R v DLW (2016) dealt with a serious case which focused on whether bestiality should be interpreted as an act which includes carnal knowledge (i.e. penetration) between a human and non-human animal. This case was the first time in Canadian history where the Supreme Court of Canada (SCC) was to rule on such a definition, and allowed an animal rights advocacy group, Animal Justice, to intervene on the case. However, as we outline in our recent article in the Robson Crim special edition of the Manitoba Law Journal (James Gacek and Richard Jochelson, 2017), a relatively conservative decision was reached by the SCC majority on a ruling of 8-to-1, a decision which has ramifications for animals.
Our article sought to expose the judicial packets of reasoning that together form aspects of bestiality law in Canada, shifting between the courts and judgements which led us to the DLW SCC decision (R v DLW, 2013, 2015, 2016). We believe legal texts are social constructions, and they can be mined for the logical reasoning that underpins them and for the social processes that impact upon them. Additionally, our article marries this analysis with a further examination of the intervener factum of Animal Justice to analyze the organization’s rationale of the risks posed by failing to interpret the crime of bestiality widely. Taken together, we propose ways that the DLW Court could have dealt with the definition and interpretation of bestiality in a modern context.
In effect, we argue that the interpretation of this bestial act should be read as anything but definitive. Yes, a narrow reading of the bestiality provisions led the SCC majority to espouse a conservative interpretation of the offence and ultimately conclude that bestiality was limited to penetrative coitus with an animal. However, had the SCC accepted a wider definition of bestiality than the Appellate Court, the ruling might have moved beyond legal precedent and influenced conceptions of sexuality, choice, and the risk of harm as factors to consider in assessing the damage suffered by non-human animals – a tacit recognition of the sentience of animals. While the DLW SCC decision itself might do little to create vast protections for animals apprised of dignity, agency, actualization or other rights discourses, the decision could have marked a discussion in the direction towards progress. This kind of incrementalism could then have contributed to our societal conceptions of animal rights and entitlements that could pave the way for more sweeping legislative reforms in the future.
Abella J.’s focus in her SCC dissent on the interweaving of text and context is paramount to a more critically discursive understanding of bestiality. Abella J. argues that Parliament intended to modernize the offence, and that the presumption should be made that Parliament considered the socio-political landscape at each amendment iteration throughout the legislative history of the Criminal Code. Her decision seeks to acknowledge the societal concern for animal welfare and the inherent exploitation of animals both within the conceptual legal prison of animals-as-property and when they are subjected to acts that have a sexual purpose to them.
We contend that an interpretation of bestiality rooted in the intention of Parliament at the time of drafting ignores the changing social contexts that have inured in Canada. In issuing its decision using conservative approaches to statutory interpretation, the Supreme Court missed an opportunity for a decision that could have been relatively transformative. We share the similar view with Abella J. that the interpretation should not be frozen in time, girded by the folly of strict construction and original intent. Instead, a contextual approach to the interpretation of the statute renders no legal provisions as superfluous or mere surplusage; it takes into consideration the legislative protections for animal welfarism and the rising societal concerns for the treatment and harm to animals under our care.
Absent law reform and activism that changes the nature of evidence and consent in the context of bestiality provisions, changes in respect of animal sexual offences do not seem promising. Canada is unlikely candidate for these reforms in the near future, as our legislative protections for animal welfarism are among the worst in the Western World. Nonetheless, there are hopeful outcomes in countries such as New Zealand, which boasts a legislative scheme which not only established baseline protections for animals but inordinately expanded upon these protections in its 2015 amendments (Animal Welfare Amendment Act, 2015). Through a contextual approach to the interpretation of statutes we see that the DLW SCC decision causes more problems for human-animal relations in Canada than it solves.
Factum of the Intervener (Animal Justice)), online: http://www.scc-csc.ca/WebDocuments-DocumentsWeb/36450/FM030_Intervener_Animal-Justice.pdf.
Gacek, J. & Jochelson, R. (2017). ‘Animal Justice’ and Sexual (Ab)use: Consideration of Legal Recognition of Sentience for Animals in Canada. Manitoba Law Journal, 40(3), 335-362.
Animal Welfare Amendment Act (No 2) (NZ), 2015/49, s 4.
R v DLW, 2013 BCSC 1327
R v DLW, 2015 BCCA 159
R v DLW, , 2016 SCC 22
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Robson Crim Version