Due to the 2016 Supreme Court of Canada decision in R v. D.L.W. a legislative gap has opened, effectively legalizing sexual abuse of animals that falls short of penetration. The status quo risks normalizing deviant sexual behavior, decreasing animal welfare in Canada and, ultimately, increasing the sexual exploitation of vulnerable members of society, including children.
The sexual abuse of animals and its relationship to criminal law can be viewed through several lenses. One is the effect of the offending behavior on the animal and on the moral fabric of society. Another is the relationship of sexual abuse of animals to the sexual exploitation of others, including children.
Generally speaking, criminal law focuses on safety and security, the protection of property and the maintenance of social order. Animal cruelty and bestiality provisions have existed in the Criminal Code in one form or another since 1892. Initially, bestiality was referred to in the Code as "buggery with an animal". In 1955, Canada’s criminal laws were amended to introduce the word "bestiality" into the English version of the Code, though the term was not explicitly defined anywhere in the text. The bestiality provisions of 1955 specified that sex with animals was a vice that was to be criminally sanctioned.
Further revisions were made to the Criminal Code in 1989, outlawing the forcing of children to commit or watch bestiality as measures of child protection. What did not change with the 1989 amendments was the continuing absence of an explicit definition of bestiality in the Criminal Code. Instead, the courts have had to rely on the common law definition of bestiality: "sexual activity with an animal that involves penetration".
Meanwhile, social norms as to the acceptability and morality of animal abuse and sexual exploitation have changed over time, to the point where any touching of an animal for a sexual purpose is clearly recognized as deviant behaviour. At the same time, society’s understanding of animal behavior, emotion and psychology has evolved; we now know that there are psychological aspects of neglect and abuse. With these developments, Canadian society is no longer served by using the common law definition of bestiality as "buggery with an animal".
In R v. D.L.W., the Supreme Court found that penetration between a human and an animal is the essence of the offense of bestiality. The Court further found the accused "not guilty" of bestiality because he had enticed his dog to sexually assault his stepdaughter while he filmed it, but there was no penetration involved.
Since this ruling, it has become clear that, under the Criminal Code as currently worded, penetration is an essential element of the offense of bestiality. As observed in the dissent by Madame Justice R. Abella, "since penetration is physically impossible with most animals and for half the human population, requiring it as an element of the offense eliminates from censure most sexually exploitative conduct with animals". But since the majority of the Court found that this was Parliament’s intent, moving beyond the common law definition of bestiality to include all sexually exploitative conduct with an animal - would be required to fix this legislative gap.
There have already been three cases since the R. v. D.L.W. decision in which child sexual abuse and animal sexual exploitation have been allegedly perpetrated by an accused. These recent events highlight the co-occurrence of the offences, demonstrate the link between animal sexual abuse and the sexual exploitation of children, and underscore the urgency of moving forward on this issue.
Parliament should remedy the legislative gap and clarify the issues described by the majority in R. v. D.L.W. by defining the term "bestiality" to mean any contact for a sexual purpose between a person and an animal.
In October 2018, using Humane Canada's recommended language, the Minister of Justice introduced Bill C-84, which would broaden the definition of bestiality and close this dangerous loophole. The law is currently at second reading before the House of Commons.
PANEL: Cross-Sector Collaboration to Better Address High-Risk Interpersonal Violence and Animal Cruelty
WEDNESDAY, DECEMBER 6
Tracy Porteous, Executive Director, Ending Violence Association of BC
Marcie Moriarty, Chief Prevention and Enforcement Officer, British Columbia SPCA
Teena Stoddart, Sergeant, Ottawa Police Service
Thinking about community safety as a collaborative process is a concept that most cross-sector models responding to high-risk interpersonal violence have at their core. Conducting collaborative risk assessment, collaborative safety planning and collaborative offender management is a prevention-focused, evidence-based approach to managing high-risk cases of interpersonal violence. These innovative models are being implemented in communities across Canada in response to many deaths and as a means to increase information-sharing which in turn allows for more effective risk assessment and safety planning.
- Why Collaborate?
- What does cross sector collaboration look like?
- Expanding our current concepts of who should be involved in community safety initiatives.
With separate degrees in Animal Biology and Law, Marcie Moriarty draws on all aspects of her background and education as head of the BC SPCA's Prevention and Enforcement Department. Marcie was called to the bar in May 2003 and went on to practise civil litigation. Her passion for animal welfare and advocacy soon led her to a career with the BC SPCA in 2005 as General Manager of the society's Cruelty Investigations Department. During her time at the BC SPCA, Marcie has presented to numerous animal welfare and law students on the subject of animal cruelty law and co-taught an animal law class at UBC Law school. In 2012, Marcie took on her current role leading a department that combines both cruelty investigations, stakeholder relations and scientific programs. Read our interview with Marcie Moriarty here.
Tracy Porteous is a Registered Clinical Counsellor who, for 35 years, has been actively involved in a leadership capacity developing tools, resources, programs, collaborative strategies and delivering training to many sectors related to sexual assault, intimate partner violence and child abuse.
Tracy is a three-time Governor General of Canada medal recipient, the most recent in 2014 where she was honoured with the GG medal in recognition of the Persons Case for "exemplary contributions towards the equality of women in Canada".
She was a member of BC’s 2016 Domestic Violence Death Review Panel, was a member of the 2010 DV Death Review panel, and has testified in front of federal Parliamentary committees related to violence against women, the Coroner Inquest into the murders of Sunny Park and her family, and recently assisted the Canadian Chiefs of Police with the development of national best practices related to interpersonal violence.
In 2012, Tracy attended the United Nation’s 57th Commission on the Status of Women in New York as an official delegate from Canada and spoke at a global session about prevention of violence against women.
In 2011 Tracy was honored with a Lifetime Achievement Award by the Child and Youth Representative of BC, Mary Ellen Turpel LaFond, after launching the grounding breaking Be More Than A Bystander; Break the Silence on Violence Against Women campaign with the BC Lions Football Club.
Tracy is the Executive Director of the Ending Violence Association of BC, a Provincial Association that supports 240 anti-violence programs across BC that specialize in responding to sexual and domestic violence, child abuse and stalking. She is also the Co-Chair of the Ending Violence Association of Canada, the national entity that is working with the CFL on the development and implementation of its new national Violence Against Women Policy.
Tracy is regularly invited on CBC radio, CFAX, CKNW, CBC TV, CTV, Global BC TV and various other media outlets as a subject matter expert on issues related to gender-based violence.
Teena Stoddart started out as a constable with the Ontario Provincial Police in 1991, transferring to the Ottawa Police Service in 1998 as part of the amalgamation. She has been a Sergeant since 2001, working in frontline policing, human resources, major case management, and planning, performance and analytics. She was seconded to the Ontario Behavioural Science Unit as a Viclas Analyst, and has also worked in community policing, where she assisted with the implementation of a collaborative policing initiative.
She is presently with the Quality Assurance Electronic Motor Vehicle Collision Unit. As a Sergeant, she was seconded to United Way as a loaned representative for the 2008 campaign, where she managed 33 workplace campaigns. She has volunteered with the Ottawa Humane Society for more than 15 years, assisting with their event planning and was instrumental in organizing a meeting with the Justice Minister's office for CFHS in 2009/2010.