Live from the SCC: The Significance of Animal Advocates in the Court in R v DLW
On November 9, 2015, in assessing the scope of the prohibition on bestiality under s. 160 of the Criminal Code, RSC 1985, c C-46 in Her Majesty the Queen v DLW, the Supreme Court of Canada was asked, for what is believed to be the first time in Canadian history, to consider a piece of legislation which implicates the interest of animals to be free from harmful practices (Intervener’s Notice of Motion to Intervene, para 3). The intervener, Animal Justice, Canada’s only national organization dedicated to advancing the interests of animals in the law, also became one of the only groups of animal welfare advocates to have made submissions on behalf of animals in any court in the country. Animal Justice’s purpose in the court was to provide a perspective rejected by the other parties at the appeal: the perspective of the animals and that the offence in question, as one which necessary involves animals, is an offence that exists, at least in part, to protect them.
All parties to the appeal submitted varying opinions on the 1954 changes that Parliament had made to the Criminal Code provisions impacting animals. This change included severing bestiality from the buggery offence, creating a separate bestiality provision. The Respondent argued that the BC Court of Appeal was correct in finding that, even in making this change, bestiality retained its meaning in previous common law, which was that it required vaginal or anal penetration with an animal (Factum of the Respondent, para 1).
On the other hand, the Appellant argued that Parliament intended to broaden the meaning of bestiality when the offence was severed, which encompasses sexual activity of any kind between a person and an animal in light of the purpose of the bestiality provision and Parliament’s intent (Factum of the Appellant, para 6). (For an analysis of the arguments of the Appellant and Respondent, and the BC Court of Appeal decision, see here.) Regardless of their interpretation, though, both parties agreed that the purpose of the provision is in no way to protect animals from exploitation. In fact, when asked by Justice Abella directly, the Appellant assured the Court that animal welfare has nothing to do with the interpretation of the statute.
Animal Justice’s Submissions
At the beginning of the 10-minute-long submissions, and in a historic moment, Peter Sankoff, University of Alberta Faculty of Law Professor and co-counsel for Animal Justice informed the Court that he and the organization appeared “to represent the interests of animals.” Sankoff went on to state that, in interpreting an offence, which necessarily involves animals, the animals could not be ignored.
While Animal Justice argued for a broad construction of the bestiality offence, like the Appellant, they also submitted that the Appellant had failed to identify part of the intention of Parliament in creating the bestiality offence in 1954. Animal Justice pointed out that in 1954, when the offences of bestiality and buggery were separated in the Criminal Code, the animal cruelty provisions, aside from bestiality, underwent changes too, and the scope of animal cruelty was largely expanded to cover a broader array of acts and to protect many more species, signalling that Parliament was concerned with the welfare of animals at the time of these changes (Factum of the Intervener, para 8).
Animal Justice also submitted that even if the purpose behind the offence was entirely to condemn the immorality of the conduct, and did not necessarily have to do with animal protection at the time of drafting, the foundation of a morality offence such as this must be interpreted through an analysis of contemporary Canadian values as per R v Butler,  1 SCR 452, and R v Labaye,  3 SCR 728.
The Canadian values that Animal Justice argued were of significant value to this offence are: “(1) the need to protect vulnerable animals form the risks posed by improper human conduct; and (2) the wrongfulness of sexual conduct involving the exploitation of non-consenting participants” (Factum of the Intervener, para 3).
The sole question that Animal Justice received from the bench concerned why bestiality wasn’t captured by the s. 445 Criminal Code provision protecting against animal cruelty. Sankoff responded that the offences of animal cruelty and bestiality are different. The former requires that animals suffer harm, whereas harm will be difficult to assess in the latter, though Animal Justice does content that animals likely suffer harm from sexual exploitation.
Throughout its submissions, Animal Justice assured the Court that it was not there to argue that animals and humans suffer the same way from sexual exploitation, and that there are important distinctions between human and animals. Sankoff asserted in closing that they were not making a ridiculous proposition, such as asking that animals be granted the right to vote, but rather that the Court recognize a belief that society already holds: that animals should be protected from sexual abuse.
Effects on the Animal Protection Movement
While the majority of people I have spoken to, upon hearing about this case, have responded with a strong belief that of course animals should be protected from a wide array of sexual conduct inflicted by humans, it is not clear that the Court will agree, as accounting for the interests of animals is a unique approach for the bench to hear. And in fact, the slow and incremental nature of the law is an incredibly frustrating reality for the animal protection movement.
Recently, however, it seems as though our legal system may be willing to catch up. As Sankoff submitted, Quebec’s legislature is currently considering changing the status of non-human animals, which will categorize them as “sentient beings” rather than property. And, in a case also cited by Animal Justice, Reece v Edmonton, 2011 ABCA 238, Alberta’s Chief Justice asserted in dissent a need to interpret laws that protect animals generously, while recognizing the way in which our law falls behind in protecting animals (para 71).
While I agree entirely with Animal Justice that courts and legislatures are making a shift in their attitude towards animals, it often seems that societal belief is marching years, if not decades, ahead of the law. Our laws fail to protect enough animals from many types of suffering, whether in the context of the trade of exotic animals, the treatment of animals in factory farms, and the realities that many animals used for fur face, and those that do exist are often under-realized due to flawed enforcement mechanisms. The Criminal Code itself criminalizes only “unnecessary” suffering, and the courts have defined a great deal of uses of animals as being “necessary.” The Criminal Code and provincial laws also fail to effectively prosecute systemic cruelty, and instead focus on conduct that is out of the ordinary, particularly in industry.
Meanwhile, as the law fails to condemn the majority of the unsettling treatment of animals, the public often shudders upon learning about the realities animals face in this country.
Sexual abuse of animals, which will usually occur in private, exists on hopefully a much smaller scale than animal abuse in other contexts. However, this appeal is far from insignificant. The result of this appeal has the opportunity to protect countless animals from this type of unspeakable abuse. And perhaps, what is the most valuable outcome for this hearing, regardless of the Court’s decision, is the effect that will follow from the Court opening the courtroom doors for animal advocates to make ground-breaking submissions on our laws moving forward.
The protection of animals in the law does require quicker progress. However, this hearing signals to animal advocates, and the public at large, that Canada’s highest court recognizes that the public interest demands that we turn our minds to the protection of others.