- Kasia Kieloch (law student)
Bestiality! Loophole Closing Long Overdue
Content Warning - Blawg contains descriptions and visuals of graphic sexuality
Many Canadians own pets and treat them lovingly as family members. Whether it is a slobbery Labrador retriever, short-haired Bengal, or a bright green Parakeet, pets play an important part in the lives of their owners and families. Sometimes people cause harm to their pets or use pets to harm others, and when acts between humans and animals become sexual in nature, the topic of bestiality becomes relevant.
Although bestiality is not a hot topic on the minds of Canadians, Conservative Member of Parliament Michelle Rempel is looking to change legislation on bestiality provisions in the Criminal Code to broaden their scope and reflect much needed changes to the view of what kind of sexual acts constitute bestiality.
Last December, Rempel introduced a private members bill titled Bill C-388, An Act to Amend the Criminal Code (Bestiality).1 Bill C-388 adds only one provision to s. 160 of the Criminal Code and is a line long. The provision states that bestiality means “any contract by a person, for a sexual purpose, with an animal”.2 While this change does not seem to be significant, it can have important consequences on how bestiality cases will be treated in the future and how sexual activity is defined by the legislature.
This proposed change to the Criminal Code came after the Supreme Court of Canada ruled that Parliament should revisit bestiality legislation and change legislation so that bestiality can involve sexual acts that do not necessarily involve penetration.3 Currently, Canada’s bestiality legislation and case law suggest that bestiality involves penetration between a human and an animal. The current legislation does not include sexual acts that do not involve penetration, which was an issue that the Supreme Court of Canada addressed in R v DLW in 2016.
In R v DLW, the accused was charged with various sexual offences against his two step daughters from when they were 12 years old that took place over 10 years.4 The charge being considered before the SCC pertained to when the accused placed peanut butter on the teenage complainant’s vagina and videotaped her as the family dog licked it off. The accused argued that penetration had not occurred and thus that the bestiality provision in question did not apply..5 The SCC concluded that bestiality requires sexual intercourse between a human and an animal and agreed with the British Columbia Court of Appeal that the common law history of the offence included penetration and that the legislative history of the offence did not demonstrate that there is intent to depart from the common law meaning.6 The accused was acquitted of his charge, but the SCC did state that Parliament would have to consider if it should change the definition of bestiality to protect children and animals in future cases.7
While the outcome of R v DLW is upsetting because the accused was able to use a loophole regarding bestiality to avoid a conviction, the Supreme Court of Canada suggested that future cases like this one can be avoided by amending s. 160 of the Criminal Code. The amendment that Ms. Rempel has introduced involves what I think is an important change on how society defines sexual acts, and I think that the majority of Canadians would agree that sexual acts do not necessarily have to involve penetration. This legislative amendment is straightforward and Ms. Rempel was correct when she stated “I don’t think this is a partisan issue. I don’t know why the government hasn’t moved on it yet”.8
Bestiality legislation in Canada has changed very little since it was introduced in 1892. Originally called buggery with an animal, bestiality was added as an offence by Parliament in 1955.9 In the 1980s, Canada overhauled its legislative provisions relating to sexual offences against the person.10 In 1988, amendments were made to suggest that bestiality involved all sexual activity between humans and animals and it involved penetration.11 Minor changes to bestiality provisions were made, such as increasing the age of a child that a person can commit bestiality in front of or incite to commit bestiality from 14 to 16.12 Considering how societal values and norms have changed significantly since 1892 or even 1988, it makes sense that bestiality legislation has not included broad interpretations of sexual conduct. This explains exactly why Bill C-388 should be enacted.
In her dissent in R v DLW, Justice Abella stated that “Acts with animals that have a sexual purpose are inherently exploitative whether or not penetration occurs.”13 While I do not think that the majority of the SCC necessarily disagreed with Justice Abella, it did not think that it could interpret existing bestiality legislation with this view based on common law precedent and the history of statutory interpretation on bestiality provisions. Although I do not like that the accused was acquitted in R v DLW, I also respect the majority’s decision to not interpret legislation in a manner that is not reflected in current legislation. The way to address the problem with the way in which courts are to interpret bestiality provisions is to change them to reflect society’s definition of sexual intercourse so that it encompasses sexual acts that are not penetrative.
Winnipeg lawyer Kevin Toyne correctly stated “That it’s not a criminal offence to have sexual contact with an animal, so long as there is no penetration, should be appalling to Canadians” and that “Bestiality should be illegal in Canada and the fact that it’s not is shocking”.14 When bestiality can involve animal and child abuse, the whole country should take note. Ms. Rempel’s bill has only been introduced and read for the first time in the House of Commons, meaning that there are many steps of the legislative process that need to take place before it becomes law. Since Bill C-388 is a private members bill and is from an opposition Member of Parliament, it is not likely that the bill will get passed. There are currently 198 other private members bill before the House, many of which have made little to no progress. Despite the fact that Bill C-388 may not become law during the current parliamentary session, the changes to the definition of bestiality that it presents will close a loophole that is a long overdue and necessary change.
3 R v DLW, 2016 SCC 22.
4 Ibid at para 5.
5 Ibid at para 12.
6 Ibid at para 123.
7 Ibid at para 70.
9 Supra note 3 at para 25.
10 Ibid at 105.
11 Ibid at paras 101-2
12 Ibid at para 103.
13 Supra note 3 at para 149.