to earlier and which stated
that penetration was required.
[47]
In my view, there can
be no serious dispute that the Canadian offence of buggery with an animal/la
bestialité in the 1892 Code, which continued to be in force
until the 1955 revisions, had a widely and generally understood meaning: the
offence required sexual penetration between a human and an animal. It is also
clear, in my view, that the term “bestiality” was understood to mean sodomy or
buggery with an animal.
[48]
The Crown made much of
the paucity of case law authoritatively settling the elements of the offence.
But respectfully that is beside the point. The question is not whether there
was binding authority from the House of Lords or the Judicial Committee of the
Privy Council setting out the elements of the offence. The question is whether
the offence of buggery with an animal had a well-understood legal meaning when
it was used by Parliament without further definition in the 1892 Code.
The contemporary sources make it overwhelmingly clear that it did. Any lawyer
who was asked in 1892 whether the offence of buggery with an animal required
penetration would have replied in the affirmative. Parliament, by using that
term without further definition, intended to adopt that well-understood legal
meaning.
[49]
The Crown also noted
that there may be some room for debate about whether buggery with an animal/la
bestialité was limited to cases of anal penetration, as discussed by Bauman
C.J.B.C. in his dissenting reasons. That view is supported by at least one
legal dictionary, P. G. Osborn, A Concise Law Dictionary (4th ed. 1954),
at p. 61, “buggery”, and by Kenny’s Outlines of Criminal Law (19th ed.
1966), at p. 205. However, as I have reviewed earlier, all other commentators,
including Stephen himself, the Court of Criminal Appeal in Bourne and
detailed studies of prosecutions in England from the mid-1500s to the late
1800s support the view that buggery with an animal required penetration, be it
vaginal or anal. In any case, the Crown’s position is somewhat beside the point
we have to decide here. On any view of the law, the 1892 Canadian offence
required penetration of some kind. There is no support ― none ― for
the view that penetration of some kind was not required.
(d)
Conclusion on the First Question
[50]
We can conclude that,
at least until 1955, the offence of buggery with animals/la bestialité
continued to have the same elements that it had in the English 1861 Act,
a provision carried forward in virtually identical terms in the Canadian Act of
1869 and into our first Code in 1892. Thus, penetration continued to be
an element of the offence. We may also conclude that the term “bestiality” was
understood to mean buggery with an animal.
[51]
That brings us to the
next step in the analysis, which is to determine whether Parliament explicitly
or by necessary implication changed this well-understood legal meaning.
(3)
There Is No Express or Implied Legislative
Intent to Depart From the Legal Meaning of the Term “Bestiality”
(a)
The Crown’s Position: The Elements of the
Offence Changed in 1955 and This Change Was Confirmed by Amendments in 1988
[52]
The Crown points to two
legislative changes which it submits show a clear intention to expand the
offence of sexual intercourse between a human and an animal to an offence
proscribing all human-animal sexual activity. The first occurred in 1955 and
the intention to make this change was confirmed by amendments in 1988. However,
as I see it, the legislative history, on
which the Crown relies, in fact supports the respondent’s position that
bestiality continued to require penetration as one of its elements.
[53]
To explain why I have
reached this conclusion, I will first turn to the applicable principles of
statutory interpretation and then look at the two amendments in more detail.
(b)
Principles of Interpretation
(i)
Clear Language Is Required to Change the Law,
Particularly Where the Change Takes Away Liberty
[54]
As Professor Sullivan
says, “The stability of law is enhanced by rejecting vague or inadvertent
change while certainty and fair notice are promoted by requiring legislatures
to be clear and explicit about proposed changes”: §15.50. Stability and
certainty are particularly important values in the criminal law and significant
changes to it must be clearly intended. As the Court put it in T. (V.),
“it is open to Parliament to change the law in whatever way it sees fit, [but] the
legislation in which it chooses to make these alterations known must be drafted
in such a way that its intention is in no way in doubt”: p. 764 (emphasis
added).
[55]
A related principle is
that enactments which take away the liberty of the subject should be clear and
any ambiguity resolved in favour of the subject. “It is unnecessary to
emphasize the importance of clarity and certainty when freedom is at stake. . .
. If one is to be incarcerated, one should at least know that some Act of
Parliament requires it in express terms, and not, at most, by implication”: Marcotte
v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, at p. 115.
[56]
There is no express
statutory provision expanding the scope of the bestiality offence as the Crown
asks us to do. And, as we shall see, there is nothing in the legislative
evolution and history that supports any parliamentary intent to bring about
such a change by implication. The required “clarity and certainty” are entirely
lacking.
(ii)
Parliament, Not the Judiciary, May Expand
Criminal Liability
[57]
Parliament, not the
judiciary, may expand the scope of criminal liability. As Cartwright J. (as he
then was) said in Frey v. Fedoruk, [1950] S.C.R. 517:
. . . if any course of conduct is now
to be declared criminal, which has not up to the present time been so regarded,
such declaration should be made by Parliament and not by the Courts. [p. 530]
[58]
This was not a new idea
when Cartwright J. wrote these words in 1950. The principle was reflected in
the English 1879 Draft Code. Its s. 5 provided that there would be no
prosecutions for crimes at common law. The Commissioners noted that the purpose
and effect of this provision would be to put an end to the power of judges to
create new common law crimes. They added that even if the Draft Code and other
statutes overlooked some common law offences, they thought “better to incur the
risk of giving a temporary immunity to the offender than to leave any one
liable to a prosecution for an act or omission which is not declared to be an
offence by the Draft Code itself or some other Act of Parliament”: p. 10. The
same thinking was explicitly adopted in the 1955 revisions of our Code.
It provided (in what was then s. 8; now s. 9 ) that “no person shall be
convicted . . . of an offence at common law”, subject to the power of judges to
punish for contempt of court. The Report of Royal Commission on the Revision
of Criminal Code (1954) had proposed a similar provision, observing that
all of the offences which should be adopted from the common law were
incorporated into the 1878 Draft Code: p. 6.
[59]
In accordance with this
principle, the courts have refrained from developing the common law meanings of
legal terms used in the Code so as to extend the scope of criminal
liability. Courts will only conclude that
a new crime has been created if the words used to do so are certain and
definitive: Marcotte, at p. 115; R. v. McLaughlin, [1980] 2
S.C.R. 331, at p. 335; and R. v. McIntosh, [1995] 1 S.C.R. 686, at
paras. 38-39. This approach not only reflects the appropriate respective roles
of Parliament and the courts, but the fundamental requirement of the criminal
law that people must know what constitutes punishable conduct and what does
not, especially when their liberty is at stake: see, e.g., R. v. Mabior,
2012 SCC 47, [2012] 2 S.C.R. 584, at para. 14. As McLachlin J. (as she then
was) cautioned:
Clear language is required to
create crimes. Crimes can be created by defining a new crime, or by redefining
the elements of an old crime. When courts approach the definition of
elements of old crimes, they must be cautious not to broaden them in a way that
in effect creates a new crime. Only Parliament can create new crimes and turn
lawful conduct into criminal conduct. It is permissible for courts to
interpret old provisions in ways that reflect social changes, in order to
ensure that Parliament’s intent is carried out in the modern era. It is not
permissible for courts to overrule the common law and create new crimes that
Parliament never intended. [Emphasis added.]
(R. v. Cuerrier,
[1998] 2 S.C.R. 371, at para. 34)
[60]
R. v. McDonnell, [1997] 1 S.C.R. 948, is an example of
this principle at work. The question was whether an appellate court had erred
on a sentence appeal by overturning the sentence imposed at first instance in
part on the basis of a judicially created category of offences to which were
attached starting point sentences. The majority of this Court found that the
appellate court had erred. In reaching that conclusion, the Court relied on the
principle that it is not for judges to create criminal offences: by creating a
category of offence within a statutory offence for the purposes of sentencing,
the appellate court had “effectively created an offence” contrary to the spirit
if not the letter of that principle (para. 33).
[61]
The same underlying
principle is at work in Perka v. The Queen, [1984] 2 S.C.R. 232. The
Court had to determine whether the definition of the scientific term “Cannabis
sativa L.” should refer to its meaning at the time the statute was passed
or at the time the infraction was committed. The Court adopted the former
approach. The Court noted that not all terms in all statutes must always be
confined to their original meanings. Broad statutory categories are often held
to include things unknown when the statute was enacted and words in
constitutional documents must be capable of growth and development to meet
changing circumstances. However, that interpretative approach is most often
taken when the statutory language is broad or open-textured. But where
Parliament has used “specific scientific or technical” terms, it would “do
violence to Parliament’s intent to give a new meaning to that term”: p. 265.
[62]
I will refer finally to
Gralewicz v. The Queen, [1980] 2 S.C.R. 493. One of the issues in the
case was what constitutes an “unlawful purpose” as an element of the offence of
conspiracy to effect an unlawful purpose. The majority of the Court held that
to be an unlawful purpose in this context, the purpose must be prohibited by
federal or provincial legislation: p. 509. The majority found no clear basis
in Canadian law to support the view that the offence extended to other sorts of
unlawful purposes. The Court relied on the principle that it is not open to the
courts to create new offences or to widen existing offences as to make
punishable conduct of a type not previously subject to punishment: p. 508.
Chouinard J. for the majority put it this way:
It is difficult for me to see how
the mere enactment of conspiracy as a statutory offence would have the effect
of extending its scope beyond what it had been held to extend to at common law
by the Canadian courts prior to its becoming a statutory offence while at the
same time Parliament enacted s. 8 [now s. 9 ] to exclude common law offences
from the ambit of the criminal law of Canada. [p. 509]
[63]
These kinds of cases
must be distinguished from ones in which Parliament had enacted statutory
definitions and the question was how much, if at all, the common law should
supplement them. No such question arises here. For example, in Jobidon
and Cuerrier, Parliament had legislated quite extensively in relation to
the meaning of “consent” and the issue was whether the statutory provisions
were exhaustive or should be supplemented by the common law. However, in the
present case, there is not, and has never been in Canada, any statutory
definition ― exhaustive or otherwise ― of the elements of
bestiality.
[64]
For the sake of
completeness, I should note that the courts have taken a less restrictive
approach with respect to developing common law defences, excuses and
justifications. In this context, the Court has been willing to allow the common
law to evolve and develop rather than treating it as having been frozen in time
by statutory adoption. The Court has confirmed the availability of, for
example, the common law defences of necessity and duress to further develop
them: Perka, at p. 245; R. v. Latimer, 2001 SCC 1, [2001] 1
S.C.R. 3, at paras. 32-34; Paquette v. The Queen, [1977] 2 S.C.R. 189; R.
v. Hibbert, [1995] 2 S.C.R. 973; R. v. Ruzic, 2001 SCC 24, [2001] 1
S.C.R. 687, at paras. 56-67. This approach is consistent with what Laskin C.J.
said in Kirzner v. The Queen, [1978] 2 S.C.R. 487, that the Code
should not be seen “as having frozen the power of the Courts to enlarge the
content of the common law by way of recognizing new defences”: p. 496.
[65]
However, common law
defences, excuses and justifications stand on an entirely different footing
under the Code than does the definition of offences. While prosecution
for common law crimes is explicitly prohibited (s. 9 ), the Code expressly
preserves common law defences, excuses and justifications: s. 8(3) . The
approach to the common law in those areas is thus not relevant to the question
of how the courts should approach the definition of elements of offences.
[66]
The Crown’s position in
this case directly implicates the principle that it is for Parliament and not
the courts to expand the scope of criminal liability. The Crown invites the
Court to develop the common law definition of bestiality so as to expand the
scope of criminal liability for that offence. If we accept the Crown’s
position, the offence will fundamentally change from one relating to sexual
intercourse between a human and an animal to one proscribing and punishing any
touching of a sexual nature between a human and an animal. As I will explain,
there is no clear statutory mandate to do so. And, to accept that invitation
would be to exceed the proper role of the courts in defining criminal
liability.
[67]
The trial judge’s analysis was flawed because it gave no weight to
this principle and did not take into consideration that the French version of
the offence in the Code has remained substantively unchanged from 1892
to 1988. He reasoned that the courts should interpret the elements of the
offence of bestiality so that they would “reflect current views on what
constitutes prohibited sexual acts”: para. 315. This, respectfully, was a
fundamental legal error. Absent clear parliamentary intent to depart from the
clear legal definition of the elements of the offence, it is manifestly not
the role of the courts to expand that definition.
[68]
We should bear in mind
that there are important questions of policy involved in broadening the offence
of bestiality as the Crown urges us to do. That change, as we see from the
trial judge’s reasons, could turn a person such as the victim in this case into
a co-perpetrator. Recall that, if we accept the trial judge’s reasoning (an
issue that I need not finally decide here), the complainant is the principal
offender and the respondent is liable as having aided and abetted her
commission of the offence. In other words, a victim became a co-perpetrator.
This, in itself, should make us hesitate. Justice Abella is of the view that
the Crown would never charge anyone in the position of this complainant and I hope
that she is right. But this faith in prosecutorial discretion misses the point.
It does not provide any comfort to those who, like me, are concerned that the
trial judge’s approach, if adopted, would mean that in law this complainant
would be an uncharged principal offender. That legal conclusion should give us
pause.
[69]
There are also
significant policy debates about what the focus of this sort of offence ought
to be. Commentators have suggested that the focus should move away from
understanding bestiality as an offence against public morals and towards seeing
it as a type of animal abuse. Consistent with this view, the Law Reform
Commission of Canada recommended in 1978 that the offence be repealed, being of
the view that the offence would still be covered by the various laws for the
protection of animals enacted by the provinces or contained in the Code:
Working Paper 10, Report on Sexual Offences (1978), at p. 30. And as the
intervener, Animal Justice, submitted in this Court, the fundamental values at
stake in this debate include the protection of vulnerable animals from the
risks posed by improper human conduct and the wrongfulness of sexual conduct
involving the exploitation of non-consenting participants.
[70]
My point is not to take
sides in the policy debate. The point, as I see it, is that these are important
points of penal and social policy. And they are matters for Parliament to
consider, if it so chooses. Parliament may wish to consider whether the
present provisions adequately protect children and animals. But it is for
Parliament, not the courts, to expand the scope of criminal liability for this
ancient offence.
[71]
With these principles
in mind, I turn to examine in more detail the text, legislative evolution and
history and contemporary commentary on the 1955 and 1988 revisions.
(c)
The 1955 Revisions
[72]
As discussed, the
English version of the Code did not use the term “bestiality” until
1955, but the French version did. Immediately before the 1955 revisions, the
respective versions provided:
[Buggery]
202. Every one is guilty of an
indictable offence and liable to imprisonment for life who commits buggery,
either with a human being or with any other living creature.
202. Est coupable d’un acte criminel et
passible d’emprisonnement à perpétuité, celui qui commet la sodomie ou la
bestialité.
(R.S.C.
1927, c. 36)
[73]
In the 1955 revisions,
the word bestiality was first introduced into the English version of the Code
and the reference to “buggery . . . with any other living creature” was
deleted, but with no definition of either the term “buggery” or “bestiality”.
The new section read:
[Buggery or bestiality]
147. Every one who commits buggery or bestiality is guilty of an
indictable offence and is liable to imprisonment for fourteen years.
[74]
Apart from modifying
the sentencing range, the French version of s. 147 in the 1955 Code
remained the same as before the 1955 revisions. Indeed, the new section read:
147. Est coupable d’un acte criminel et passible d’un emprisonnement de
quatorze ans, quiconque commet la sodomie ou bestialité.
[75]
As in the 1892 Code,
the elements of the offence are not specified. The Crown says that the introduction of the offence under
that name shows a parliamentary intent to differentiate the offence from the
old offence of buggery and that the use of the new language was intended to
modernize the historical offence of buggery committed with animals. I cannot
agree.
(i)
Text, Legislative Evolution and History
[76]
I turn first to the
text and the legislative evolution and history of the 1955 provisions.
[77]
The text of the 1955
revisions does not suggest that any significant change in the law was intended.
In fact, quite the opposite is the case. The word “bestiality” was substituted
for the words “buggery . . . with any other living creature” in the English
version of the offence, but the French version of the offence remained
unchanged. This appears to be simply the substitution of a more precise legal
term in the English version for the previous more general expression. The
absence of a statutory definition of either term is consistent only with the
intent to adopt the accepted legal meanings of both terms. And the absence of
change to the French version undermines the Crown’s position that any
substantive change was intended by the amendment of the English version. Unlike
Justice Abella, I cannot see in this amendment that the two offences were
“rendered asunder from each other”. That reasoning cannot be accepted in the
face of the fact that the French version of the Code had always used
different words for the human buggery and the animal buggery offence in this
section. The change to the English version in 1955 to more closely match the
French cannot bear the interpretative weight that the Crown and Justice Abella
attach to it. And the suggestion that this minor change to the English version
is somehow linked to amendments to the animal cruelty offence has no foundation
in the principles of statutory interpretation or, as we shall see, in the
legislative evolution and history.
[78]
We should note that the
term “bestiality” was used in the law before it was introduced into the Code
in 1955. I have already referred to the use of the word in the marginal note to
the 1861 Act and to the case of Bourne in which Lord Chief
Justice Goddard observed that the offence of buggery with an animal was
“commonly called bestiality”: p. 127. There is also the use of the term
“bestiality” by Taschereau in relation to his model indictment in relation to
buggery with an animal: Taschereau (1874), at p. 345; see also Thomas, at
p. 154; and A. K. Gigeroff, Sexual Deviations in the Criminal Law
(1968), at p. 105. And of course there is the use of the French word “bestialité”
in the Code from 1892 on.
[79]
There is nothing in the
text of the 1955 revisions to suggest that any change in the elements of the
offence was intended. The absence of revision to the text of the French version
makes clear that no substantive change was intended. Contrary to the view
expressed by Justice Abella, there is no ambiguity in this provision. It is a
simple incorporation of a legal term with a meaning that had been well
understood for centuries.
[80]
If Parliament intended
the significant change in the law as the Crown contends, it would surely have
been noticed either in parliamentary debates or by commentators. But so far as
counsel or I can determine, no notice of the alleged change can be found in
either.
[81]
The legislative
evolution and history of the sexual offences in the 1955 revisions are
exhaustively reviewed in Gigeroff, at pp. 69 ff. From the initial introduction
of the draft bill in the House of Commons and the Senate in 1952, until Royal
Assent in June 1954, there was no change in and no discussion of the bestiality
section. An explanatory note added by the Senate Standing Committee on Banking
and Commerce, to which the initial bill was referred, indicated that the new s.
147 was a change in form only from the previous Code’s s. 202:
Gigeroff, at p. 76. There is thus nothing in the legislative history and
evolution of s. 147 to support the Crown’s position that the 1955 revisions
brought about a significant change in the elements of the offence. The use of a
word with a legal meaning without further definition and the explanatory note
that the section was changed in form only support the opposite view that no
substantive change was intended. As Gigeroff observes:
[82]
We should not forget
that one of the purposes of the 1955 revisions, as I discussed earlier, was to
make the Code truly exhaustive. The intent was, in a sense, to “freeze” the definition of criminal liability. To read
into the use of the English word “bestiality”, used without further statutory
definition, something other than its widely accepted meaning would be
fundamentally at odds with that purpose. This is doubly so when the French word
“bestialité” remained unchanged.
[83]
There is no support for
the Crown’s position in the text, legislative history and evolution of the 1955
revisions. These in fact only support the opposite view.
(ii)
Commentators
[84]
The commentators are
also uniformly against the Crown’s position.
[85]
I will start with the
work of J. C. Martin. Mr. Martin was the editor of the 1955 Criminal Code of
Canada: With Annotations and Notes and he served as research counsel to the
Royal Commission to Revise the Criminal Code , 1947-1952. The
Commission’s work resulted in the draft bill that led to the 1955 revisions of
the Code. There is no sign in his comments on the revised Code of
1955 that there was any substantive change to the bestiality offence.
[86]
In his introduction to
the 1955 edition of the Code, Mr. Martin lists 52 of the principal
changes: Martin, at pp. 9-15. He makes no mention of the bestiality offence,
suggesting that he did not view that provision as one of the principal changes
worthy of special mention. He adds in the introduction that this list does not
refer to all of the changes made and that others are referred to in the notes
to the relevant sections. When we look there, it is clear that Mr. Martin saw
no substantive change to the offence. Under the amended section (s. 147), the
editor states simply that
[t]his is the former s. 202.
It was s. 174 in the Code of 1892 and s. 144 in the E.D.C. [1879 Draft Code] whence
it was taken from the Offences against the Person Act, 1861. [p. 248]
The
only changes noted are that the maximum punishment has been reduced from life
to 14 years and that the offence has been listed in s. 661, opening the way to
a sentence of preventive detention upon conviction. In other words, the new
provision in the 1955 revisions is the same in substance as the English offence
in the 1861 Act.
[87]
Mr. Martin’s note
refers the reader to s. 3(6) which provides that “sexual intercourse is
complete upon penetration to even the slightest degree, notwithstanding that
seed is not emitted” and, for the meaning of the terms used, to R. v. Jacobs
(1817), Russ. & Ry. 331, 168 E.R. 830. That case stands for the proposition
that oral sexual activity did not constitute sodomy. All of this, of course, is
inconsistent with the Crown’s submission that there had been any substantive
change in the law or that penetration was not an element of the offence.
Otherwise, the references to s. 3(6) and to Jacobs would be irrelevant.
[88]
I turn to other
commentators. In 1957, Irénée Lagarde, in Nouveau Code Criminel Annoté,
at p. 102, explains that [translation] “[b]estiality is unnatural
coitus [i.e. sexual intercourse] between a man or a woman and an animal”.
[89]
In Droit pénal canadien
(1962), at p. 34, the same author stated:
[translation]
. . . bestiality may occur between a male person (active agent) and a female
animal or between a female person (passive agent) and a male animal. Bestiality
may be coital or anal. But in each of these cases, there must be
“penetration” by the male organ to the degree indicated above. [Emphasis
added.]
[90]
Similarly, the 1959
edition of Crankshaw’s Criminal Code of Canada (7th ed.), at p. 208,
provides the following definition of buggery:
Buggery, also called sodomy,
is the carnal copulation against nature by human beings with each other or with
a beast . . . [C]arnal knowledge in any manner by a man or woman with a beast
is bestiality. The word “buggery” comprehends both. . . .
. . .
Carnal knowledge is
complete upon penetration to any, even the slightest degree . . . .
[91]
The 1964 edition of Tremeear’s
Annotated Criminal Code: Canada (6th ed.) also provides a definition of
bestiality under which penetration ― vaginal or anal ― is required:
This offence, also called sodomy, is
defined in 1 Bishop, Cr. Law, p. 380, as carnal copulation against nature by
human beings with each other or with a beast. Since it is a form of carnal
knowledge, there must, under s. 3(6), as well as at common law, be penetration
to some degree, and, where the offence is committed between humans, the
penetration must be per anum; a penetration of the mouth is not sodomy: R.
v. Jacobs (1817) R. & R. 331, 168 E.R. 830 (C.A.) . . . . [p. 216]
[92]
This understanding of
bestiality was also shared by the Law Reform Commission of Canada in its
Working Paper 22, Criminal Law: Sexual Offences (1978). Bestiality is
said to refer to “sexual intercourse between a human and an animal”: p. 35.
Notably, the Commission did not believe that elements of bestiality had been
changed in 1955. It also did not recommend to extend these elements. It rather
proposed, as I mentioned earlier, that the offence be repealed, with animal
cruelty offences and provincial animal welfare legislation addressing any
public policy concerns: Report on Sexual Offences, at p. 30.
[93]
To sum up on this
point, the work of the commentators on the revised Code does not support
the Crown’s position. Their comments overwhelmingly support the view that the
1955 revisions did not bring about any substantive change in the elements of
the offence.
(iii)
The Crown’s Position Is Not Supported by the
Principles of Interpretation on Which It Relies
[94]
The Crown relies on the
interpretative principles that Parliament does not speak in vain and that every
word in an enactment must be given a meaning. But this reliance is misplaced.
[95]
The Crown says that the
amendment using the word bestiality must be understood as having some purpose.
But, as Professor Sullivan points out, the presumption that amendments are
purposeful is much less strong in relation to the question of whether they
change the substantive law. She notes that making formal improvements to the
Canadian statute book is a “minor industry” and that the purpose of amendments
may be to clarify the meaning or to correct a mistake rather than to change the
law: §23.23. She also notes that s. 45(2) of the Interpretation Act ,
which provides that an amendment should not be taken as a declaration that
Parliament considered that the amendment changed the law, should serve as a
reminder to the courts that amendments do not necessarily intend to bring about
substantive change: §23.24. And, as Doherty J.A. noted in R. v. L.B.,
2011 ONCA 153, 274 O.A.C. 365, at para. 94, while there is a presumption that
when Parliament changes legislation it does so for a purpose, that purpose may
be simply to give effect to “benign housekeeping concerns”. Adopting a comment
from the 5th edition of Sullivan on the Construction of Statutes (2008),
at p. 585, he adds that when an older statute is given a major overhaul as the Code
was in 1955, “it may be clear that even dramatic changes in wording are
meant to simplify or otherwise modernize the style rather than to change the
substance of the provision”: para. 94.
[96]
Here, there is no
evidence that any substantive change was intended; quite the opposite. The fact
that no substantive change occurred in the French version of the offence 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.
[97]
Moreover, after the
substitution of the word “bestiality” for the words “buggery . . . with any
other living creature” every word in the new enactment has meaning. No words
are used in vain. Justice Abella reasons that the addition of the offence of
bestiality must have been intended to mean something different from buggery.
But the offence of bestiality was not added; the word “bestiality” was
substituted for the words “buggery . . . with any other living creature”. And
of course, as Justice Abella writes, bestiality meant something different than
buggery in the amended provision. Given the simple substitution of the word
“bestiality” for the former words “buggery . . . with any other living
creature”, buggery in the amended version referred to the offence in relation
to human beings. It may be that the amendment made it more clear in the English
version that the offence in relation to animals was not limited to anal
penetration but included vaginal penetration as well. In any event, there is
nothing in this tweak to the English version of the Code to support the
view that any substantive change to the elements of the offence was intended.
[98]
The Crown also relies
on the reasoning of the dissenting judge in the Court of Appeal that
interpreting bestiality as a subset of buggery gives the offence an illogical
scope because it would restrict it to anal penetration of or by animals: para.
53. However, for the reasons set out earlier, I reject the factual premise of
this argument: bestiality was not restricted to anal penetration with animals
but included sexual intercourse between humans and animals.
(iv)
Conclusion
[99]
The text, read in both
of its official versions, the legislative history and evolution, all of the
commentators and the applicable principles of statutory interpretation provide
no support for the Crown’s position. They in fact support the opposite view. I
conclude that the 1955 revisions to the Code did not expand the elements
of the bestiality offence and that penetration between a human and an animal
was the essence of the offence.
(d)
The 1988 Revisions
[100]
The Crown also relies
on the 1988 revisions to the Code as “confirming” Parliament’s intent to
change the scope of the bestiality offence in 1955 so that it included all
sexual activity between humans and animals. For the reasons that I have just
set out at length, I reject the premise of this submission. There is nothing
in the 1955 revisions to support the view that Parliament intended any change
in the scope of the bestiality offence. All the indications are to the
opposite effect.
[101]
I will nonetheless examine the
1988 revisions to see if they shed additional light on Parliament’s intention. Although I will refer to these as the 1988
revisions, the legislative history is somewhat more complicated. What is often
referred to as Bill C-15 was enacted as An Act to amend the Criminal Code
and the Canada Evidence Act, S.C. 1987, c. 24, which came into force
on January 1, 1988. The sections that are most relevant to this case were
renumbered in An Act to amend the Criminal Code and the Canada Evidence Act,
R.S.C. 1985, c. 19 (3rd Supp.).
[102]
Among other things,
Bill C-15 repealed the former buggery offence and replaced it with the new
offence of anal intercourse: s. 3, rep. & sub. s. 154, Criminal Code,
R.S.C. 1970, c. C-34, now s. 159 . The new anal intercourse offence did not
apply to acts in private between husband and wife or between any two people
each of whom was 18 years of age or more and who consented to the act: s.
154(2), now s. 159(2). Importantly, the elements of the new offence of anal
intercourse were virtually identical to the former offence of buggery with a human:
see R. v. E. (A.W.), [1993] 3 S.C.R. 155, at pp. 187-88. The use of the
word “intercourse” in the offence meant that penetration was an essential
element of the renamed anal intercourse offence as it had been with the buggery
offence.
[103]
A second change was
that bestiality was given its own section (s. 155, now s. 160 ) and three new
bestiality offences were created: compelling another person to commit
bestiality, committing bestiality in the presence of a person under the age of
14 and inciting a person under the age of 14 to commit bestiality (s. 155(2)
and (3), now s. 160(2) and (3)). The term “bestiality” was not defined. The s.
160(3) offence (committing bestiality in the presence of a child or inciting a
child to commit bestiality) has been amended three times since its initial
enactment: by increasing the relevant age from 14 to 16, by imposing mandatory
minimum sentences and by increasing the maximum sentence for the offence: see Tackling
Violent Crime Act, S.C. 2008, c. 6, s. 54 ; Safe Streets and Communities
Act, S.C. 2012, c. 1, s. 15 , and Tougher Penalties for Child Predators
Act, S.C. 2015, c. 23, s. 5 . No definition of the elements of the offence
has ever been enacted. The relevant Code provision now reads as follows:
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, or who incites a person under the age of 16 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.
[104]
The Crown submits that
the 1988 revisions confirm that not only did Parliament intend, in 1955, to
give the term “bestiality” a separate meaning apart from “buggery”, but it also
meant to give bestiality a broad interpretation not restricted to penetrative
conduct. Otherwise, the Crown argues, the changes brought about by the 1988
revisions, as part of a legislative package to protect children from the harm
caused by all forms of sexual abuse, would not give full effect to the
underlying purpose of the legislation. I cannot accept these submissions.
(i)
Context
[105]
It will be helpful to begin the
analysis by placing the 1988 revisions in the context of the very significant
reform of the sexual offences that unfolded in Canada in the 1980s.
[106]
There was a virtually complete
overhaul of sexual offences against the person in 1983: Criminal Law
Amendment Act, S.C. 1980-81-82-83, c. 125, in force January 1983
(often referred to as Bill C-127). These changes were followed by the 1988
revisions which were focused on enhancing the protection of children against
sexual abuse. Through all of these many changes, changes which included
fundamental revision of the definition of several sexual offences and the
repeal of others, the Code continued to make bestiality an offence
without further defining it. The fact that Parliament made no change to the
definition of bestiality in the midst of this comprehensive revision of the
sexual offences supports only the conclusion that it intended to retain its
well-understood legal meaning.
(ii)
The 1983 Revisions
[107]
To return to Bill C-127, one of its main purposes was to make a clear statement that a sexual
offence is primarily an act of violence, although it has a sexual component:
statement by the Honourable Flora MacDonald during the debates on Bill C-127, House
of Commons Debates, vol. XVII, 1st Sess., 32nd Parl., August 4, 1982, at p.
20041. As a result, a number of sexual offences were taken out of Part IV of
the Code, dealing with sexual offences, public morals and disorderly
conduct, and new offences were created and added to Part VI, dealing with
offences against the person and reputation.
[108]
Three of the most
significant changes made to the structure of sexual offences were these.
Penetration was not an element of the new sexual assault offences. Sexual
assaults became gender neutral and could be committed by a person of either sex
against another person of either sex. Finally, spousal immunity, which had
previously protected husbands from being charged with raping their wives, was
removed: C. L. M. Boyle, Sexual Assault (1984), at pp. 46-47.
[109]
A number of other
changes were also made, such as the repeal of certain sexual offences,
including rape and sexual intercourse with the “feeble-minded”, and a number of
evidentiary changes, including repeal of the statutory requirement for
corroboration for certain offences and abrogation of the rule concerning recent
complaint: Boyle, at pp. 49-51.
[110]
However, a number of the
pre-existing sexual offences remained in force after the enactment of Bill
C-127: sexual intercourse with females under the age of 14; sexual intercourse
with females of previous chaste character; incest; seduction offences; sexual
intercourse with children, wards and employees; gross indecency; and, most
relevant to our case, buggery and bestiality (see D. Watt, The New Offences
Against the Person (1984), at pp. 87-91). It is worth noting that although
the offence of rape was abolished and the new sexual assault offence provisions
did not have penetration as one of their essential elements, the remaining
offences, apart from gross indecency, expressly provide that “sexual
intercourse” is an element. Sexual intercourse was defined in s. 3(6) as being
“complete upon penetration to even the slightest degree, notwithstanding that
seed is not emitted”: now s. 4(5) ; see Watt, at p. 91. This, of course, is the
definition of penetration (or “carnal knowledge”) that had been settled for
centuries. Thus, the notion remained that penetration was an essential element
of several of the retained offences.
[111]
Also noteworthy is that the
offences of buggery and bestiality remained undefined. As Mr. (now Justice)
Watt noted in his text, these offences, “also known as sodomy, may be described
as carnal copulation against nature by human beings with each other or with a
beast. Some degree of penetration is required and, in the event that both
participants are human, the penetration must be per anum”: pp. 90-91
(footnotes omitted).
[112]
In short, the move away from
penetration as an element of the new sexual assault offences did not signal an
end to penetration as an element of several other sexual offences retained by
Bill C-127. And there is nothing in that legislation to suggest that the
long-settled legal definition of bestiality had in any way changed.
(iii)
The 1988 Revisions
[113]
That brings us to the
1988 revisions. These amendments are found in a larger package of changes to
the sexual offences in the Code in relation to children. It changed the
law of consent in relation to young persons; introduced new, child-specific and
gender-neutral offences not dependent on proof of penile penetration: sexual
interference, invitation to sexual touching and sexual exploitation; and brought
significant change to the rules of evidence applying at trials of sexual
offences against children.
[114]
Although the focus of
the 1988 revisions was the protection of children, they also had features and
objectives in common with the amendments of 1983. They intended to give equal
protection to victims of sexual abuse, without regard to their sex: House of
Commons, Minutes of Proceedings and Evidence of the Legislative Committee on
Bill C-15: An Act to amend the Criminal Code and the Canada Evidence Act,
No. 1, 2nd Sess., 33rd Parl., November 27, 1986, at pp. 18-19 (Hon. Ramon John
Hnatyshyn). They further modified the applicable evidentiary rules, so victims
could more easily testify in court, by allowing a child to testify in court if he
or she could be sworn or if the judge would determine that he or she could be
heard on promising to tell the truth. They also created a broader range of
sexual abuse offences, adding such offences as sexual interference, invitation
to sexual touching and sexual exploitation.
[115]
What does this
legislative activity tell us about whether there was a parliamentary intent to
expand the scope of criminal liability for bestiality? Before these amendments,
as I have discussed in detail earlier, the offence of bestiality had a legal
meaning as requiring penetration. That meaning was well known in 1985, as the
commentary following the 1955 revisions shows: Tremeear’s Annotated Criminal
Code: Canada, at p. 216; Lagarde, Nouveau Code Criminel Annoté, at
p. 102; Watt, at pp. 90-91. Parliament continued to use the term “bestiality”,
without further definition. The element of penetration was explicitly retained
in the offence replacing buggery, namely anal intercourse. It is worth noting
that with the exception of the offence of sexual intercourse with females under
the age of 14, all of the sexual offences that still required penetration
following the 1983 revisions and which were not repealed by the 1988 revisions
(incest, anal intercourse) continued to require penetration after the 1988 revisions.
[116]
It defies logic to
think that Parliament would rename, redefine and create new sexual offences in
a virtually complete overhaul of these provisions in 1983 and 1988 and yet
would continue to use an ancient legal term with a well-understood meaning ―
bestiality ― without further definition in order to bring about a
substantive difference in the law. The new bestiality offences added in the
1988 revisions, while not changing the definition of the underlying offence,
added protections for children in relation to that offence. There is nothing
inconsistent with the purpose of these new provisions in the conclusion that
the elements of bestiality remained unchanged. There is nothing “absurd” about
protecting children from compulsion or exposure to this sort of sexual conduct.
And, contrary to what Justice Abella writes, it does not follow that all
sexually exploitative acts with animals that do not involve penetration are
“perfectly legal”: para. 142. Section 160 is not the only protective provision.
There were (and still are) other provisions in the Code which may serve
to protect children (and others) from sexual activity that does not necessarily
involve penetration: see, e.g., the current ss. 151 , 153 , 172 and 173 .
[117]
The Crown relies on
testimony in February 1987 by Richard Mosley, then Senior General Counsel,
Criminal Law Policy Section before the Legislative Committee studying Bill C-15
which became An Act to amend the Criminal Code and the Canada Evidence Act
(1987). He was asked a question about the punishment for inciting a young
person to commit bestiality if bestiality were not actually committed after
having been asked whether the compelling and inciting bestiality provisions
were in fact duplicative of the law relating to parties to offences. He responded
that inciting was covered and that the compulsion aspect was most likely
covered by the party provisions but that there was some doubt. He then added
that this doubt, combined with the question of what punishment should apply,
were considerations in creating the new bestiality offences. They were not
however, the complete reason. He continued:
The reason had more to do with
modifying the offence of bestiality to conform more closely to the approach of
the bill. It was concerned more with offences against children, primarily to
bring in the notion of the offence of bestiality in the presence of or by a
child. The compulsion and sighting [sic, read “inciting”] aspect of it
was felt to round the application of that offence to any form of conduct
involving sex with animals.
(Minutes
of Proceedings and Evidence of the Legislative Committee on Bill C-15: An Act
to amend the Criminal Code and the Canada Evidence Act, No. 9, 2nd Sess.,
33rd Parl., February 17, 1987, at pp. 66-67)
[118]
According to the Crown,
this answer reveals Parliament’s intention to criminalize any type of sexual
conduct with an animal, not only sexual acts involving penetration. But this
is reading far too much into this isolated comment. The question being answered
did not relate to the elements of the offence of bestiality, but was part of a
series of questions about why the new compelling and inciting offences were
needed at all. The thrust of the answer is that the legislative package was
concerned with sexual offences against children and therefore making it an
offence to compel or incite children to commit the offence of bestiality was an
appropriate addition. There is no hint in any of the parliamentary record that
any substantive change to the elements of the offence of bestiality was intended.
[119]
The Crown suggests that the French
version of s. 160 supports a broader interpretation of bestiality because it
uses the words “un acte de bestialité” for the English word
“bestiality”. The Crown submits that this shows an intent to expand the offence
beyond requiring penetration. However, this reads too much into the French
version of the provision. If bestiality requires penetration, so does “un
acte de bestialité” just as the English offence of “vagrancy” is not
expanded by its French language equivalent “un acte de vagabondage”: see
s. 179(1) and (2) of the Code. There is no difference between the
meaning of the French and the English versions of these offences.
[120]
I also note that
authors remain of the view that penetration is an element of bestiality. In The
2015 Annotated Tremeear’s Criminal Code (2014), at p. 337, the elements of
s. 160(1) are described as follows:
In general, bestiality is committed
where D, a human being, carries out intercourse, in any way, with a beast or
bird. This form of unnatural sexual indulgence, as well as sodomy, is comprised
under the general description “buggery”. [Emphasis deleted.]
[121]
Similarly, the 2009
edition of Manning, Mewett & Sankoff: Criminal Law (4th ed.) repeats
the traditional legal definition of bestiality as intercourse per anum
or per vaginam by a man or a woman with an animal: p. 931.
[122]
The Crown brings our
attention to guilty pleas that have been entered in provincial courts on counts
of bestiality, when no penetration had been established. This does not affect
the above analysis as none of these cases provides any reasoning to support the
view that bestiality does not require penetration. The view that penetration is
required, has also equally been expressed in provincial courts: see R.
v. Ruvinsky, [1998] O.J. No. 3621 (QL) (C.J.), at paras. 21-40; R. v.
Poirier, C.Q. Chicoutimi, Nos. 150-01-001993-923 and 150-01-002026-921,
February 2, 1993, cited in M.G., at para. 42 (fn. 35). The Crown also
cites M.G., a case relied on by the trial judge in this case in support
of his view that the courts should interpret the elements of offences to
“reflect current views on what constitute prohibited sexual acts”: para. 315.
For the reasons which I have set out at length earlier, this conclusion is
wrong in law and the M.G. case should not be followed on this point.
D.
Conclusion
[123]
I respectfully agree
with the conclusion of the majority of the Court of Appeal: the offence of
bestiality under s. 160(1) of the Code requires sexual intercourse
between a human and an animal.
IV.
Disposition
[124]
I would dismiss the
appeal.
The following are the reasons
delivered by
[125]
Abella J. (dissenting) — This case is about statutory
interpretation, a fertile field where deductions are routinely harvested from
words and intentions planted by legislatures. But when, as in this case, the
roots are old, deep, and gnarled, it is much harder to know what was planted.
[126]
We are dealing here
with an offence that is centuries old. I have a great deal of difficulty
accepting that in its modernizing amendments to the Criminal Code ,
Parliament forgot to bring the offence out of the Middle Ages. There is no
doubt that a good case can be made, as the majority has carefully done, that
retaining penetration as an element of bestiality was in fact Parliament’s
intention.
[127]
But I think a good case
can also be made that by 1988, Parliament intended, or at the very least
assumed, that penetration was irrelevant. This, in my respectful view, is a
deduction easily justified by the language, history, and evolving social
landscape of the bestiality provision.
Analysis
[128]
When “buggery” first
appeared as a statutorily prohibited act in 1869, the provision stated that anyone convicted
of the “abominable crime of buggery committed either with mankind or with any
animal”, was liable to be imprisoned for life and for no less than two years.
[129]
The next iteration was
in 1886 when a conviction for buggery “either with a human
being or with any other living creature”, attracted a penalty of life
imprisonment.
[130]
In 1892, in the first Criminal
Code , the same language appeared, namely, everyone who committed “buggery,
either with a human being or with any other living creature”, was liable to be
imprisoned for life. The 1927 Code amendments retained this language,
and with it the invidious equilateral combining of buggery with a person or
with an animal.
[131]
At no time was the
offence of buggery defined, so we are left with the common law definition:
R. v. Summers, [2014] 1 S.C.R. 575, at para. 55.
[132]
The common law origins
of the offence 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”.
[133]
The Church’s
jurisdiction over sexual offences ended in 1533, but censorious attitudes did
not, and death remained the penalty for “the detestable and abominable vice of
Buggery committed with mankind or beast”: John
M. Murrin, “‘Things Fearful to Name’: Bestiality in Colonial America” (1998),
65:Supp. Pennsylvania History 8, at pp. 8-9; William N. Eskridge, Jr., Dishonorable Passions:
Sodomy Laws in America, 1861-2003 (2008), at p. 16; Doron S. Ben-Atar and
Richard D. Brown, Taming Lust: Crimes
Against Nature in the Early Republic (2014),
at p. 17.
[134]
The question whether
these acts were criminal only when there was penetration is, however, far from
clear: Graham Parker, “Is A Duck An Animal? An Exploration of Bestiality as a
Crime”, in Louis A. Knafla, ed., Crime, Police and the Courts in British
History (1990), 285, at pp. 291-92. There are scarcely any cases dealing
with the offence, let alone whether it required penetration. This may be
because, as Prof. Parker observed:
. . . the courts seem remarkably
reticent about describing sexual matters with any legal precision. Instead,
they prefer to follow the example of James Fitzjames Stephen and decide cases
on the basis of moral revulsion. For instance, in a gross indecency case Lord
Chief Justice Goddard decided that actual touching did not have to be proved,
and any reasonable person would decide that a criminally culpable and grossly
indecent exhibition was going on . . . . [Footnotes omitted; p. 297.]
[135]
It is true that in the
only two Canadian appellate cases where the offence was referred to — both
involving dogs — penetration was found to have occurred: Henry v. Henry,
[1953] O.J. No. 347 (QL) (C.A.), and R. v. Wishart (1954), 110 C.C.C.
129 (B.C.C.A.). But this begs the question of whether penetration was required
as an element of the offence. And this is especially pertinent if one considers
that these two decisions were decided before the Code was amended in
1955.
[136]
The new provision in
the 1955 Code, s. 147, marked the beginning of a departure from the
earlier offence of “buggery with any animal”. Section 147 was the first time
the offence of “bestiality” was expressly named as such in the English version
of the Code. Notably, unlike in the previous provisions, buggery and
bestiality were now designated as two separate offences:
147. Every one who commits buggery or bestiality is guilty of an indictable
offence and is liable to imprisonment for fourteen years.
(Criminal Code, S.C. 1953-54, c. 51)
Having been
rendered asunder from each other, these two offences were now free to consist
of different constituent elements that more realistically reflected who or what
was involved in the sexual conduct.
[137]
What then did Parliament
intend the constituent elements of bestiality to be in 1955, and did they
include penetration?
[138]
At the outset, it is
self-evident that the provision is ambiguous, and that genuine ambiguities in
enactments which have an impact on liberty should, where possible, be resolved
in favour of the accused: Marcotte v. Deputy Attorney General for Canada,
[1976] 1 S.C.R. 108, at p. 115; Ruth Sullivan, Sullivan on the Construction
of Statutes (6th ed. 2014), at §§15.24 and 15.25. But as this Court said
in R. v. Paré, [1987] 2 S.C.R. 618, this “does not end the question”: p.
631. An interpretation more favourable to the accused should not be adopted if
it is unreasonable “given the scheme and purpose of the legislation”: p. 631.
This was explained in R. v. Jaw,
[2009] 3 S.C.R. 26, by LeBel
J. as follows:
. . . I have
reservations about the proposition that any uncertainty in a charge must,
as a matter of course, be resolved in favour of the accused. This proposition
seems to be based on the strict constructionist approach to interpreting penal
legislation that developed in the eighteenth century, when criminal law
sanctions were especially severe. By the mid-1980s, however, the presumption of
a restrictive interpretation of penal statutes had started to wear thin (R.
Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at
pp. 472-74). A restrictive interpretation may be warranted where an
ambiguity cannot be resolved by means of the usual principles of interpretation.
But it is a principle of last resort that does not supersede a purposive and
contextual approach to interpretation . . . . [Underlining added; para. 38.]
(See also R. v. White,
[2011] 1 S.C.R. 433, at paras. 83-84.)
[139]
Applying those “usual
principles of interpretation” requires reviewing related Code provisions
and the context in which the bestiality provision was first introduced in 1955
(Sullivan, at §§13.6 and 13.7; R. v. Chartrand, [1994] 2 S.C.R. 864, at
pp. 874-75).
[140]
As the intervener,
Animal Justice, pointed out in its factum, 1955 was also the year amendments
were made to the Code’s animal cruelty offence — s. 387(1)(a). Before s. 387(1)(a) was amended,
the offence applied to “cattle, poultry, dog, domestic animal or bird, or wild
animal or bird in captivity”. It also required proof that the accused caused
harm “wantonly, cruelly or unnecessarily”. Parliament broadened the offence by
expanding its scope to cover all species of birds and animals, and by
lowering the threshold of cruelty to apply to anyone who “wilfully causes . . .
unnecessary pain, suffering or injury”. These changes reflected an increased
recognition of the importance of protecting animal welfare. As Fraser C.J.A.
noted in her dissenting reasons in Reece v. Edmonton (City) (2011), 513 A.R. 199 (C.A.), we moved “from
a highly exploitive era in which humans had the right to do with animals as
they saw fit”, to one “where some protection is accorded . . . based on an
animal welfare model”: para. 54.
[141]
It is in this
transformed legal environment consisting of more protection for animals, that
the offence of “bestiality” first appeared. Whatever the common law meaning of
“buggery” with animals had been, the creation of a distinct offence of
bestiality in the same year the animal cruelty provisions were expanded to protect
more animals from more exploitative conduct reflected, in my respectful view,
Parliament’s intention to approach the offence differently.
[142]
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 the sexual conduct with
animals provision, bestiality, would be limited to those animals whose anatomy
permitted penetration. 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.
[143]
Moreover, if the
elements of bestiality and buggery were the same, the addition of “bestiality”
to the language of s. 147 was redundant and there was no need to change
the provision from one prohibiting buggery, as it had for hundreds of years, to
one prohibiting buggery and bestiality. No legislative provision should
be interpreted “to render it mere surplusage”: R. v. Proulx, [2000] 1
S.C.R. 61, at para. 28; see also R. v. Kelly, [1992] 2 S.C.R. 170, at p.
188; Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, [1985] 1
S.C.R. 831, at p. 838. The addition of the offence of
“bestiality”, therefore, must have been intended to mean something different
from “buggery”.
[144]
But if there was any
doubt about what Parliament envisioned the scope of bestiality to be in 1955,
its intention, it seems to me, is even clearer in light of the 1988 Amendments
to the Code when buggery and bestiality were fully released from
their Janus-like relationship into two separate provisions: ss. 159 and 160 .
This, to me, confirmed Parliament’s intent to see them as two separate
offences.
[145]
In s. 159, the term
buggery was not used, and a new offence was set out:
Anal intercourse
159. (1) Every person who engages in an act of anal intercourse
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.
Exception
(2) Subsection (1)
does not apply to any act engaged in, in private, between
(a) husband and wife, or
(b) any two persons, each of whom is eighteen years of
age or more, both of whom consent to the act.
Idem
(3) For
the purposes of subsection (2),
(a) an act shall be deemed not to
have been engaged in in private if it is engaged in in a public place or if
more than two persons take part or are present; and
(b) a person shall be deemed not
to consent to an act
(i) if the consent is extorted by force, threats or fear of bodily harm
or is obtained by false and fraudulent misrepresentations respecting the nature
and quality of the act, or
(ii) if the court is satisfied beyond a reasonable doubt that the
person could not have consented to the act by reason of mental disability.
[146]
In s. 160, bestiality
was still undefined. Its reach was extended, however, to include those who
compelled its commission or who committed it in the presence of a child:
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) Notwithstanding
subsection (1), every person who, in the presence of a person under the age of
fourteen years, commits bestiality or who incites a person under the age of
fourteen years 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.
[147]
Section 160(3) is, in
my respectful view, inarguably a reflection of Parliament’s purpose to protect
children from witnessing, or being compelled to commit, bestiality. If all
Parliament intended was that children be protected from seeing or being made to
engage in acts of penetration with animals, one could reasonably wonder
what the point was of such an unduly restricted preoccupation. Since it is a
“well established principle of statutory interpretation that the legislature
does not intend to produce absurd consequences” (Rizzo & Rizzo Shoes
Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27), surely what Parliament must
have intended was protection for children from witnessing or being forced to
participate in any sexual activity with animals, period.
[148]
Parliament’s goal of
protecting children from sexual conduct with animals in the new bestiality
provision can also be inferred from the other changes to the Code in the
1988 Amendments. Parliament introduced the offences of sexual interference,
sexual exploitation, and invitation to sexual touching, all of which protected
minors and none which required penetration. It would be anomalous if no
penetration was required for these offences, which focused on protecting
children from sexual exploitation generally, but remained an essential element
of s. 160(3), which protected children from sexual exploitation with animals.
[149]
I do not see the
absence of a requirement of penetration as broadening the scope of bestiality.
I see it more as a reflection of Parliament’s common sense assumption that
since penetration is physically impossible with most animals and for half the
population, requiring it as an element of the offence eliminates from censure
most sexually exploitative conduct with animals. Acts with animals that have a
sexual purpose are inherently exploitative whether or not penetration occurs,
and the prevention of sexual exploitation is what the 1988 Amendments were all
about.
[150]
In fact, and
unsurprisingly, after the 1988 Amendments, the elimination of the requirement
of penetration appears to have been accepted: R. v. K.D.H. (2012), 546
A.R. 248 (Q.B.); R. v. J.J.B.B., 2007 BCPC 426; and R. v. Black (2007), 296
Sask. R. 289 (Prov. Ct.)
[151]
The majority expressed
concerns that an interpretation of “bestiality” that does not require
penetration could mean that the stepdaughter, who was not charged, was the
principal offender and D.L.W. was a party to the offence. With respect, the
fact that the trial judge was not satisfied beyond a reasonable doubt that
D.L.W. had “compelled” bestiality, does not mean that interpreting the offence
as including conduct that has a sexual purpose, regardless of whether there is
penetration, leads to charges against a victim like the stepdaughter.
[152]
She testified that
these events began when she was only 15 or 16 years old, that she did not want
to participate in sexual conduct with the dog or with her stepfather, and that
there were reprisals whenever she refused or hesitated to engage in sexual
activity with her stepfather. Her younger sister testified to receiving
beatings with a two-by-four after refusing to participate in sexual acts with
D.L.W. The trial judge found both sisters credible. Given these circumstances,
it is inconceivable that bestiality charges would ever be laid against someone
in D.L.W.’s stepdaughter’s circumstances.
[153]
I would allow the
appeal, set aside the decision of the Court of Appeal, and restore the conviction.
Appeal
dismissed, Abella J.
dissenting.
Solicitor
for the appellant: Attorney General of British Columbia, Vancouver.
Solicitors
for the respondent: Eric Purtzki, Vancouver; Garth Barriere, Vancouver.
Solicitor
for the intervener: Animal Justice, Toronto.