36450   R. v. D.L.W

(B.C.)

Criminal law — Bestiality — Elements of offence

Appeal from a judgment of the British Columbia Court of Appeal (2015 BCCA 169), setting aside the conviction for bestiality entered by Romilly J. (2013 BCSC 1327).

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 (6-1): (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 leads 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.

Reasons for judgment: Cromwell J. (McLachlin C.J. and Moldaver, Karakatsanis, Côté and Brown JJ. concurring)

Dissenting Reasons: Abella J.

Neutral Citation: 2016 SCC 22

Docket Number: 36450

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15991/index.do