R v DLW: The Legalization of “Bestiality” in BC and its Impact on Animal Welfare

At first glance, the Supreme Court of British Columbia (“BCSC”) and British Columbia Court of Appeal (“BCCA”) decisions in R v DLW appear to focus only on uncovering the true meaning of the term “bestiality.” However, as you dig deeper, the principal issue of animal welfare begins to take on a prominent role in these decisions.

“Bestiality” in the Criminal Code

At the time of the offence, under the Criminal Code, RSC 1985, c C-46, there were three subsections for which a person may be charged for the offence of bestiality.

Section 160(1) states: “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.”

Section 160(2) applies to those offenders who compels another to commit the act of bestiality.

Finally, section 160(3) makes it an offence to commit bestiality in the presence of a person under the age of 14 years, or who incites a person under the age of 14 years to commit bestiality. It is important to note that since the committal of the offence, the relevant age for committing bestiality in the presence of a child was raised from 14 to 16 years of age.

The Facts

D.L.W. was found guilty on 13 counts arising from nearly a decade of repeated sexual molestation of his two step-daughters. The counts ranged from sexual touching to sexual assault to making/possessing child pornography, and even included one count of bestiality, an offence that is rarely prosecuted in Canada.

The facts underlying the bestiality conviction are simple: The family dog licked the vagina of the older complainant, who was 16 years old at the time. Although D.L.W. never had any kind of sexual contact with the dog, he was charged and convicted of committing bestiality, contrary to s. 160(1) of the Criminal Code, since he “aided and abetted” in this act by bringing the dog into the bedroom, applying peanut butter to the complainant’s vagina, and then videotaping the interaction. For a person to be charged and convicted under s. 160(2), that person must “compel” another to commit bestiality. As noted by the trial judge, although “compels” is similar in meaning to “aiding, abetting, or counselling,” it is something different, and is often associated with “to cause or bring about by force, threats, or overwhelming pressure” (R v DLW, 2013 BCSC 1327, paras 324-35 [DLW, BCSC]).

Based on the facts of the case, it would appear as though D.L.W. had committed bestiality, contrary to s. 160(1) of the Criminal Code. Having an animal–who is arguably just as vulnerable as a child in this instance–lick a person’s vagina for a human being’s sexual purposes, would intuitively qualify as bestiality. However, bestiality is not so easily defined, and in fact, has never been defined by a Canadian court, until now.

Legislative History

In 1869, the offence of buggery (which was understood at common law to mean the penetration of vaginas or anuses by penises, whether between humans or animals) was first codified in Canada in An Act respecting Offences against the Person: “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” [emphasis added].

In 1886, buggery was re-established in An Act respecting Offences against Moral and Public Convenience: “Every one whom [sic] commits the crime of buggery, either with a human or with any other living creature, is guilty of a felony, and liable to imprisonment for life” [emphasis added].

In 1892, buggery was incorporated into the first Criminal Code: “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” [emphasis added].

The offence was then re-worded in the 1954 amendment of the Criminal Code to include the term “bestiality” while removing the phrase “either with a human being or with any other living creature.” Pursuant to the amendment, “Every one who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years” [emphasis added].

Finally, the 1985 amendment of the Criminal Code created separate offences for buggery (which was renamed “anal intercourse”) and bestiality.

Penetration as an Element of the Offence?

The decisions in R v DLW attempt to determine whether or not bestiality includes acts of sexual touching with animals without penetration. The BCSC and BCCA have two very divergent opinions on its interpretation.

The trial judge took the position that the offence of bestiality must reflect current views of what constitutes prohibited sexual acts. The trial judge reasoned,

Members of our society have a responsibility to treat animals humanely, which is especially true for domesticated animals that rely on us. Physical harm is not an essential element of bestiality; that is because, like many sexual offences in the Code, the purpose of the bestiality provisions is to enunciate social mores. Those mores include deterring non-consensual sexual acts and animal abuse (DLW, BCSC, para 310).

With this in mind, the trial judge concluded that it was necessary to read the offence of bestiality in a modern context, and to understand “bestiality” as touching between a person and an animal for a person’s sexual purpose (paras 311-12).

The majority of the BCCA, on the other hand, interpreted bestiality as being identical in meaning to buggery, and therefore, requiring penetration. Justice Goepel provided three reasons to support his interpretation: (1) Bestiality was left in the same section as buggery in the 1954 amendment (R v DLW, 2015 BCCA 169, para 21); (2) contemporary secondary literature interpreted bestiality to require penetration (paras 22-24); and (3) if Parliament had intended for bestiality not to require penetration, it would have said so in clearer language (para 38).

Taking a third approach, Chief Justice Bauman of the BCCA concluded in his dissent that, after the 1954 amendment of the Criminal Code, “the offence of bestiality did not require anal penetration, or indeed any kind of penetration” (para 43).

So What Does this Mean for Children and Animals?

Although the trial judge’s conclusion is one with which, from a moral perspective, I strongly agree, the BCCA was correct in finding that the trial judge erred in his application of the statutory interpretation principles. Nonetheless, the majority decision of the BCCA was flawed not only in terms of its own account of the principles of statutory interpretation, but also, and more importantly, on a moral level.

First, the interpretation of bestiality as being identical in meaning to buggery, and therefore, requiring penetration, runs counter to some significant notions essential to statutory interpretation. According to Attorney General of Quebec v Carrières Ste-Thérèse Ltée, [1985] 1 SCR 831, it must always be assumed that “[t]he legislator does not speak in vain” (para 28). As well, the Supreme Court of Canada (“SCC”) in R v Proulx, [2000] 1 SCR 61 concluded that “no legislative provision should be interpreted so as to render it mere surplusage” (para 28). In other words, we must not interpret a word in a provision to be useless and irrelevant to the cause.

If “bestiality” and “buggery” mean the same thing, the inclusion of the term “bestiality” in the 1954 amendment would have been useless and irrelevant to the cause since it fails to provide any additional substance to the provision. The provision would read the same irrespective of whether or not “bestiality” was included. Therefore, the 1954 amendment would have been enacted in vain and the term “bestiality” would have been mere surplusage.

Additionally, if bestiality is to be understood as a subset of buggery, then the 1954 amendment in effect places the umbrella term “buggery” and its subset “bestiality” on the same level within the context of “either or.” For example, including both buggery and bestiality in the same provision would have the same effect as including both the terms “sexual assault” and “rape” in the same provision, such as “either sexual assault or rape.” “Buggery” and “sexual assault” are the umbrella terms that contain the specific elements on the offences. It would be redundant and unnecessary to include both the umbrella term and the specific elements that comprise the umbrella term in the same provision.

Second, the interpretation of bestiality as requiring penetration presents catastrophic consequences for the criminal justice system. The 1985 amendment created two new subsections to the offence now called bestiality: compelling the commission of bestiality and bestiality in presence of or by child. It is clear from these provisions, as well as from Parliament’s implementation of substantial minimum and maximum sentences for physical/sexual acts against children, that Parliament intended for children to be protected from being compelled to commit, or to witness, sexual acts with animals. Insisting that bestiality does not occur without penetration disarms the protecting element of Parliament’s legislation.

Additionally, it is consistent with other provisions in the Criminal Code that bestiality be interpreted to reflect the need to protect animals against cruelty and abuse. An Act to amend the Criminal Code (cruelty to animals), SC 2008, c 12, specifically addressed this need, and enforced higher maximum penalties for those person’s who acted with cruelty towards animals (see ss. 444(1) to 447.1 of the Criminal Code).

The majority’s interpretation of bestiality subverts the considerable efforts that Parliament has made to protect children and animals. In essence, it makes legal those sexual acts against animals where penetration does not occur. It logically follows from this that, under such an interpretation, a female dog performing sexual acts on a female person, or vice versa, could never be considered an act of bestiality since there could never be penetration by a penis. This seems absolutely absurd to me, and it is difficult to understand how the majority could have missed recognizing this monumental consequence.

In order to overcome the consequences of interpreting bestiality as “buggery with animals,” and therefore, requiring penetration, bestiality must be interpreted as being entirely distinct from buggery and not requiring penetration.

The Future of Animal Welfare in Canada

To recap, we have a trial judgment that focused purely on animal welfare in interpreting the meaning of bestiality, a majority judgment at the BCCA that failed to consider the negative impact of its interpretation on animal welfare altogether, and then a dissenting judgment that viewed bestiality as not requiring penetration without any real discussion of animal welfare.

The Crown appealed the BCCA decision, and the appeal will be heard on November 9, 2015 (although a publication ban will be in effect). So what can we expect from the SCC? One thing is for sure: The hearing of this case at the SCC will most definitely include a discussion on the impact of an interpretation of bestiality on animal welfare.

On September 21, 2015, Animal Justice, a federally incorporated not-for-profit dedicated to advocating for the humane treatment of animals, was granted leave by the SCC to intervene for the purpose of “ensur[ing] that the interest of animals in being free from abuse…is not ignored by the parties” (Animal Justice, Notice of Motion for Leave to Intervene, para 4). While some may not understand the importance or magnitude of Animal Justice bring granted leave to intervene, animal advocates and activists could not be more thrilled.

I recently had the opportunity to speak with Daniel Adler, the president of the Osgoode Student Animal Legal Defence Fund and a former Ian Scott Public Interest Intern at Animal Justice. Mr. Adler stated:

This is the first time in history that the Supreme Court of Canada will hear a case regarding animal welfare. Though this is an ‘as of right’ appeal, the fact that Animal Justice has been granted leave to intervene–for the first time–demonstrates that the SCC does not regard this case as one merely about statutory interpretation, but as one intimately connected to animal welfare. It is very exciting that the SCC will address this, not only for the sake of non-human animals in Canada, but for the sake of the vast majority of Canadians that care about their welfare and treatment.

As noted by Chief Justice Fraser in her dissenting opinion in Reece v Edmonton (City), 2011 ABCA 238, “[t]he past 250 years have seen a significant evolution in the law relating to animals, though admittedly not as far as many might consider warranted” (para 54). (For more on that case, see TheCourt.ca’s analysis here and here.) Granting Animal Justice leave to intervene can be seen as a first step in the right direction towards atoning for Canadian courts’ overwhelming failure to take the welfare of animals seriously, and towards establishing legislation designed to guarantee the rights of animals and enforcing such legislation to their benefit.