Crime of Beastiality limited to penetration

Supreme Court of Canada: Principles of statutory interpretation and determination of Parliamentary intent were agitated in the present appeal by the Crown, with Animal Justice as intervener, against the acquittal by the Court of Appeal of D.L.W. (Respondent) of charges of bestiality. In the present case the Respondent was convicted for offences of a sexual nature against his two step-daughters (complainants in the case), including one count of bestiality.  It was found that the accused had spread peanut butter upon the vagina of the older complainant when she was 15 or 16 years old and induced a dog to lick it off, and took a video of the same. The Trial Court held this to constitute bestiality, while a majority of the Court of Appeal did not.

In a 6:1 decision the Court affirmed Court of Appeal  ruling, rejecting the notion bestiality is an offence encompassing sexual activity of any kind between a person and an animal. The issue was whether, under statute, the crime of bestiality required penetration or whether, as the Crown contended, it now included any sexual activity with an animal. Cromwell J., for the majority, cautioned that the elements of the offence of bestiality, considered a subset of buggery in older legislations, were not statutorily indicated. However, buggery necessitated penetration per anum, whether of man, woman or animal. The Court was not authorised to impute liability by creating or defining common law crimes .Without explanation or express alteration by Parliament, bestiality retained the same legal meaning. Significant changes in 1955, in the 1983 code to reflect a gender-neutral understanding of sexual offences, specifically by the removal of penetration as an element of sexual assault, and 1988 revisions that  added child-related offences of bestiality, were held not to have affected or expanded the definition of bestiality as under Section 160 (1) of the current Canadian Criminal Code.  It was further noted that if the current act was viewed as bestiality, the complainant would be in the position of an uncharged offender.

In her dissent Abella, J., indicated that the modernisation of the Statute dispensed with penetration as an element of bestiality. Buggery (anal intercourse under s. 159)  and bestiality (s. 160, including compelling to commit bestiality, and bestiality in presence of or by a child) were separate crimes in the 1955 revision and amendments in 1955 to the Code’s animal cruelty offences widened the protection from exploitative conduct of more animals, showing changes in Parliament’s approach. Following the same, it would be absurd if bestiality were restricted to those animals alone that were anatomically capable of penetration. If interpreted to include all manner of sexual activity, the crime of bestiality would not be expanded, but merely qualified by recognition of the harm of a legal scenario where half the population could not commit, and many animals could not be victimised by bestiality, if it required penetration. [R. v. D.L.W., 2016 SCC 22, Decided on 9-06-2016]

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